Alhaji Usman Alhaji & Anor. V. Arch (Alh) Kabiru Ibrahim Gaya & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal from the decision of the National Assembly Elections Tribunal-sitting in Kano delivered on 2nd day of November, 2007. The judgment relates to the election in respect of Kano South Senatorial District held on the 21st April, 2007.

The 1st Appellant was a candidate sponsored by the 2nd Appellant in the aforementioned elections for membership of the Senate of the Federal Republic of Nigeria to represent Kano Senatorial District of Kano State of the Federal Republic of Nigeria.

The 1st Respondent was a candidate sponsored by the 2nd Respondent in the aforementioned elections for membership of the Senate of the Federal Republic of Nigeria, to represent Kano South Senatorial District of Kano State of the Federal Republic of Nigeria.

The elections aforementioned were conducted under the supervision of the 3rd – 5th Respondents at the end of which exercise the 3rd Respondent returned the 1st Respondent as the winner of the election.

The Appellants as petitioners were not satisfied with the validity of the return made by the 3rd Respondent and by a petition dated and filed on the 21st May, 2007 which was amended by an order of the Tribunal made on 3rd August, 2007 challenged the said return alleging that the 1st Respondent was not at the time of the election qualified to contest the election and that the facts of the disqualification of the 1st Respondent was so notorious within the Kano South Senatorial District that voters in the constituency who cast their votes for the 1st Respondent knew or had reason to know that they were throwing away or wasting the votes casts for the 1st Respondent. All the Respondents filed their Replies to the petition. The 1st & 2nd Respondents relied on the Reply dated 26th June, 2007. The Reply of the 3rd to 5th Respondents notwithstanding the change of counsel is the one dated 26th June, 2007. The facts of the petition are that the 1st Respondent was Governor of Kano State between 1992 and 1993. By an instrument contained in Exhibit P7, the Military Administrator of Kano State constituted a Judicial Commissioner of Inquiry into certain activities of the State Government between 1992 and 1993 under the Chairmanship of Hon. Justice Wada Omar Kano. The terms of reference of the Judicial Commission of Inquiry which are contained in a schedule to the instrument included enquiry into – “The operations of the following funds between the 1st day of January, 1992 and 31st December, 1993 (both dates inclusive) –

(i) The pension fund; and

(ii) The ecological disaster relief fund;

(iii) Management of the pilgrims Welfare Board between 1992 and 1993.”

Also included in the terms of reference of the Judicial Commission of Inquiry were the following:-

“2. To determine the extent of financial contribution if any made by the Federal Government or any grant made to the funds or accounts during the period.

3. To determine how contribution or grants received pursuant to paragraph 2 above were disbursed or utilized and whether or not any amount was lost through fraud or other forms of malpractice.
4. To identify the officers or other persons involved in any fraudulent transaction or deed in relation to the funds and determine the extent of their liability or culpability.”

Pursuant to the instrument of its appointment and terms of reference the Commission conducted the inquiry and submitted its report Exhibit 5. It extensively reviewed the involvement of the 1st Respondent in various fraudulent schemes pertaining to funds covered under the terms of reference and indicted the 1st Respondent of fraud and embezzlement. In a White Paper contained in Exhibit P8 the Government of Kano State accepted the indictment of the 1st Respondent.

The 1st Respondent challenged his indictment of fraud and embezzlement inter alia by the Commission of Inquiry and the Government White Paper accepting the indictment before the Kano High Court of Justice in Suit No. K/83/98 between the 1st Respondent and Military Administrator of Kano State & Anor alleging them to be unconstitutional, illegal, null and void of no effect whatsoever but the High Court of Justice of Kano Sate in a judgment given on the 28th May, 1998 upheld the constitutionality, legality and effectiveness of the Report containing the indictment for fraud and embezzlement and the White Paper accepting same.

Exhibits P9, 10, 12, 12(1), 13, 13(1), 13(2), 14 & 15 were documentary evidence corroborating the testimonies of PW1, 2, 3 & 4 to the effect that the indictment of the 1st Respondent was well known in Kano South Senatorial District such that the voters who voted for the 1st Respondent knew they were throwing away their votes.

The 1st Respondent at the trial produced Exhibit R1 a Kano State of Nigeria gazette dated the 19th April purporting to revoke the portion of the White Paper indicting the 1st Respondent.

At the conclusion of the trial and delivery of final addresses the Tribunal in a judgment given on the 2nd November, 2007 dismissed the petitions. The Appellants who were the petitioners in the tribunal were not ‘satisfied with the decision of the Tribunal and have appealed to this Court through a Notice of Appeal dated the 22nd November, 2007 containing two grounds of Appeal and have sought leave of this Court to argue two additional grounds contained in the amended Notice of Appeal.

The appeal was heard on the 26th of May, 2008, learned counsel for the Appellant Mr. K.B. Olawoyin informed the court that their brief of argument is dated 18/2/08 and deemed filed on 31/3/08 that they also filed the Appellants’ Reply brief dated 14/4/08 and filed on 15/4/08. Counsel adopted the two briefs and urged the court to allow the appeal.

Mr. B.O. Abbas for the 1st & 2nd Respondents informed the 1st & 2nd Respondents’ joint Brief of Argument is dated 31/3/08 and filed on 4/4/08. Counsel adopted the brief and urged the Court to dismiss the appeal.

Mr. S. Eigbedion for the 3rd to 5th Respondents informed the court that the 3rd to 15th Respondents’ brief of argument is dated 2/4/08 and filed on 3/4/08. That they also filed a Respondent Notice dated 2/4/08 and filed on 3/4/08. Counsel adopted the brief of argument and urged the court to dismiss the appeal.

In his brief of argument learned counsel for the Appellants formulated the following issues for determination.

(i) “What was the appropriate time within the con of Section 145(1)(a) of the Electoral Act 2006 and Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria 1999 for appraising the qualification or disqualification of the 1st Respondent who was seeking elections into the “Senate of the Federal Republic of Nigeria in connection with the general election held on the 21st April, 2007.

(ii) Did Exhibit R1 constitute an executive interference in a matter within judicial competence having regard to the findings of the proceedings in Suit No. K/83/98 Alhaji Kabiru Gaya V The Military Administrator of Kano State and if yes was the National Assembly Election Tribunal obliged by the Constitution to deny recognition to Exhibit R1?

(iii) Notwithstanding its decision on the disqualification of the 1st Respondent was the National Assembly Election Tribunal obliged as a Tribunal whose decision is subject to appeal to make finding on whether the electorates of Kano South Senatorial District/Constituency were aware and had reasonable opportunity of knowing of the facts of disqualification of 1st Respondent on the basis of the evidence before it howbeit in the alternative to facilitate the determination of the matter by this court in the event that this court does not support the decision of the Tribunal on issue of disqualification?

(iv) Is the judgment of the National Assembly Election Tribunal supported by the weight of evidence in this case?”

Learned counsel for the 1st and 2nd Respondents submitted the following issues for determination.

(a) “Was the lower Tribunal right in its interpretation given to the phrase “at the time of the election” in the con of provisions of S.145(1)(a) of the Electoral Act, 2006 and Section 66(1) (h) of the Constitution of Federal Republic of Nigeria 1999 to mean the date of election on 21st April, 2007.

(b) What is the effect of Exhibit R1 on Exhibit P1 containing the judgment in Suit No.K/83/98. Alhaji Kabiru Gaya V The Military Administrator of Kano State?

(c) Was the lower Tribunal obliged or bound to consider and make a finding on whether the electorate of Kano South Senatorial District are aware of the disqualification of 1st Respondent after having found that the indictment was wiped out completely by Exhibit R1? And has the fact of non-consideration of that fact occasioned any miscarriage of justice on the Appellants’ case?

(d) Whether the judgment of the lower Tribunal cannot be supported-by weight of evidence.”

Learned counsel for the 3rd to 5th Respondents submits only one issue for determination and the issue is-

“Whether the indictment constituted by Exhibit P5 and its acceptance by the Government as evidenced, by Exhibit P8 disqualified the 1st Respondent from contesting at the elections to the Senate of the Federal Republic of Nigeria which was held on the 21st day of April, 2007 within the con of the provisions of S.66(1)(h) of the Constitution and S.145 (1)(a) of the Electoral Act 2006.”

The issues as formulated by the parties are similar in all respects accordingly in the determination of this appeal; the issues as formulated, by the Appellants would be treated as they would adequately dispose of the appeal.

ISSUE NO.1: what was the appropriate time within the con of Section 145(1)(a) of the Electoral Act 2006 and Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria 1999 for appraising the qualification or disqualification of the 1st Respondent who was seeking election in the Senate of the Federal Republic of Nigeria in connection with the general election held on the 21st day of April, 2007?

Learned counsel for Appellants submitted that the National Assembly Election Tribunal was wrong when it treated the day of voting i.e. the 21st April, 2007 as at when the qualification or disqualification of the 1st Respondent “to contest the election” into the National Assembly was to be ascertained .. That the error of the Tribunal arose from taking a very narrow view of the elections without having regard to the scheme of the process of elections as set out in the Electoral Act 2006 and Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria. Learned counsel for the Appellants submitted that it seem very settled and good law that the purpose of interpretation of statute or any section ot the Act of National Assembly is to discover the intention of the legislature. Furthermore it seems equally well settled that in endeavouring to discover the legislative intention of any Act of parliament or section thereof, the statute should be interpreted as a whole and not in isolation – reference made to AQUA LTD V ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622 AT 642; ODUTOLA HOLDINGS LTD & ORS V MR. KUNLE LADEJO & ORS (2006) 12 NWLR (PT.994) 321 AT 350, ALHAJI AMINU DANTSHOHO V ALHAJI ABUBAKAR MOHAMMED (2003) 6 NWLR (PT.817) 457 AT 492; CHIEF CHUKWU EMEKA ODUMEGU V CHIEF OLUSEGUN OBASANJO & ORS. (2004) 12 NWLR (PT.886) 169 AT 197.

As to what then was the legislative intention of the National Assembly when it enacted in Section 145(1)(a) of the Electoral Act 2006 the right to question all election where the person whose election is questioned was at the time of the election not qualified to contest the election, learned counsel for the Appellants submitted that the word “Election” had been interpreted by this Court to mean a process’ which goes beyond merely voting and includes delimitation of constituency, nomination, accreditation, voting itself, counting, collation and return or declaration of result. Reference made to OJUKWU V OBASANJO (SUPRA); SECTION 32(1)-(6) OF THE ELECTORAL ACT 2006.

That the Tribunal in its judgment particularly at page 364 of the record of appeal held that “at the time of the election” in Section 145(1)(a) meant on the 21st April, 2007 being the date of voting. Learned counsel argues that the significant light thrown by Section 32 of the Electoral Act 2006 on the meaning of Section 145(1)(a) of the same Act are as follows:-

(i) In the matter of qualification or disqualification of persons contesting the election, the legislator never intended to leave the evaluation or ascertainment of qualification or disqualification until voting day. That explains why the legislature in Section 32(1) of the Act stipulated, that the personal particulars of the person seeking office in the general elections has to be submitted by his political party not later than 120 days before the date the casting of ballot will take place.

(ii) The legislature also stipulated that any person seeking office in the general election has at the same time that his political party is submitting his name to state on the pain of an oath that he at that date has fulfilled the constitutional requirement for qualification and that he is not disqualified from seeking election to the office. It is important to emphasize that the statutory oath required of the person is that at the date of his oath he has fulfilled the constitutional requirement for the office and NOT that he will FULFILL the constitutional requirement for the office.

(iii) There is a clear and manifest legislative purpose in the scheme of the Act in setting this regime with regard to disclosure of qualification and it is this that the legislature deliberately sought to ensure that persons seeking office disclose the particulars including statements of the qualification or disqualification in sufficient time to enable the electorate play an active role in evaluating or challenging alleged qualifications.

Learned counsel for the Appellants contended that these insights gathered from related provisions of the Act clearly show beyond doubt that legislature intended matters of the qualification or disqualification of persons seeking office in a general election to be dealt with during the nominatian phase of the election process and therefore “at the tine of the election” referred to in Section 145(1)(a) of the Act, could only mean during the nomination phase of the election process .

Learned counsel further submitted that in the interpretation of statutes the courts are enjoined to adapt that interpretation that will further and promote the objects and purpose of the legislation rather than those that destroy the 1egislative purpose – reference made to AQUA LTD V ONDO STATE SPORTS COUNCIL (SUPRA) 639.

Learned counsel for the Appellants urged the Court to hold that the appropriate time for determining whether the 1st Respondent was qualified to contest the election held on 21st April, 2007 was the date of nomination 60 days before the 21st April, 2007 and to overrule the decision of the lower tribunal to the effect that it was on voting day.

In response to the submissions of the learned counsel for the Appellants on Issue NO.1, learned counsel for the 1st and 2nd Respondents submitted that the lower Tribunal was very correct in its interpretation of the phrase “at the time of election” to mean on the date of election which happened to be 21st April, 2007. That the lower Tribunal was also correct when it held that Exhibit R1 has totally wiped out the indictment of 1st Respondent because it was made before the date of election and by a competent authority i.e. Kano State Government. Learned counsel for the 1st and 2nd Respondents submitted that the first rule of statutory interpretation is to give the unambiguous words of a statute or constitution their clear natural or common usage meaning without resulting to any intrinsic aid – reference made to AWOLOWO V SHAGARI (2001) FWLR (PT.73) 53; UGWU V ARARUME (2007) ALL FWLR (PT.377) 807 AT 811. Learned counsel for the 1st and 2nd Respondents contends that without doubt and without resulting to any intrinsic aid, the meaning of the phrase “at the time of election” can only mean one thing and that is at-the date of election on 21st April, 2007. That it is submitted is the natural and clear meaning of that phrase and that any contrary meaning ascribed to the phrase will lead to serious absurdity: Learned counsel for the 1st and 2nd Respondents argues that Appellants’ counsel submissions that the phrase “at the time of election” means and include at the time of nomination is not only misleading but absurd and patently against the established cannon of interpretation of statutes. Further, learned counsel for the 1st & 2nd Respondents contend that it is true and correct in law to discover the intention of legislature to consider the entire provision of a statute or constitution while interpreting such provision, the exercise should be proceeded with effort to give the words of such provisions their clear natural and common meanings – reference made to A.C. V INEC (2007) ALL FWLR (PT.378) 1012 AT 1016; OKOTIE-EBOH V MANAGER & 2 ORS (2005) FWLR (PT.241) 277 AT 287.

Learned counsel for the 1st & 2nd Respondents submitted that in the instant appeal for the purposes of determining the intention of the legislature, other provisions of the Electoral Act would have to be examined to see whether it is the intention of the legislature to make time for nomination part of the time for election. That the contention of Appellants’ counsel that Section 32(1-6) is in support of his position that time of election include time of nomination is illogical and absurd. This is because even the subsection 1 of Section 32 clearly demarcates the time of election from the period of nomination when it provides thus – S. 32(1). “Every political party shall not later than 120 days before the date appointed for a general election under the provision of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the election.

Counsel for the 1st & 2nd Respondents contends that it is clearly seen that the date appointed for a general election and the words “propose to sponsor at the election” show that the legislature did not intend to include 120 days given for nomination and that is why the section talks of before the date appointed. Learned counsel referred to Section 37(1) of the same Electoral Act 2006 and contends that the legislature never intended the time of election to mean of include time of nomination by the clear unambiguous words used in the sections of the statutes quoted. That similar phrase used in Section 145(1)(a) of the Act cannot under any stretch of imagination mean period of nomination. Counsel for the 1st & 2nd Respondents further contends that in further attempt to discovering the intention of the legislature as regards the meaning of the phrase “at the time of election” Section 32(4) of the Electoral Act, 2006 makes provision for method of challenging information contained in a candidate’s affidavit where a person suspects they are false at either Federal High Court or State High Court while making different procedure for challenging election of a winner at the Election Tribunal that this is clearly deliberate. That the case of OJUKWU V. OBASANJO (SUPRA) is not in support of the Appellants’ contention on this issue.

Learned counsel for the 1st & 2nd Respondents argues that contrary to the contention of the learned counsel for the Appellants that the lower Tribunal conmmitted error by viewing the provisions of Section 145(1)(a) of the Electoral Act, 2006 and Section 66(1)(h) of the 1999 Constitution narrowly the highest court of the land had always taken narrow and strict method of interpretation of any provisions of a statute or the Constitution where such provisions will encroach on the rights of citizen whether in person or property reference made to OKOTIE-EBOR V MANAGER & 2 ORS (SUPRA) AT 288; AQUA LTD V ONDO STATE SPORT COUNSEL (1988) 4 NWLR (PT.91) 622 AT 628; ABOIYE V YAKUBU (1991) 5 NWLR (PT.190) 130 AT 146.

Further, counsel for the 1st & 2nd Respondents argues that in the way election was described by this Court in the case of IGODO V ONWULO & 5 ORS (1999) 5 NWLR (PT.601) 70 AT 71, no one is left in doubt that election goes not mean nor include nomination as the Appellants would want the court to believe.

It is further submitted for the 1st & 2nd Respondents that from the various decided cases cited in support and the clear and unambiguous wordings of Section 145(1)(a) of the Electoral Act, 2006 as well Section 66(1)(h) of the 1999 Constitution of Nigeria, the phrase “at the time of election” means at the date of election which was 21st April, 2007. And since Exhibit R1 was promulgated earlier than 21st April, 2007, the 1st Respondent is never caught by provisions of Section 145(1) (a) of the Electoral Act 2006. That as regards the provisions of Section 66(1)(h) of the 1999 Constitution, learned counsel for the 1st & 2nd Respondents submitted, that mere indictment of any candidate by a Judicial Commission or Administrative Commission of Inquiry is not enough to disqualify a candidate – reference made to ACTION CONGRESS V INEC (2007) ALL FWLR (PT.378) 1012 AT 1024; OKOTIE-EBOH V MANAGER (SUPRA). Learned counsel for the 1st & 2nd Respondents contends that following the findings of the lower Tribunal and decided, authorities cited, Issue NO.1 should be resolved against the Appellants and the judgment of the lower Tribunal that the 1st Respondent was not indicted at the time of election on 21st April, 2007 be upheld.

In his response to the submissions of the learned counsel to the Appellants on Issue No. 1, learned counsel for the 3rd to 5th Respondents submitted that the correct conclusions were arrived at by the Tribunal in the interpretation of the words “at the time of the election” as contained in Section 145(1)(a) of the Electoral Act 2006.

In reply on points of law, learned counsel for the Appellants submitted that the words “date” and “time” are not necessarily synonymous. Although both words gather their life within the con of their use, learned counsel for the Appellants argues that in the con of the Sections referred to by the 1st & 2nd Respondents the true meaning of “date” and “time” is “the day when an event happens” and so refers to a specified day with reference to when the even occurs. “Time” on the other hand is associated with a duration and in the con of Section 145(1)(a) relates to a duration when a number of events associated with election occurs. Further learned counsel, for the Appellants contends that when a legislature uses different words prima-facie different meanings are intended and the legislature intended “date” and “time” to have different meanings in the con of their use in the Electoral Act 2006.

ISSUE NO.1: What is the appropriate time within the con of Section 145(1)(a) of the Electoral Act 2006 and Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria 1999 for appraising the qualification or disqualification of the 1st Respondent who was seeking elections into the Senate of the Federal Republic of Nigeria in connection with the general election held on the 21st April, 2007.

From the totality of facts as can be gathered from the records of appeal before the Court, Issue No. 1 is basically whether by the contents of Exhibit P8 the White Paper in which the Government of Kano State accepted the indictment of the 1st Respondent, the 1st Respondent is disqualified from seeking elections into the Senate of the Federal Republic of Nigeria in connection with the general election held on 21st April, 2007. If the answer is in the affirmative what is the effect of Exhibit R1 a Kano State of Nigeria gazette dated the 19th April, 2007 purporting to revoke the portion of the White Paper indicting the 1st Respondent.

The lower Tribunal in its judgment made a finding of fact on the issue of indictment of the 1st Respondent at pages 345-346 of the printed record the trial Tribunal stated thus:-

“We are therefore satisfied that from the above testimonies of PW1, PW2, PW4 and RW1 and more particularly the production of Exhibits P5, P7 and P8 that the petitioners have satisfied the Constitutional requirements under Section 66(1)(h) of the 1999 Constitution and accordingly has proved that the 1st Respondent was indicted. See Umana V Attah (2004) 7 NWLR (Pt.871)) 63; Daggash V Bulama (2004) 14 NWLR (Pt.892) 144; Adamu V Gwadabawa (1999) 3 NWLR (Pt.594) 256, see also paragraph 7 page 4 of Exhibit 1 which is the judgment of Haliru J, delivered on 28th May, 1998 where the learned trial Judge held:

‘In deciding the case at the hand (sic) it is pertinent to state that it is not in doubt that the plaintiff was indicted in both Exhibit 5 (the report of the Commission) and Exhibit 7 (the White Paper) because that was the basis of his being ask to refund some money to the Government.’

The plaintiff in Exhibit P1 is the 1st Respondent herein. Having found that the 1st Respondent was indicted by the Judicial Commission of Inquiry which was accepted by the State Government, the next question to consider is whether the disqualification of the 1st Respondent is legally valid up till the date of the election held on 21/4/07?”

The trial Tribunal also made a finding of fact and effect of Exhibit R1 that is a Kano State of Nigeria gazette dated the 19th April, 2007 purporting to revoke the portion of the White Paper indicting the 1st Respondent. At page 364 of the printed record the trial Tribunal stated thus:- “The time a person contested the election to us have no other meaning than the date of the election. The date of the election to the Kano South Senatorial District as agreed upon by all the parties which we also take judicial notice of was 21/4/2007. It is therefore our view arising from the above interpretation “at the time of the election” used in Section 145(1)(a) of the Electoral Act 2006 that since Exhibit R1 came into being before the date of the election revoking the indictment of the 1st Respondent as contained in Exhibit P.5 and as accepted by the Kano State Government in Exhibit P8, that the disqualification of the 1st respondent is not legally valid up till the date of elections on 21/4/07. The indictment has been effectively wiped out as at the date of Exhibit R1 on 19/4/2007.”

In the appeal at hand, the crucial question to be determined is what constitutes an indictment under Section 66(1)(h) of the 1999 Constitution that will disqualify the 1st Respondent from contesting election into the Senate of the Federal Republic of Nigeria. Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria 1999 states:-

“S.66(1): No person shall be qualified for election to the Senate or the House of Representatives if –

(h) He has been indicted for embezzlement or fraud by a judicial conmmission of inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government respectively.”

The Supreme Court in OKOTIE-EBOH V. MANAGER (SUPRA) at page 291 defines what indictment in the following words is:-

“As an indictment implies a charge which must be proved beyond all reasonable doubt before an accused may be convicted, it seems certain that the term ‘indictment’ in the con it is used in the to wit Section 66(1)(h) of the Constitution, 1999 embraces an allegation or committal of something in the nature of a felony in which act having been committed has occasioned the drafting of a charge with a view to prosecuting the person.”

Further, the Supreme Court in ACTION CONGRESS V INEC (SUPRA) while interpreting Section 137(1)(i) of the 1999 Constitution which is word by word similar to Section 66(1)(h) of the 1999 Constitution states thus:-

“Section 137(1)(i) of the 1999 Constitution which disqualifies a person from contesting election to the office of President if he has been indicted for embezzlement or fraud is not self-executing. To invoke against any candidate the disqualification therein provided would require an inquiry as to whether the Tribunal of Administrative Panel that made the indictment is of the nature of kind contemplated by Section 137(1)(i) read together with other relevant provisions of the Constitution in particular Section 36(1) which provides that ‘In the determination of his civil rights and obligations, including-any question or determination by or against any government or authority, a person shall be entitled to fair hearing within reasonable time by a court or other tribunal established by law, and constituted in such manner as to secure the independence or impartiality as well as Section 36(5) of the said Constitution which states that ‘every person who is charge with a criminal offence shall be presumed to be innocent until he is proved guilty.’

The disqualification in Section 137(1) clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of safeguards in Section 36(1) and (5) of the Constitution. The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for criminal offences of embezzlement or fraud. Clearly the imposition of penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for those offences by an Administrative Panel of Enquiry implies a presumption of guilt, contrary to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, whereas, convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power. (Sofekon V Akinyemi (1981) 1 NCLR 135; Garba V University of Maiduguri (1986) 1 NWLR (pt.18) 550 referred to).”

Further, in the same judgment Musdapher, JSC at page 266 states thus:-

“The indictment of embezzlement against a person to deprive him of the right granted by Section 131 of the Constitution to contest or vie for the post of the President of the Republic is a serious matter and the issue can only be pronounced by the judicial branch. Such serious issues are riddled with complex questions of law and facts which are by the provisions of the Constitution in the exclusive preserve of the judiciary, no executive body should have the power or competence to unravel such serious and far reaching complex issues without a proper recourse to the proper judicial process.”

Again while interpreting the provisions of Section 182(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 ‘which is also word by word similar with the provisions of Section 66(1)(h) of the same Constitution, the Supreme Court in ‘AMAECHI V INEC (2008) 5 NWLR (PT.1080) 227, the Supreme Court states as follows:-

“The aim of Section 182(1)(1) of the 1999 Constitution is to ensure that only persons of impeccable character and integrity is eligible for the office of a Governor of a State. It is to ensure transparency and high standard of probity in governance. It is not to be used as an instrument by politicians to hinder the emergence of their opponents or adversaries as governors, regrettably, the said provision has been used to witch-hunt and victimize. It is a provision which in its application must be read and construed along with other provisions of the 1999 Constitution in Section 36(1)(2)(3) (4) and (5).”

At pages 306-307 of the judgment Oguntade, JSC states thus:-

“It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a court of law. A Judicial Commission of Inquiry or an Administrative Panel is not the same thing as a court of law or its equivalent. Because a court of law operates within a judicial hierarchy any person wrongly convicted is enabled to contest his conviction to’ the Supreme Court of Nigeria. This is a right granted by the Constitution of Nigeria. It has not been curtailed or abridged by Section 182(1)(i) above. It seems to me that Section 182(1)(i) only enables a Judicial Commission of Inquiry or Administrative Tribunal to determine the culpability of a citizen where it is alleged that such citizen has been in breach of standards of behaviour expected in public life. Where such inquiry or tribunal finds a citizen liable or culpable of a conduct bordening on criminality, and the Federal or State Government accepts such report through a published White Paper, it is still not good enough to deny citizen eligibility and until he is afterwards prosecuted in a court of law and found guilty. This approach in my view is buttressed by Section 182(2) of the 1999 Constitution which provides:-

“182(2) – Where in respect of any person who has been –

(a) adjudged to be a lunatic;

(b) declared to be of unsound mind;

(c) sentenced to death or imprisonment; or

(d) adjudged or declared bankrupt, an appeal against such decision is pending in any court of law in force in Nigeria, subsection (1) of this Section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or as the case may be, the appeal lapses or is abandoned which ever is earlier.”

It is simply impermissible under a civilized system of law to find a person guilty of a Criminal offence without affording him the opportunity of a trial before a court of law in the country. See also article 7(1)(a) of the African Charter or Human Rights Cap 10, Laws of the Federation. The court below would appear not to have paid heed or attention to the reasoning of this Court in Action Congress & Action Independent National Electoral Commission INEC (supra) in that Amachi was indicted. Indeed, Amaechi needed not have asked his supposed indictment to be set aside by Kuewumi since the same was not in any case cognizable under the law. No court of law ought to pay an iota of regard to such alleged indictment.”

It is clear from the decisions of the Supreme Court in ACTION CONGRESS & ANOR V INEC (SUPRA) and AMAECHI V INEC (SUPRA), before a citizen can be disqualified to contest an election as a result of an indictment by Judicial Commission of Inquiry or Administrative Tribunal even where such an indictment has been published in a White Paper, still such a citizen has to be prosecuted in a court of law and found guilty before he could be disqualify to contest an election under Section 66(1)(h) of the 1999 Constitution of the Federal Republic of Nigeria.

In the appeal at hand, the 1st Respondent was indicted by a Judicial Commission Inquiry set up by the Kano State Government, the indictment is contained in White Paper contained in Exhibit P8 which was accepted by the Kano State Goven1ment in a gazette dated 19th April, 2007 and tendered before the trial Tribunal as Exhibit R1; Exhibit R1 sought to revoke the portion of the White Paper indicting, the 1st Respondent contained in Exhibit P8.

Now the Supreme Court in very clear terms in the cases of ACTION CONGRESS & ANOR V INEC (SUPRA) and AMAECHI V INEC (SUPRA) has stated that where a Judicial Commission of Inquiry or Administrative Tribunal finds a citizen liable or culpable of a conduct bordering on criminality, and the Federal or State Government accepts such report through a published White Paper, it is still not good enough to deny a citizen eligibility to an elective office of whatever kind contained in the Constitution of the Federal Republic of Nigeria 1999 unless and until he is afterwards prosecuted in a court of law and found guilty.

In the instant appeal, it is an undisputed fact that the 1st Respondent was never prosecuted and found guilty for his indictment for fraud and embezzlement contained in Exhibit P8 the White Paper which the Kano State Government published after its acceptance of the Report of the Judicial Commission of Inquiry which it set.

As the law stands today the 1st Respondent despite the contents of Exhibit P8 is qualifed to contest election into the Senate of the Federal Republic of Nigeria. The indictment contained in Exhibit P8 cannot be used to disqualify him with or without Exhibit R1 accordingly Issue No.1 is resolve against the Appellants in favour of the Respondents.

ISSUE NO.2: Did Exhibit R1 constitute an Executive Interference in a matter within judicial competence having regard to the findings of the National Assembly Election Tribunal in connection with the proceedings in Suit NO.K/83/98 – Alhaji Kabiru Gaya v. The Military Administrator of Kano State, and if yes was the National Assembly Election Tribunal obliged by the Constitution to deny recognition to Exhibit R1? I have duly considered all the submissions of learned counsel to the parties on Issue No.2. With the decision of the Supreme Court in ACTION CONGRESS & ANOR V. INEC (SUPRA) and AMAECHI V INEC (SUPRA) with or without Exhibit R1 the 1st Respondent is qualify to contest election into the Senate of the Federal Republic of Nigeria. It is therefore my firm view that with regard to the qualification of the 1st Respondent to contest the election Exhibit R1 goes to no issue and Issue No.2 is resolved against the appellant in favour of the Respondents.

ISSUE NO.3: Notwithstanding its decision on the disqualification of the 1st Respondent was the National Assembly Election Tribunal obliged as a Tribunal whose decision is subjection to appeal to make finding on whether the electorate of Kano South Senatorial Constituency were aware and had reasonable opportunity of knowing of the facts of disqualification of 1st Respondent on the basis of the evidence before it howbeit in the alternative to facilitate the determination of the matter by this court in the event that this court does not support the decision of the Tribunal all issue of disqualification?

I have given due consideration to the submissions of learned counsel to the parties all issue No.3. The issue is basically on whether the lower Tribunal was obliged or bound to consider and make a finding on whether the electorate of Kano South Senatorial District are aware of the disqualification of the 1st Respondent after having found that the indictment was wiped out completely by Exhibit R1? And has the fact of non-consideration of that fact occasioned any miscarriage of justice on the Appellants’ case?

At pages 368-369 of the printed record the trial Tribunal held thus:-

”It is to be noted that issue No.2 is dependent on Issue No.1. The issue is ‘if the 1st Respondent is not qualified to contest at the time of the election whether the fact of his disqualification to contest the election is not a notorious one known to the electorates of Kano South Senatorial District.’ We have resolved issue No. 1 in favour of the 1st respondent. We held that 1st Respondent was at the time of the elections on 21/4/07 qualified to contest election for Kano South Senatorial District in view of revocation of the indictment against him by Exhibit R1. It therefore follows in our view that it becomes purely academic exercise to consider whether the electorates of Kano South Senatorial District have the knowledge that the 1st Respondent was disqualified from contesting the election. It will definitely not be in accord with our decision on Issue NO.1. Rather it will run counter to the said decision. It is only if we find under issue No.1 (and which is for the case) that the 1st Respondent was disqualified as at the date of the election to contest the election for Kano South Senatorial District, in view of the indictment contained in the Report of the Judicial Commission of Inquiry set up by Kano State Government in 1995 and as accepted by the Kano State Government in a White Paper published in an extraordinary Issue of Kano State of Nigeria Gazette No.1 Vol 31 of 26th February, 1998 that we can proceed to consider whether the fact of his disqualification is a notorious one to the electorates of Kano South Senatorial District. The attitude of the courts nay tribunals is not to indulge in any academic point or hypothetical questions. In the instant case, to begin to consider whether the disqualification of the 1st Respondent is a notorious fact to the electorates of Kano South Senatorial District when we have indeed held that he was not disqualified from contesting the election will become a mere and pure academic exercise. We accordingly refrain from doing so.”

The main issue of contention before the lower Tribunal as between the Appellants and Respondents was the qualification of the 1st Respondent to contest at the time of the election on 21st April, 2007 and since the lower Tribunal had considered extensively the issue and found that the 1st Respondent was qualified to contest at the time of election, in reality the consideration of the matter contained in the second issue becomes mere academic and futile exercise as it will not serve any useful purpose in the judgment but since the decision of the lower Tribunal is subject to appeal, the proper and rationale thing for the lower Tribunal is to consider and pronounce on all grounds or issues raised by a party. However, failure to do so is not necessarily fatal to the judgment if it does not occasion a miscarriage of justice.

In the instant appeal, it has not been shown by the Appellants that the non-consideration of Issue No.2 formulated by the lower Tribunal in its judgment is fatal and substantially affected the judgment. The main issue in contention between the parties at the lower Tribunal is whether the 1st Respondent is qualified to contest the election to Senate and by the decisions of the Supreme Court in ACTION CONGRESS & ANOR V INEC (SUPRA) & AMAECHI V INEC (SUPRA) the 1st Respondent is qualified to contest the election. Accordingly Issue NO.3 is resolved against the Appellants in favour of the Respondents. ” .

ISSUE NO.4: Is the judgment of the National Assembly Elections Tribunal supported by the weight of evidence in this case?

I have fully considered the submissions of learned counsel to parties. In this appeal the main issue of contention between the Appellants and the Respondents is whether at the time of the election to the senate on 21st April, 2007 the 1st Respondent was qualified to contest the election, The main ground to the challenge of his qualification to contest the said election was that he was indicted for fraud and embezzlement in a White Paper contained in Exhibit P8 which indictment was accepted by the Kano State Government.

Earlier in this judgment I have stated that the Supreme Court in the cases of ACTION CONGRESS & ANOR V INEC (SUPRA) & AMAECHI V INEC (SUPRA) has stated in no uncertain terms that where a judicial Commission of Inquiry or Administrative Tribunal finds a citizen liable or culpable of a conduct bordering on criminality and the Federal or State Government accepts such report through a published White Paper, it is still not good enough to deny a citizen eligibility to an elective office of whatever nature contained in the Constitution of the Federal Republic of Nigeria 1999, unless and until he is afterwards prosecuted in a court of law and found guilty.

In the appeal at hand, it is an undisputed fact that the 1st Respondent was never prosecuted and found guilty for his indictment for fraud and embezzlement contained in Exhibit P8 the White Paper which the Kano State Government published after its acceptance of the Report of the Judicial Commission of Inquiry which it set up.

In ACTION CONGRESS V INEC (SUPRA) Ogbuagu JSC stated thus:-

“Conviction for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power. Once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where they would be sure of getting a fair hearing. No other tribunal, investigating panel or committee will do. The authority and jurisdiction of the courts of this country cannot be usurped by either the executive or legislative branch of the Federal or State Government under any guise or pre whatsoever.”

Now since there is nothing to show that the 1st Respondent was prosecuted and found guilty as a result of his indictment contained in Exhibit P8, Issue No. 4 is resolved against the Appellants in favour of the Respondents.

Learned counsel for the 3rd, 4th and 5th Respondents filed a Respondents’ Notice to contend that, judgment should be affirmed on grounds other than those relied upon by the Tribunal below. The Respondents’ Notice was brought pursuant to Order 9, Rule 2 of the Court of Appeal Rules 2007. It is dated 2nd April, 2008 and filed on 3rd April, 2008. The grounds for the 3rd, 4th & 5th Respondents’ Notice are as follows:-

“1. The indictment on the 1st Respondent constituted by Exhibits P5 and P8 dated 26th February, 1998 are not such as could disqualify the 1st Respondent from contesting for office of senator within the con of Section 66(1)(h) of the 1999 Constitution and Section 145(1) of the Electoral Act 2006.

2. The 1st Respondent was at no time disqualified from Contesting for the office of Senator of the Federal Republic of Nigeria.”

Already in the determination of this appeal I have extensively dealt with all the issues raised in the 3rd, 4th & 5th Respondents’ Notice to contend that the judgment should be affirmed on grounds other than those relied upon by the Tribunal below as such I do not consider it necessary to canvass the grounds raised in the Notice.

In the result, since, all the issues for determination in this appeal have been resolved against the Appellants in favour of the Respondents, the appeal is totally lacking in merit and being devoid of any merit, it is hereby dismissed. The judgment of the lower Tribunal delivered on 2nd day of November, 2007 in Election Petition No. EPT/KNS/SEN/28/2007 is affirmed on the grounds contained in the decisions of the Supreme Court in the cases of ACTION CONGRESS & ANOR V INEC (2007) 12 NWLR (PT.1048) 220; & AMAECHI V INEC (2008) 5 NWLR (PT.1080) 227.

The Respondents are entitled to costs. Each set of Respondents is awarded a costs of =N=20,000.00 against the Appellants.

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Other Citations: (2008)LCN/2931(CA)