Alhaji Usman Nasamu Saidu V. Abubakar Mallam Abubakar & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

On the 14th of April, 2007 the Independent National Electoral Commission (INEC) as the statutory body responsible for conducting election, organized and conducted the Governorship and Legislative Houses election through out Nigeria.

In Kebbi State, election into the office of Governor was vied for and contested by the following candidates;

(1) Inuwa Bawa – Action Congress (AC)

(2) Alhaji Abdullahi Ibrahim – African Democratic Congress (ADC)

(3) Engr. Abubakar Bala D/Ango – All Progressive Grand Alliance (APGA)

(4) Senator Farouk Bello Bunza-All Nigeria Peoples Party (ANPP)

(5) Abubakar Mallam Abubakar – Democratic Peoples Party (DPP)

(6) Salihu Isa Nataru – National Democratic Party (NDP)

(6) Alhaji Nasamu Saidu Usman – Peoples Democratic Party (PDP)

(8) Adamu Usman – Progressive Peoples Alliance (PPA)

The result of the election as collated by INEC declared the 1st appellant in this appeal Alhaji Nasamu Saidu Usman who contested under the platform of the PDP – the 2nd appellant as the winner of the election having scored the highest number of votes and returned him as the duly elected governor of Kebbi State.

The 1st and the 2nd respondents Abubakar Mallam Abubakar and the Democratic Peoples Party (PDP) dissatisfied with the return of the 1st appellant as the Governor of Kebbi State filed a 168 paragraph petition on 14/5/07 before the Governorship/Legislative Houses Election Petition Tribunal for Kebbi State sitting in Birnin Kebbi (hence to be referred to as the lower tribunal) on the underlisted grounds;

(1) The 1st respondent was at the time of the election, not qualified to contest the election.

(2) The election was invalid by reason of corrupt practices and/or non-compliance with the mandatory provisions of the Electoral Act, 2006.

(3) The 1st respondent was not duly elected by majority of lawful votes cast at the election.

It is noteworthy to state here that the lower tribunal consolidated the petition giving rise to this appeal with another petition filed by Senator Farouk Bello Bunza and his party the All Nigeria Peoples Party (ANPP) and jointly tried them.

The 1st and 2nd appellants as 1st and 2nd respondents before the lower tribunal entered a conditional appearance on the 28th May, 2007. They also raised a preliminary objection on the same day and also their reply to the petition. The 3rd appellants herein as 3rd respondents therein filed a joint reply to the petition on the 12th June, 2007.

The preliminary objection challenged the competence of the petition and the jurisdiction of the lower tribunal to entertain same. The objection was heard and dismissed by the lower tribunal in its ruling which was delivered on the 12/7/2007.

At the conclusion of the pre-trial session, all counsel in the petition agreed to dispense with calling of witnesses and cross examination and opted to adopt and rely on the written depositions annexed to the petitions and the replies thereto.

Consequently, parties adopted the written depositions of their witnesses and tendered all documents relied upon across the bar. Counsel thereafter submitted written addresses on points of law.

The lower tribunal in a considered judgment delivered on the 20th October, 2007 dismissed ground 3 of the petition and upheld ground one in allowing the petition, and consequently declared as null and void the election and return of the 1st respondent to the petition as Governor of Kebbi State being not qualified to contest the election, and also ordered INEC to conduct a bye-election for the office of Governor of Kebbi State in Petition No. 1. Petition No. 2 was found to lack merit and dismissed by the lower tribunal.

The subject of this appeal is petition No. 1 whereby all the 3 sets of respondents separately appealed and the petitioners who are the respondents in this appeal also cross appealed. The 1st and 2nd appellants who jointly responded to the petition before the lower tribunal have now appealed separately. The 3rd – 318th respondents have also jointly appealed as the 3rd appellants before this court.

The 1st appellant as represented by learned counsel led by Olanipekun, SAN filed a notice and grounds of appeal on the 9th of November, 2007 consisting of 19 grounds. This was amended with leave of court granted on the 19/1/08. The 2nd appellant, the Peoples Democratic Party also filed a notice and grounds of appeal on the 29/10/07. The said notice contains 11 grounds of appeal.

The 3rd appellants, representing the 3rd – 318th respondents before the lower tribunal relied in their 2nd notice and grounds of appeal filed on 7/11/07 containing 9 grounds of appeal.

The petitioners as 1st and 20th respondents in this appeal apart from responding to the 3 appeals listed above also filed a cross-appeal in the 10/11/07 consisting of 6 grounds of appeal.

As is the practice in this court, parties filed and exchanged their respective briefs of argument which were adopted and relied upon at the hearing of this appeal on the 21/2/08.

In the circumstances, I will consider each of the appeals separately and finally consider the cross appeal. I will term the 1st appeal brought by the 1st appellant as appeal no. 1, the 2nd appeal brought by the PDP will be appeal No.2 and appeal No.3 will be the appeal filed by the 3rd – 318th appellants. However, a determination of the first appeal will be a determination of the other two appeals as they are all based on the same facts and issues.

APPEAL 1

In this appeal, Alhaji Saidu Nasamu Usman is the appellant while Abubakar Mallam Abubakar and the DPP are the respondents. As shown above the appeal is premised on 19 grounds of appeal as contained in an amended notice and grounds of appeal deemed filed on the 19/1/08.

In the brief of argument for the 1st appellant, the following issues were distilled for the determination of the appeal.

1. Considering the clear provisions of sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 dealing with qualification and disqualification for election as Governor, read together with section 285(2) of the same Constitution delineating the jurisdiction of the lower tribunal and section 145(1)(a) of the Electoral Act, 2006, whether the lower tribunal has jurisdiction to entertain the petitioner’s petition as formulated and/or altogether – (grounds 2, 4, 5, 6 and 12).
2. Having regard to the position of the petitioners as member of the Democratic Peoples Party (DPP) and

Democratic Peoples Party respectively vis-a-vis their challenge to appellants sponsorship by and/or election on the platform of the Peoples Democratic Party (PDP), whether or not the petitioners are vested with the locus standi or the necessary cause of action to challenge appellants’ election as the Governor of Kebbi State (Grounds 3 and 16)

(3) Whether or not the lower tribunal was not in grave error in holding that the appellant was not qualified to contest election into the office of Governor of Kebbi State on 14th April, 2007 and thereby nullifying his election – (grounds 1, 5, 7, 8, 9, 10, 14, 15 and 17).

(4) Having rightly struck out ground 3 of the petition for failure of the petitioners/respondents to comply with the mandatory provision of paragraph 14(1)(c) of the 1st Schedule to the Electoral Act, 2006, whether or not the lower tribunal was not in grave error for failing to strike out the entire petition and/or for suo motu saving grounds 1 and 2 or the other grounds altogether (ground 13).

(5) Considering the clear provisions of section 146(1) of the Electoral Act, 2006, whether the lower tribunal was not in serious error to have nullified the election of the appellant – (ground 11)

(6) Having regard to the pleadings and evidence before the lower tribunal, as well as the circumstances of this case, whether the lower tribunal was not wrong and perverse in its judgment – (ground 19.)

(7) Having regard to the fact that five Justices sat at the lower tribunal and 2 of them did not sign the judgment of the lower tribunal, whether or not the said judgment is not a nullity – (ground 18.)

The 1st and 2nd respondents in response to the 1st appellant’s brief identified these issues;

1. Considering the clear provisions of Sections 177, 182 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 34, 36, 38, 144 and 145(1)(d) of the Electoral Act, 2006, and evidence led, whether the trial tribunal acted within its jurisdiction to hold that the 1st respondent “was at the time of the election not qualified to contest the election”, held on the 14th day of April, 2007 into the office of Governor of Kebbi State. – (Grounds 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17.
2. Whether the tribunal rightly came to the conclusion that the petitioners/respondents/cross appellants proved their case for nullification of the return of 1st respondent/appellant at the election of 14th April, 2007 in the light of Section 146(1) of the Electoral Act, 2006 – (Grounds 11 and 19.)

(3) Having regard to the fact that five justices sat at the lower tribunal and two of them did not sign the judgment of the lower tribunal, whether the judgment was a nullity – (Ground 18).

The issues as formulated by the respondents cover and touch on all the issues formulated by the 1st appellant and are germane to this appeal. I will accordingly adopt them in the determination of this appeal.

I will start with the respondents’ issue 3 which is the 1st appellant’s 7th issue. It relates to the decision of the lower tribunal and questions its validity. The contention of the 1st appellant under this issue is that five justices sat and heard the petition which is the subject of this appeal, however, the record at page 1585 showed that the judgment was signed by only three justices of the Election Petition Tribunal.

It was argued for the 1st appellant that the judgment having not been signed by all the justices that sat over the petition was rendered void and invalid.

Relying on Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461 and Kinfan v. Kinfan (2006) 6 NWLR (Pt. 975) 200, it was submitted on behalf of the Ist appellant that there being no explanation on why two members or the tribunal did not sign the judgment, it is rendered void and invalid and we were urged to so hold.

Replying for the 1st and 2nd respondents, learned senior advocate submits that the judgment is not rendered void or a nullity having not been signed by two members of the tribunal. That in any case no injury was shown to have been suffered by the appellants in this respect nor is there an affidavit to challenge the records of appeal to show that the two members who did not sign the judgment dissented referring in particular to particulars (iii) and (iv) of Ground 18 of the notice of appeal, He relies and cites Balonwu v. Ikpeazu (2005) 13 NWLR (Pt. 942) 479 and distinguished it from the Tsalibawa and Kinfan cases cited and relied upon by the 1st appellant to show that the Balonwu case (supra) is more applicable to the facts of this appeal.

The three cases cited are distinguishable.

In Tsalibawa’s only one judge presided over the trial, he neither signed nor dated the judgment. This was an infringement of the constitutional provision Section (294)(1) thereof which provides;

294. (1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

Of course when the case went on appeal, the Court of Appeal rightly held the judgment having not been signed and dated by the trial judge was rendered a nullity.

In Kinfan’s case, the High Court of Katsina State, with two justices sitting in its appellant jurisdiction, heard the matter, one of the justices signed and dated the judgment while the other judge did not append his signature. On appeal to the Kaduna Division of this court, it was held that in the absence of any explanation, on why one of the justices did not sign the judgment, there was no concurrence between the two justices and the judgment could not be regarded is authentic and was therefore declared a nullity.

These two cases cannot be applicable to this case, as had shown in Tsalibawa’s case only one judge presided over the matter, the absence of his signature and date on the judgment will obviously render same a nullity, similarly in Kinfan’s case where one out of two judges fail to sign a judgment, the said judgment cannot be said to be authentic as there was no evidence that the two judges were of one mind when the decision was given.

On the other hand, Balonwu’s case was on all fours with this case, in the sense that it was an election petition where five justices sat to determine it and only three out of the five justices signed.

Enugu Division of this court per Galadima, JCA distinguishing that case with Tsalibawa’s case at page 530 said;

“…In Tsalibawa, the judgment was that of a single judge of the High Court. I agree with learned counsel for the respondent that the Election Tribunal is like pre 1979 Supreme Court. It does not require writing of separate judgment. It is valid for a member of the tribunal to be appointed to write and authenticate the judgment of the tribunal. Thus in this case, the signature of the chairman of the Election Tribunal is a satisfactory authentication for the judgment of the tribunal… Since there was no dissenting judgment shown in the record that means that the two members of the tribunal who did not sign could not have dissented from the majority decision, Otherwise, there would have been one on record. I draw very firm inference that the two members who did not sign, agreed with the single majority judgment. The opinion of the three members that singed the judgment represents the opinion of the tribunal.”

In the instant appeal the situation is the same, the case is of all fours with Balonwu’s case. The appeal emanates from the decision of an election tribunal where five justices presided, the decision was signed by 3 members including the chairman. Two other justices did not sign, even assuming that they did not sign the judgment because they did not agree with the judgment there is nothing on record to show that they were dissenting from the majority judgment. We are bound by what is in the record, there is a majority judgment, and even if the minority i.e. the two justices had dissented, the majority decision would still have been the decision of the lower tribunal. See Section 294(3) 1999 Constitution. Rightly, the learned senior advocate for the 1st appellant had no reply to the respondent’s powerful submission on this issue, for he did not reply in the 1st appellant’s reply brief to the respondents’ brief. I uphold the respondents’ submission on this issue in its entirety and resolve the issue in their favour.

ISSUE 1

This issue as raised by the respondent covers issues 1-4 of the appellant’s brief. The appellant in his brief of argument argues issues 1, 2 and 3 together and issue four separately. I will in the circumstances consider the appellants’ three issues as argued together and the fourth issue separately argued vis-a-vis respondents’ issue one.

The appellant in his brief on the first three issues classified his arguments into various sub heads which are listed hereunder;

1. Lack of reasonable cause of action.
2. Lack of locus standi;
3. Want of jurisdiction on the basis of the issues being pre-election matter;
4. Non compliance with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006;
5. Pre-election matters;
6. Exhibit 6;
7. Qualification of the appellant.

The appellant’s submission on these sub-heads will be adumbrated hereunder separately.

Cause of action

The appellant posits the question here, whether the petition discloses a reasonable cause of action before the lower tribunal. He refers to the complaints of the respondent as per paragraph 16(xii) of the petition and contends that the said paragraph could not confer jurisdiction on the tribunal as the issues raised in it relates to pre-election matters. He submits that the Electoral Act, 2006 and the Constitution of the FRN 1999 does not imbue anyone the right to present an election petition based on pre-election matters putting reliance on Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 404 and Section 32(4) of the 2006 Electoral Act.

The appellant further submits putting reliance on Section 34 of the Electoral Act, 2006 that a political party has the right to change its candidate whenever such need arises and that such change can only be challenged before the appropriate State or Federal High Court being an intra party issue or a pre-election matter, that neither can it be challenged by a non-member of the concerned political party. He cites and relies on Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 510-511 and 520; PDP v. Haruna (2004) 16 NWLR (Pt. 900) 597 at 612.

Locus Standi

The appellant submits on this sub-head that the respondents had no right or obligation or locus standi, even assuming without conceding that there was a cause of action cognizable from the issues of merger, nomination, substitution of candidates raised in paragraph 16 of the petition involving PDP and ANPP. That it was the prerogative of the PDP to choose whom to sponsor as a candidate and it was only the ANPP that could complain that the PDP had snatched its candidate. That the substitution is an intra-party affair which is actionable in the relevant Federal or State High Court. He contends that from the averments in Paragraph 16 of the petition the respondents lacked the necessary locus to complain on the alleged disqualification of the appellant. That they are only busy bodies and interlopers in the eyes of the law who had no business to complain. See Adesanya v. President (1981) 2 NCLR 358; Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669; A-G, Adamawa State v. A-G. Federation (2005) 18 NWLR (Pt. 958) 581. He contends that it is trite that it is only a person whose right has been or is in danger of being breached that can complain about the breach in law.

The appellant placed heavy reliance on Ararume’s case (supra) on the proper party who can complain on wrongful substitution and concluded that the respondents have failed to show how their rights have been infringed upon not being members of either the PDP or ANPP.

Pre-Election Matters

On this sub-head, the appellant refers to the provision of Section 285(2) of the Constitution of the Federal Republic of Nigeria 1990 which gives an Election Tribunal its powers as limited to the determination of the validity of an election. He submits that Paragraph 16 of the petition which refers to pre-election matters i.e. merger, nomination, substitution and giving of notices are not cognisable grounds under which an election petition could be challenged and or voided both under the Constitution and the 2006 Electoral Act. That such issues must be raised and dealt with prior to the election. He further submits that the respondents did not challenge the qualification of the appellant prior to the election as stipulated under Section 324 Electoral Act, rather the 1st respondent contested the election with the appellant, he was deemed to have waived any right of complaining.

Appellant cites and relies on this contention on Yusuf v.Obasanjo (2004) All FWLR (pt. 213) 1884; (2003) 16 NWLR (Pt. 847) 554; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56; Sections 134 and 145 of the Evidence Act.

Relying also on Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530, the appellant further submits that the lower tribunal was limited in its jurisdiction and had gone outside its power by going into issues that should normally come under Section 34(2) of the 2006 Electoral Act – Kasikwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (Pt. 19) 695.

Non compliance with Paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006.

The appellant submits that the petition was fatally vitiated by non-compliance with the above provision. He points out that by paragraph 13 of the petition, the petitioner listed only 7 out of the 8 candidates that contested the April 14, 2007 Gubernatorial Election in Kebbi State. That relying on the authority of Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Ikeh v. Njoku (1999) 4 NWLR (Pt. 598) 263; Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) 466; Abimbola v. Aderoju (1999) 5 NWLR (Pt. 601) 100; Ojong v. Duke (2003) 14 NWLR (Pt. 84) 581; Annon v. B.S.J.S.C. (2006) All FWLR (Pt. 296) 843; (2006) 14 NWLR (Pt. 1000) 610; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446, the Petition was rendered incompetent. He submits that the lower tribunal ought to have struck out the petition completely not proceeded with the other grounds.

Submits that the lower tribunal was wrong to have cured an incurable deficiency in the petition. That the non-compliance affect the entire petition as it is a condition precedent to the petition.

Appellant’s Qualification

Here reliance was on the pleading of both parties, findings of the tribunal, Constitutional and Electoral Act provision as well as a plethora of cases on the contention of the appellant that the lower tribunal was wrong to have found that the appellant was disqualified to contest the April 14th Gubernatorial Election based on a purported party membership card.

The appellant points out that the judgment of the lower tribunal is clearly not borne out by evidence and issues before it. That the issue of when the appellant became a member of the PDP was not pleaded by the respondents nor was the assertion that he was made a gubernatorial candidate of the PDP before he joined the PDP pleaded.

He submits that the judgment is predicted on unpleaded facts which were not supported by any evidence before the lower tribunal. That in determining issues not borne out by pleadings and evidence the lower tribunal had descended into the arena thereby rendering the judgment perverse and a nullity.

That paragraph 16 of the petition the allegation was that of double nomination and the witness statement of Alhaji Aminu Umar D. Zamawa (Pages 265 – 267 of the record) makes the same contention and it was not their case that the appellant became a member of the PDP on the 10th February, 2007, the date on exhibit (6).

That the lower tribunal was wrong in its assessment of the evidence presented by the respondents particularly in relation to exhibit P6 the purported membership card which does not bear the appellant’s name but ascribed it to the appellant.

He submits further that the finding of the lower tribunal at pages 1561 and 1562 of the record that the appellant was not doubly nominated that should have laid down the pleadings and Zamawa’s witness statement and would have meant that the nomination of the appellant was not void under Section 38 of the Electoral Act, and there would have been nothing under the Electoral Act to invalidate the candidature of the appellant who has satisfied the conditions as laid down under Section 177 of the Constitution of the FRN 1999.

We were urged to allow the appeal on these issues.

Issue 4

The appellant on this issue adopt his argument on paragraph 4 (1) (c) of the 1st Schedule of the Electoral Act, 2006 and further submit that it was not open to the lower tribunal to pick and choose which of the grounds of the petition to either strike out or reject or accept particularly when no explanation was furnished by the petitioner and no amendment made to the petition. That there was no prayers by the petitioner to the lower tribunal to save any of the grounds, the lower tribunal thus acted without jurisdiction. That the lower tribunal having struck out ground 3 of the petition on non-compliance with the said paragraph it could not turn round to use the same deficient pleading to save the remaining two grounds that this would have led to bizarre consequences. Appellant relies on Boy Muka v. State (1976) 9-10 S.C. 305; Olawuyi v.Adeyemi (1990) 4 NWLR (Pt. 147) 746. Appellant urged us to allow the appeal on these arguments.

By a brief of argument filed by the 1st and 2nd respondents settled by Tarfa, learned Senior Advocate, the respondents opposed the appeal and made the following submission.

It is the contention of the respondents that the lower tribunal was right in striking out only one ground of the petition, he submits that the tribunal was not bound to grant all the reliefs sought in a preliminary objection and that the provision of paragraph 4(6)(1) of the 1st Schedule to the Electoral Act, 2006 rests discretion in the tribunal to determine whether a supposed defect in a petition is fatal or otherwise – relies on Obasanjo v. yusuf (2004) 9 NWLR (Pt.877) 144.

On whether nomination to contest is a pre-election matter the respondents contends it is not and submits that by virtue of Section 285(1) of the 1999 Constitution election matters are exclusive jurisdiction of the tribunal and not within the competence of a High Court once a petition is filed.

He cites and relies on Ilobi v. Uzoegwu (2005) All FWLR (Pt. 285) 585 at 610; Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618; Jessica Balonwu v. Ikpeazu (2005) 13 NWLR (Pt. 942) 479; Enemuo v. Duro (2004) 9 NWLR (Pt. 877) 75. The respondents further submit that invalid nomination implies non qualification to contest an election that even if the candidate is qualified to hold the elective office of a governor, the Constitution expressly provides that a governor is not deemed validly nominated unless he meets the mandatory requirements and relies on Section 177 and 188 thereof. That though the requirements of Section 177 nowhere re-enacted in the Electoral Act it is nonetheless as a condition precedent to valid nomination, he relies on Section 32(1)(2) of the Electoral Act to show that the Section talks about fulfilling all constitutional requirements for election into that office. On Anazodo v. Audu (1999) 4 NWLR (Part 600) 530 at 544 which was decided based on the provisions of Section 84(1) of the then Decree 36 of 1998 which is in pari materia with the present Section 145(1)(a) of the Electoral Act 2006, the respondents submit that the Electoral Act limits its application to matters regulating being qualified to contest and contends that in determining whether winner at an election is not qualified to contest, recourse must be had to Sections 40 and 41 of the Electoral Act read with Sections 145(1)(a) and 146(1) thereof.

Also relying on Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367, respondents submit that if a person meets constitutional requirements but is not validly nominated owing to the breach of the mandatory provisions of Sections 32, 34, 36 and 38 of the Electoral Act, Section 40 thereof does not recognize such a person as a contestant entitled to be placed on the ballot at the election. Submits that the Constitution has not set a criteria or procedure by which to regulate the contest of election by competing parties and their candidates that was why the procedure was left to the legislature to determine refers to Item 22 of the Exclusive Legislative List in the 1999 Constitution.

That a person who does not comply with this procedure cannot hide under the constitutional provision of Sections 177, 182 and 187 to say he is qualified to contest – See P.P.A. & 1 Or. V. Saraki & Ors. (CA/K/EPT/f; P.D.P. v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200.

Submits that the lower tribunal was right in invoking the provisions of Section 145(1)(a) as applicable to the facts of this case, pointing out that it encompasses the valid nomination to contest, failing which the election of the wrongly nominated candidate will be liable to have his election nullified.

On nomination respondents submits and concedes that it is an internal affair of the party if it is done in accordance with the law and refers in particular to Sections 36 and 38 of the Electoral Act. He submits and on the evidence before the court there was double nomination in contravention of Section 38 of the Electoral Act, That the said double nomination renders the nomination of the appellant void and submits that he was therefore not qualified to contest the election under Section 145(1)(a) of the Electoral Act.

On exhibit P6 the respondents submit that the court was light in holding that the date on the card predates the 1st appellant’s nomination by the 2nd appellant and the 1st appellant was disqualified from contesting the election. That the 1st appellant’s averment as per paragraph 7(xiii) of his reply to the petition denying its ownership, was not authentic but simply a ploy to achieve a goal to show that he was a member of the PDP as at 5/2/07 when he was substituted.

That by the provisions of Section 142 of the Evidence Act the burden is on the appellant to show that the card was not his own. Respondents urged us to uphold the finding of the lower tribunal on exhibit 6.

It was also the respondents’ contention that the nomination of the appellant was a breach of the 2nd appellant’s constitution.

The respondents on the whole urged us to resolve issue 1 in their favour.

In the submission of learned Senior Advocate in their respective briefs, three sub issues have arisen which to my mind from the facts of the case should not have been raised at all. These sub issues are;

Locus standi

Breach of the 2nd appellant’s constitution.

Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act.

On locus standi, the appellant’s contention that from the averments in paragraph 16 of the petition, the respondents lacked the necessary locus to complain on the alleged disqualification of the appellant which touches on the issues of merger, nomination and substitution of candidates involving the PDP and ANPP as it is an intra-party affair actionable only in a Federal or State High Court.

Locus standi as defined by the courts denotes that a party has the legal capacity to initiate proceedings in a court of law, and focuses on his aim to get his complaint before the court and on the issues he will be raising before it. See Adesanya v. The President of Nigeria (1981) 2 NCLR 358; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189.

This being an election petition, I must state that the 1st respondent being a candidate at the gubernatorial election of 14th April, 2007 and the 2nd respondent being the party that sponsored him, are proper parties before the lower tribunal by virtue of the provisions of Section 144(1)(a) and (b) of the Electoral Act, 2006 reproduced hereunder;

144(1) An election petition may be presented by one or more of the following persons ..

(a) a candidate in an election;

(b) a political party which participated in the selection.

The contention that they were not members of the PDP or ANPP who can complain over the nomination of the appellant is another matter altogether which will come under consideration under another heading- i.e. qualification of the appellant to contest. As it is, they are proper parties and have the necessary locus to initiate the matter before the lower tribunal.

Paragraphs 4(1)(c) and (6) of the 1st Schedule to the Electoral Act provides;

4(1) An election petition under this Act shall:

(a) specify the parties interested in the election petition;

(b) specify the rights of the petitioner to present the election petition;

(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.

(6) An election petition, which does not conform with, subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.

While paragraph 4(1)(c) above makes it mandatory that an election petition must state the holding of the Election, the scores of the candidates and the person returned as the winner of the election, paragraph 4(6) provides that a petition which does not comply with the provisions of paragraph 4 is defective and liable to be struck out by either the tribunal or this court. It is to be noted however that while the provisions of paragraph 4(1)(c) are mandatory, paragraph 4(6) gives the tribunal or this court the discretion of striking out the petition. See also Obasanjo v. Yusuf (supra). The lower tribunal was in the circumstances right in striking out only one ground out of the three grounds in the petition.

The respondents in their brief addressed us on the breach of the 2nd appellant’s constitution, these submissions to my mind go to no issue as they were not raised before the lower tribunal in the pleadings, in the evidence or in the judgment of the lower tribunal. Without leave of this court, they can now not be raised in counsel’s brief.

I will now look at the evidence adduced before the lower tribunal vis-a-vis the qualification of the appellant.

The function of a court and in the instant case, a tribunal is that of an unbiased umpire who critically examines all matters put before it by a party who is of the opinion that his rights have been infringed upon and that of his opponent who is saying otherwise and come to a just decision.

The rules of court allow the adverse parties to present the case by way of pleadings where they do not agree they are said to join issues and are required thereafter to put up such evidence before the court in support of the pleadings, it is then the duty of the court to examine the pleadings vis-a-vis the evidence adduced and dispassionately arrive at a decision.

In line with the above, the Practice Directions of the Court of Appeal eases the trial in election petitions, which are said to be sui generis in nature, for speedy dispensation of justice. A party aggrieved by the outcome of an election is required to file a petition consisting of his complaint, the grounds of which he is challenging the return of an election, plead to such facts in support of the grounds, and written statements of witnesses under oath in support of the pleadings. The person returned as elected and such necessary parties to the petition will then file a reply to the petition containing pleaded facts and annexing witness statements to his pleadings all in support of the election return.

In the instant appeal, the petitioners were the DPP and its candidate Abubakar Mallam Abubakar and the respondents were the person returned as the elected Governor of Kebbi State Alhaji Nasamu Saidu, his party the PDP and INEC the body that conducted the election and 318 others, the various persons who assisted INEC in the conduct of the election.

Going by the Practice Directions, parties to the petition annexed witness statements on oath in support of their respective pleadings in the petition and the replies to the petition. Such witnesses should have been called to give oral testimony and link the documentary evidence tendered and be cross-examined. In the petition leading to this appeal, the respective learned counsel to the parties agreed to dispense with the calling of witnesses to orally testify and to be cross-examined but opted to adopt the written depositions and to tender all exhibits from the bar and thereafter submitted written addresses and replies on points of law.

It is their depositions, exhibits and addresses that the lower tribunal relied upon to arrive at its decision of 20th October, 2007. It is reproduced hereunder;

By the petitioners, pleading in paragraph 16 (xviii) that the 1st respondents’ membership card of the 2nd

respondent is dated 10/2/07, the petitioners are taken to have put in issue the fact that 1st respondent became a member of the 2nd respondent as at that date. And by the respondents’ reply in paragraph 7(xiii) denying, that the membership card of the 1st respondent is the one pleaded, the respondents are taken to have joined issues. What remains is a matter of proof.

While the petitioners tendered and relied on exhibit P6 as evidence of the PDP membership card of the 1st respondent supported by the evidence of Alhaji Aminu Umar O. Zamawa, no evidence is tendered for the 1st and 2nd respondents to support their pleading in paragraph 7(xiii). That paragraphs is deemed abandoned. We have ourselves seen exhibit P6. It bears the photograph of the Ist respondent and the date and number of the card pleaded is on it. The respondents never took objection to exhibit P6. They couldn’t have as it is a certified document from INEC. The result is that, there is evidence on one side of the scale and none on the other side. In other words, after the petitioner called evidence on this issue, the burden of proof shifted to the respondents by virtue of Section 137(2) of the Evidence Act which provides.

“137(1) …

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced. and so on successively, until all the issues in the pleadings have been dealt with”.

Once as in Petition No.1, a case have been put up that require an answer from the 1st and 2nd respondents.

they cannot run away from that fact by simply ignoring it. The 1st respondent was bound to explain the fact that the membership card pleaded is not his. He ought to explain when he became member of the PDP. Exhibit P3 showed he was substituted for the 2nd respondents’ initial candidate on 5/2/07. His membership card of the 2nd respondent proved before us bears the 10th of February, 2007. Exhibit PS, his nomination form bears 9/2/07. All these coupled with the fact that by exhibit P4, the 1st respondent had been nominated by the ANPP as its flag bearer in Kebbi State and his admission of this fact he requires to, say more than merely saying that he left that party long ago. True, exhibit R9 shows he left ANPP on the 2/2/07, 1st respondent ought to say when he joined the PDP as that is a matter of constitutional importance that is, he ought to belong to the political party that sponsored him. Our view is that the 1st respondent did not discharge the burden that shifted to him. If exhibit P6 is not evidence that he became a member of the PDP as at 10/2/07 as alleged by the petitioner, he was bound to say so. That evidence must emanate from the respondents. They cannot afford to keep sealed lips or expect the tribunal to provide that evidence on their behalf. We are supposed to be an unbiased umpire. In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated 10th February, 2007 is evidence of the date 1st respondent became a member of the PDP.

We hold that from the facts placed before us he became member of PDP by virtue of membership case No. 1428620 dated 10/2/07. In other words, he became a member of the PDP as at that date. That therefore means exhibit P3(A) dated 5/2/07 which is evidence that he was substituted for the PDP’s initial candidate was made before he became member of the PDP.

On a balance of probability therefore the case of the petitioners in Petition No.1 preponderates that of the respondents – See Mogaji v. Odofin (1978) 4 SC 91 and Agballah v. Nnamani (2005) All FWLR (Pt.245) 1052 at 1073.

By the combined effect of Section 145(1)(a) of the Electoral Act and 177(c) of the 1999 Constitution therefore, the 1st respondent was not qualified to contest the Election of April, 14th 2007 to the office of Governor of Kebbi State. The case of the petitioners in Petition No. 1 only succeeds on this ground.

The above finding was based on paragraph 16 of the petition as contained at pages 9-12 of the records and the witness statement of Alhaji Aminu Umar D, Zamawa to be found at pages 266-267 of the record. They are reproduced hereunder for ease of reference.

16. The various acts and omissions of the respondents jointly and severally render the first respondent

unqualified to contest the election.

PARTICULARS.

(i) The purported merger which produced the first respondent as the gubernatorial candidate of the third

respondent is invalid null and void, regard being had to the Electoral Act 2006.

(ii) A merger within the contemplation of the Electoral Act, can only be one properly so called if same is between two political parties and not between a chapter of one political party and another.

(iii) the national chairman, national secretaries and national treasures of the merging parties did not subscribe to the memorandum of the merger.

(iv) From the purported memorandum of merger dated 8/2/07 the merger does not amount to a merger is under the Electoral Act, 2006.

(v) The 1st respondent did not give his (ANPP) the mandatory notice of withdrawal of his nomination as its Governorship candidate. The lack of the requisite notice resulted in his nomination.

(vi) The first respondent was duly nominated by the ANPP as its gubernatorial candidate.

(vii) The ANPP has not withdrawal his nomination

(viii) The third respondent nevertheless allowed the first respondent to contest the election on the platform of the PDP.

(ix) the time and manner the first respondent procured his purported nomination from the third respondent disqualified him from contesting the election.

(x) The purported merger was effected on the 8/2/07

(xi) The reasons given for the substitution are neither cogent nor verifiable

(xii) The times fixed and the procedure prescribed by the Electoral Act, 2006 for merger, nomination, substitution of candidate and giving of notices were not complied with by the first to the third respondents.

(xiii) Failure to comply with these mandatory requirements render the nominated and participation of the first respondent in the election invalid.

(xiv) The 1st respondent was purportedly substituted for the former candidate of the 2nd respondent: vide a letter to the chairman of the 3rd respondent dated 5th February, 2007.

(xv) At the time of purported substitution, the 1st respondent was a member of the All Nigeria Peoples

Party (ANPP) and not of the 2nd respondent. The All Nigeria Peoples Party having submitted his name and that of his running mate, Alhaji Adamu Zama Sauchi to the 3rd respondent as its candidate for the Governorship elections vide a letter dated 17th December, 2006.

(xvi) Your petitioners will rely on the INEC forms CF 001, and E. C.4B (VI) filed by the 1st respondent and the said Alhaji Adamu Senchi as candidates of ANPP and the list of Governorship/Deputies and State House of Assembly candidates sent under cover of a letter dated 17th December, 2006 by ANPP to the 3rd respondent at the hearing of this petition.

(xvii) The 1st respondent’s Form E. C. 4B (V1) being his form for nomination of governor was dispatched by the 3rd respondent on 6th February, 2007 whilst same was filed by the 1st respondent and dated 9/2/07.

(xviii) 1st respondent’s purported membership card 1428620 for the 2nd respondent was issued on the 10th of February, 2007 after his purported substitution and nomination by 2nd respondent.

(xix) 1st respondent’s nomination as Governorship candidate of the ANPP had not been withdrawn in accordance with the 3rd respondent’s guidelines, before he was nominated as governorship candidate of the respondent hence he was nominated doubly.

(xx) The voters card/slips of the nominations of the 1st respondent were not submitted to the respondent with 1st respondent’s nomination Form 4B(VI).

(xxi) The passport picture of the former candidate of the 2nd respondent was not attached to the 1st respondent’s nomination form.

(xxii) The old candidate of the 2nd respondent did not sign the 1st respondent’s nomination forms.

(xxiii) The purported membership card of the 1st respondent for the 2nd respondent bears names different from the names of the 1st respondent

(xxiv) The purported membership card of the 1st respondent issued by the 2nd respondent being membership card number 1428620 was issued in the name of one Saidu N. Usman Darkingari and not the 1st respondent.

(xxv) The 2nd respondent did not state any cogent and verifiable reasons for the substitution of their old candidate with the 1st respondent.

(xxvi) The petitioners plead the following documents and shall rely on them at the hearing of this petition;

(a) Letter of substitution dated the 5th February, 2007 addressed by the 2nd respondent purportedly substituting the 1st respondent for the former candidate.

(b) INEC Form E.C. 4B (V1) Form for nomination of Governor for Kebbi State dated 9/2/07 filed by the 1st respondent.

(c) INEC Form CF 001 being the affidavit in support of personal particulars of persons seeking election to the office of Governor deposed to by the 1st respondent allegedly on 12th February, 2007 together with the annexure attached thereto.

(xxvii) The 1st respondent’s running mate Alhaji Ibrahim K. Aliyu was not validly nominated as the 1st respondent’s running mate.

(xxviii)No reason was given by the 2nd respondent to the 3rd respondent for the substitution of the said Alhaji Ibrahim K. Aliyu with the old candidate.

(xxix) The Form CF 004B submitted to the 3rd respondent by the 2nd respondent dated 10/2/07 does not bear the signature of the substituted candidate neither does it bear his picture.

(xxx) The said Form CF 0048 was not approved by the approving officer of the 3rd in compliance with Sections 34 and 36 of the Electoral Act, 2006.

(xxxi) The purported primary school leaving certificate attached to the running mate to the 1st respondent’s Form CF 00 I has a concocted primary school leaving certificate attached thereto belonging to someone else entirely.

(xxxii) The purported primary school leaving certificate referred to in paragraph 19 above bears the names “Ibrahim Lopa” and does not bear the name of any educational institution.

See also the written statement of Alhaji Aminu Umar D. Zamawa as found in pages 266-267 of the record;

I, Alh. Aminu Umar D. Zamawa, Male, Adult, Muslim, Nigerian citizen, a Politician of Democratic Peoples Party (DPP), State Secretariat, Ahmadu Bello Way, Birnin Kebbi do hereby make oath and state as follows;

1. I am a politician of Gorun Dikko Ward of Arewa Local Government Area of Kebbi State.
2. I am a member and State Secretary of the Democratic Peoples’ Party (DPP), Kebbi State chapter.
3. My duties include the handling of all official correspondence between DPP, Kebbi State Chapter and outside and the keeping of minutes of meeting and documents and liaising with other national and state officials of our party and non-members of the party.
4. I know as a fact that the 1st respondent was until 5th February, 2007 a candidate of All Nigeria Peoples’ Party (ANPP) – the 2nd petitioner for the Gubernatorial elections in Kebbi State.
5. On 5th of February, 2007 the 2nd respondent vide a letter addressed to the Chairman of the 3rd respondent purported to substitute the name of their former candidate with that of the 1st respondent.
6. I know as a fact that as at the date and time the purported substitution was effected, the 1st respondent was a member of ANPP.
7. I know as a fact that at the time and date the purported substitution was effected, the 1st rcspondent’s nomination as Governorship candidate of ANPP had not been withdrawn.
8. I know as a fact that the purported nomination of the 19th respondent as its Gubernatorial candidate pre-dates his membership card as a member of the 2nd respondent.
9. I make this statement in good faith believing the contents to be true, correct and in accordance with the Oaths Act, 1990.

The above in effect was the evidence proffered by the petitioners in support of the averments in paragraph 16 or their pleadings earlier reproduced.

As I have earlier touched, pleadings in a trial are assertions, allegations or the complaint an adverse party will meet at court in a trial, they are toothless bulldogs who cannot bite unless their teeth are restored, or in a trial until when they are supported by concrete unimpeachable evidence.

A compound reading of paragraph 16 of the petition and the witness statement of Zamawa will show that only sub paragraphs (v), (vi), (vii), (xiv) and (xv) of paragraph 16 of the petition with regards to the double nomination was evidence adduced in support – see Zamawa’s testimony paragraphs 4-7 thereof.

In respect of Exhibit P6, the membership card the pleadings are to be found in sub paragraphs (xviii) and (xix) which when looked at closely are at variance with sub paragraphs (xxiii) and (xxiv) which are alleging that the said membership card bears names which are different from the names of the appellant.

If the rules of trial are to be strictly observed all the allegations in the other sub paraphs of 16 of the petition will go to no issue in the absence of any evidence to support them. I will return to this anon.

The issue for determination before the lower tribunal based on paragraph 16 of the petition and Zamawa’s witness statement is whether the issue of double nomination had been made out and whether the appellant is qualified to contest the election.

On double nomination I will refer to the finding of the lower tribunal at pages 1561-1562 where it held as follows;

We find ourselves unable to agree with this submission. The law imposes a duty on a candidate such as the 1st respondent to withdraw from his earlier nomination and a corresponding duty on the party that sponsored him to forward such withdrawal to the 3rd respondent. See Section 36(1) of the Act. It is only the occurrence of the event in subsection (1) of Section 36 of the Act that such party can be allowed to sponsor another candidate under subsection (2) of the same Section. Petitioners in their pleadings said the 1st respondent did not withdraw the letter exhibit R9 written to ANPP by the 1st respondent which they now try to dismiss as of no evidential value. In our view, the 1st respondent had done what he needed to do by writing the letter of withdrawal exhibit R9 to the ANPP. The duty is on ANPP to comply with Section 36(1) of the Act. The petitioners did not adduce any evidence that ANPP did not inform the 3rd respondent of the withdrawal, rather they adduced evidence to establish that ANPP sponsored another candidate, which act; they now tried to explain away by some fantastic and ingenuous construction of section 36(2) of the Electoral Act. We reject the construction as untenable and as reading into section 36(2) meanings that the clear wording of the section cannot permit. If indeed as alleged by the petitioners, the 1st respondent was sponsored by the ANPP and the PDP, then it also means that the ANPP sponsored both the 1st respondent and Senator Farouk Bello Bunza. The burden is on the petitioners to prove that such was the case. They failed to do so. We hold that there is no evidence of double sponsorship of the 1st respondent.

The underlining above is to show that the lower tribunal made a finding that there was no evidence before it to show an infringement of the provisions of section 36(1) of the Electoral Act.

There is no appeal or rather a cross appeal on this finding, it remains binding on the parties until set aside.

I am not unmindful of the submission of learned senior advocate to the appellant that nomination, substitution and mergers is not within the competence of an election tribunal neither am I unmindful of the respondents’ contention that the appellant was not qualified to contest or be elected on the basis of invalid nomination.

In considering the above poser, I will first ask the question was the tribunal competent to look into the issue of nomination, substitution and mergers?

The jurisdiction of an election tribunal to determine matters pertaining to the election and return of a governor are as spelt out in section 285(2) of the 1999 Constitution which provides;

“Section 285(2) There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house”.

The above provision gives an election petition tribunal the exclusive jurisdiction to hear and determine petition as to whether any person has been validly elected to the office of governor or deputy governor of a State.

Issues of nomination, substitution as covered by the provisions of the Electoral Act, 2006, i.e. section 32, 36 and 38 reproduced hereunder;

32(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.

(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.

(3) The commission shall within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.

(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

(5) If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.

(6) A political party which presents to the commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500,000.00.

(7) Every political party shall not later than 14 days before the date appointed for a bye-election by the commission submit the list of candidates from the party for the bye-election.

Section 36(1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission and which shall only be allowed not later than 70 days to the election.

(2) Where the commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his political party shall be allowed to nominate another candidate not later than 60 days before the date of election.

Section 38 Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one constituency his nomination shall be void.

Have been found to be matters outside the competence of an election tribunal, they are said to be actionable before a state or a Federal High Court. See Yusuf v. Obasanjo (2004) All FWLR (Pt. 213) 1884: (2003) 16 NWLR (Pt. 847) 554: Ibrahim, INEC (1999) 8 NWLR (Pt. 614) 334; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56: see in particular the holding of Oguntade, JSC in Amaechi v. I.N.E.C. (2008) 1 MJSC1 at 63; (2008) 5 NWLR (Pt. 1080) 227 at 314.

“Section 178 above is a provision of the 1999 Constitution intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a

citizen under section 36 of the same Constitution. In the same way, section 285(2) relied upon by the senior counsel cannot be construed to destroy the jurisdiction which the ordinary courts in Nigeria have in pre-election matters. Were the court to construe section 285(2) as having the effect of ousting the jurisdiction of the ordinary court in pre-election matters, all that a defendant would need to do to frustrate a plaintiff is to stall for time and obtain adjournment to ensure that a plaintiff’s case is ‘killed’ once an election is held …

It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the 1999 Constitution”.

See also Ibrahim v. INEC (supra) per Salami, JCA at 351;

“Election tribunal has no power to investigate matters which took place before the conduct of an election.”

The above provisions are hurdles a candidate and his political party must surmount to be eligible to contest. They are pre-election matters which are actionable before the regular High Courts.

In the same way, the respondents who are not members of the PDP or the ANPP lack the locus to raise them before the lower tribunal which lacks the competence to determine pre-election matters.

Paragraph 8 of Zamawa’s witness testimony relates to exhibit P6 the membership card.

I reproduce it hereunder;

“8. I know as a fact that the purported nomination of the 1st respondent as its Gubernatorial candidate pre-dates his membership card as a member of the 2nd respondent”.

The pleading of the petitioners before the lower tribunal as I had shown earlier was two faced. One is showing that the membership card belongs to the appellant, while the other is saying that the card bears different name from that of the appellant.

The appellant had in his reply to the petition averred as follows;

Paragraph 7(xiii)

“The 1st respondent has authentic PDP membership card issued to him by the 2nd respondent as against the purported membership card listed in the petition”.

The said card was tendered before the lower tribunal as exhibit 6. By the rules of pleadings, the parties could not be said to have joined issues on exhibit P6 as both have asserted that the card before the lower tribunal he has therefore to prove such evidence in proof. In the instant case parties did not testify before the lower tribunal as such witnesses were not cross-examined.

Where parties have disagreed on an issue in their pleadings they are said to have joined issues, each party is thus required to prove the averment which was not admitted by adducing evidence or eliciting evidence from the opponent through cross-examination.

Where the evidence is at variance with the facts pleaded it goes to no issue. See Honika Sawmill Nigeria Ltd. v. Hoff (l994) 2 NWLR (Pt. 326) 252; F.C.D.A. v.Naibi (1990) 3 NWLR (Pt. 138) 270; Akpan v. Udoh (2008) 3 NWLR (Pt. 1075) 590.

The finding of the lower tribunal shown earlier in this judgment was to the effect that the appellant was not qualified to contest the governorship election by virtue of exhibit P6 said to be issued on the 10/2/2007 which was issued after he was nominated by his party.

Non-qualification is a ground upon which an election may be challenged. See section 145(1)(a) of the Electoral Act, 2006 which stipulates;

145.(1)An election may be questioned on any of the following grounds,

(a) that a person whose election is questioned was, at the time of the election not qualified to contest the election.

The lower tribunal had aptly defined qualification in the con of the above provisions. I will reproduce the said definition.

The issue here is what is meant by “qualification” within section 145(1)(a). Is it “qualification” as stated in the various relevant provisions of the 1999 Constitution or does it include failure to comply with provisions of sections of the Electoral Act such as sections 34, 36 and 38. The law as laid down in decided cases is that the question whether or not a person is qualified to contest an election within the meaning of the above provision of the Electoral Act is to be determined exclusively by reference to the constitutional requirements for qualification to contest. Qualification to contest an election to the office of Governor of a state is provided for in section 177 of the constitution of the Federal Republic of Nigeria, 1999. Section 182 provides an exhaustive list of conditions that may disqualify a candidate. A petitioner can therefore only succeed in a complaint founded on section 145(1)(a) where he alleges facts amounting to a constitutional bar. The provisions of the constitution are superior to every provision made in any Act of Law. See Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169 at 225 and 226. The Electoral Act is an inferior legislation to the constitution and cannot therefore expand the criteria for qualification to contest an election under the Constitution. Any such attempt will be declared null, void and of no effect. See the observation of Pat Acholonu, JSC (of blessed memory) in Nuhu v. Ogele 16 NSCQR 390 at 408; (2003) 18 NWLR (Pt. 852) 251. See also the dictum of Kutigi, JSC (as he then was) in A-G., Abia State v. A-G., Federation (2002) 6 NWLR (Pt.763) 264.

This is precisely why the Electoral Act, 2006 is silent on the issue of qualification because provision on the matter was adequately made in the Constitution.

Having made the above finding on qualification as stipulated under section 145(1)(a), in determining the qualification of the appellant, the lower tribunal will look for his answer within constitutional provisions. These are as provided in sections 177(c) and 182 of the 1999 Constitution. They are shown hereunder;

‘Section 177(c) he is a member of a political party and is sponsored by that political party; and Section 182(1) No person shall be qualified for election to the office of Governor of a state if –

(k) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(l) he has been elected to such office at any two previous elections; or

(m) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or

(n) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or

(o) within a period of less than ten years before the date of election to the office of Governor of a state he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or

(p) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or

(q) being a person employed in the public service of the federation or of any state, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election;

(r) or he is a member of a secret society; or

(s) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the tribunals of Inquiry Act, a 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; or

(t) he has presented a forged certificate to the Independent National Electoral Commission.

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

(e) adjudged to be a lunatic;

(f) declared to be of unsound mind;

(g) sentenced to death or imprisonment; or

(h) adjudged or declared bankrupt.

An appeal against the decision is pending in any court of law in accordance with any 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, whichever is earlier.

A close look at the two provisions shows that while section 177(c) prescribes the criteria for qualification, section 182 provides grounds for disqualification.

Section 177(c) stipulates that for a person to be qualified to contest he must belong to a political party and be sponsored to contest by that political party and not be impaired by the provisions of section 182. If there are any hurdles put in by the Electoral Act which he had not summoned then it is left to the adverse party to prove by concrete evidence before the tribunal.

The case of the petitioners/respondents before the lower tribunal was that of double nomination as per paragraphs 4-7 of Zamawa’s written statement this was discountenanced by the tribunal as having not been proved. The finding on the card was on a non-issue, for if the lower tribunal had consider paragraph 16(xviii) of the petition together with paragraph(xxiii) and (xxiv) it would have arrived at the conclusion that the case of the petitioners before it was that exhibit P6 was not the appellant’s card. The finding of the tribunal that the appellant joined the PDP on 10/2/08 is perverse as it is not in line with the pleadings and the evidence as per paragraph 8 of Zamawa’s witness statement. The date the appellant became a member of the PDP was never raised by the pleading and the lower tribunal was wrong to have reached a conclusion which was neither supported by pleadings or the evidence before it. See in particular its finding;

“In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated

10th February, 2007 is evidence of the date 1st respondent became a member of the PDP”.

There was no basis for the court to have speculated and made findings as to when the appellant became a member of the PDP when it was not an issue before it. See Kasimu v. N.N.P.C. (2008) 3 NWLR (Pt. 1075) 569 at 586-587 per Odili, JCA.

“A judge as an impartial arbiter must leave the parties to conduct their contest within the ambit framed by them. It is not the duty of a court to look for or provide evidence for any of the parties before it. Its duty is mainly that of an umpire holding evenly the scale of justice between the parties. It is consequently erroneous for a court to make use of materials not given in evidence to come to is decision”…

“It is not allowed by law or judicial authorities for a trial court to go outside the scope of what before it, or claimed by the parties, or can be contemplated as flowing from what is on ground for its adjudication”.

See also Akpan v. Ultin (J996) 7 NWLR (Pt. 463) 634: Ogbu v.Ani (J994) 7 NWLR (Pt. 355) 761.

By the provision of section 177(c) of the 1999 Constitution all that the appellant need show is that he is a member of a political party and was sponsored by that party. This, he has established by exhibits P3 and P5 barring any conditions imposed by the Electoral Act which the respondents must prove, the appellant was qualified to contest the election of 14th April, 2007 to the office of Governor of Kebbi State.

Arriving at the above conclusion, I am strengthened by the findings of my learned brother, Aboki, JCA in the consolidated sister case to this appeal in suit No. CA/K/EP/GOV/5/07 in which I participated where at pages 24-25 of the judgment he found as follows;

“It has been argued by the respondents that even if PDP nominated and sponsored the 1st respondent on the 5th of February, 2007 it was still within the 60 days allowed by section 34(1) of the Electoral Act. The election took place on 14th April, 2007, the 1st respondent was sponsored by the 2rd respondent on the 5th February, 2007. The period between 5th February, 2007 – 14th April, 2007 is 67 days. Section 34(1) requires that notice be given of the change in writing not later than 60 days to the election. In the present case, the 1st respondent gave his notice 7 days to the election.

The 1st respondent’s letter withdrawing his nomination was sent through his former party ANPP that nominated him as its Governorship candidate to the 3rd respondent and it was dated 2nd February, 2007. The period between 2nd February, 2007 and 14th April, 2007 is 70 days. The 1st respondent has withdrawn his nomination by the ANPP as its Governorship candidate within the period of 70 days stipulates by section 36(1) of the Electoral Act, 2006. Pursuant to section 36(2) of the Electoral Act 2006, the 1st appellant nominated the 2nd appellant as its governorship candidate for Kebbi State after the 1st respondent had withdrawn the nomination earlier made in his favour…

I am of the opinion that by withdrawing his candidature in compliance with the Electoral Act, 2006 the

respondent has not contravened the provision of section 36(1) of the Electoral Act, 2006 and the trial tribunal was wrong to have found that the 1st respondent was not qualified to contest the election having been sponsored by his party the PDP.

The allegation of the appellant that the 1st respondent is not qualified to stand for the election has not been established. The petitioners/appellants have not established. The petitioners/appellants have not discharged the onus of proof placed on them by law.

See Mogaji v. Odofin (1978) 4 SC 91.”

These issues are resolved in favour of the appellant.

ISSUE 2

This issue questions the justification of the lower tribunal’s nullification of the election in the light of section 146(1) of the Electoral Act and after adopting his submission on issue one learned senior advocate for the respondents further submits that the proper order of nullification ought to have been made under section 147(2) of the Electoral Act.

Having found that the lower tribunal was wrong in its decision, this issue becomes academic it is hereby discountenanced.

On the whole the decision of the lower tribunal was based on evidence not before it, where an appellate court is not supported by evidence or that it is perverse the relevant order to make is to set it; Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467.

In the circumstances this appeal has merit and I hereby allow it. I find that the appellant was qualified to stand for the Gubernatorial election of 14th April, 2007.

The decision of the lower tribunal as contained in pages 1556-1558 of the record of appeal with regards to petition No. KB/EPT/GOV/1/2007 of 20th October, 2007 as reproduced earlier in this judgment is hereby set aside.

I affirm the election and return of the appellant as Governor of Kebbi State in the election held on the 14th April, 2007. There shall be no orders as to costs.

APPEAL NO.2

The parties herein are the Peoples Democratic Party (PDP) as appellants and the respondents are Abubakar Mallam Abubakar. The appeal is also based on the same facts and issues as appeal No. 1.

The issues for determination in this appeal are as follows;

1. Whether or not the Honourable Tribunal was right in not striking out the petition as wholly incompetent having found that the petitioners/respondents did not state the scores of all candidates that took part in the Governorship election in Kebbi State.
2. Whether or not any issue arose from the pleadings as to whether exhibit P6 was the membership card of the 3rd respondent and whether or not the said exhibit P6 defined any issue between the parties membership card of the 3rd respondent and whether or not the said exhibit P6 defined any issue between the parties.
3. Whether or not the tribunal was right in holding that the 1st and 2nd respondents alleged in their pleadings that the 3rd respondent was not a member of the PDP (appellant) at the time he was sponsored by the PDP.
4. Whether or not the issue of jurisdiction properly raised before the tribunal was caught by issue estoppel.
5. Whether or not the tribunal was right in holding in all the circumstances that the 3rd respondent was not qualified to contest the election.
6. Whether or not the tribunal had jurisdiction to entertain the complaint regarding invalid substitution and nomination in holding that the 3rd respondent was illegally placed on the ballot papers.
7. Whether or not the tribunal was right in voiding the election of the 3rd respondent as it did and ordering the holding of a fresh election.

The respondents on the other hand in their brief of argument identified their issues;

(1) Considering the clear provision of sections 177, 182 and 187 of the Constitution of the Federal Republic of Nigeria 1999 and sections 34, 36, 38, 144 and 145(1)(a) of the Electoral Act, 2006 and evidence led, whether the trial tribunal acted within its jurisdiction to hold that the 1st respondent was at the time of the election not qualified to contest the election held on the 14th day of April, 2007 into the office of Governor of Kebbi State.

(2) Whether the tribunal rightly came to the conclusion that the petitioners/respondents proved their case for nullification of the return of 1st respondent/appellant at the election of 14th April, 2007 in the light of section 146(1) of the Electoral Act.

The respondent’s first issue covers the appellant’s issues 1-6 and the 2nd issue covers the appellant’s issue 7.

These issues were the issues determined in appeal No.1 consequently, I adopt my findings and reasonings in respect of issue 1 in appeal No.1 to the appellant’s issues 1-6 and the respondent’s issue 1. Similarly issue 7 of the appellant and the respondent’s issue 2 based on my finding becomes a non-issue. In the circumstances, I allow the appeal and adopt the consequential orders in appeal No. 1. I make no order as to costs.

APPEAL NO.3

I adopt the reasoning and conclusions reached in respect of appeal No.1 in allowing the appeal and the orders made in respect of appeal No.1 are hereby adopted.

I make no order as to costs.

CROSS-APPEAL

The sole issue for determination in the cross-appeal is; Whether the trial tribunal was wrong in not directing that the 1st petitioner be returned as duly elected; or at least a fresh/bye election be conducted in which 1st and 2nd respondents/appellants/cross-respondents would not be entitled to participate, and in also not specifying the time within which the fresh/bye-election should be held.

This issue becomes academic based on my finding in the substantive appeal.

The cross-appeal is over taken by events and is hereby dismissed.

There shall be orders as to costs.

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Other Citations: (2008)LCN/2727(CA)