Ernest Nama Bamaiyi & Anor V. Honourable Bala Na-allah & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A
This is an appeal against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Bernin Kebbi, Kebbi State in petition No KB/EPT/HR/2/2007 wherein the Tribunal dismissed the Appellants’ petition which said judgment was delivered on 10th October, 2007. On the 21st day of April, 2007 the 3rd Respondent, the Independent National Electoral Commission conducted elections into the House of Representatives in the Zuru/Danko/Wasagu/ Sakabo/Fakai Federal Constituency of Zebbi State. In the said election, the 1st Appellant was a candidate sponsored by the 2nd Appellant, the Democratic Peoples Party (DPP). The 1st Respondent, who also was a candidate, contested on the platform of the 2nd Respondent, The peoples’ Democratic Party (PDP). One Haruna Abuyayi Chonoko of the ANPP also contested the said election. At the end of the election, the 1st Appellant scored a total of 11,084 votes, the 1st Respondent scored 130,997 while the ANPP candidate scored 24,590 votes. Based on this result, the 1st Respondent was declared winner and returned elected. Not being satisfied with the return of the 1st Respondent, the Appellants as petitioners, by a petition dated 21st May, 2007 challenged before the Lower Tribunal the return of the 1st Respondent as member representing the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency of Kebbi State. The Petition was initially anchored on two grounds as contained in paragraph 13 of the petition. However the petition was fought on one ground only, i.e., that the 1st Respondent was at the time of the election, not qualified to contest the election. The second ground relating to non-compliance with the provisions of the Electoral Act, 2006, was abandoned as contained on page 179 of the record of proceedings. At the end of trial, the Lower Tribunal upheld the election of the 1st Respondent and dismissed the petition for lacking in merit.
Dissatisfied with the stance of the Tribunal in dismissing their petition, the Appellants, on 30th October, 2007 filed Notice of Appeal dated the same date which notice contains five grounds of appeal. From the five grounds of appeal, the Appellants have distilled two issues for determination. The issue is:-
- “Whether or not the 1st Respondent was at the time of election qualified to contest election into the House of Representative for the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency, on 21st April, 2007 having regard to the combined effect of Section 34, 36, and 38 of the Electoral Act 2006.
- Whether or not in view of the facts before the trial tribunal, the Appellants proved their case and whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate.”
It is however the view of the learned counsel for the 1st and 2nd Respondents that this appeal can be determined on one issue only. That issuer according to him is as follows:-
”’Whether or not the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the election into the House of Representatives for the Zuru/Danko/Wasalgu/Sakaba/Fakai Federal Constituency on the 21st April, 2007.”
The 3rd and 4th Respondents did not file any brief and as such, they have nothing to urge this court on. Although this appeal can be effectively determined only on the 1st issue as formulated by the Appellants, which was also noted by the learned counsel for the 1st and 2nd Respondents, I shall consider the two issues presented by the Appellants.
It is the contention of the Appellants that the 1st Respondent was initially the candidate sponsored by the All Nigeria Peoples Party (ANPP) for the aforesaid House of Representatives seat for the election billed for the 21st April, 2007. They further contend that as at the time the 2nd Respondent (PDP) sponsored the 1st Respondent, the 1st Respondent had not withdrawn his candidature under the platform of the ANPP. Also that although the 1st Respondent asserted that he had withdrawn as a candidate of the ANPP; he did not lead credible evidence to prove a valid withdrawal. Having not led evidence to prove the averment that he had withdrawn from the ANPP, the learned counsel for the Appellants submits that the appellants had abandoned the averment. He cited the cases of Latifu Iluyomade V. Mrs. Comfort Ogunshakin (2001) 8 N.W.L.R. (Pt 716) 559. Jacobson Eng. Ltd. V. UBA. Ltd. (1993) 3 N.W.L.R. (Pt. 283) 586. Dikwa V. Modu (1993) 3 N.W.L.R. (Pt 280) 170. Sanusi V. Makinde (1994) 5 N.W.L.R. (Pt. 343) 214.
He further contended that although the 1st Respondent may have satisfied the requirement under Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 to contest the election, as there are facts showing breach of sections 34, 36 and 38 Pf the Electoral Act 2006, it should be held that he was not qualified to contest the said election. That if nomination of a candidate to contest is invalid, the fact of meeting constitutional requirements for holding his office cannot validate the invalid nomination. He cited the case of Military Administrator of Benue State V. Utegede (2001) 17 N.W.L.R. (Pt 741) 194. Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt 1048) 367.
Furthermore, that a person who fails to comply with mandatory provision of the procedure set out in the Electoral Act, thereby violating the rule of contest cannot take refuge under the constitutional provisions of section 65 and 66 as to qualification to be elected. He opined that before a person can be said to have qualified to contest election, he must satisfy both the constitutional and statutory requirements. He cited the case of PPA & anor V. Saraki & Ors. (CA/IL/EPT/GOV/2007) unreported. P.D.P. V. INEC (1999) 11 N.W.L.R. (Pt. 626) 200.
Learned Counsel concluded that the 1st Respondent having not established that as at 5/2/2007 when his name was submitted by the 2nd Respondent as a substitute candidate he had withdrawn his candidature under ANPP, it is not in doubt that on the 5/2/2007, he stood nominated by two political parties for the same seat. He urged this court to hold that this is an infraction of section 38 of the Electoral Act and that this issue be resolved in favor of the Appellants.
In his reply, the Learned Counsel for the 1st and 2nd Respondents submitter that the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the election into the House, of Representatives for the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency. That contrary to the contention of the appellants to establish a case under section 145 (1) (a) of the Electoral Act 2006, they did not plead or adduce any evidence at the trial to prove that the 1st Respondent suffered any constitutional disability to contest the election. That section 34, 36 and 38 of the Electoral Act, 2006 relied upon by the Appellants cannot be interpreted to the effect that they have enlarged, added to or expanded sections 65 and 66 of the 1999 constitution. He submitted further that the qualification of the 1st Respondent cannot be validly questioned under section 145 (1) (a) of the Electoral Act on the basis of non-compliance with Sections 34, 36 and 38 of the same Act. That the criteria for the 1st Respondent to contest election as a member of the House of Representatives are prescribed in section 65 of the 1990 Constitution. Furthermore, he opined that no other provision of the Electoral Act can enlarge, add to, expand, amend or even explain the constitutional provisions. He relies on the cases of INEC V. Musa (2003) 3 N.W.L.R. (Pt 806) 72 and A. G. Abia State V. A. G. Federation (2002) 6 N.W.L.R. (Pt. 763) 264, PDP V. Haruna (2004) 16 N.W.L.R. (Pt 900) 597, at 612.
Learned Counsel further submitted that having abandoned Ground Two of the Petition which relates to invalidity of the election on the reason of corrupt practices and non compliance with the mandatory provisions of the Electoral Act, 2006, the Appellants did not and should not expect to be taken seriously on their complaints concerning the alleged non compliance with sections 34, 36 and 38 of the Electoral Act 2006.
On the cases of Ugwu V. Ararume (2007) 6 S.C. (Pt. 1) 88 and Amaechi V. INEC & Anor (2008) 5 N.W.L.R. (Pt.1080) 227 relied upon by the Appellants, Learned Counsel for the 1st and 2nd Respondents urged this court to discountenance them as the facts in the two cases are radically different from the instant case. On the whole, he urged this court to resolve this issue against the appellants.
By section 137 of the Evidence Act, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Whoever therefore desires any court to give judgment as to any legal right or liability depending on the existence of facts which he asserts must prove that those facts exist. The onus of proving a particular fact rests on the party who asserts it. And by the rule of pleading, where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation lies or rests squarely on him. See AD V. Fayose (2005) 10 N.W.L.R. (Pt 932) 151, Melifonwu V. Egbuji (1982) 9 S.C., 145.
In the instant case, having withdrawn the case of noncompliance with the provisions of the Electoral Act 2006 against the Respondents as contained on page 179 of the Record of proceedings, this petition was fought at the Lower Tribunal on one ground only and that is whether the 1st Respondent was qualified to contest the election into the house of Representatives held on the 21st April, 2007 as the candidate of the 2nd Respondent.
It is of note that the Appellants who were petitioners called just one witness whose evidence is on page 11-12 of the record. Since the evidence of the witness is short, I wish to reproduce it here and now:-
“WITNESS STATEMENT OF SULEIMAN USMAN
I, SULEIMAN USMAN, Adult, Male, Nigerian Citizen, Barrister and Solicitor of the Democratic Peoples’ Party do hereby state as follows:-
- That I am a registered voter, member of the party and Legal Adviser of the party that sponsored the 1st petitioner for the Zuru/Danko/Wasagu/Sahaba/Fakai Federal Constituency of Kebbi State.
- That I know as a fact that elections were conducted into the National Assembly in the Federation including the Zuru/Danko/Wasagu/Sahaba/Fakai Federal Constituency of Kebbi State held on, 21st April, 2001.
- That on 2nd May, 2007, I wrote a letter to the National Secretary of All Nigeria Peoples’ Party to clarify the position of all candidates who allegedly emerged as a result of supposed merger of ANPP and PDP, Kebbi State chapters, and I received a reply on 9th May, 2007.
- From the reply I received from the National Secretary of ANPP, it was very clear that the 1st Respondent was still a member of the ANPP at the time he was nominated for and contested elections under the sponsorship of the 2nd Respondent.
- I am equally, aware that the purported letter of substitution allegedly written by the National Chairman of the 2nd Respondent substituting the 1st Respondent for the 2nd Respondent’s former candidate is of doubtful source as same has been disowned by the National Chairman of the 2nd Respondent by his letter dated 9th February, 2007.
- That I humbly pray the Tribunal to grant the reliefs sought by the Petitioners herein.
STATEMENT OF TRUTH
I Sulaiman Usman, believe that the facts stated in this witness statement are true and correct and in accordance with the Oaths Act, 1990
Dated this 21st day of May, 2007.
Signed.
……………..
Deponent
BEFORE ME
Signed
COMMISSIONER FOR OATHS”
Clearly, from the evidence of the Petitioners’ witness their case was anchored on two documents namely:-
- A letter written by the witness to the National Secretary of the ANPP, and
- The reply to that letter-alleging that the Respondent was the candidate of the ANPP at the April 21st, 2007 election into the House of Representatives.
Throughout the whole gamut of evidence, the two letters, which in my humble opinion were the anchor of the Appellants’ petition, were never tendered. Any wonder therefore why the Lower Tribunal dismissed the petition for lacking in merit?
Apart from that, the Appellants in paragraph 12 of their petition clearly states that one Haruna Abwyayi Chonoko was the candidate of the ANPP at the said election and scored 24,590 votes. But if paragraph 14 (a) of the said petition, they make a summersault and state that it was the 1st Respondent who was the candidate of the ANPP and in paragraph 4 of the petition, the Appellants states that the 1st Respondent was the candidate of the 2nd Respondent. I am at a lose as to how they expected the Lower Tribunal to have granted their petition in view of the conflicting facts in the pleadings.
Now, on the issue of whether or not the 1st Respondent was qualified to contest the election or not, regard must be had to the constitution of the Federal Republic of Nigeria 1999 which under section 65 outlines the qualification of any person seeking to be elected into the National Assembly of Nigeria. The said section 65 provides:-
“65 (1) subject to the provision of section 66 of this constitution, a person shall be qualified for election as a member of
(a) the senate, if he is a citizen of Nigeria and has attained the age of thirty five years, and
(b) the house of Representatives, if he is a citizen of Nigeria and has attained the age of thirty years;
(2) A person shall be qualified for election under subsection (i) of this section if –
(a) he has been educated up to at least school certificate level or its equivalent, and
(b) he is a member of a political party and is sponsored by that party.”
Section 66 of the said Constitution enumerates the instances and conditions under which a person may be disqualified from contesting elections into either the senate or House of Representatives. A crucial issue which calls for consideration in this appeal is the relationship between Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria 1999 on one hand and Sections 34, 36 and 38 of the Electoral Act, 2006. It was contended by the Learned Counsel for the Respondents that provisions for the qualification of a person to contest election into the house of Representatives is governed by Section 65 and 66 of the 1999 Constitution only and that Sections 34, 1136 and 38 of the Electoral Act, 2006 refer to nomination simpliciter and has nothing to do with qualification. There is no doubt that Sections 65 and 66 of the 1999 Constitution set out the criteria for qualification and disqualification of a candidate seeking election into the House of Representatives respectively.
Section 65(2) (b) states that:-
“(2) A person shall be qualified for election under subsection (1) of this section if-
(a) –
(b) he is a member of a political party and is sponsored by that part.”
By the above provision, a person who is not a member of a political party and is not properly sponsored by that party can not be said to have been qualified to contest the election. Although many Nigerians may be qualified to contest election into the House of Representatives, not all of them can contest the said election until they are nominated and sponsored by a political party in accordance with the Constitution. The Constitution does not prescribe the procedure under which a person may be nominated and sponsored by political party.
That is where the Electoral Act, 2006 comes in.
By virtue of paragraph 15 (i) of Part I in the Third Schedule to the 1999 Constitution, the Independent National Electoral Commission is empowered to “carry out such other functions as may be conferred upon it by an Act of the National Assembly.” Also under Part I of the 2nd schedule to the 1999 Constitution the National Assembly has power to make laws regulating elections into the National Assembly as item 22 thereof within the exclusive Legislative List of the National Assembly. In pursuant of this power, the National Assembly enacted the Electoral Act, 2006 which among other things, regulates the nomination and substitution of candidates by political parties.
Thus apart from meeting the conditions prescribed by Section 65 & 66 of the Constitution of the Federal Republic of Nigeria to contest election into the House of Representatives, such a candidate must comply with these sections of the Electoral Act in that respect. The sections of the Electoral Act, 2006 i.e. 34, 36 and 38 relating to the nomination, withdrawal of nomination and substitution do not in my opinion add to or subtract from the qualification to hold office which a prospective candidate must satisfy. The cases of INEC V. Musa (Supra) and Attorney General Abia State V. Attorney General Federation (Supra) which were relied upon by the Learned Counsel for the 1st Respondent to my bind do not apply in this instance. I however agree with the decisions in those cases that all powers, legislative, executive and judicial must be ultimately traced to the Constitution as this present case reveals.
Whereas Section 65 & 66 of the Constitution relates to qualification or otherwise of a candidate, Section 34, 36 and 38 of the Electoral Act, drawing inspiration and strength from the Constitution relates to procedure in actualizing the provision of Section 65 (2) (b) of the 1999 Constitution. Both in my opinion must be met before a person can validly be said to be qualified to contest election into the National Assembly. No matter how one is constitutionally and eminently qualified to contest election, if he is nominated and sponsored by two political parties at the same time, except of course there is a merger recognised by law, such a person cannot be said to have been qualified to contest the election.
In the instant case, did the appellants prove that the 1st Respondent was not qualified to contest the election or that he is guilty of double nomination? As I had earlier noted, the appellants who had alleged that it had documents to prove that the 1st Respondent was sponsored by the ANPP and the PDP at the same time, failed to tender these documents especially the letter from the ANPP to that effect. The argument that the 1st Respondent failed to prove that he was properly nominated does not appeal to me since the, burden of proving double nomination did not shift from the appellants who alleged it. It is not enough to plead certain facts in a petition, credible evidence must be led to prove these facts for the Court to act on. Where averment in the pleading is unsupported by evidence, it is regarded that the averment has been abandoned and the Court cannot act on same. See Yashe V. Umar (2003) 13 M.W.L.R. (Pt. 838) 465, Remalo Ltd. V. N.B.N. Ltd. (2003) 16 N.W.L.R. (Pt.846) 235.
By way of concluding this issue, I need to say that having abandoned ground two of the Petition which relates to the invalidity of the election on the reason of corrupt practices and non compliance with the mandatory provisions of the Electoral Act 2006, the Appellants appear to have made a gamble over their complaint concerning the alleged non-compliance with sections 34, 36 and 38 of the Electoral Act 2006. You cannot approbate and reprobate. That is the law. Be that as it may the Appellants failed to bring to bear in this case the facts and decision in the cases of Ugwu V. Ararume (supra) and Amachi V. INIC & Ors (supra) cited and relied upon by them. I hold that the facts and decisions in the two cases do not avail the Appellants in the instant appeal.
In the final analysis I hold a firm view that the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the House of Representatives election held on 21st April, 2007. Accordingly, this issue is resolved against the Appellants.
On issue No 2 i.e. whether or not the appellants proved their case before the Lower Tribunal and whether the fact that ANPP fielded its candidate in the election was enough to validate the alleged invalid nomination of the 1st Respondent by the 2nd Respondent as a candidate, my view is that this issue has been adequately covered by issue No 1. I have already held that the nomination of the 1st Respondent by the 2nd Respondent was proper and I do not intend to repeat it here. I have also held that the appellant’s case which was anchored on an alleged letter from the National Secretary of ANPP to show that the 1st Respondent was the candidate of the ANPP at the election, which ought to have been tendered but withheld, dealt a fatal blow to the appellants’ case. The PW1, the only witness for the appellants in his sworn witness statement refered to this letter which gave the Appellants the impetus to file the petition, yet he failed to produce the said letter which was in his custody. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. See Section 142 of the Evidence Act. It is also clear that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. (See Section 149 (d) of Evidence Act. Having held that the Appellants failed to prove their case at the Lower Tribunal, I need not say more.
On the whole, this appeal lacks merit and is hereby dismissed. I affirm the judgment of the Lower Tribunal accordingly. I order the appellants to pay costs assessed at N20, 000.00 to the 1st respondent only.
Other Citations: (2008)LCN/2887(CA)
