Hon. (Major) Satty W. Gogwim V. Hon. Zainab G. Abdulmalik & Ors (2008)
LawGlobal-Hub Lead Judgment Report
UZO NDUKWE-ANYANWU, J.C.A.
On 21st April, 2007, elections were held throughout the country into the senate. The Appellant was sponsored by Action Congress (AC) to contest for the Plateau Central Senatorial District, whilst the 1st Respondent was sponsored by Democratic Peoples Party (DPP) to contest for the same seat. After the election the Appellant was declared winner with 174,632 votes and was returned. The 1st Respondent was accorded 51 votes even though her party’s name and logo did not appear in the ballot papers.
The Petitioner/1st Respondent filed a Petition No. PL/NA/EPT/SN/1/2007 in the Election Tribunal and prayed for the following reliefs:
(1) “WHEREOF your Petitioner prays that it may be determined that the 2nd Respondent was not dully elected was null and void contrary to Section 145 (1) (C) Electoral Act 2006.
(2) An order that the election conducted on 21st April, 2007 in respect of Plateau Central Senatorial District be set aside for reason of corrupt practices and noncompliance with the provision of Electoral Act.
(3) An order directing a fresh election into the Plateau Central Senatorial District.
(4) Any other order that the Tribunal may deem fit to make pursuant to the Electoral Act.
(5) Cost of Petition.”
The Petitioner/1st Respondent also prayed for the last relief under the sub head particulars of non compliance.
(1) “A declaration that the Petitioner was validly nominated and was unlawfully excluded from the election having been duly cleared by 1st Respondent to contest same contrary to Section 145 (1) (d) of Electoral Act 2006.”
The Democratic Peoples Party (DPP) who sponsored the Petitioner/1st Respondent also filed a petition No. PL/NA/EPT/SN/19/07 and claimed the following reliefs:
(1) “To nullify the declaration and or return of the 1st Respondent by the 3rd Respondent as the elected candidate and/or winner of the Senatorial Election held on 21st April, 2007 for the Plateau Central Senatorial District.
(2) To nullify the election into the Senate of the Federal Republic of Nigeria in respect of Plateau Central Senatorial District held on 21st April, 2007.
(3) A declaration that the exclusion of the petitioner from participating in the election into the Plateau Central Senatorial District is unlawful.
(4) A declaration that the return of the 1st Respondent by the 3rd Respondent as the winner of the election into the Senate of the Federal Republic of Nigeria in respect of Plateau Central Senatorial District is a nullity.
(5) An order directing the 3rd Respondent to organize and conduct fresh elections into the Senate of the Federal Republic of Nigeria in respect of Plateau Central Senatorial District, including the name and symbol of the. Petitioner on the ballot paper.”
At the Tribunal, the Appellant filed a Motion on Notice urging the Tribunal to strike out the petition of the 1st Respondent having not been cleared to contest the election.
The Tribunal dismissed this motion for striking out and consolidated the two Petitions PL/NA/EPT/SN/1/2007 and PL/NA/EPT/SN/19/2007. The petitions proceeded to full trial. At the end a considered judgment was delivered on 7th December, 2007 granting the Petitioners the reliefs sought.
The Appellant being dissatisfied filed a notice and 15 Grounds of Appeal. The Appellant thereafter distilled 5 issues for determination as follows:-
(1) “Whether the Lower Tribunal was right to void the election of the 1st Appellant when the Petitioner did not prove valid nomination of the candidature of the 1st Petitioner. (Arising from grounds 4, 5, 6, 7 and 8)
(2) Whether the 1st Petitioner was unlawfully excluded from the election to the Senate for Plateau Central Senatorial District Seat. (Arising from grounds 10, 11, 12 and 13).
(3) Whether the failure to include the Petitioner’s logo on the ballot paper is such noncompliance that did substantially affect the entire election. (Arising from grounds 14, 15).
(4) Whether upon the state of the pleadings, the Honourable Tribunal was right to hold that the Appellants had admitted the material averments of the Petitioners thereby requiring no further proof of same.(Arising from ground 9).
(5) Whether the Tribunal below was right in refusing to strike out the petitions, both being plagued by statutory deficiencies. (Arising from grounds 1, 2, and 3).”
The 1st and 2nd Respondents filed their brief of argument and raised a Preliminary Objection which reads thus: –
(1) “Grounds 1, 2 and 3 of the Appellants’ grounds of appeal are incompetent for being grounds arising out of interlocutory decisions of the Lower Tribunal delivered on the 24th July, 2007, and 1st August, 2007 respectively.
(2) Issue 5 arising out of grounds 1, 2 and 3 being an issue distilled from incompetent grounds of appeal is liable to be struck out by this Honourable Court.
(3) Ground 4 is incompetent having not arisen from the ratio of the judgment of the Lower Tribunal, and thus liable to be struck out.
(4) Ground 4 is equally incompetent for being inconsistent in that it alleges misdirection on the facts, whereas the appellants’ complaint is one of an error in law.
(4) Issue No. 1 distilled by the Appellants from grounds 4, 5, 6, 7 and 8 is incompetent and liable to be struck out being an issue distilled from an incompetent ground and competent grounds.
(5) No issue was distilled from ground 11 and as such, the said ground ought to be deemed abandoned and struck out by this court. Issue NO.2 purportedly distilled from grounds 10, 11, 12 and 13 did not cover the issue arising from ground 11 of the grounds of appeal.
(6) Arguments at paragraph 4.47 at pages 24 to 25 of the Appellants’ brief are wider than the grounds from which issue No. 5 was distilled and thus ought to be discountenanced by this Honourable Court.”
The Preliminary Objection is well set out and comprehensively argued in the 1st and 2nd Respondents brief to which the Appellant replied.
I have considered the Preliminary Objection which is substantial and well argued, however it would not answer the burning questions in this appeal rather it will take us through the tedious journey into the land of technicalities. The Courts have for sometime now refused to take that path. The Courts prefer to deal with the substance of the appeal rather than dwell on technicalities. See the case of Erisi V. Idika (1987) 1 ANLR Pg 382 where Nnamani JSC (as he then was) impressed on the bench the need to do substantial justice.
I would in the circumstance do substantial justice by considering this appeal on the merit.
I have looked at the many issues distilled for determination and believe that the following issues would be comprehensive enough to dispose of this appeal.
(1) Whether the 1st Respondent was validly nominated but was unlawfully excluded from the election.
(2) Whether the unlawful exclusion was a substantial noncompliance to warrant the nullification of the election.
ISSUE ONE
Learned appellants counsel Chief Chris Uche SAN submitted that the 1st Respondent was not validly nominated to contest the election of 21st April, 2007. To be validly nominated to contest an election, the 2nd Respondent Democratic Peoples Party (DPP) has to submit the list of its candidates in the prescribed form. This list shall be supported by an affidavit of personal particulars of each candidate. Counsel submitted that the 1st Respondent did not submit her affidavit of personal particulars and so Independent National Electoral Commission (INEC) did not verify same for purposes of nomination. See Section 32 (1) – (5) of the Electoral Act 2006 and Section 65 and Section 66 of the Constitution of the Federal Republic of Nigeria 1999. Counsel submits further that Exhibit P1 is merely an indication of likely contestants but not contestants who have been duly verified. The Respondents have to prove that the 1st Respondent was qualified to contest the election in order to present a petition pursuant to Section 145 (1) (d) of the Electoral Act 2006. A party who asserts a fact has the onus to prove the assertion. See N.A.S. Ltd V. United Bank for Africa Plc (2005) 14 NWLR Pt. 945 pg. 421 at 425.
The Respondents are duty bound to tender the affidavit of 1st Respondent in proof of a valid nomination. The Court cannot speculate on the content of a document not tendered in evidence. See Bamgbegbin V. Oriare (2001) 5 NWLR Pt. 707 pg 628; and UTB (Nig) Ltd. V. Ajagbule & Anor. (2006) NWLR Pt. 965 pg 447 at 475-6.
Learned counsel urged the Court to hold that the sworn affidavit of 1st Respondent which is not produced would if produced, be unfavourable to the case of the Respondents. See Section 149(d) of the Evidence Act and the case of Ochin V. Ekpechi (2000) 5 NWLR Pt. 656 Pg 235.
Learned counsel submitted further that Section 32(1) Electoral Act 2000 requires that the forms be submitted not later than 120 days before the date of the election but that the 1st Respondent submitted hers after the deadline of 29th January, 2007. See Exhibit R2. However the 1st and 2nd Respondents tendered Exhibit P8 which gave the deadline as 21st February, 2007. The 1st Respondent claimed she submitted her form on 14th February, 2007 even though there was no endorsement by Independent National Electoral Commission (INEC) on Exhibit P4 as to the day her nomination form was received.
Counsel submitted finally that the 1st Respondent did not prove valid nomination that can warrant her prayers.
In reply the learned counsel to the 1st and 2nd Respondents submitted that the validity of the 1st Respondent’s nomination was not an issue canvassed at the Tribunal. Counsel referred to the 1st Respondent’s petition paragraphs 1, 3, 12 and 13 reproduced hereunder:-
- “Petitioner is a registered voter and a cleared candidate by INEC and has a right to vote and be voted for at the above named election and could not vote and be voted for at the election being a candidate sponsored by one of the registered political parties in Nigeria known and called “DEMOCRATIC PEOPLES PARTY” hereinafter referred to as “DPP”
a. your petitioner is a registered political party entitled to present a candidate and participate in the election into the Senate of the Federal republic of Nigeria for Plateau Central Senatorial District at the general election held on the 21st of April, 2007.
- The Petitioner as a registered political party nominated and sponsored Zainab G. Abdulmalik as its candidate in Plateau Senatorial District in the Election into the Senate of the Federal Republic of Nigeria, whereas the petitioner was unlawfully excluded from the said election.
- Your petitioner’s avers that its candidate at the said election was qualified to contest the election as she had satisfied all constitutional and statutory requirements to qualify her to contest the said election and was not otherwise disqualified.
- Your petitioner’s candidate at the, said election filled the necessary nomination forms and submitted same to the 3rd Respondent. Notice is hereby given to the 3rd Respondent to produce the certified true copies of the relevant Nomination Form and Sworn Affidavit of the Petitioner’s candidate (Zainab G. Abdulmalik).”
See also the 3rd-9th Respondents reply:-
(a) Though the petitioner nominated and sponsored Zainab G. Abdulmalik as its candidate in Plateau Central Senatorial District in the election into the Senate of the Federal Republic of Nigeria, the petitioner was not unlawfully excluded from the election.
(b) The 9th Respondent is the Resident Electoral Commissioner of the 3rd Respondent in Plateau State but was not the Chief Returning Officer in respect of the election held on 21st April, 2007 as it relates to Plateau Central Senatorial District.
(c) The complaint made by the petitioner about the absence of its name and symbol on the ballot paper was made after the elections were conducted.
(d) The petitioner was not qualified for the election hence the 3rd respondent was not under an obligation to reflect the petitioner’s symbol on ballot paper at the said election.
(e) The Petitioner’s candidate was not allocated votes but scored 51 votes at the election.”
From the above counsel submitted that Independent National Electoral Commission (INEC) admitted the nomination and candidacy of the 1st Respondent as the lawful candidate sponsored by 2nd Respondent for Plateau Central Senatorial District.It is settled law that facts admitted need no further proof. See Khalil V. Yar’adua (2003)16 NWLR Pt. 847 Pg. 466; Ngige V. Obi (2006) 14 NWLR Pt. 999 Pg. 122 where it was held:
“Where facts pleaded by one party to a suit are directly and unequivocally admitted by the opposing party, no issue for determination is joined between the parties in respect of such facts.”
Abu V. Ogli (1995) 8 NWLR Pt. 413 pg 353; Temile V. Awani (2001)12 NWLR Pt. 728 pg 726 where it was held that –
“A Court cannot consider issues not joined by the parties in their pleadings.”
Accordingly the Tribunal found that the issue of nomination had been admitted by Independent National Electoral Commission (INEC). The Appellant abandoned his pleadings when he failed to lead evidence on the averments contained thereto.
Pursuant to Section 35 Electoral Act 2006 which provides as follows:
“The Commission shall, at least thirty (30) days before the day of the election publish by displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and such other places as it deems fit, a Statement of the full names of all candidates standing nominated.”
Independent’ National Electoral Commission (INEC) published Exhibit P1 which is a list of nominated candidates for the three (3) Senatorial Districts of Plateau State. The name of the 1st Respondent appeared as No. 12 with her party logo in the state list and No. 4 under Plateau Central Senatorial District.
Furthermore when’ Independent National Electoral Commission (INEC) published Exhibit P1 it was clear that INEC had accepted the nomination of the 1st Respondent by the 2nd Respondent.
Counsel referred the Court to Section 150(1) Evidence Act which provides:-
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
There is a presumption that Exhibit P1, R1, P6 and P7 are presumed to be regular.
Learned counsel also submitted that validity of a nomination is a pre-election matter subject to the jurisdiction of Federal High Court pursuant to Section 32(4) of the Electoral Act 2006. See the case of Jang V. Dariye (2003) 15 NWLR Pt. 843 pg. 436 at 459 – 60. Action Congress V. INEC (2007) 18 NWLR Pt. 1065 pg 50 at 73.
Finally the learned counsel to the 1st and 2nd Respondent urged the Court to hold that the 1st Respondent was validly nominated by the 2nd Respondent and that Independent National Electoral Commission (INEC) accepted it (Exhibit P1).
In this petition the paramount issue is whether there was a valid nomination’ of the 1st Respondent by the 2nd Respondent. Nomination is a major step in the process of election. The political party in this case Democratic Peoples Party (DPP) nominated her candidate the 1st Respondent. Nominate means “to propose formally that somebody should be chosen for a position, office or task.” It also means propose a person for election or appointment. Democratic Peoples Party (DPP) nominated the 1st Respondent as its candidate for the Plateau Central Senatorial District. By so doing it is correct to say, that Democratic Peoples Party (DPP)/2nd Respondent sponsored the 1st Respondent as its candidate. Nomination Forms were filled by 1st Respondent, (Exhibit P3) together with her affidavit of personal particulars within the time fixed by Independent National Electoral Commission (INEC) guidelines i.e. 21st day of February, 2007. See Exhibit P8. 1st Respondent denied that the closing date for nomination was 29th January, 2007. Nomination and sponsorship is the sole preserve of political parties. See Rimi V. INEC (2005) 6 NWLR Pt. 920 pg 56 at 70. Tsoho V. Yahaya (1999) 4 NWLR Pt. 600 pg 657 at 671. It appears from available documentary evidence from Independent National Electoral Commission (INEC) that the 1st Respondent did infact submit her forms with her affidavit of personal particulars on the 13th February, 2007. The Forms (Exhibit P3) having been dispatched on 6th February, 2007. Independent National Electoral Commission’s stamp for received was however not dated, even though received and certified true copy of it tendered. Exhibit P3 was certified by Independent National Electoral Commission (INEC) which presupposes that it was infact received within the time specified by Independent National Electoral Commission (INEC).
A close look at Exhibit P8 and its content especially paragraph 3 will show that Independent National Electoral Commission has given a guideline for nomination and the substitution of candidate (emphasis mine).
Exhibit P8 in totality has clearly indicated new dates for submission of nominations.
Counsel to the 1st, 3rd – 7th Respondents in the petition i.e. Independent National Electoral Commission (INEC) have stated in their argument that the 1st Respondent was not validly nominated because her forms were submitted later than 29th January, 2007 breaching the 120 days envisaged by Section 32(1) of the Electoral Act 2006. 29th January, 2007 to 21st April, 2007 is clearly below the 120 days envisaged and as such Independent National Electoral Commission (INEC) is in utter breach of that provision. From the totality of information contained in Exhibit P8 it implies that there is a new time schedule for parties to conform with.
The 1st Respondent collected a form for nomination on 6th February, 2007 which, date conforms with Exhibit P8 in contrast to the time table in Exhibit R2. It would be taken that Exhibit P8 which is later in time and more detailed supersedes that of Exhibit R2.
Independent National Electoral Commission (INEC) received Exhibit P3 and thereafter published Exhibit P1 – a list of nominated candidates of all the candidates sponsored by political parties. The 1st Respondent’s name appeared as number 12 in Plateau State list and as number 4 in. Plateau Central SD/092/PL. Her party Democratic Peoples Party (DPP) was also listed against her name as her sponsor. Exhibit P1 is a complete proof that Independent National Electoral Commission (INEC) had indeed received the forms of 1st Respondent and the other requirements to entitle her name and party being included in Exhibit P1. This is conclusive of 1st Respondent’s nomination and sponsorship by 2nd Respondent to contest election into the Plateau Central Senatorial District Exhibit P1.
The Evidence Act Section 150(1) states that-
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
The law presumes that everything needed to be done was done by the 1st Respondent.
Exhibits P1, R1, P6 and P7 tendered show that 1st Respondent was sponsored by 2nd Respondent to contest. These documents were also not challenged. It should be noted that only parties can nominate. Independent National Electoral Commission (INEC) cannot question validity however Independent National Electoral Commission (INEC) can question qualification before election through screening in regards to the basic qualification as provided by Sections 65 and 66 of the 1999 Constitution. AC V. INEC (2007) 12 NWLR Pt. 1048 pg. 222 where it was held:-
“Section 137(1) of the 1999 Constitution does not confer on the Independent National Electoral Commission (INEC) the power to disqualify any candidate from contesting election, either expressly or by necessary implication.
Moreover, there is no where in the Constitution where any such power is conferred on INEC to disqualify any candidate.”
It is expected that if the 1st Respondent failed to submit her affidavit of personal particulars, her name should not be listed as a contestant in the election. Appearing in the list presupposes that the basic requirements have been met hence Exhibit P1. See Jang V. Dariye (2003) 15 NWLR Pt. 843 pg 436 at 459 – 460; Action Congress V. INEC (1007) 18 NWLR Pt. 1065 pg 50 at 73 where it was held that –
“The issues of disqualification, nomination, substitution and sponsorship of candidates for an election precede election matters and are therefore pre-election matters.”
The 2nd Respondent in her petition states inter alia in paragraph 3 reproduced hereunder:-
(3) “The Petitioner as a registered political party nominated and sponsored Zainab G. Abdulmalik .as its candidate in Plateau Central Senatorial District in the Election into the Senate of the Federal Republic of Nigeria, whereas the petitioner was unlawfully excluded from the said election.”
In reply to this paragraph 3 the 3rd – 9th Respondents in the petition in Paragraph 3(1) averred as follows:-
“Though the petitioner nominated and sponsored Zainab G. Abdulmalik as its candidate in Plateau Central, Senatorial District in the election into the senate of the Federal Republic of Nigeria, the petitioner was not unlawfully excluded from the election.”
It is settled law that facts admitted need no further proof. See Khalil V. Yar’adua (supra), UTB Nigeria Ltd. V. Ajagbule (supra). Ngige V. Obi (supra) where it was held that: –
“Where facts pleaded by one party to a suit are directly and unequivocally admitted by the opposing party, no issue for determination is joined between the parties in respect of such facts.”
The above shows from the pleadings that there were no issues joined by the parties as regards the nomination of 1st Respondent by 2nd Respondent. See Abu V. Ogli (supra) and Temile V. Awani (supra) where it was held that –
“facts in a statement of claim which are admitted or not disputed by the defence, on which no issue was joined between the parties, require no proof or evidence is necessary or admissible in further proof of such admitted facts.”
Strictly speaking it does not lie in-the mouth of the Appellant to state that the 1st Respondent was not validly nominated. It is not a defence that can avail the Appellant as it is his election that is being questioned.
It is pertinent to look again at the provisions of Section 32 (1), (2) and (3). Section 32(1) and (2) outlines what the candidates and their political parties must do. Section 32(3) stipulates what Independent National Electoral Commission (INEC) must do when Section 32(1) and (2) have been fulfilled i.e. publish the names of candidates and exhibit it at the relevant venues. I make bold to state that from the foregoing Independent National Electoral Commission (INEC) has accepted the nomination and sponsorship of the 1st and 2nd Respondents respectively. Exhibit P1 is in conformity with Section 35 of the Electoral Act 2006 and Independent National Electoral Commission (INEC) cannot deny its own document. By publishing P1 the presumption of regularity must be deciphered. See Sections 150 and 151 of the Evidence Act. See also the case of Ibrahim V. INEC (1999)8 NWLR Pt.614 pg 334 at 336.
With the foregoing I agree that Independent National Electoral Commission (INEC) cannot question the nomination of a candidate by a political party. The 1st Respondent has successfully proved to my satisfaction that she has fulfilled what is required of her. This Independent National Electoral Commission (INEC) had also endorsed by publishing Exhibit P1. I therefore hold that the 1st Respondent was validly nominated by the 2nd Respondent Democratic Peoples Party (DPP) to contest the Plateau Central Senatorial Seat.
I have determined with the foregoing that the 1st Respondent was validly nominated by the 2nd Respondent. When a party validly nominates a candidate, for any election, Independent National Electoral Commission (INEC) is to take cognizance of that fact. Independent National Electoral Commission. (INEC) in Exhibit P1 published the name of the 1st Respondent and 2nd Respondent.
The 1st Respondent in her petition states inter alia –
(1) “Among the five candidates and parties cleared for the election in Plateau Central Senatorial District, my party Democratic Peoples Party (DPP) logo and name did not appear in the ballot papers used for the election on 21st April, 2007.
(2) Your petition will rely on the ballot papers used for the election held on 21st April, 2007.”
The 2nd Respondent in its petition stated inter alia –
Para (2) “Your petitioner states that the election into the Senate of the Federal Republic of Nigeria was held on the 21st day of April 2007 wherein the following persons were representing the under-listed political parties:
NAME OF CONTESTANTS POLITICAL PARTIES
- S.H.I. JANET – ANPP
- IBRAHIM NASIRU MANTU – PDP
- CHIEF (MAJOR) SATTY
WAVIES GOGWIM – AC
- LEONARD A. DIPAK – APGA.”
The 1st and 2nd Respondents in proof that they were unlawfully excluded tendered the ballot papers used on 21st April, 2007 in the Senatorial Election Exhibit P4. The Ballot Paper did not bear the name of the 1st Respondent nor the name and logo of the 2nd Respondent.
The 1st and 2nd Respondents witnesses PW1, PW2 and PW3 also testified as to the absence of the names of 1st and 2nd Respondents.
The Appellants witnesses also agree that the logo of 2nd Respondent was not on the ballot paper Exhibit P4. Independent National Electoral Commission (INEC) failed to comply with the Electoral Act 2006 by omitting the name of the 1st Respondent and name and logo of the 2nd Respondent.
In Effiong V. Ikpeme (1999) 6 NWLR pt. 606 pg 260 at 274 – 275. The Court held that for a petitioner to prove that he had been unlawfully excluded from an election he has to prove the following elements:
(1) That he was validly nominated by his political party.
(2) That the election was conducted and concluded.
(3) That a winner was declared.
(4) The name and logo of the petitioners was/were not on the ballot papers used at the election.
The above listed elements here have all been proved by the 1st and 2nd Respondents against the Appellants. The Court is left with no other attitude but to declare that Independent National Electoral Commission (INEC) unlawfully excluded the 1st and 2nd Respondents in the election of 21st April, 2007 into the Plateau Central Senatorial District.
ISSUE TWO
Coming to the second issue whether the unlawful exclusion was a substantial non-compliance to warrant the nullification of the election? The non-compliance the 1st and 2nd Respondents complained of in their petitions was brought pursuant to Section 45(1) of the Electoral Act 2006 which provides:-
“The Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the Political Party of the candidate and such other information as it may require.”
Under issue one above the Court held that the 1st Respondent was validly nominated by the 2nd Respondent but unlawfully excluded. The question now is how this unlawful exclusion affected the election of 21st April, 2007?
All parties to the petition agreed that there was exclusion which is a non-compliance of Section 45(1) Electoral Act 2006.
The Appellant submitted that the exclusion of the Respondents did not substantially affect the outcome of the election as the Respondent did not prove that it did. In their analysis learned counsel to the Appellant stated that the number of registered voters in the Senatorial District is 465,728. The total number of votes cast for all the candidates is 323,326; the number of votes left in the zone is 142, 412. The 1st Appellant scored a total of 174,632 votes.
Counsel submitted further that even if the remaining votes of 142, 412 votes were gratuitously given to the 1st Respondent; she would still not have won. Counsel submitted finally that failure to comply with the provisions of the said sub-section did not affect substantially the conduct of the election. See Buhari V. Obasanjo (2005) 2 NWLR Pt. 910 pg 241.
In counter, the learned counsel to the 1st and 2nd Respondents submitted that, the unlawful exclusion was a substantial non-compliance. The non-compliance is so grave and fundamental that the entire election can be categorized as no election under the Act. Counsel submitted that this exclusion is a substantial non-compliance with Section 45 of the Electoral Act and urged the Court to so hold.
A candidate in an election has a right to vote and be voted for.
In an election such as this, the 1st and 2nd Respondents were excluded from the election of 21st April, 2007. The 1st Respondent therefore lost her right to vote and be voted for. This exclusion is a substantial non-compliance of Section 45(1) Electoral Act 2006. Section 145(d) – is a ground to question an election, and it provides as follows:
“that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The unlawful exclusion is fundamental in that it involved a deprivation of the 1st Respondent from voting and her supporters were disenfranchised from voting for a candidate of their choice. PW1, PW2 and PW3 gave evidence of how they were disenfranchised. This evidence was unchallenged by the Appellants.
There was also unchallenged documentary evidence as per Exhibit P4 – the ballot paper, Exhibits P2 and P5 – the protest letters to show that the 1st Respondent and her supporters were totally disenfranchised.
Once a candidate is disenfranchised by reason of unlawful exclusion, the election becomes voidable by reason of substantial non-compliance.
The courts are reluctant to void any election because of any unsubstantiated non-compliance in any election. The word substantial was carefully crafted into Section 146(1) Electoral Act 2006 to ensure that any election is not thrown over board by any flimsy non-compliance. See Buhari V. Obasanjo (supra). See also Harriman V. Ideh (1999) 9 NWLR Pt. 619 pg 482 where Akintan JCA (as he then was) states: –
“… before any Tribunal could nullify any election duly conducted by the authority saddled with that assignment, all the necessary factors must be meticulously taken into consideration with the aim of ensuring that there are compelling factors to warrant or justify such a serious decision. This stand is buttressed by the fact that nullification or invalidation of an election is the gravest punishment that a candidate duly declared elected and the authority charged with conducting such election can experience. This is because such a decision would mean going through the expenses, trauma and other hazards of having to go over another election…”
The Court is not unmindful of the statement above however unlawful exclusion when proved leaves no room for maneuvering. It is fundamental and affects any election substantially. No noncompliance can be more grievous. It creates a situation of hopelessness to the candidate and his/her supporters. See the case of PPA V. Saraki (supra) where my learned brother Ogwuwumiju JCA likened a candidate’s exclusion from election to that of a student who after he has, paid his examination fees, given his examination number and presents himself to the examination hall only to be told he cannot take the exams for whatever reason. A candidate who is excluded is in pain as much as a candidate who has been returned after an election all be it defective due to no fault of his.
I must pause here to say that Independent National Electoral Commission (INEC) has caused untold hardships to candidates and political parties excluded as well as supposed declared winners in any election. Where an election is nullified all the candidates for that election are victims of untold hardship. The perpetrators of such negligent acts go scot free only to use tax payer’s money to conduct fresh elections. Who in God’s name should be held responsible for such blatant gross negligence? See the case of CA/J/EP/GOV/419/2007 Murtala Nyako V. Action Congress & 7 Ors (unreported).
With the foregoing I hold that the non-compliance of Section 45(1) of the Electoral Act 2006 was substantial.
Having resolved the two Issues formulated against the Appellants, I therefore hold that the 1st and 2nd Respondents were unlawfully excluded from participating in the election into the Plateau Central Senatorial District Seat held on 21st April, 2008.
The election of 21st April, 2007 was void ab-initio for reasons of non-compliance contrary to Section 145(1) (d) Electoral Act 2006.
This appeal is unmeritorious and therefore fails. The judgment of the Lower Tribunal is affirmed.
It is hereby ordered that the election into the Plateau Central Senatorial District held on 21st April, 2007 be nullified. Independent National Electoral Commission (INEC) is to conduct fresh elections within 90 days from today into the Plateau Central Senatorial District. The ballot paper must have the names of all the five (5) candidates including the name of the 1st Respondent Hon. Zainab G. Abdulmalik and the name and logo of the 2nd Respondent Democratic Peoples Party (DPP) to enable them full participation in the fresh election to be held.
Cost is assessed at N30, 000 to the 1st and 2nd Respondents against the Appellant.
Other Citations: (2008)LCN/2813(CA)
