Ibrahim Musa Argungu & Anor V. Umar Abubakar T. Argungu & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Birnin Kebbi, Kebbi State in petition No KB/EPT/SEN/4/2007 delivered on 15th October, 2007 wherein the Tribunal dismissed the Appellants’ petition and affirmed the return of the 1st Respondent as the winner of the election to the Kebbi North Senatorial District seat in the National Assembly. A brief fact will suffice. Election for the seat of the Kebbi North Senatorial District in the Senate of the Federal Republic of Nigeria was conducted by the Independent National Electoral Commission (INEC) i.e. the 3rd Respondent in conjunction with the 4th and 5th Respondents on 21st April, 2007. In the said election, the appellant was the candidate of the Democratic Peoples’ Party (DPP) which is the 2nd appellant while the 1st Respondent was sponsored by the 2nd Respondent- the People’s Democratic Party (PDP). Other political parties including All Nigeria People Party (ANPP) also contested the election with their candidates at the end of which the 1st Respondent was declared winner with 203, 986 votes as against the Appellant’s 9,597 votes. By a petition dated 21st May, 2007, the Appellants as petitioners challenged the return of the 1st Respondent as a member representing the Kebbi North Senatorial district of Kebbi State. The lower Tribunal in its judgment dated 15th October, 2007, dismissed the petition and upheld the return of the 1st Respondent.
Dissatisfied with the stance of the Tribunal, the Appellants filed Notice of appeal dated 5th November, 2007 containing five grounds. From the five grounds, the Appellants have distilled two issues for the determination of this appeal as follows:-
- Whether having regard to the combined Effect of Sections 34, 36 and 38 of the Electoral Act 2006, the 1st Respondent “was at the time of the election not qualified to contest the election” held on the 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.
- 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 was however the view of the 1st and 2nd Respondents that only one issue is relevant for the just determination of this appeal thus:-
“Whether having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act, 2006, the 1st Respondent “was at the time of the election not qualified to contest the election” held on the 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.”
The 3rd – 5th Respondents did not file any brief in this appeal and were also not present when the appeal was heard. Their absence does not affect the hearing of this appeal since they were duly served with hearing notice and were given adequate opportunity to be heard in the appeal. I intend to determine this appeal on the two issues formulated by the Appellants.
On the first issue, it was the contention of the Learned Senior Counsel for the appellants that invalid nomination implies non – qualification to contest an election even if the candidate is qualified to hold the elective office. He referred to the case of Anazodo V. Audu (1999) 4 N.W.L.R. (Pt. 600), 530. Also, that the Electoral Act 2006, does not, and cannot provide for disqualification of a candidate from being elected and so it limits its application to matters regulating being qualified to contest. That way, it never re-enacted, abridged or modified the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the Senate of the Federal Republic of Nigeria.
Further, the Learned Silk submitted that in order to appreciate whether a winner at an election was not qualified to contest, recourse ought to be had to Section 40 and 41 of the Electoral Act, 2006 and read along with Sections 145 (1) (a) and 146 (1) of the same Act. Moreover, that the stand taken by the lower Tribunal that if a person was not validly nominated, in that his nomination was in breach of the Electoral Act, he cannot be said not to be qualified to contest at the time of the election cannot be allowed to stand. It was the Appellants’ further contention that the provisions of Section 65 and 66 of the Constitution prescribe criteria for general qualification for any person to be elected as a Senator but do not prescribe the conditions to be met by a person to qualify to contest election.
Furthermore, that those who do not qualify to contest by reason of invalid nomination cannot be heard to assert that at the time of the election they were qualified to contest and that all the hurdles set up by the Constitution and the Electoral Act must be surmounted before a candidate can lawfully contest an election and cited the case of Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt. 1048) at 498. Moreover, that if a person meets the entire constitutional requirements but is not validly nominated owing to breach of the mandatory provisions of Sections 32, 34, 36 or 38 of the Electoral Act, Section 40 of the Electoral Act does not recognise such a person as a contestant entitled to be placed on the ballot at the election. Learned Senior Counsel argued that the Tribunal misapplied the ratio in Attorney General Abia State V. Attorney General Federation (2002) 6 N.W.L.R. (Pt. 763). Learned Counsel then referred this Court to Item 22 on the Exclusive Legislative list under the 1999 Constitution and the power of the Independent National Electoral Commission to “carry out such other functions as may be conferred upon it by an Act of the National Assembly” under paragraph (i) of Part I in the Third Schedule to the 1999 Constitution.
On pages 15 – 16 of the brief of the appellants, the lists of Exhibits tendered at the trial are listed. The Learned Senior Counsel submitted that since the parties had agreed that the petition should be determined solely on the basis of the listed exhibits, the Tribunal ought to have properly evaluated the documents in order to come to a just determination of the case in their judgment. Reliance was placed on the cases of Tangale Traditional Council V. Fawu (2001) 17 N.W.L.R. (Pt. 742) 293 and UBA PLC V. Mustapha (2004) 1 N.W.L.R. (Pt. 855) 443.
It was a further contention of the Learned SAN that the lower Tribunal failed to evaluate the evidence placed before it and then from pages 16 – 27 of their brief, efforts were made to show how the Tribunal ought to have evaluated the documentary evidence placed before it. I need not go beyond this as the issue before us has nothing to do with non evaluation of evidence by the Tribunal.
Again, that the 1st Respondent having not shown that prior to the submission of his name by the 2nd Respondent as its candidate he had withdrawn his candidature under ANPP, his nomination was in breach of the provisions of Sections 34 and 36 of the Electoral Act 2006 and as such he was not qualified to contest notwithstanding that he might have met all the Constitutional requirements to be elected to the Senate. Finally on the issue, it was submitted that Section 38 of the Electoral Act frown at double nomination and that a person who is afflicted by this fundamental vice like the 1st Respondent cannot be said to be qualified. He then urged this Court to resolve the 1st issue in favour of the Appellants.
Arguing issue No.2, the Learned Senior Counsel submitted that against the backdrop of the pleadings and evidence led at the trial, it is crystal clear that notwithstanding the assertion of the 1st and 2nd Respondents to the contrary, there was indeed and alleged “merger” agreement entered into on the 8th February, 2007 (Exhibit P 5). That in spite of the fact that evidence was led on the merger agreement (Exhibit 5), the Respondents did not plead any fact in rebuttal nor challenge same with contrary evidence. That the 1st Respondent had a burden to show that the previous candidate of PDP withdrew in writing and that same was attached to his substitution form as well as the signature of the withdrawing candidate. Also, that the ANPP’s alleged substitution of candidate should have followed the same pattern.
Learned Counsel further opined that the fact that ANPP subsequently submitted another person’s name as its candidate for the same Senatorial seat is only evidence of double nomination on the part of the ANPP as no evidence of withdrawal of the first candidate in writing was pleaded or placed before the Tribunal. Furthermore, that the misplacement of burden of proof on valid withdrawal of 1st Respondent invites an intervention of this Court to review and return the correct finding as submitted to the lower Tribunal by the Appellants vide Section 15 of the Court of Appeal Act. This is moreso, when the trial was predicated largely on the undisputed and uncontradicted witness statements that were not subject to cross examination or test of demeanur and credibility of witnesses on oral testimony. He cited the case of Intercity Bank PLC V. Faiscial Travel Agency Limited (2006) 4 N.W.L.R. (Pt. 971)504.
Finally, that the unmistakable intendment of the law is that a candidate must have withdrawn properly from his previous party before he can be substituted in accordance with the law and that anything contrary amounts to breach and infraction of the Electoral Act. Also that Exhibit P 4 cannot be wished away as it is a disavowal of Exhibit PI by the person who purportedly signed same as a clear forgery. And that as the lower Tribunal did not pronounce upon it, this Court should make pronouncement on same. He then urged this Court to resolve the second issue in favour of the Appellants.
In response to the first issue, the Learned Counsel for the 1st and 2nd Respondents, Sam Kargbo Esq. submitted that the lower Tribunal was right in holding that the 1st Respondent was qualified to contest election into the Senate for the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria. Furthermore, that “not qualified at the time of the election” under Section 145 (1) (a) of the Electoral Act means not qualified under Sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria. That contrary to the contention of the Appellants to establish a case under Section 145 (1) (a) of the Electoral Act, 2006, the Appellants must have pleaded and proved that at the time of the election, the 1st Respondent suffered one form of Constitutional disability or the other. This, he submitted that the Appellants failed to do.
He further contended that Sections 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 Constitution. That once the qualification of the 1st Respondent under Section 65 of the Constitution is not in issue, the only other provision relevant to the determination of whether or not the 1st Respondent was qualified to contest the election are the clear wordings of Section 66 of the Constitution to which Section 65 is subject to. That apart from Sections 65 and 66 of the Constitution, no provision of the Electoral Act can introduce a new set of criteria for qualification or disqualification. He cited and relied on the cases of INEC V. Musa (2003) 3 N.W.L.R. (Pt. 806) 72 and Attorney General Abia State V. Attorney Federation (2002) 6 N.W.L.R. (Pt. 763) 264. Also PDP V. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.
Learned Counsel submitted further that the matters complained about by the Appellants are pre-election matters which by the provision of Section 32 of the Electoral Act 2006 ought to have been challenged at the High Court or Federal High Court. He relies on the case of Amaechi V. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227. He further contended that if at all the Appellants were to establish an action on the basis of non – compliance with Section 34, 36 and 38 of the Electoral Act, then they should have come under or hinged their complaints on Section 145 (1) (b) and not under Section 145 (1) (a). Furthermore, that when Sections 65, 66 and 285 (2) of the Constitution of the Federal Republic of Nigeria are read together with Section 145 (1) of the Electoral Act, 2006 it would be seen that the 1st Respondent was qualified to contest the election.
It was the further submission of the Learned Counsel for the Respondents that averments and the allegations in the petition concern nomination, withdrawal and substitution of candidates which are matters between a political party and its members and they do not constitute any of the bars itemised in Section 66 of the Constitution. He relies on Alliance for Democracy V. Fayose & Ors (2005) 10 N.W.L.R. (Pt. 932) 151 at 187.
Furthermore, Learned Counsel submitted that there is no scintilla of evidence adduced at the trial in support of the pleadings and that the address of Counsel does not amount to evidence. He relies on the case of Jimoh Adukoya Odubeko V. Victor Oladipo Fowler & Anor (1993) 7 N.W.L.R. (Pt. 308) 637.
On issue of the Exhibits tendered before the lower Tribunal, Learned Counsel submitted that it is wrong for the appellants to think that all that was required of them to prove their case was just to tender Exhibits P 1 – P 5. That admissibility of Exhibits P 1 – P 5 is one thing and their cogency or probative value is another thing. He urged us to hold that the lower Tribunal was quite right in holding that in the con of the issues in controversy between the parties, the Exhibits did not prove the case of the Appellants but rather reinforced the case of the Respondents. He cited the cases of Raphael Udenze & Ors V. Paul Chidebe & Ors (1990) 1 N.W.L.R. (Pt. 125) 141, Frida U. Abalogu V. Shell Petroleum Dev. Company (Nigeria) Limited (1999) 8 N.W.L.R. (Pt. 613) 12. He then concluded that Exhibits P 1 – 3 clearly proved that the 1st Respondent was a member of the 2nd Respondent and was sponsored by the 2nd Respondent and that there was no evidence to contradict what those Exhibits convey. He then urged this Court to resolve this issue in favour of the 1st and 2nd Respondents.
On the 2nd issue of the Appellants, Learned Counsel for the 1st and 2nd Respondents submitted that the thrust of the appellants allegations in their petition concerned nomination, withdrawal and substitution of the 1st Respondent and that the Appellants not being members of the ANPP and the ANPP having participated in the election and sponsored its candidate in the person of Senator Sani A. Kamba who came second with 70,386 votes and are not complaining and the 1st Respondent having been sponsored by the 2nd Respondent, that all the Exhibits clearly show that the 1st Respondent was the bona fide candidate of the 2nd Respondent and that no other party nominated or sponsored him for the election of April, 21st, 2007. Furthermore, that pleading do not constitute evidence and that the Appellants were by the rules of procedure and evidence obligated to adduce evidence during the course of the trial in proof of their case. That the findings of the lower Tribunal on pages 282 – 291 of the Record are impeacable and should not be disturbed by this Court. He cited the cases of Abidoye V. Alawode (2001) 3 S.C. I and Yusuf V. Adegoke (2007) 4 S. C. 126 and urged the Court to resolve this issue in favour of the 1st and 2nd Respondents.
As I had stated earlier, the 3rd to 5th Respondents did not file any brief in this appeal and no reason has been proffered, at least up to the date of hearing this appeal on why they could not file their brief. Be that as it may, this appeal shall be determined based on the issues in the briefs filed by the appellants and the 1st and 2nd Respondents only.
The main and only grouse of the Appellants in their first issue is that the first Respondent was not qualified to contest election into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria in an election held on April 21st, 2007. The arguments for and against this issue are well stated above. In any election year, before any person decides to put forward himself for nomination to contest an election into any office whatsoever, he has to ask himself one searching question and that is “Am I qualified to contest the election?” To get an answer, he has to consult the relevant laws to satisfy him that he has the requisite qualification to contest the election before putting forward himself to seek his party’s nomination to contest the election. And as regards an election into the Senate of the Federal Republic of Nigeria, it is only the Constitution of the Federal Republic of Nigeria 1999 which makes provision for the qualification and / or disqualification of a person seeking to contest for that office. Both the Learned Senior Counsel for the appellants and Learned Counsel for the 1st and 2nd Respondents agree that issue of qualification or otherwise are contained in section 65 and 66 of the 1999 Constitution. They also agree that the Electoral Act, 2006 does make specific provision for the qualification or disqualification of any candidate. Both Counsel however part ways when it comes to whether sections 34, 36 and 38 of the Electoral Act, 2006 are part of qualification and disqualification provisions or that these sections address other matters apart from qualification. Whereas the Learned Senior Counsel for the Appellants opine that a candidate must satisfy both the constitutional and statutory requirements before he is said to have been qualified, the Learned Counsel for the Respondents strongly feels that issue of nomination and substitution are distinct from issue of qualification.
As I said earlier, conditions relating to qualification and disqualification are provided for in Sections 65 and 66 of the 1999 Constitution respectively. Section 65 thereof provides:-
“65 (1) Subject to the provisions 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) …
(2) A person shall be qualified for election under subsection (1) 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 is a bit lengthy and I do not intend to reproduce it here. No other statute, not even the Electoral Act has any provision for qualification or otherwise to contest election into the Senate of the Federal Republic of Nigeria. I mean qualification, simpliciter. Needless to reiterate the axiomatic fact that by virtue of Section 1 (i) of the 1999 Constitution, the provisions of the Constitution are superior to every provision made in any Act or law and are binding on and must be observed and respected by all persons and authorities in Nigeria. All other legislations, as it were, take their hierarchy from the provision of the Constitution. It is significant that both Counsel have agreed that the Electoral Act 2006 or any other legislation for that matter cannot re-enact, abridge, modify, expand, amend or even explain the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the Senate of the Federal Republic of Nigeria. See Attorney General, Abia State V. Attorney General, Federation (2002) 6 N.W.L.R. (Pt. 763) 264.
It is well settled that where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way directly or indirectly, unless the Constitution itself as an attribute of its supremacy expressly so authorises. See INEC V. Musa (2003) 3 N.W.L.R. (Pt. 806) 72 at 157 paragraph D – G.
The Learned Senior Counsel for the Appellants had argued that even though the 1st Respondent was constitutionally qualified to contest the election and that even though he was not in any way disqualified under section 66 of the Constitution, his alleged non compliance with section 34, 36 and 38 of the Electoral Act had disqualified the 1st Respondent from contesting the election. Learned Counsel for the 1st and 2nd Respondent thinks otherwise.
Now, what is the relationship between sections 65 and 66 of the 1999 Constitution on one hand and sections 34, 36 and 38 of the Electoral Act 2006 on the other hand?
I had already set out the sections of the Constitution concerned and I intend to also bring to the fore the relevant sections of the Electoral Act for ease of reference as follows:-
“Section 34 (1) A Political Party intending to change any of its candidate for any election shall inform the Commission of such change in writing not later than 60 days to the election.
(2) Any application made pursuant to subsection (1) of this section shall give consent and unfavorably reasons.
(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this 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 the election.
- 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.”
There is no doubt that sections 34, 36 and 38 of the Electoral Act 2006 provide for issues of nomination, withdrawal and substitution of candidate by political parties in an election. It is a cardinal principle of interpretation of statute that where the words used in the legislation are clear and unambiguous, the court should give it its ordinary meaning. See C.B.N V. Adedeji (2004) 13 N.W.L.R. (Pt. 890) 226 Ndoma – Egba V. Chuk wuegor (2004) 6 N.W.L.R. (Pt5. 869) 382; Egbe V. Belgore (2004) 8 N.W.L.R. (Pt. 875) 336.
The provisions in sections 34, 36 and 38 of the Electoral Act are very clear and need no splitting of hair as to what meaning they convey. At least nobody has said that they are ambiguous. The Lower Tribunal has this to say in its judgment regarding those sections:-
“No matter the interpretation placed on sections 34, 36 and 38 of the Electoral Act, they remain breaches of Electoral Act provided for in section 145 (1)(b) of the Electoral Act and can never be elevated to the status of making their transgression a matter of qualification under section 145 (1) (a) of the Electoral Act. See Attorney General Abia V. Attorney General Federation (Supra). As the Constitution has already made elaborate Provisions on qualification and disqualification in section 65 for persons seeking election into the National Assembly noting in our view can be read into these provisions of the Constitution to include the issue of double nomination expressly provided for in section 36 and 38 of the Act (Supra)”
See page 290 of the Record of Appeal.
I agree entirely with the Lower Tribunal on this issue. It is my strong view that sections 65 and 66 of the 1999 Constitution of Nigeria provide for qualification and or disqualification of a candidate seeking to contest election into the senate of the Federal Republic of Nigeria. I also strongly hold that apart from the Constitutional provisions for qualification and disqualification, no other law can add to, amend or even explain those constitutional provisions. Section 34, 36 and 38 of the Electoral Act are therefore procedural as to nomination, substitution and withdrawal of candidates by political parties. Therefore, whereas sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria state conditions for the qualification or disqualification of a candidate seeking election into to senate, sections 34, 36 and 38 of the Electoral Act regulate the nomination, substitution and withdrawal of candidates in the Election.
What I am trying to say, perhaps imperfectly, is that there is obviously a distinction between qualification and procedure for nomination albeit narrow. Qualification is a constitutional issue whereas nomination and/or substitution are issues regulated by the Electoral Act.
See PDP V. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.
The point where the issue of qualification under the constitution and the issues of nomination, withdrawal and substitution under the Electoral Act meet relate to the fact that although a person may be constitutionally qualified to contest election into the senate, if he does not satisfy the procedure for his placement on the ballot, even if he is elected, his election can be challenged in the appropriate Court or Tribunal for breach of the provision of the Act. And that brings me to section 145 of the Electoral Act, 2006. The section states:-
“145 (1) An election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act,
(c) that the respondent was not duly elected by majority of lawful votes cast at the election or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
It was the contention of the Learned Senior Counsel for the Appellants in their brief that the Lower Tribunal misinterpreted section 145 (1) (a) of the Electoral Act as being limited to constitutional provision of qualification to be elected. That the subsection emcompasses the valid nomination to contest, failing which the election of the candidate wrongly nominated, will be liable to be nullified. With due respect, I find it difficult to pitch my tent with this argument. I rather hold the view that whenever a petitioner intends to ventilate his grievance on the ground that the Respondent was not qualified to contest election, it is under section 145 (1) (a) of the Electoral Act that the petition should be brought. Where however, the ground for questioning the election is on a breach to sections of the Electoral Act, it should be ventilated under section 145 (1) (b) of the said Act. Section 145 (1) (a) has to do with qualification whereas section 145 (a) (b) relates to non compliance with provisions of the Electoral Act. Since the complaint of the Appellants at the Lower Tribunal was on the basis of non – compliance with Section 34, 36 and 38 of the Electoral Act 2006, they ought to have come under section 145 (1) (b) and not section 145 (1) (a) of the Act.
The Learned Counsel for the 1st and 2nd Respondents had submitted that the matters complained about by the Appellants are pre – election matters which by the provision of section 32 of the Electoral Act, 2006 ought to have been challenged at the High Court or Federal High Court. It is not in doubt that issues relating to nomination, withdrawal and substitution are clearly pre -election matters and by Section 32 of the Electoral Act 2006, pre – election matters are to be ventilated either in the High Court of a State or Federal High Court. Election Tribunals are set up under Section 285 (1) of the 1999 Constitution and their jurisdiction is also prescribed by the same section. Nothing in that section suggests that pre – election matters relating to nomination, substitution or to withdrawal can be ventilated at the Election Tribunal. In the recent case of Charles Chinedo V. Independent National Electoral Commission & 2 ors, Suit No S.C. 208/2007 (unreported) delivered on 11th July, 2008, the Supreme Court per Tobi JSC, held on page 21 as follows:-
“It is not my understanding of section 225 (1) (a) of the Constitution that the sub – paragraph can accommodate pre – election matters. It is rather my understanding that the sub – paragraph provides for the determination whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub – paragraph provides for election matters which give rise to post election and not pre – election proceedings. As the reliefs sought by the appellants are on pre – election matters, Section 285 (1) (a) could not avail him as that sub – paragraph does not provide for litigation arising from party primaries. And that was what this Court dealt with in Amaechi…”
See also Amaechi V. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227 Ugwu V. Ararume (2007) 6 S.C. (Pt. 1) 88; (2007) 9 N.W.L.R. (Pt. 1038) 137.
The Learned Senior Counsel has placed reliance on the cases of Ararume and Ameachi (Supra). I think these two cases do not support the Appellants’ case. The two cases were commenced at the High Court and not before the Tribunal. Secondly the two cases are intra party disputes that were decided within the con of Section 34 (2) of the Electoral Act and the cases were instituted by persons directly affected by the action of their party which substituted them. This is not the case in the instant appeal.
Now as regards the argument that the lower Tribunal failed to properly evaluate the evidence adduced before it, apart from the fact that the argument stands on its own as issue No. 1 do not support it; it seems to me that the Tribunal did its best in evaluating the scanty evidence before it. It is of interest to note that this matter was decided based on Exhibits P1-P6 tendered by the Appellants. This is what the Tribunal said concerning the Exhibits on pages 282 – 283 of the record:-
“The Petitioners by their own showing have established that the letter of substitution Exhibit P1 was made on the 5th February, 2007 while the merger agreement Exhibit P5 is dated 8th February, 2007. Yet the Petitioners want us to hold that Exhibit P1 made earlier in time was based on Exhibit P 5 made later in time. The burden is on the Petitioners to provide evidence that such was the case.”
And on page 288 of the record the Tribunal said:-
“We attach no weight to Exhibit P4, the letter dated 19th February, 2007 made by the National Chairman of PDP tendered by the Petitioners to establish their case that Exhibit P1 had been withdrawn. We have perused Exhibit P4, it does not speak a word about the 1st Respondent and neither did it make mention of Exhibit P 1 made on 5th February, 2007.
Honestly, I think the Tribunal did its best in the circumstance. The appellants, after dumping Exhibits P1 – P 6 on the Tribunal appears to have stood by, waiting to see how the 1st Respondent would lead evidence to disprove allegations in the petition. The appellants were wrong in the circumstance. The law is that he who alleges must prove. In other words, it is the party who asserts the existence of a particular fact that must prove that fact and if he fails, his evidence will collapse like a pack of cards. See Kalu V. Uzor (2006) 8 N.W.L.R. (Pt. 981) 66. In the instant appeal, there is no evidence that the 1st Respondent was a member of the ANPP. There is no evidence that his name was ever submitted to INEC by ANPP. The Appellant argued that the 1st Respondent should have led evidence to show that he withdrew from the ANPP. It cannot be so. See F.B.N. PLC. V. Excel Plastics Industries Limited (2003) 13 N.W.L.R. (Pt. 837) 412.
None of the Exhibits shows evidence of double nomination which the Appellants should have proved before the lower Tribunal assuming that the Tribunal had jurisdiction to entertain the matter. There was no scinta of evidence before the lower Tribunal to sustain the case of the Appellants.
It should be noted that up till now the ANPP has not complained against the 1st Respondent in any way. Rather, ANPP fielded its own candidate in the election while the 1st Respondent was the candidate of the PDP. There is nothing on record to show that there was invalid withdrawal by the 1st Respondent. The Appellants had argued that the 1st Respondent should have tendered a letter to show that he had withdrawn his nomination by the ANPP. When you make an allegation, look for evidence to prove it. Do not think your failure to lead evidence to prove your allegation will automatically cast a burden on the other party to disprove the allegation. It is not done that way.
On the whole, I am of the view that as there is nothing to show that the 1st Respondent suffered any form of Constitutional disability as enumerated in Section 66 of the Constitution, he was qualified to contest the election into the Senate of the Federal Republic of Nigeria held on 25th April, 2007, thus affirming the decision of the lower Tribunal on the issue. Also, that Sections 65 and 66 of the 1999 Constitution relate to qualification and/or disqualification of person seeking election into the Senate of the Federal Republic of Nigeria. Also that Sections 34, 36 and 38 of the Electoral Act relate to issues of nomination and has nothing to do with qualification or otherwise of a candidate seeking election into the National Assembly. Finally, I also agree with the lower Tribunal that the Appellants failed to lead credible evidence to prove their allegations in their petition. Accordingly issues 1 and 2 are hereby resolved in favour of the 1st and 2nd Respondents.
In sum, the appeal lacks merit and is hereby dismissed. I affirm the judgment of the lower Tribunal and award N30, 000.00 costs in favour of the 1st and 2nd Respondents only.
Other Citations: (2008)LCN/2970(CA)
