Independent National Electoral Commission & Ors V. Joshua Velle & Ors (2008)
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JA’ AFARU MIKA’ILU, J.C.A.
In this matter we have appeal No. CA/J/EP/HA/33/08 and appeal CA/J/EP/HA/33A/08 BOTH arising from the judgment of the Plateau State Governorship and Legislative Houses Election Tribunal delivered on 6th day of December, 2007. Aggrieved by the said judgment, the appellant, Dio Lamu lodged his appeal on the 24th day of December, 2007. The 1st and 2nd respondents, as petitioners filed the petition leading to this appeal No. CA/J/EP/HA/33/0S challenging the election and return of the appellant as the member representing Mikan Constituency in the Plateau State House of Assembly. The said election was held on 14th day of April, 2007. The grounds of the petition were that the 2nd Respondent and its candidate, the 1st respondent who was returned validly nominated were excluded from the election, and that the election was not conducted in substantial compliance with the provisions of the Electoral Act. This appeal is as a result of the judgment of the Tribunal by which it allowed the petition.
In the appellant’s brief of argument in appeal CA/J/EP/HA/33/08 the following issues have been formulated for determination.
- Whether the tribunal was not in error when it found that the 1st petitioner was validly nominated by the 2nd petitioner/respondent as a candidate in the election and consequently had the locus standi to present the petition pursuant to the provisions of sections 144 and 145 of the Electoral Act, 2006.
- Whether the trial tribunal was not in error in holding that the appellant can not raise the issue of non-qualification of the 1st petitioner as a defence not withstanding the case put forward by the petitioner before the trial tribunal.
However, in the 1st and 2nd respondent’s Joint Brief of Argument three issues have been formulated for determination. They are:-
(1) Whether the Lower Tribunal was right when it declined jurisdiction to entertain the question of qualification or disqualification of the 1st Petitioner/Respondent raised by the 4th Respondent/Appellant in his reply to the petition (Grounds 4, 5 and 6).
(2) Whether the 1st and 2nd Respondents as Petitioners, had the locus standi to present the petition leading to this appeal (grounds 2, 3, 8, 9, 10 and 13).
(3) Whether the petitioners/1st and 2nd Respondents proved their case and thus entitled to judgment.
(Grounds 1, 7, 11, 12 and 14).
I will determine this appeal by considering the issues as formulated in the 1st and 2nd respondent’s brief of argument as above.
On the 1st appeal No. CA/J/EP/HA/33/2008 it has been argued and I agree, that all the grounds of questioning an election ensure only to the person questioning an election and not to a person whose election is being questioned in a petition. Thus the issue of qualification or disqualification of a candidate to contest an election is only a ground for challenging the election of the person returned section 285(2) of the Constitution of the Federal Republic of Nigeria 1999, provides as follows:-
“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 exclusion of any Court or tribunal have original jurisdiction to hear and determine petition as to whether any person has been validly elected to the office of the Governor or as a member of any Legislative house.”
Thus a ground that a person whose election is questioned was, at the time of the election not qualified to contest the election is a ground to contest the election under section 145(1) of the Electoral Act, 2006. For sure, the said ground is for the benefit of a person questioning an election and not for a person whose election is being questioned as in this case. In election matters the jurisdiction of the tribunal, being statutory, is only as stated in the enabling law. The tribunal will not exercise jurisdiction over any matter outside the jurisdiction vested in it by the enabling law. Refer to YEROKUN V. ADELEKE (1960) SCNLR 267, 272. Thus the issue of qualification or disqualification of a candidate to contest an election is only a ground for challenging the election of a person returned and not a defence to a petition challenging return or election of a person returned as elected. It is not for the tribunal to exercise jurisdiction over any matter outside that vested in it by the enabling law. Refer to YEROKUN V ADELEKE (1960) SCNLR 267, 272. Thus in our case the issue before the tribunal was not whether any respondent was qualified to contest the election and it had no business determining that. Moreover the issues of disqualification, nomination, substitution and sponsorship of a candidate for an election precede election matters and as such are pre-election matters.
By the above it is clear that the lower tribunal was right when it refused to entertain the question of qualification in respect of the respondents/petitioners before it. Therefore this issue is resolved in favour of the respondents. The lower tribunal was right when it declined to entertain the question of qualification or disqualification of the 1st respondent to contest the election.
Having perused the copy of the record of proceedings of the tribunal it is clear that besides admission the 1st and 2nd respondents/petitioners led evidence in proof of the validity of the nomination of the 3rd respondent. Thus it is in evidence that the 3rd respondent duly screened the 1st respondent and thereafter published his name as a duly nominated candidate in exhibit P3 – the list of duly nominated candidates published by the 3rd respondent pursuant to section 35 of the Electoral Act. Therein the name of the 1st respondent has appeared as No.7. The 1st respondent was therefore validly nominated as held by the tribunal. The 1st Respondent’s name has appeared as No. 7 in exhibit P3 which is the list of duly nominated candidates published by the 3rd respondent pursuant to section 35 of the Electoral Act.
The appellant has urged this Court to discountenance the evidence of PW1. This was not raised before the tribunal and the appellant can now not be heard to complain on evidence of PW1. Besides this not having been raised before the tribunal, there is no ground of appeal in support of it.
it is to be noted that to succeed in proving unlawful exclusion the petitioner must prove the stated in the case of EFIONG v. IKPEME (1999) 6 NWLR (pt.606) 260; 274 – 275 which are:-
1) That the 1st Respondent was validly nominated by his party.
2) That the election was conducted and concluded.
3) That a winner was declared and
4) That his name was not included in the list of the contestants, in this case Ballot Papers used for the election.
The conditions 2) to 4) as above have not been challenged by the appellants. His challenge is based on validity of nomination. From the above it is clear that on the pleadings and evidence that factor has been proved. Nomination Forms, exhibit P1 and P2, the list of nominated candidates P3 and PW1 testified in support of this.
The tribunal’s finding that the election was in substantial violation of the provisions of the Electoral Act. That the 1st respondent before, the INEC has a mandatory duty to include the symbol adopted by the petitioners in the Ballot Paper used for election but failed to do so is correct and has not been challenged. The same therefore is bound to be affirmed by this Court. This issue 3 has been resolved in favour of the respondents. I therefore agree with the Learned Counsel for the respondents that the petitioners proved their case and were entitled to judgment.
In the final conclusion I find no merit in this appeal and I therefore dismiss it. I award the sum of N30,000.00 as costs in favour of the Respondents.
The above has undoubtedly covered the second appeal No. CA/J/EP/HA/33A/2008 By it this Court has been urged to discountenance the arguments canvassed by the 1st and 2nd respondents in their brief and to allow the appeal. With the end result in the first appeal this appeal can not be allowed.
The 1st appeal having being dismissed the second appeal is dismissed.
Other Citations: (2008)LCN/2855(CA)
