James Yakubu & Anor V. Independent National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
UZO NDUKWE-ANYANWU, J.C.A.
The 1st Appellant James Yakubu was the Petitioner in the Lower Tribunal and was sponsored by the 2nd Appellant, Peoples Democratic Party (PDP). The 5th Respondent Samaila Mohammed was sponsored by the 6th Respondent, All Nigeria Peoples Party (ANPP). Both parties contested for the Bassa/Jos North Federal Constituency Seat on 21st April, 2008. At the end of the elections the 5th Respondent was declared winner having scored a total of 84,331 votes and was returned. The 1st Appellant came second with a total of 79,169 votes. The 1st Appellant was dissatisfied with the return of the 5th Respondent and he then presented a petition to the Governorship and Legislative Houses Election Tribunal Holden at Jos, Plateau State. The Appellants challenged the return of the 5th Respondent on two grounds to wit:
(1) Lack of sponsorship and nomination of the 5th Respondent by the 6th Respondent as a candidate (grounds 1 and 2).
(2) Lack of qualification of the 5th Respondent as candidate at the Federal House of Representatives Election held on 21st April, 2007 for being indicted for fraud (ground 3).
At the end of the trial the Tribunal delivered its considered judgment on the 23rd November, 2007, dismissed the petition and confirmed the declaration and return of the 5th Respondent as duly elected for the Bassa/Jos North Federal Constituency of Plateau State.
The Appellants were dissatisfied hence this appeal. The Appellants filed their notice and 8 grounds of appeal. The Appellants formulated 2 issues for determination to wit:
(1) Whether the Tribunal was right when she declined jurisdiction on grounds 1 and 2 of the petition on the reason that the grounds relate to sponsorship and nomination of candidate (grounds 4, 5 and 7).
(2) Whether the judgment of the Tribunal in its totality was not perverse and if it was what are the consequential reliefs this Honourable Court can grant? (Grounds 3 and 6).
The 5th and 6th Respondents filed their joint brief and also formulated two issues for determination to wit:
(a) Whether in view of the fact that grounds 1 and 2 of the petition raised the issues of nomination and sponsorship of the 5th Respondent by the 6th Respondent, the Lower Tribunal was right when it declined jurisdiction to determine same.
(b) Having regards to the pleadings in the petition and replies and the totality of the evidence, whether the judgment of the Lower Tribunal is perverse and whether the Court can grant any consequential relief in the circumstances.
The two issues distilled by both parties are similar in content however I will utilize that articulated by the Appellants to make sure that the points articulated are trashed out thoroughly.
ISSUE ONE
The learned counsel to the Appellants submitted that the Tribunal ought to adopt a holistic attitude in deciding whether or not to assume jurisdiction over the issues arising from grounds 1 and 2 of the petition. See Adeyemi Vs. Opeyori (1976) 9-10SC 31; UBN Vs Intergrated Timber & Pt wood Producers Ltd (2000) 12 NWLR Pt. 680 pg 95 at 110.
The learned counsel submitted that the grounds touched on qualification of the 5th Respondent to contest the election based on the fact that he was neither nominated nor sponsored by the 6th Respondent or any other party. Counsel argued that the Tribunal ought to have construed from the evidence adduced that a section is part of a greater whole. See Chime Vs. Ude (1996) 7 NWLR pt. 461 379 Odutola Holdings Ltd Vs. Ladejobi 2006 12 NWLR (pt. 994) pg 321 at 350. With the above cases learned Counsel submitted that the Tribunal failed to take this approach and concluded that the petition was on nomination and sponsorship and therefore an intra-party issue or a pre-election matter. Counsel found it disturbing that the issue of jurisdiction was raised by the 5th and 6th Respondents at address stage. Counsel opined that under Section 145(1) (a) Electoral Act 2006 one of the grounds for questioning an election is on qualification of the returned candidate. See also Section 65(2) (b) of the 1999 Constitution which stipulates that the candidate must be a member of a political party and must be sponsored by the party.
Counsel urged the Court to hold that what came up for interpretation before the Tribunal was the provisions of Section 65(2)(b) of the 1999 constitution and Section 145(1)(a) of the Electoral Act 2006. Counsel urged the court to hold that the Tribunal wrongly declined jurisdiction over those valid grounds in the petition.
In-reply learned counsel to the 5th and 6th Respondents submitted that Section 285 of the 1999 Constitution gives exclusive power to an Election Tribunal to hear election petitions. See Doukpolagha Vs George (1992) 4 NWLR Pt. 236 pg 444. Lack of jurisdiction goes to the root of adjudication and any defect in competence of the court is fatal. See Action Congress Vs. INEC (2007) 18 NWLR Pt. 1065 pg 50 at 71.
To determine whether a court or Tribunal has jurisdiction to entertain a matter recourse is had to the plaintiff’s claim or the petitioner’s petition. See Action Congress Vs. INEC (supra), Adebusuyi Vs. Oduyoye (2004) 1 NWLR Pt. 854 pg 406 at 430 – 431, Okulaye Vs. Awosanya (2002) 2 NWLR Pt. 646 at pg 530.
It is also settled law that parties are bound by their pleadings and cannot be allowed to change midstream without leave for amendment. See the cases of George Vs. Dominion Flour Mills (1963) 3 N.S.C.C pg 54; Metalimpex Vs. A-G Leventis (1976)10 N.S.C.C. pg 76, FHAVs. Somer 1986 1 NWLR Pt. 17 P9 533 at 537 – 41, Falomo Vs. Onakanmi (2005) 11 NWLR Pt. 935 pg 126 at 154, M.I.N. Ltd Vs. M.F.K.W.A Ltd (2005) 10 NWLR Pt 934 pg 645 at 671.
Counsel submitted that the crux of this petition is that the Appellants argued that the 5th Respondent was not nominated by the 6th Respondent to contest this election. See paragraph 17 of the Petition which is reproduced hereunder:
“Your Petitioners state that the 5th Respondent;
(1) was not qualified to contest the election because he was not nominated and sponsored by any political party including the 6th Respondent and;
(ii) was also disqualified having been indicted by an Administrative Panel.”
The Appellant at the Tribunal challenged the nomination of the 5th Respondent by the 6th Respondent and also his qualification for the election. this, counsel submitted, was a domestic issue which cannot be questioned by a court of law. Onuoha v. Okafor (1983) 2 SCRNLR PG 244. The tribunal in declining jurisdiction were guided by the Dalhatu v. Turaki (2003) 15 NWLR Pt. 843 pg 310, Ehuwa v. OSIEC (2006) 13 NWLR Pt. 1012 pg 73, Osakwe v. INEC (2005) 13 NWLR Pt. 942 pg 442 at 473.
Counsel submitted that it was an afterthought that the Appellant sought refuge under section 65(2)(b) of the 1999 Constitution and section 145(1)(a) of the Electoral Act 2006. The Appellant did not plead these two sections in their petition. The court cannot consider issues that were not considered by the lower Tribunal on Apeal. See the case of Nefuto v. Omoolorum (2005) 12 NWLR Pt. 983 pg 1, v. Steel (Nig) Ltd v. Government of Anambra State (2001) 8 NWLR Pt. 715 pg 454 at 467. AdedolapoVs. Military Administrator Ondo State (2005) 17 NWLR Pt. 955 pg 487.
Counsel submitted further that the Tribunal would have still declined jurisdiction even if Section 65(2) (b) of the 1999 Constitution and Section 145(1)(a) of the Electoral Act 2006 were canvassed at the court below.
Counsel submitted that the locus standi to complain about this supposed anomaly still rests with the 6th Respondent. See the case of Ukpo Vs. Adede (2002) 3 NWLR Pt. 755 09 671 at 692. It is only the party that can complain that it did not sponsor a particular candidate. It is therefore an intra-party issue. See the cases of Action Congress Vs. INEC (2007) 17 NWLR Pt. 1048 pg 222 at 275, Ugwu Vs. Ararume (2006) 12 NWLR Pt. 1048 09 367, Osakwe Vs. INEC (2005) 13 NWLR Pt. 942 pg 442 at 475 – 476.
Counsel urged the court to hold that the Lower Tribunal was right in declining jurisdiction to deal with grounds 1 and 2 of the Petition and resolve the issue for the Appellants.
The Petitioners/Appellants in their grounds for the petition stated inter allia that the 5th Respondent;
“(i) was not qualified to contest the election because he was not nominated and sponsored by any Political Party including the 6th Respondent.
(ii) was also disqualified having been indicted by an Administrative Panel.”
From the above it can be deciphered that the ground for this petition is that the 5th Respondent was not nominated and sponsored by any party including the 6th Respondent.
Nomination means or amounts to earmarking a candidate for election for a particular office/position. The definition of nomination in the case of PPA v. Saraki (2007) 17 NWLR Pt. 1044 pg 453 aptly conveyed the meaning of the word in all its ramification and it reads:
“Nominate means to propose formally that somebody should be chosen for a position, office or a task. To propose a person for election or opportunity.”
It should also be borne in mind that nomination and sponsorship of candidates are entirely the business of a Political Party see Rimi Vs. INEC (2005) 6 NWLR Pt. 920 pg 56 at 70, Tsoho v. Yahaya (1999) 4 NWLR Pt. 600 pg 657 at 671 – 2. In Rimi Vs INEC (supra).
“A Court of Law has no jurisdiction to adjudicate on the issue of which candidate a political party should nominate or sponsor for an election. The exercise of this right is the domestic affair of the party guided by its Constitution. ”
A joint reading of Section 32(1) – (3) of the Electoral Act 2006 would reveal the following:
(a) Political Parties are responsible for sponsorship of candidates at any election. This they do by forwarding lists of candidates they intend to sponsor.
The publication of the list of candidates (as done by INEC in Exhibit R1) is a clear confirmation of the fulfillment of Section 32(1) and (2) of the Electoral Act 2006. The 5th Respondent’s name appeared on the list of Independent National Electoral Commission as one of the candidates sponsored by the 6th Respondent.
The Appellants in their brief argued that the 5th Respondent was not in any list forwarded by the 6th Respondent either in the original list Exhibit P5 or substitution list Exhibit P4. The Appellants argued that the name of the 5th Respondent did not also appear in Exhibit P3 which is the National List of candidates for All Nigeria Peoples Party (ANPP). Exhibit R1 is the list of nominated candidates for contested seats in Plateau State. The said Exhibit R1 contained the name of the 5th Respondent sponsored by the 6th Respondent. The publication of Exhibit R1 was by Independent National Electoral Commission (INEC) pursuant to Section 35 of the 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 full name of all candidates standing nominated.”
Independent National Electoral commission (INEC) with respect has no business including the name of a person who has not fulfilled any of the provisions of the Electoral Act 2006 in Exhibit R1.
Thus, when Independent National Electoral Commission (INEC) published Exhibit R1 pursuant to section 35 of the Electoral Act 2006 it was a clear confirmation of the commission acceptance of the 5th Respondent nomination by the 6th Respondent. It follows logically that independent National commission (INEC) and its officials PW1 and PW2 cannot deny their official document (Exhibit R1). See section 151 of the Evident Act.
By section 150 of the Evident Act the presumption of regularity operates in favour of Exhibit R1 as published by Independent National Commission (INEC).
Section 150 of the Evident Act as follows:
(i) “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for validity were complied with.”
Exhibit R1 stood unchallenged. It should be noted that filling of nomination forms and swearing to an affidavit of personal particulars is not what determines whether a candidate was nominated and sponsored by a political party. It is pertinent to refer to the 1st – 4th Respondents’ reply to the petition which I will reproduce hereunder.
Para (4) :
“That the 5th Respondent was a candidate at the election into the House of Representatives for the Bassa/Jos North Federal Constituency held on 21st April, 2007.
(ii) that the 5th Respondent scored the highest number of valid votes cast at the election.
(iii) That the 5th Respondent was declared winner of the election because his name was on the list of nominated candidates given to the 3rd Respondent by the 1st Respondent.”
These averments debunks whatever the PW1 and PW2 have given in evidence. Independent National Electoral Commission (INEC) has accepted that the 5th Respondent is a candidate. Once 1st – 4th Respondents accept that the 5th Respondent is a candidate it presupposes that his nomination and sponsorship is normal.
Moreover in this case the 6th Respondent has not denied sponsoring the 5th Respondent in any way.
The only person who can bring a complaint against nomination and sponsorship is a party member or the party itself. It does not lie in the mouth of the Appellant to complain about the sponsorship and nomination of candidate of another party not his own. See Ukpo Vs. Adede (supra).
Nomination and sponsorship are pre-election matters amenable to the jurisdiction of the Federal High Court under Section 32(4) of Para(4) (1) of the Electoral Act 2006. It is therefore not a past election issue that the Election Tribunal has jurisdiction to entertain. See the cases of Jang Vs. Dariye (2003) 15 NWLR Pt. 843 P9 436 at 459 – 60, Action Congress Vs INEC (2007) 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 Appellants prior to the election did not raise the issue of the nomination and sponsorship of the 5th Respondent by the 6th Respondent. Having failed or neglected to raise any complaints regarding the nomination of the 5th Respondent by the 6th Respondent before the election, the Appellants are estopped from so doing after the election, at the Election Tribunal.
I must state here that even though issues of nomination and sponsorship are pre-election issues it does not avail the Appellants to question that issue within another party not theirs.
In citing the cases of Ararume Vs. Ugwu (supra), it would be recollected that bath parties are from the same party. So also in the case of Amechi VS. INEC, where Amechi challenged the refund of another member from the same party. Only members of the same party can question nomination, sponsorship and substitution within their party.
The Appellants in their argument frowned at the time the 5th and 6th Respondent raised the issue of jurisdiction at address stage. It is trite that a question of jurisdiction is a threshold issue and can be raised at any time before judgment. It can be brought up for the first time on appeal. No one needs to be reminded that, at any time the issue of jurisdiction is brought up it would be treated with dispatch to enable the court know which way forward. A court without jurisdiction is wasting precious judicial time as the proceedings and final decision would be declared a nullity.
The Appellants submitted that what came up before the Tribunal- was the provision of Section 65(2)(b) of the 1999 Constitution which I will now interpret.
Section 65(2) provides:
“A person shall be qualified for election under subsection (1) of this section if: –
(a) he is a member of a political party and is sponsored by that party.”
All the papers and particulars of the 5th Respondent indicate that he is a member of All Nigeria peoples Party (ANPP).
There is no doubt about this, as the 6th Respondent has not denied nomination and sponsorship of the 5th Respondent. The Appellants’ burden of proving that the 5th Respondent is not a member of the 6th Respondent has not shifted and they have not succeeded in proving that assertion.
Section 145 (1)(a) of the Electoral Act 2006 provides:
“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.”
The Appellants’ ground for questioning the declaration and return of the 5th Respondent is that he was not nominated and sponsored by the 6th Respondent. This ground was debunked by oral and documentary evidence elicited during the trial. Moreso the ground is a pre-election issue which rightly the trial Tribunal has no jurisdiction to entertain. This ground does not avail the Appellants in questioning the election and return of the 5th Respondent as it is a pre-election issue available only to members of the same party.
From the foregoing, I therefore hold that the Appellants cannot question the nomination and sponsorship of the 5th Respondent by the 6th Respondent at the Tribunal or anywhere else. The Lower Tribunal was right in holding that it had no jurisdiction to deal with the subject matter of nomination and sponsorship of the 5th Respondent by the 6th Respondent. The Appellants also lacked locus to question the nomination and sponsorship of the 5th Respondent by the 6th in any court whatsoever. This issue is therefore resolved for the Respondents against the Appellants. ISSUE TWO
Whether the judgment of the Tribunal in its totality was not perverse and if it was what are the consequential reliefs this Honourable Court can grant?
The learned counsel to the Appellants agreed that as a rule an appellate court will not disturb the findings of a Lower Court except when such is perverse. A judgment will be adjudged perverse in the following circumstances: –
(a) When the judgment runs counter to pleadings and evidence.
(b) where it has been shown that the trial court took into account issues that are extraneous or shut its eyes to the obvious or;
(c) when it has occasioned a miscarriage of justice. See Nkando Vs. Obiano (1997) 5 NWLR Pt. 505 Pg 31 at 56.Counsel submitted that the judgment was perverse as the Tribunal misconceived the whole facts of the case of the Appellants and thereby reached a perverse decision by holding that the case of the Appellant bordered on nomination and sponsorship and thereby reduced it to intra-party affair.
Also that the Tribunal refused to make any finding in respect of the testimony of PW2, who testified, that the 5th Respondent was not a candidate at the election. This assertion, PW2 stated, was the official position of 1st – 4th Respondents. Counsel then cited the case of Maska Vs. Ibrahim (1999) 4 NWLR Pt. 577 P9 415 at 424 and tried to distinguish it from this case and held that the relevant evidence produced at the Tribunal was to prove disqualification of the Respondent to contest the election.
Learned counsel also submitted that the Tribunal failed to make relevant findings on Exhibit R1 upon which the 5th Respondent hinged his candidacy in the election of 21st April, 2007.
Exhibit R1 was supposed to be a reflection of Exhibit P5. However the name of the 5th Respondent was not reflected in Exhibit P5. The 5th Respondent’s name appeared on Exhibit R1 and subsequently was reflected on Exhibit R12 (the ballot paper) albeit unduly.
Learned counsel also drew the court’s attention to the discrepancies in the hand writing in Exhibits R2 – R8 when compared with that in Exhibit P6.
Counsel also submitted that it was a violent breach to the fundamental right of fair hearing of the Appellants for the Tribunal to I place reliance on the testimony of one Leo N. Dae even though his testimony was neither adopted nor was he cross examined.
Counsel referred the court to Section 16 of the Court of Appeal Act and Section 22 of the Supreme Court Act and urged the court to invoke its powers. Where jurisdiction is in issue, the Appellate Court can invoke the relevant law and decide the issues before the Court rather than sending it back for retrial. See C.G.G. (Nig) Ltd Vs. Ogu (2005) 8 NWLR Pt. 927 P9 366 at 385, Inakogu Vs. Adeleke (2007) 4 NWLR Pt. 1025 P9 423.
Counsel therefore urged the court to invoke its powers as provided by Section 16 of The Court of Appeal Act and assume jurisdiction over issues one and two submitted to the Tribunal as if this Court is sitting as a court of first instance over those issues. Counsel urged the court to allow this appeal and declare the 1st Appellant winner having scored the majority of lawful votes at the election.
The learned counsel to the 5th and 6th Respondents gave notice of Preliminary objection to the Appellants Issue No. Two, which was distilled from grounds 3 and 6. His grounds of objection are as follows: –
(i) Every issue formulated for determination in an appeal must flow from and be related to or distilled from a ground of appeal.
(ii) Issue No. Two formulated by the Appellants in their brief of argument is not related to and does not flow from ground 3 and 6 on which it was formulated.
The 5th and 6th Respondents’ counsel argued their preliminary objection very convincingly, but I do not wish to finish this judgment on a technical note. I will therefore deal with issue two as if there was no preliminary objection against it.
The learned counsel for the 5th and 6th Respondents in reply to issue No. two submitted that the appraisal of evidence and ascription of probative value to such has been tagged the duty of a trial court. The reason for this was given by I.T. Mohammed JCA (as he then was) in Rimi Vs. INEC (2005)16 NWLR pt. 920 Pg 56 at 84 where he held –
“the case law is replete with authorities that the trial judge is in a better position to assess the evidence led before him as he had the opportunity to see, hear and assess the witnesses demeanour. Consequently, except where the appellate court is permitted to evaluate any documentary evidence where the trial court failed to do so, the appellate court cannot substitute its own views for the views of the trial court. The Appellate Court can only do so where it is shown that the inference drawn by a trial judge was not supported by the evidence led and the facts before him or where it is shown that the judgment is perverse.”
From the arguments and submissions of both counsel the question here is whether the judgment of the lower Tribunal was perverse.
The learned counsel to the Appellants’ arguments on this issue were centered around their ground 1 and 2 of their petition.
The Lower Tribunal held and rightly too that it had no jurisdiction to deal with grounds 1 and 2 of the petition. From the record of proceedings, the Tribunal gave her judgment based on the pleadings and the evidence led by the parties in furtherance of their respective cases.
At the trial, the Tribunal was faced with a credibility problem of whether it had jurisdiction to deal with the petition as presented. The issue that was before the Tribunal was whether the 5th Respondent was qualified to contest the election having not been nominated and sponsored by the 6th Respondent. The Lower Tribunal ruled that it had no jurisdiction to deal with grounds 1 and 2 of the petition. The Tribunal had no business in further evaluation of the testimonies of witnesses and the various documents placed before it. A judgment delivered by a Tribunal holding that it had no jurisdiction cannot be perverse when it did not have to evaluate such evidence to reach its decision. The only question it had to deal with was that of jurisdiction. The Tribunal cannot continue to assess evidence when it had an issue of jurisdiction. It should be noted that the question of jurisdiction came at a later stage during the trial. The Appellants counsel complained that the 5th and 6th Respondents brought up the question of jurisdiction at address stage. This issue is neither here nor there as the issue of jurisdiction can be brought up at any stage of the trial even on appeal. See the case of Kotoye Vs. saraki (1994)7 NWLR Pt. 357 pg 414 at 466 ‘and Bronik Motors Vs. Wema Bank (1993)1 SCNLR 296.
As soon as the Lower Tribunal determined’ that it had” no jurisdiction it could go no further. The only thing left for it to do was to strike out grounds 1 and 2 and proceed to deal with ground 3, this ground the Appellants did not also prove and was consequently dismissed.
The Tribunal could only make one order which is that of the dismissal of the petition. It would have been perverse for the Tribunal to get into the nitty gritty of further assessing and evaluating evidence proffered by the parties, when it lacked jurisdiction to deal with the subject matter. The Appellants had urged the court to invoke its powers under Section 16 of the Court of Appeal Act and assume jurisdiction on grounds 1 and 2 of the petition. If the Tribunal had no jurisdiction to deal with nomination and sponsorship of candidates, so also the Court of Appeal. The Court of Appeal cannot invoke jurisdiction when it lacks same. See the cases of C.G.G. Nig Ltd Vs. ogu (supra) and Inakogu Vs. Adeleke (supra). There is no longer any question of a perverse judgment as it does not arise without jurisdiction. If a court lacks jurisdiction the question of perverse is no longer relevant since defect of jurisdiction relates to embarking on the case and not to what happened during the trial. See Emesim Vs. Nwachukwu (1999)3 NWLR Pt. 596 pg 590, Abdullahi vs. Gaya LREC 144, Nnonye Vs. Anyichie (1989)2 NWLR Pt. 101 pg 110, Jang Vs. INEC (2003)12 NWLR Pt. 886 pg 46.
I hold therefore that the judgment of the Tribunal was not perverse. When it decided it had no jurisdiction there was no other option than to dismiss the petition. It is trite that as soon as any court or Tribunal determined that it had no jurisdiction the only option left for it is to dismiss or strike out the matter. Any other step taken would be a step in futility.
I therefore hold that the two issues formulated by the Appellants have both been resolved against them. The Appeal lacks merit and it is hereby dismissed. The judgment of the Lower Tribunal is affirmed. The 5th Respondent’s return is hereby also confirmed.
I make no order as to costs.
Other Citations: (2008)LCN/2840(CA)
