Mohammed Hassan Hashim Rimi V. Independent National Electoral Commission (Inec) & Anor. (2004)
LawGlobal-Hub Lead Judgment Report
T. MUHAMMAD, J.C.A.
On the 13th day of February, 2004, the Kogi State National, Assembly/Governorship and Legislative Houses Election Tribunal holden at Lokoja (the “tribunal” for short), dismissed the petition of the appellant as petitioner. Dissatisfied, the petitioner appealed to this court against the dismissal of his petition. Facts contained in the printed record of this appeal, revealed that the petitioner along with five others were vying for election into the Kogi State House of Assembly from Lokoja 1 State Constituency under the platform of Peoples Democratic Party (PDP). PDP, towards realization of that objective, conducted primary election for the contestants on the 17th day of December, 2002. At the end of the primaries and based on the result, the name of the 2nd respondent was forwarded to the 1st respondent as candidate for the said constituency. Unhappy with the declaration, the petitioner petitioned the party against forwarding the name of the 2nd respondent which resulted in the withdrawal of the name of the 2nd respondent and substituting it with that of the petitioner.
Since the said substitution, there had been series of correspondences between the party and the 1st respondent withdrawing or substituting either of the two names interchanging one another.
At the end of the election the name of the 2nd respondent was returned as the winner. The petitioner then filed the petition giving rise to this appeal.
The main grouse of the petitioner in his petition before the tribunal was that his name was withdrawn and substituted with that of the 2nd respondent less than 30 days to the date of the election contrary to the provision of section 23 of the Electoral Act, 2002. He therefore urged the tribunal to declare illegal the purported withdrawal of his name and declare him winner being the duly nominated candidate for the party. In support of his case, the petitioner testified in person, called two more witnesses and tendered some exhibits. 2nd respondent called only 1 witness and tendered some exhibits too. The 1st respondent did not file any reply to the petition nor called any evidence. The tribunal dismissed the petition for lack of merit.
Five grounds of appeal were set out in the notice of appeal. In this court, briefs were filed and exchanged. Learned counsel for the appellant distilled the following issues in his brief of argument.
“Issue No.1
Whether the tribunal was in error in holding that the petitioner failed to support his pleading as to non payment of tax by the 2nd respondent by concrete evidence.
Issue No.2
Whether the tribunal was right to hold that it had no jurisdiction to entertain the petitioner’s claim of late substitution as it is an internal affair of the party.
Issue No.3
Whether in the light of the Supreme Court decisions and later decisions of this court the tribunal was right in holding that the word ‘may’ used in the con of section 23 of the Electoral Act, 2002 is discretionary and not mandatory.
Issue No.4
Whether in view of the overwhelming evidence adduced by the appellant the tribunal was not in error to hold that the inescapable and inevitable conclusion is that the petitioner has failed to establish his case. ”
Making his submission on issue 1, learned counsel for the appellant stated that by their averments, the parties joined issues on the disqualification of the 2nd respondent on ground of invalid tax clearance certificate. He cited and relied on section 134(1) (a) of the Electoral Act, 2002. The tribunal, he argued, was right when it found that it had jurisdiction over the complaint of the petitioner relating to the 2nd respondent’s disqualification on ground of invalid tax clearance certificate. He argued further that the 2nd respondent did not lead any evidence in support of the averments in paragraphs 4 and 7 of his reply and therefore same were deemed abandoned. FCDA v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281 F-G cited in support. 2nd respondent was deemed to have admitted petitioner’s averments in paragraphs 7 and 11 of his petition. It was argued again for the appellant that the 2nd respondent was disqualified from being sponsored as the party’s candidate on the ground of possessing invalid tax clearance certificate. All these were completely proved by the appellant.
On the 2nd issue, learned counsel for the appellant submitted that the issue of disqualification and substitution of a candidate is not an internal affair of the party. This is because according to learned counsel, the party had, by the submission of the list of its candidates to the 1st respondent, taken the matter from the forum of the party and had involved a third party (1st respondent). By necessary implication the party had submitted to the laws and rules regulating the functions of the 1st respondent. Learned counsel argued further that the matter in controversy between the parties before the tribunal was not an intra-party matter to rob the tribunal of the necessary jurisdiction. The case of Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618; Goodhead v. Amachree (2004) 1 NWLR (Pt. 854) 352 at 372, among others, were cited.
Issue No.3 is on the interpretation of the word “may” used in the con of section 23 of the Electoral Act, 2002, whether “discretionary” and not “mandatory”.
On issue No.4, learned counsel for the appellant submitted that the appellant was the validly sponsored candidate of the Peoples Democratic Party (PDP) for the said election which PDP won by majority of lawful votes cast at the election. The appellant not the 2nd respondent ought to be returned elected and the purported substitution of his name with that of the 2nd respondent was ineffectual in the light of the provisions of section 23 of the Electoral Act, 2002. Appellant’s name per exhibits 2, 3, 4, 5 & 6, remained with the 1st respondent up till 7 pm in the evening of the eve of the election being 2nd May, 2003. This was corroborated by the evidence of PWs 1 – 3. Further, the appellant did put before the tribunal enough evidence to establish that the purported substitution of the appellant’s name with that of the 2nd respondent was done less than 30 days to the date of the election and was done in breach of the mandatory provision of section 23 of the Electoral Act. The substitution was a nullity and the appellant was the one entitled to be returned elected. The tribunal was in error in dismissing the appellant’s petition.
Learned counsel urged this court to allow the appeal and set aside the decision of the tribunal and grant the petitioner’s reliefs in the interest of Justice.
Learned SAN for the respondents, cited and relied on section 23 of the Electoral Act, 2002 and submitted that generally, the word “may” used in the section; connotes liberty, permission, ability, possibility or competence to do a certain thing. In other words, one has the option or discretion as it is not mandatory. The word “may” was used in its ordinary sense and no more. It is merely discretionary and not mandatory and that is why there is no penalty or consequence as to non-compliance with the provisions of the said section. The case of Okon v. Bob & 6 Ors. (2004) 1 NWLR (Pt. 854) 378 was cited in support. All the cases cited by learned counsel for the appellant on the issues are quite distinguishable. Non-compliance with the provisions of section 23 of the Electoral Act does not invalidate the nomination of a candidate to contest election by a political party.
On his issue 2, the learned SAN for the respondents submitted that the issue of substitution of a candidate’s name with another for an election by a political party is an internal affair of the party. Hence, a court or tribunal cannot choose candidates for parties in an election. The cases of Okon v. Bob (supra); Dalhatu v. Turaki & Ors. (2003) 15 NWLR (Pt. 843) 310, were cited in support.
On Section 134 (1)(d) of the Electoral Act, the learned SAN urged this court to adopt the dictum of Akpiroroh, JCA in the case of Okon v. Bob (supra).
Arguing issue 3, learned SAN submitted that from the reliefs sought by the appellant, it is clear that the appellant did not pray for invalidation of the election of May 3, 2003 or for a bye-election. Thus, the case set up by the appellant and the evidence adduced in support thereto cannot support the reliefs claimed. Ige v. Olunloyo (1984) 1 SCNLR 158 referred to. Learned SAN submitted that there was evidence which established that the appellant did not stand for the election that day, i.e. 3/5/2003. He was not returned as winner of the said election. Learned SAN argued further, that the appellant could not bring the petition as he was not the person envisaged by section 134(1) of the 1999 Constitution as it is a political party that is envisaged or its validly nominated candidate. The appellant, it was submitted for the respondents, could not challenge the 2nd respondent’s qualification to contest vis-a-vis paying his tax as at when due as he does not fall into any of the two categories of those that can bring a petition. Learned SAN urged this court to dismiss the appeal and uphold the decision of the tribunal.
In order to simplify my consideration of the issues which have arisen in this appeal, I consider it pertinent to start with issues Nos. 2 and 3 which stemmed from grounds 2 and 3 of the grounds of appeal set out in the notice of appeal. Issue No.2 deals with substitution of the appellant which was done by his party in favour of the second respondent. The fundamental issue thrashed before the lower tribunal and which this court is now being asked to determine is whether the substitution of a candidate effected by his party before election is within the domain of internal or domestic affairs of the party. It is the finding of the lower tribunal that the issue of nomination and sponsorship of a candidate to contest election is purely within the prerogative of a party and in fact its domestic affairs. Reliance was placed by the tribunal on the cases of Okafor v. Onuoha (1983) 1 FNLR 217 and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310. But let it be understood from the outset that nominations of candidates for the various party elective offices for the purposes of an election are purely governed as of now in this country, by the rules governing preliminaries to election. Such preliminary rules are those which determine intra-party resolutions and nominations to elective offices. They, thus, postulate the relationship between the political party in question, its members and the electoral body. So, a person preparing to contest any elective office at an election, must first have the unreserved blessing of his party in the sense that he is nominated by members of his political party and presented by his political party to the electoral body. That of course is in accord with the provision of section 106 of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution for short), which spells out the qualifications for membership of House of Assembly of a State. The section provides, inter alia –
“106. Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if –
(a) ….
(b) ….
(c) ….
(d) he is a member of a political party and is sponsored by that party”. (Italics supplied.)
It is clear that neither the 1999 Constitution nor the Electoral Act, 2002, and indeed nor the electoral guidelines for primary elections 2003 of the Peoples Democratic Party (PDP) which the tribunal admitted as exhibit 1 assigned any interpretation to the words “nomination” and “sponsor” variously used by such enactments and the guidelines, but viewed from its literal perspective to nominate would mean to formally suggest that somebody should be chosen for an important role, prize, position, etc.In the legal parlance however, it connotes the naming, designation by name, appointment, of a person by a body charged with that responsibility. See Black’s Law Dictionary, Fifth Edition, page 947. In the case of Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) 657; this court held that “nomination” is an act of suggesting or proposing a person by name to an electoral body as a candidate for an elective office. To “sponsor” on the other hand, has a variety of literal meanings including, “to support somebody by paying for their training or education”, or, “a person who agrees to be officially responsible for another person” etc. See: A. S. Hornby’s Oxford Advanced Learners Dictionary 6th Edition pages U50 – U51. Legally however, it refers to that person who makes a promise or gives security for another. Blacks Law Dictionary (Op Cit page 1257).Therefore, both nomination and sponsorship of a candidate to an election are purely preliminary matters before the actual election is conducted. As preliminary matters to election, both nomination and sponsorship of a candidate for an election are exclusively the responsibility of the political party concerned. Therefore, a person wishing to contest election must first clear the preliminary hurdle of getting nominated and then sponsored by his political party before being presented to the electoral body.
Now, as is clear from the facts of this case stated earlier, the appellant and the 2nd respondent contested the PDP Primary Election for Lokoja 1 State Constituency on 17th December, 2002. After the said primaries, the PDP forwarded the name of the 2nd respondent to the 1st respondent as its candidate for the May 3, 2003 Lokoja 1 State Constituency election. The appellant protested to the PDP on the ground that 2nd respondent had no valid Tax Clearance Certificate. PDP investigated the allegation which it found to be true and disqualified 2nd respondent whose name was subsequently substituted with that of the appellant. Appellant remained as PDP’s candidate, for the said election until the 2nd of May, 2003 when the name of the appellant was withdrawn and substituted with the name of the 2nd respondent which remained up till the election day. Election was held and PDP emerged victorious.
At this juncture, one is bound to ask: what really happened?
By taking a look at all the documents that were admitted in evidence by the tribunal, one can see clearly that a lot of turbulent water must have passed under the bridge. Let me once more chronicle the events: The appellant claimed to be the winner of the PDP party primary election held on the 17th of December, 2002, although the 2nd respondent had the highest number of votes but followed by the appellant as shown by the scores: 59 and 36 votes for the 2nd respondent and appellant respectively. Appellant alleged in his petition that since neither of the candidates scored the mandatory 50% of the total votes cast which were 141, there was to be a run-off election between the appellant and the 2nd respondent. But before the run-off primary election could be ordered by the party, the name of the 2nd respondent was erroneously returned and forwarded to the 1st respondent on 10/2/2003 as the candidate the party was sponsoring. The petitioner on 18/12/2002, petitioned the party by his letter to the National Chairman whereof he complained about the wrongful and erroneous return of the 2nd respondent as the winner of the said primary election. That after due consideration of the appellant’s complaint, the party found fault in the return of the 2nd respondent whom the party found to be unqualified. The PDP vide its letter of 6/3/03 signed by both the National Chairman and Secretary wrote to the 1st respondent withdrawing the name of Arch. Umar B. Jibril, 2nd respondent, as its candidate and substituted same with the petitioners name. The party revalidated and confirmed appellant’s substitution and brought this to the attention of 2nd respondent vide its letter to him dated 3rd April, 2003. Appellant stated further in his petition that the 2nd respondent was disqualified from contesting the election of 3rd May, 2003 because he did not possess valid Tax Clearance Certificate as the ones he submitted were declared invalid.
But in a further development, and by a letter dated 5th April, written by the State Chairman of the PDP Kogi State, which letter was approved by the PDP National Secretary on 8th of April, 2003, the party sought to withdraw the appellant’s name as its candidate for the election of 3rd May, 2003. In its letter dated 14/4/2003, the 1st respondent approved the withdrawal of the appellant’s name. Finally, at the end of the whole saga and after the 3rd May, 2003 election, the 2nd respondent was declared to be the elected member for the Lokoja 1 State Constituency.
From the printed record of this appeal, some exhibits were admitted in evidence. From such exhibits, it is clear that a document which emanated from PDP National Secretariat, dated April 3, 2003 and signed by Prince Vincent Ogbulafor, National Secretary directed INEC to revalidated earlier substitutions. This document was admitted as exhibit 4 and it reads in parts as follows: “Peoples Democratic Party (PDP)
National Secretariat,
Abuja.
The Secretary
INEC Headquarters,
Abuja.
Re: Substitutions in Lokoja 1 Ankpa II and Omala State House of Assembly Constituencies in Kogi State.
I refer to my note to you on the above subject matter. The State Chairman has not up till now submitted sufficient reasons for the withdrawal of the substitutions. May you please revalidate our earlier letter of 6th March, 2003.
That means that the under named persons remain the candidates of the party:
- Alhassan Hashim – Lokoja I
- Hassan Ibrahim Momosani – Ankpa II
- Mrs. Rosemary Momoh – Omala
Thanks for your co-operation.
(Signed)
Prince Vincent Ogbulafor
National Secretary. ”
In another document, admitted as exhibit 3, INEC displayed list of candidate who stood in and were nominated to contest elections 2003 under PDP banner in Kogi State. The name of appellant was shown and in the remark column, as having substituted the 2nd respondent. Same was repeated in exhibit 5.
On the 8th of April, 2003, another letter emanated from the PDP National Secretary, Prince Ogbulafor. This letter was admitted as exhibit 6 and it reads as follows:
” Peoples Democratic Party (PDP)
National Secretariat
Abuja.
8th April, 2003
The Chairman
INEC
Abuja.
Re: Revalidation of Hon. Mohammed Alhassan Hashim Rimi candidate for Lokoja 1 State Constituency, Kogi State.
The National Working Committee has been embarrassed by the facts presented to the Committee on the candidature of Lokoja 1 State Constituency where Alh. Umar Buba fibril, presented false document on tax. Please find enclosed two letters to support our decision on the issue.
Been fully aware of the provisions of section 21 (7) (a-b), the party passionately solicit for the revalidation of Hon. Mohammed Alhassan Hashim Rimi for Lokoja 1 State Constituency. Thanking you for your usual understanding in this matter.
(signed)
Prince Vincent Ogbulafor
National Secretary. ”
The basis for the decision taken as per exhibit 6 were two letters enclosed in exhibit 6. The 1st letter which was in a form of a memo reads as follows:
“Memo
April 28, 2003
To: The National Chairman
From: National Ex-officio, North Central
Subject: Re. Substitution of candidates for House of Assembly Elections in Kogi State.
Recall the letter written to INEC in respect of the above in Lokoja 1State House of Assembly Constituency on 7th April, 2003.
The name of Hon. Mohammed Alhassan Hashim Rimi was substituted with Alh. Umar Buba fibril on the strength of a letter written by the State Chairman.
It is true that Hon. Hashim came second in the primary election and run-off could not be arranged to determine the actual winner. However, the State went ahead to send Alh. Umar Buba Jibril as the candidate for Lokoja 1 State House of Assembly Constituency.
Mr. Chairman, the candidate so declared has a tax clearance problem. The National Legal Adviser had written to the Director of Internal Revenue in Lokoja to determine the validity of his tax receipt dated March 27, 2003. In a reply to his letter dated April 4th, 2003, the Director of Internal Revenue wrote that the Tax clearance certificate is fake.
On the strength of the Internal Revenue letter kindly approve the substitution of Alh. Umar Buba fibril with Hon. Mohammed Alhassan Hashim Rimi as the party 2; candidate for Lokoja 1 House of Assembly Constituency.
Attached is a photocopy of the Internal Revenue letter.
You are directing, Sir.
(Signed) E
Arc. Abdulmuminu O. Okara. ”
However, in another dramatic U-turn, INEC, i.e. 1st respondent, informed the Resident Electoral Commissioner, Kogi State, through its letter of 14th April, 2003, of the cancellation of substitution of candidates in PDP in some Constituencies in Kogi State including Lokoja 1 State Constituency. The letter reads as follows:
“Independent National Electoral
Commission (INEC)
Zambezi Crescent
Maitama District
P.M.B. 0184, Garki,
Abuja, FCT
Hon, Resident Electoral Commissioner,
State Headquarters,
National Electoral Commission,
Kogi State,
Lokoja.
Omala, Ankpa II and Lokoja 1
State Constituencies
I write to inform you that the substitution of candidates that was done in PDP with respect to the above mentioned constituencies are canceled and it is directed that the candidates in these Constituencies in the first list that was sent to you still stand.
- The candidates, for the avoidance of doubt, in these State Constituencies are as follows:
- Barr. Adamu Mohammed – Omala Constituency
- Bala Zakari – Ankpa II Constituency
- Arch. Umar B. fibril – Lokoja 1Constituency
- The reversion to the first list was necessitated by letters from Kogi State PDP Chairman of 5th April, 2003 and National Chairman/Secretary of 7th April, 2003. (Copies are herewith attached for your perusal).
(Signed)
N. H. Auta, Esq.,
For: Secretary. ”
The cancellation as indicated in exhibit R.11 above particularly in respect of Lokoja I State Constituency was prompted by some documents listed in paragraph 3 of exhibit R.11 above. These documents were admitted in evidence as exhibit R.12 and exhibit R.13. It is necessary to quote them as well. Exhibit R.12 reads as follows –
“Peoples Democratic Party (PDP)
National Secretariat
Abuja.
7th April, 2003
The Chairman,
INEC,
[NEC Headquarters,
Abuja.
Dear Chairman,
Re: Substitution of PDP House of Assembly Candidates in Kogi State.
With reference to our letter of April 3, 2003. The State Chairman of our party in Kogi State has informed the National Working Committee (NWC) of the reasons for withdrawal and substitution of the under mentioned candidates. Please find attached the State Chairman’s letter dated 5th April, 2003.
LOKOJA HOUSE OF ASSEMBLY CONSTITUENCY
Arc. Umar Buba Jibril is to substitute Alhassan Hashim in LokoJa House of Assembly. Arc. Umar Buba Jibril is now the candidate of the party in LokoJa 1 House of Assembly Constituency.
ANKPA II HOUSE OF ASSEMBLY CONSTITUENCY
Bala Zakari is to substitute Hassan Ibrahim Momosani in Ankpa II House of Assembly. Bala Zakari is now the candidate of the party in Ankpa II House of Assembly Constituency.
OMALA HOUSE OF ASSEMBLY CONSTITUENCY
Barr.Adamu Mohammed is to substitute Mrs. Rosemary Momoh in Omala House of Assembly. Barr. Adamu Mohammed is now the candidate of the party in Omala House Assembly Constituency
Highest regards.
(Sgd.) (Sgd.)
Audu Ogbeh. OFR Prince Vincent Ogbulafor
National Chairman National Secretary.”
This letter to INEC, it should be noted, was signed by both Audu Ogbeh, National Chairman of PDP and Prince Vincent OgbuJafor, National Secretary of PDP. Exhibit R.13 emanated from the Kogi State PDP Chairman, Chief John Odawn. In this letter the State Chairman of the party (PDP) unveiled the reasons behind the reversion of the earlier substitutions effected by the party. Exhibit R. 13 reads –
“Peoples Democratic Party (PDP)
PDP State Secretariat
Lokoja,
Kogi State.
5th April 2003
The National Chairman,
Peoples Democratic Party (PDP)
Wadala Plaza,
Abuja.
Sir;
Re: Substitution of PDP House of Assembly Candidates in Kogi State
I humbly wish to draw your attention to our earlier discussion on the above subject matter and wish to state clearly here that the substitution of PDP Assembly candidates in Lokoja 1, Omala and Ankpa II Constituencies were not to the knowledge of my office old the Stale Secretariat of our great party.
After my meeting with you and the National Secrerary, the situation was reverted to the status quo as discussed by a personal letter from your National Secretary to INEC but to my surprise, the said letter was again withdrawn on the 4th April, 2003 by another letter from the National Secretary. Sir. I would Like to state clearly here that the whole action is aimed at embarrassing and scuttling the chances of the party in the State.
Do please by this letter revert to our earlier submission to you and maintain the status quo as forwarded to INEC in your first list (viz. Lokoja 1 Arc. Umar Buba Jibril, Omaa – Barr. Adamu Mohammed and Ankpa II Bala Zakari).
Yours faithfully,
(Sgd.)
Chief John Odawn
PDP State Chairman. ”
Still, on 1st May, 2003, a letter credited to Chief Audu Ogbeh, National Chairman PDP, was addressed to INEC Secretary Abuja. This letter, handwritten was admitted in evidence as exhibit 7 and it reads –
” Sheraton Tmvers
Abuja
May 1, 2003
The Secretary,
INEC,
Abuja.
Dear brother,
MY greetings! I am in the village and I am really sorry to have to bother you like this. It is about Kogi – Lokoja House of Assembly seat.
It would appear your office changed the name of Alh. Umar Buba Jibril just two days ago, and in its place put Hon. Moh. Alhassan Hashim Rimi. I was not aware of this development before it took place. The change was ill advised. Please do your utmost to maintain the name Alh. Umar Buba fibril as our candidate for Saturday selection.
Yours,
(Sgd)
Audu Ogbeh. ”
That is so much of the imbrogolio seemingly created by the party in question. It was because of this impasse that the NTA Lokoja gave a coverage of the episode on the 2nd of May, 2003, just some hours to the election day. The transcript of that news item was admitted in evidence as exhibit 8. It is interesting to have a look at what that report contains –
“Reporter-
In the last few weeks, the PDP candidate for Lokoja 1 Constituency to the State Assembly generated a lot of controversy. Such that it was not clear who was actually the party’s rightful contestant. Two persons paraded themselves as the party’s candidate, namely the incumbent, as the Alhaji Hasshimu Rimi and Architect Umaru Buba fibrin as at this morning the situation had not changed. But few hours ago, the resident INEC Commissioner gave clarification on the matter.
-Sound-
“Transcription-
It is an interesting phenomenon. We also wondered what was happening over there, each candidate will come with a letter claiming to be the rightful candidate. But now we have a substitution for the name and Buba is the rightful candidate. I hope it does not change in the next five minutes. Buba is the candidate and I will talk to Hasshimu later and tell him of the development so that he can stay clear of the election.”
From the totality of the above exhibits which are clear enough to speak for themselves, there is no doubt that it was the party (PDP) which created a bleak scenario full of cynicism, mistrust, non-resoluteness, misdirection, complete absence of cohesiveness and the brazen show of power and favoritism which shrowded the whole electioneering process in respect of Lokoja 1 State Constituency, in mystery and confusion.
I agree that the Electoral Act has given the power to a party to withdraw or substitute a candidate before a date set for an election. I am not unmindful of the provisions of sections 23 and 25 of the Electoral Act (2002) (the Act) which provide as follows –
“23. Any political party which wishes to change any of its candidates for any election under this Act may signify its intention in writing to the Commission not later than 30 days to the date of election.
25(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 14 days to the election.
(2) Where a candidate withdraws as provided in subsection (1) of this section, his Political Party shall be allowed to nominate another candidate.”
Under the circumstances presented in both sections above the party which fielded the candidate for an election reserves the right to substitute such a candidate before the perceived election upon the fulfillment of conditions attached thereto e.g. substitution to be effected not later than 30 days to the date of election or where, as the case may be, the candidate voluntarily decides to withdraw his candidature.
This now leads me to the consideration of whether the use of the word “may” in section 23 above, is mandatory or discretionary. This is issue No.3. The word “may”, when used in a statute poses some difficulty in interpretation. Authorities are not unanimous on any particular interpretation of the word. It may imply that it is only directory or permissive or can be imperative as the case may be, depending on the con within which it has been used. In Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 at page 56 paragraph C-E, Karibi-Whyte, JSC had this to say:
“The construction of the word “may” in provisions of statutes has always raised difficulties. This is not because of the imprecision of the word because it is not, but essentially because the word “may” assumes a technical meaning depending upon the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative, and seldom can be “must” and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative.”
In order to get the clear intendment of the draftsman where he selects to use the word “may”, the following rules apply –
- In the interpretation of a statute the cardinal principle is to discover through the words used in the Statute, Law, Decree, Act or Edict the intention of the drafts man. When the matter calls for interpretation is a word like “may” the whole section is to be read together without taking the word out of its con in trying to discover the intention of the draftsman.
- Whenever a statute creates a duty the first and primary question for judicial decision is what is the sanction that has been provided for its breach. No statute creates E an obligation without anticipating a breach. If there is, then it is mandatory. It is absolute. Where the court cannot interfere to compel its performance or indeed punish the breach of duty the act is directory, See: Ifezue v. Mbadugha (1984) 1 SCNLR 427; Ijebu Ode Local F Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136.
- To interpret the word “may” where it appears in a statute the con in which the word appears must be looked into as this is the controlling fact whether it is mandatory or directory. See further: Obioha v. Dafe (1994) 2 NWLR (Pt. 325) 157 at pp. 180 to 181; N.E.W. Ltd. v. DENAP Ltd. (1997) 10 NWLR (Pt. 525) 481 at page 514 paragraphs C-G; Oko v. Igweshi (1997) 4 NWLR (Pt. 497) 48; Ohanaka v. Achugwo & Anr. (1998) 9 NWLR (Pt. 564) 37.
I have scanned through the Act and I failed to see any punishment prescribed for contravening the provision of section 23 of the Act. Thus, although a political party is at liberty to change or substitute its candidate for any election under the Act, the same party is given the liberty to change or substitute its candidate at any material time before the election, notwithstanding that the substitution or change was not effected within the thirty days prior to the election. The employment of the word “may” in section 23 of the Act merely implies directory, or permissiveness. It is not mandatory or imperative, taking guide from the above decided authorities and rules of interpretation. Therefore, the substitutions and counter substitutions effected within the party by the party were done within the ambit of the party and were validly done. To cap it all, paragraph 35(3) of exhibit 1, Electoral Guidelines for Primary Elections 2003 of the PDP provides as follows- ”
“35 …
(3) The decisions of the National Executive Committee on all primary election matters shall be binding on all aspirants subject only to their right of appeal.”
Furthermore, P.W.1, called by the appellant, while being cross-examined stated as follows:-
“I am familiar with some of the party guidelines particularly those relating to primaries. I agree that within the primaries party’s decision is final. It is the political party that will determine who will be its candidate.”
It is in exercise of the right of appeal conferred on the appellant that gave rise to this appeal. What now appears to this court is that the tribunal was right in its decision that it had no jurisdiction to entertain the petitioner’s claim of late substitute as it is an internal affair of the party. Further, the word “may” used in section 23 of the Act connotes only directory or permissive and not mandatory nature of the provisions. Issues Nos 2 and 3 are resolved against the appellant.
I shall now consider issues Nos. 1 and 4 together as both deals with evidence. Issue 1 deals with the allegation of possession of invalid tax clearance certificate by the 2nd conclusions on the issue of Tax Certificate under consideration.
“As to the issue of non-payment of tax, we are of the firm and unshakable view that this tribunal has the Jurisdiction to look into the question whether the 2nd respondent paid his tax as and when due … In view of the foregoing we therefore hold that the tribunal has Jurisdiction. The petitioner however has failed to support his pleading as to non-payment of tax by concrete evidence. It is trite that any pleading not supported by evidence is deemed abandoned. In the whole, we hold that this allegation has not been proved. ”
The main complaints of the appellant on this issue are that:
(a) the evidence of PW1, PW2 and PW3 touched on the disqualification of the 2nd respondent due to lack of valid tax clearance;
(b) the petitioner tendered without objection from the respondents exhibit 6 in evidence;
(c) exhibit 6 comprises of the PDP letter to INEC dated 8th April, 2003, PDP North Central Zone letter, PDP letter to Kogi State Inland Revenue Board and the reply of the Inland Revenue Board;
(d) that exhibit 6 is a complete proof of the 2nd respondent’s disqualification on ground of invalid tax clearance;
(e) the 2nd respondent failed to specifically and sufficiently traverse the averments of the petitioner in relation to his disqualification.
But in his reply to the petition, 2nd respondent averred as follows-
“4. The respondent states that he was never disqualified from contesting the election of May 3, 2003 and that he at all times possessed valid Tax Clearance Certificate which was never declared invalid by anybody.”
Although, the allegations in (a) – (e) above are weighty, it is unfortunate the issue of payment of tax as and when due has not received any attention from the Constitution or the Electoral Act. No specific section, except for elections into Area Council, section 100 (f) thereof, where non-payment of tax is made to be a ground to warrant the nullification of an election. The grounds recognized by the Electoral Act are stated under section 134 of the Act. They are as follows –
“134(1) An election may be, questioned on any of the following grounds, that is to say –
(a) that a person whose election is 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, hot 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.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
See: Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144. It is the Party Electoral Guidelines for Primary Elections 2003 of PDP that paragraph 34 thereof which provides as follows –
“34. An aspirant for primary election into a State House of Assembly shall be disqualified if –
(a) he fails to produce his personal income tax certificate or any evidence that he has paid income tax as and when due for the last preceding three years or evidence of exemption from payment of personal income tax.”
The guidelines referred to above are rules and regulations made by the National Executive Committee of the PDP for the conduct of primary elections. They do not extend to the real nationwide party elections. They are within the domestic operations of the party.
It was the party, for reasons best known to it, that decided to substitute the appellant with the 2nd respondent despite any shortcoming. The attitude of the court is to refrain itself from imposing a candidate on a party as that is purely within the domestic affairs of the party. Enagi v. Inuwa (1992) 3 NWLR (Pt. 231) 548; Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) 657.
Granted that failure to pay tax is one of the grounds which make an election to be questioned, the requirement of the law to be fulfilled are as follows –
A party who alleges that a person failed to pay tax as and when due must prove –
(i) that the person earned a taxable income during the period in question;
(ii) that there was a proper assessment of the tax covering that period;
(iii) that notice of assessment was served on the person to pay his tax and he defaulted; and
(iv) that the person failed to pay tax assessed within two months after the service of the notice of assessment.
See: Lanto v. Wowo (1999) 7 NWLR (Pt. 610) 227; Ikuomola v. Ige (1992) 4 NWLR (Pt. 236) 511; Federal Board of Inland Revenue v. Rezcallah & Sons (1962) 1 SCNLR 1; (1962) 1 ANLR 1. These were decisions under various statutes, such as Decree 50 of 1999. As a matter of comparison, no person had the right under such laws to challenge the decision of the then National Electoral Commission on whether or not a candidate had paid his tax. Although that may appear to be a bad law with all undemocratic semblance, the present Constitution or the Electoral Act have not helped matters by failing to make provisions with regards to payment of tax as and when due.
On the 4th issue which is on the establishment of the petitioner’s case, 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 singular opportunity to see, hear and assess the witnesses demeanor. Except where I am permitted by the law to evaluate any documentary evidence where the learned trial Judge apparently failed to do so, I am not in a position to substitute his own views with mine. The learned trial tribunal found that the appellant failed to establish his case. The position is where no evidence has been led to establish the claims made before a court, such claims will be dismissed for want of evidence.
This appeal fails and it is hereby dismissed. Each party shall bear its own costs in this appeal.
Other Citations: (2004)LCN/1669(CA)
