Moh’d Bala Kalgo & Anor V. Hon. Engr. Abdullahi Umar Faruk & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J. C. A.
The 1st Appellant, Moh’d Bala Kalgo was sponsored by the 2nd Appellant, Democratic Peoples Party (DPP), for election as the member to represent Bunza/Birnin Kebbi/Kalgo Federal Constituency of Kebbi State. The 1st Respondent, Hon. Engr. Abdullahi Umar Faruk, who had hitherto been the candidate of All Nigeria Peoples Party (ANPP) before he defected to Peoples Democratic Party (PDP), was also nominated by the 2nd Respondent for the same elective office. The election was held on 21st April, 2007 and it was conducted by the 3rd and 4th Respondents. Upon declaration of results, the 3rd and 4th Respondents returned the 1st Respondent as the winner and duly elected member to represent the aforedescribed Federal Constituency at the National Assembly. It was declared that he polled 71,023 votes. One Abubakar Malami Esq., sponsored by All Nigeria Peoples Party (subsequently referred to as ANPP) came second with 29, 274 votes, while the 1st Appellant who came third scored 16, 202 votes out of the total votes cast at the said election.
The Appellants were dissatisfied with this declaration and return of the 1st Respondent. They challenged it vide an election petition filed on 21st May, 2007 before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, holden at Birnin-Kebbi, Kebbi State (now to be referred to as the Tribunal). (Pages 1 – 16 of the record.)
The grounds of the petition are as follows:
(i) The 1st Respondent was at the time of the election, not qualified to contest the election.
(ii) The election was invalid by reason of corrupt practices and or non-compliance with the mandatory provision of the Electoral Act, 2006.
The facts relied upon by the Appellants are duly stated therein and the reliefs claimed in the petition are in the following terms:
i) It may be determined that Hon. Engr. Abdullahi Umar Faruk who was returned by the 3rd – 4th Respondents as the Honourable member elect for the Bunza/B. Kebbi/Kalgo Federal Constituency at the election held on 21st April, 2007 was not duly elected and his election is therefore void.
ii) It may be determined that the 1st Respondent was not qualified to contest the election into Bunza/B. Kebbi/Kalgo Federal Constituency held on 21st April, 2007 under the flag of the 2nd Respondent or at all.
iii) It may be determined that the said election into Bunza/B. Kebbi/Kalgo Federal Constituency held on 21/4/2007 was characterized by pervasive non compliance with the Electoral Act which non compliance has substantially affected the result of the election and the election be annulled for non-compliance with the provisions of Electoral Act 2006.
iv) It may be determined that the 1st Respondent was not validly nominated as a candidate for the Bunza/B. Kebbi/Kalgo Federal Constituency.
v) That it may be determined that a fresh election be conducted into the Bunza/B. Kebbi/Kalgo Federal Constituency in accordance with the provisions of Section 147 of the Electoral Act, 2007 (sic)
On 7th June, 2007, the 1st and 2nd Respondents caused a conditional appearance to be entered on their behalf and also raised a notice of preliminary objection against the petition together with their reply to the petition. (Pages 17 – 31 of the record) On 12th June, 2007, the 3rd and 4th Respondents filed their reply to the petition and with the leave of the Tribunal granted on 23rd July, 2007, their amended reply was deemed filed and duly served. (Pages 32 – 34 and 92 – 120 of the record.) In essence, parties duly joined issues on the material facts in the petition.
The Tribunal in the course of hearing in the petition conducted prehearing sessions and issued its report which included the issues agreed upon by the parties for determination in the petition. They are reproduced below:
1) Whether in view of the facts and documentary evidence before this Honourable Tribunal, the 1st Respondent was qualified to contest the election into the House of Representatives held on 21/04/07 as a candidate of the 2nd Respondent.
2) Whether this Tribunal has the jurisdiction to entertain this Petition.
3) Whether the 1st Respondent was in the circumstances validly returned as the winner of the said election by the 3rd and 4th Respondents.
(Pages 127 – 129 of the record)
Again, on 22nd August, 2007 and during hearing in the petition, learned counsel for the parties informed the Court of their collective agreement to dispense with written statements on oath of the witnesses and oral testimonies of such witnesses. The consensus reached was that reliance would be placed solely on listed documents to be tendered from the Bar and thereafter, learned counsel for the parties will respectively address the Tribunal thereon. Thus, Appellants tendered Exhibits P1 – P6. They are: P1 (PDP’s substitution letter dated 5/2/07); P2 (1st Respondent’s Affidavit of Personal Particulars); P3 (INEC Nomination Form for House of Representatives); P4 (Form CF004A dated 19/2/07); P5 (Merger Agreement dated 8/2/07) and P6 (Letter of Senator Amadu A. Ali to the Head of Legal Services Department of INEC, Abuja dated 19/2/07).
The 1st and 2nd Respondents tendered Exhibits R1 (ANPP Replacement of candidates for the 2007 Elections – Kebbi State dated 18/02/07) and also placed reliance on some of the Exhibits tendered by the Appellants. Similarly the 3rd and 4th Respondents tendered Exhibit R2 (1st Respondent’s letter titled “Notification of my decamping from ANPP – dated 12/2/07) and also adopted such of the other documents previously adopted by the 1st and 2nd Respondents.
The Appellants did not adduce any evidence in support of ground two contained in Paragraph 13(ii) of the petition. It was deemed abandoned and accordingly struck out by the Tribunal in its judgment delivered on 15th October, 2007. No ground of appeal has been filed by the Appellants against this finding of the Tribunal. That aspect of the petition can be said to have been laid to rest. At the end of it all, the Tribunal found that:
The Exhibits taken together, the burden placed on the Petitioners to establish that the 1sl Respondent was a member of any party other than the PDP has not been discharged.
It also concluded thus:
We therefore come to the conclusion that the 1st and 2nd Respondents did not breach Sections 36 and 38 of the Electoral Act. The Petitioners who alleged this have failed to provide such proof.
The Appellants were dissatisfied with the Tribunal’s decision and the instant appeal was filed on 5th November, 2007 vide their notice of appeal with four grounds of appeal. (Pages 303 – 309 of the record.) In due compliance with rules of court applicable to this Court, the learned counsel for the parties filed their briefs of argument. Appellants brief of argument was dated and filed on 21st November, 2007. Two issues were submitted as having arisen for determination in this appeal. They are:
- 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” into the House of Representatives for the Bunza/Birnin Kebbi Kalgo Federal Constituency held on the 21st of April, 2007 (Distilled from Grounds 1, 2 and 3).
- 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 (Distilled from Grounds 4 and 5).
In the 1st and 2nd Respondents’ brief of argument dated 22nd February, 2008 and deemed filed by leave of this Court granted on 15th April, 2008, one issue was distilled for consideration in this appeal and it goes thus:
- Whether or not the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the election into the House of Representatives for the Bunza/Birnin Kebbi/Kalgo Federal Constituency held on the 21st April, 2007.
As for the 3rd and 4th Respondents, their brief of argument was dated 6th March, 2008 and deemed filed by leave of Court granted on 15th April, 2008. In it, three issues were extracted for resolution in this appeal. They are as follows:
i. Whether the tribunal below was right holding that the question whether or not a person is qualified to contest an election within the meaning of section 145(1 )(a) of the Electoral Act, 2006 can only be determined exclusively by reference to the constitutional requirements of sections 65 and 66 of the 1999 Constitution – (This issue is distilled from ground 1 in the Notice of Appeal).
ii. Whether the tribunal below properly evaluated the evidence placed before. and drew the right inferences there from – (sic) (This issue is distilled from grounds 2 and 3 in the Notice of Appeal).
iii. Whether appellants discharged the burden on them to prove that the 1st respondent was not qualified to contest at the said election – (This issue is distilled from ground 4 in the Notice of Appeal).
At the hearing of this appeal on 14th May, 2008, Oladipo Tolani Esq., the learned counsel for the Appellants adopted the Appellants brief and also expatiated briefly thereon. On the issue of double nomination, he referred us to the decision of this Court in Alhaji Muhammadu Maigari Dingyadi & Anor. V. Aliyu Magatakarda Wamako & Ors. (Unreported) Appeal No. CA/K/EP/GOV/60/2007 of 11th April, 2008 at Pages 57 – 58. He urged on us that the appeal be allowed. Sam Kargbo Esq., the learned counsel for the 1st and 2nd Respondents also adopted their brief. He also urged for the dismissal of the appeal. M. Salahudeen Esq., learned counsel for the 3rd and 4th Respondents equally adopted their brief and urged us to dismiss the appeal. I have hereinabove reproduced the issues formulated by the parties in this appeal. In the absence of either a respondent’s notice or a cross appeal, I do consider the sole issue formulated in the 1st and 2nd Respondents brief to be apt, concise and all encompassing. I accordingly adopt it for consideration, resolution and determination of this appeal.
Appellants in their brief stated that their case is simple. It is that the 1st Respondent has been previously nominated and sponsored by another political party, namely ANPP and that subsequently thereafter, as at the time of his nomination cum sponsorship by the 2nd Respondent on 5th February, 2007 as its candidate for the same elective post, he had not validly withdrawn his candidature previously bestowed by the ANPP. That at the time such a withdrawal was purportedly done vide Exhibit R2 dated 12th February, 2007, 1st Respondent was a candidate of both the ANPP and 2nd Respondent simultaneously. Reference was also made to Paragraph 13(i) of the petition which challenged the declaration of the 1st Respondent on the ground that he was, “at the time of the election, not qualified to contest the election.” And not that he was not qualified to contest and be elected if properly nominated.
It was then argued in the Appellants brief that in their bid to discharge the burden of proof, they tendered documents which were admitted and marked as Exhibits P1 – P6. Emphatic reference and or reliance was made and placed on Exhibits P1 and P6 to the effect that the latter denounced or disclaimed the former and rendered it unreliable. Additionally, that Exhibit P1 did not contain cogent and verifiable reasons for the substitution therein. Again, that Exhibit P6 amounts to an admission against interest of the 2nd Respondent. Host of authorities were cited in support of the submissions made above.
It was submitted further that the documentary evidence proffered before the Tribunal by the Appellants, cannot be wished away and they deserve proper review, evaluation and assessment in order to ascribe probative value thereto and a determination as to whether or not the Appellants discharged the burden of proof placed on them by law. Furthermore, that the failure by the Tribunal to do the needed on this score resulted in miscarriage of justice. The case of U.S.A Plc. v. Mustapha (2004) 1 NWLR (Pt. 855) 443/471 Para. C. was cited as an authority on the point being made.
It was further contended by the Appellants, that the 1st and 2nd Respondents having admitted that initially the 1st Respondent was sponsored by ANPP, the Appellants according to law do not have a duty to lead evidence on such an admitted fact. Additionally that the Respondents failed to prove that 1st Respondent validly withdrew his nomination previously made by ANPP, and as such, the fact as pleaded in their reply must be deemed to have been abandoned. Latifu Iluyomade V. Mrs. Comfort Ogunshakin (2001) 8 NWLR (Pt. 716) 559/569 Para. E. was referred to us. It was further argued that where a candidate fails to withdraw properly or a political party improperly substitutes a candidate and as a result of which double nomination arises, the affected candidate is thus not qualified to contest the election. Reference was made to S. 145 (1)(a) of the Electoral Act, 2006 and we were urged to so hold, since such a nomination is void ab initio and you cannot put something on nothing and expect it to stand or stay.
It was further submitted that the Appellants established the averments in the petition on the material fact of merger between the 2nd Respondent and ANPP. That the defence of the 3rd and 4th Respondents is being distinct from the onus which has shifted to the 1st and 2nd Respondents and the latter not having discharged the same, that the Tribunal is bound to accept the unchallenged case put forward by the Appellants which has been discharged on the proferment of minimal evidence. The cases of U.S.A. Plc. V. Mustapha (supra); Olujinle V. Adeagbo (1988) 1 NSCC 625/666 were cited in support of the submissions. We were urged in conclusion to do the necessary by reviewing and reversing the erroneous conclusions and perverse findings of the Tribunal which occasioned miscarriage of justice and thereafter allow the appeal with the grant of the reliefs sought therein.
On his part, learned counsel for the 1st and 2nd Respondents submitted in the main that the phrase, “at the time of the election not qualified to contest the election,” under S. 145(1)(a) of the Electoral Act, 2006 means not qualified under Sections 65 or 66 of the Constitution of the Federal Republic of Nigeria, 1999. Thus, in order to succeed, the Appellants must have pleaded and proved that at the time of the election, the 1st Respondent suffered from one constitutional disability or the other. He added that the Appellants failed in this and other directions, because they simply made spurious and unproven allegations which bordered on non-compliance with provisions of the Electoral Act, 2006 and which said provisions viz SS. 34, 36 and 38 thereof, cannot be interpreted as having added to, enlarged and or expanded the provisions of Sections 65 and 66 of the 1999 Constitution. Furthermore, that the qualification of 1st Respondent cannot be validly questioned under S. 145 (1) (a) of the Electoral Act, 2006 on the basis of Sections 34, 36 and 38 of the same. He pointed out that Exhibit P6 upon which the Appellants placed heavy reliance, lacks probative and or evidential value, since no evidence was led to relate it specifically to Exhibit P1. It was also submitted that since the Appellants did not challenge some crucial findings made by the Tribunal, such findings should be left undisturbed by this Court.
As for the learned counsel for the 3rd and 4th Respondents, it was his submission in their brief that the viewpoint harboured by the Tribunal to the effect that it cannot be said that there was double nomination in a situation where ANPP validly sponsored another candidate who contested the said election and for the same elective post alongside the 1st Respondent and others is not unreasonable or perverse. This is moreso, because it is inconceivable that ANPP would sponsor two candidates for the same office in the same election when the law only allows sponsorship of one candidate. Learned counsel for the 3rd and 4th Respondents added that no reasonable Tribunal as the instant one, faced with similar fact situation, would fail to draw the necessary inferences which are now being challenged by the Appellants in this appeal. He added that the decision of the Tribunal is neither perverse nor occasioned any miscarriage of justice. That the Tribunal properly reviewed the pieces of documentary evidence placed before it and came to the right conclusion thereon. We were urged to so hold and dismiss the appeal.
Questions to be asked and answered in this appeal include, when precisely could it be said that the 1st Respondent became the candidate sponsored by the 2nd Respondent? Whether the relevant date for consideration and determination of issue of candidacy of a candidate is the date of nomination or the date of election? Could the Tribunal be said to have misconstrued S. 145(1)(a) of the Electoral Act, 2006 and thereby erred in law and occasioned miscarriage of justice, vis-a-vis the decisions of the Supreme Court in Ameachi V. INEC (supra) and Ugwu V. Ararume (supra). In the determination of this appeal, I have given consideration to Sections 34, 35, 36(i), 38, 40 and 145 of the Electoral Act, 2006 and Section 65 of the Constitution of Federal Republic of Nigeria, 1999 amongst others. They are reproduced below for ease of reference: S. 34 of the Electoral Act, 2006:
(1) A political party intending to change any of its candidates 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 cogent and verifiable 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.
S. 35 of the Electoral Act, 2006:
The Commission shall, at least thirty (30) days before the day of the election publish by displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and such other places as it deems fit, a statement of the full names of all candidates standing nominated.
(Underlining added)
S. 36 (1) of the Electoral Act, 2006:
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.
S. 38 of the Electoral Act, 2005:
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.
S. 40 of the Electoral Act, 2005:
Subject to any other provisions of this Act, if after the latest time for the delivery of nomination papers and the withdrawal of candidates for an election under this Act, more than one person remains validly nominated, a poll shall be taken.
S. 145 of the Electoral Act, 2005:
(1) An election may be questioned on any of the following grounds:
(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.
(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.
S. 65 of the 1999 Constitution:
(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) the House of Representatives, if he is a citizen of Nigeria and has attained the age of thirty years;
(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.
As a general principle, the rules for the construction of statutes are very much like those which apply to the construction of other documents. Put differently, that the words of an enactment must be construed as a whole so as to give a sensible meaning to them. Firstly, that a statute must be read together as a whole and construed together in order to derive the true meaning of the statute and the intention of the law maker in enacting it. Hence, in this regard words of a statute are to be construed as bearing their natural or ordinary meaning and where in the process, there is no ambiguity or absurdity resulting therefrom, there will be no need to apply any of the other rules of interpretation. These are settled principles of the law of interpretation. See Adah V. N.V.S.C. (2001) 1 NWLR (Pt. 963) 65 at 78 – 80; Tukur V. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; A. G Bendel State V. A. G. Federation (1982) 3 NCLR and A. G. Lagos State V. A. G. Federation (2001) 18 NWLR (Pt. 904) 1; Adisa V. Oyinwola (2000) 10 NWLR (Pt. 674) 116/203 – 204.
S. 38 of the Electoral Act, 2006 provides for invalidity of candidacy of a candidate who knowingly allows himself to be nominated by more than one political party and or in more than one constituency. Also, S. 40 of the same Act provides that a poll shall be taken and the election for an elective post contested if after the latest time for the delivery of nomination papers and the withdrawal of candidates, more than one person remains validly nominated. The word “nomination has been legally defined. In Tsoho V. Yahaya (1999) 4 NWLR (Pt. 600) 657 it was construed that “nomination” is an act of suggesting or proposing a person by name to an electoral body as a candidate for an elective office. The question be asked: at what point in time can it be said that nomination has crystallized into valid candidature? Put differently, when is a candidate recognized as having been duly nominated in law? In order to determine double nomination, the periodical cut off point, last chance or opportunity for the submission of names of candidates sponsored by political parties must be reckoned with, determined and taken into consideration. So when was it in the given circumstances of the instant case? If it is at the close of nomination, when is the close of nomination, vis-a-vis change and replacement of candidates for the instant election which was held on 21st April, 2007. In my view, the close of nomination would be that point in time, when it would be unlawful for even a last ditch gamble in the form of substitution, change or replacement of a candidate could be validly made by a political party. In this case, it was not later than 60 days to the election or before the date of election. This, by virtue of 88. 34 (1) and 36 (2) was 20th February, 2007. As at 1st February, 2007 when Exhibit R2 came into the picture, the 1st Respondent from all intents and purposes can be deemed as having been removed from the ticket of ANPP. To my understanding, subsection (3) of S. 34 of the Electoral Act, 2006 only precludes substitution or replacement of a candidate made within 60 days to the election and not otherwise. Thus, the replacement or substitution made by the 2nd Respondent regarding the 1st Respondent, having been done within the ambit of the said sub-section, cannot be faulted or challenged by the Appellants and moreso in the given circumstances of this case.
By virtue of S. 35 of the Electoral Act, 2006, a candidate whose nomination has been forwarded to the Commission (INEC) by the sponsoring political party would only become duly nominated upon the publication and display of a statement regarding his full names as a nominated candidate at officially appointed places for the delivery of nomination paper. Put differently, by operation of law, a candidate is regarded as having been duly nominated to contest in a stated election, upon the publication of his nomination by the Commission at least 30 days before the day of the election. I am thus of the viewpoint, that nomination does not and cannot crystallize into candidature of the person so nominated until the final moment when neither change nor replacement by substitution can be made by a political party. That is, when in accordance with provisions of the law, such nomination becomes irreversible and such a change, replacement or substitution becomes somewhat impossible except in the case of death of the nominated candidate. Furthermore and to my mind, when the word “election” is used in an enactment, it should be defined or interpreted in the context of its usage. It can thus be used to refer or apply to differing aspects, segments or stages of the electioneering processes.
Going by the contents and purport of Exhibit R1, as at 18th February, 2007 when ANPP submitted its list of replaced or substituted candidates for the 2007 elections in Kebbi State, inclusive of the particular one in question, the 1st Respondent herein, has ceased to be and was no longer a nominated candidate on the ticket of ANPP. Thus, in the instant case, even if it can be said that the withdrawal of candidature by the 1st Respondent vide Exhibit R2 was two days short of the number of days fixed by law, the valid nomination of Barrister Abubakar Malami as a replacement for the 1st Respondent as contained in Exhibit R1, can be said to have removed any semblance of double nomination therein. What is more, from that point in time and as found by the Tribunal, the 1st Respondent cannot be regarded as ANPP’s candidate for the said election. It was a perfect and valid case of replacement by substitution which has been duly accommodated under the law, accepted and recognized by the 3rd Respondent herein being the appropriate authority. The question be asked, if there were to have been a reversal of roles and the Petitioners now Appellants had won the said election, would they have gone to the Tribunal to challenge their declaration and return on the basis that the 1st Respondent wrongly withdrew his candidature and was subsequently wrongly substituted? I do not think so, because that would be highly improbable. This is moreso, when Mansur Shehu, the candidate who was substituted and the party which substituted him are not complaining. Could it then be regarded as a case of the mourner or sympathizer crying louder than the bereaved? I now do think so.
Anyway, by the rule of pleadings, where a given allegation, whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation lies or rests squarely on him. Therefore, a “legal burden”, which is a “primary burden” is on the Petitioner. And there is, however, a presumption, rebuttable though; that the judgment of the Tribunal appealed against is right until the contrary is established.
Therefore, in this Court the Petitioner, qua Appellant, has the onus to show the contrary. See Anieka Melifonwu V. Egbuji (1982) 9 S. C. 145 at 165. Also, it is patently elementary point of law, that a decision or judgment of a trial court or tribunal must be supported by evidence, properly admitted and adduced before it. See Metal Construction (WA) Ltd. V. D. A. Migiliore (1990) 1 NWLR (Pt. 126) 299 and Obulor V. Oboro (2001) 8 NWLR (Pt. 714) 25. It has not been so supported in the instant case. I am duly satisfied after due consideration of the record of appeal placed before us, inclusive of the documents admitted by the Tribunal as exhibits and the submissions of all the learned counsel for the parties herein, that the Tribunal was right when it found that the Appellants did not place requisite materials before it in order to establish noncompliance with S. 34 of the Electoral Act, 2006 by the Appellants. The resultant standpoint and or decision of the Tribunal on the question or complaint raised by the Appellants in the instant case is therefore in accordance with the law and I’m not prepared to disturb or deviate from it.
The cases of Ugwu V. Ararume (supra) and Amaechi V. INEC (supra) have been variously referred to us by all the learned counsel for the parties in this appeal. It has been construed and held by the Supreme Court – the apex court, in Amaechi V. INEC (supra) that S. 145 (1) (a) – (d) of the Electoral Act, 2006 does not cover intra party dispute. Issue of substitution of candidate is clearly an intra party dispute. Consequently, the instant case being one of inter party dispute, different consideration will apply. An intra party dispute is one which occurs between or within members of the same party or between a member or members on the one hand and the party on the other. See P.D.P. V. K.W.S.I.E.C. (2006) 3 NWLR (Pt. 968) 443/623. On the other hand, an inter party dispute is one which occurs between a member or members of one party or the party itself on the one hand and an entirely different or distinct party or its member or members on the other hand, such as in the instant case. Decisions in Ararume and Amaechi having been grounded on intra party disputes cannot be extended to cover inter party conflicts. By the tenor of these decisions only a member of the same political party has a right of action for being wrongly or unlawfully substituted or changed. It is not a global or community right and common sense demands that it be restricted as a purely domestic affair between members of the same political party and INEC to sort out in or outside a court of law. Section 34 of the Electoral Act, 2006 does not envisage a free-for-all fight and it does not open a floodgate for inter-party legal squabbles. See Zaranda V. Tilde (2008) 10 NWLR (Pt. 1094) 184. Anyway, issue of qualification or disqualification is a constitutional one. It is quite distinct from issues involving withdrawal of nomination and or change, replacement or substitution, which are issues of compliance or non-compliance with provisions of the Electoral Act, 2006. In my view there has been substantial compliance with the said provisions in the given circumstances of the instant case.
Let it be restated that the right of a political party to sponsor candidates to contest elections under its banner is protected and covered under S. 32 of the Electoral Act, 2006. Under it, a political party has the right to submit its list of candidates slated for a scheduled election to INEC. The modus oparandi of arriving at such a list is the sole responsibility of the political party. It could be by election, rotation, selection or whatever, provided it is in accordance with its constitution and requirements of the law. This is moreso, when the political party can be penalized for presentation of candidates who do not meet the qualifications stipulated by law. It is settled law that the issue of nomination or sponsorship of an election candidate is within the domestic, affairs of the political parties and that the courts have no business to insist, impose, juxtapose or determine who should be sponsored by any political party as its candidate for any election provided all requirements of the law in relation thereto are complied with. See Ugwu V. Ararume (supra) at P. 482 Para. G
On the issue of procedure agreed to and adopted by the parties before the Tribunal, with regards to dispensing with oral testimony of witnesses and placing reliance solely on documents tendered and admitted with consent of the learned counsel for the parties, it is erroneous to contend that evidence is limited solely to oral testimony of witnesses. It obviously includes documents, objects and or items tendered and properly admitted as exhibits in any legal proceedings. Indeed, where parties agreed and adopted a particular procedure which on its own is not unlawful, the parties cannot be heard to resile from what had been previously and mutually agreed upon by the parties. Thus, agreement of the parties to the effect that reliance would be placed only on documentary evidence, is permissible. See Ibori V. Agbi (2004) 6 NWLR (Pt. 868) 78/122 – 123 Paras. F – F. They are however, bound by the attendant benefits or otherwise derivable from such intentional, presumably strategic and well calculated move. Howbeit, it is trite law that admissibility of evidence, be it documentary or otherwise is one thing, while the probative value or weight to be attached to it is another. I need not say more and I think I have even said more than enough.
I find and hold that the decision of the Tribunal that the Appellants did not adduce cogent, and sufficient evidence in support of the averments in their petition and thereby failed to discharge the burden of proof placed on them cannot be faulted. Having adopted the sole issue formulated by the 1st and 2nd Respondents for the determination of this appeal and having encapsulated all the salient arguments canvassed in the briefs settled by the learned counsel for the parties respectively, I do not intend to belabour myself on the arguments canvassed on the other issues formulated by the other parties herein. For one, their said arguments substantially rehashed all what has been stated above. It would thus be unnecessary to embark on another journey with known and predetermined destinations.
In sum and in the premises of all the above, the sole issue raised and adopted by me for resolution in this appeal, is hereby resolved in favour of the 1st Respondent and against the Appellants. The appeal lacks merit and it is accordingly dismissed. The decision of the Tribunal in Election Petition No. KB/EPT/HR/3/2007 delivered on 15th October, 2007 is hereby affirmed by me.
Costs assessed in the sum of N20, 000.00 is awarded to each set of Respondents respectively.
Other Citations: (2008)LCN/2930(CA)
