Sulaiman Usman & Anor V. Alhaji Ahmad Muhammad Maccido & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A
This appeal is against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal, sitting at Sokoto, Sokoto State, (hereafter called the Tribunal) dated 26th October, 2007. The Tribunal dismissed the Appellants’ petition. It held that the same lacked merit, and the return of the 1st Respondent was affirmed. The Appellants as Petitioners on 21st May, 2007 presented a petition before the Tribunal challenging the return of the 1st Respondent by the 3rd – 5th Respondents as the duly elected Senator in the National Assembly, representing Sokoto North Senatorial District in the elections held on 21st April, 2007 on the platform of the 2nd Respondent. (Pages 1 – 7 of the record) The 1st Respondent was declared the winner of the said election with a total of 193,296 votes while a score of 40,118 votes was returned for the 1st Appellant as the candidate with the next highest votes after the 1st Respondent. (Pages 2-3 of the record).
The 1st and 2nd Respondents filed their reply to the petition dated the 11th day of June, 2007. It contained a preliminary objection challenging the competence of the petition and the jurisdiction of the Tribunal to entertain the same with their written address in support of the notice of preliminary objection. (Pages 45 _ 64 of the record). The Appellants filed their reply submissions in opposition to the 1st and 2nd Respondents objection on the 27th day 2007. (Pages 65 – 73 of the record). On the 28th of June, 2007 the 3rd – 5th Respondents filed a motion on notice seeking for leave for Mrs. Hauwa A. Kangiwa to cease further representation for the 3rd – 5th Respondents and for Abdul Kareem Adeyi Esq. to be substituted as her replacement. (Pages 74-79 of the record) Upon leave of the Tribunal being granted as sought, the 3rd – 5th Respondents further sought by way of a motion on notice dated and filed on the 14th day of July, 2007 for an order enlarging time within which to file and serve their reply to the petition; time within which to do so having expired. (Pages 84 – 91 of the record).
The Tribunal on 14th July, 2007 in a considered ruling dismissed the 15th & 2nd Respondents’ preliminary objection to which the 3rd – 5th Respondents had lent their support in argument. The matter was adjourned to 215t July, 2007 for pre-trial sessions to commence. On the said date, the 3rd – 5th Respondents at the commencement of pre-trial session moved their application for enlargement of time which was granted, moreso, when counsel to the Appellants did not oppose the same. The Appellants were given time to file their reply to the said Respondents reply if need be. (Pages 92 – 95 of the record).
The Appellants subsequently and on 26th July, 2007 filed their reply to the 3rd – 5th Respondents reply. (Pages 106 – 108 of the record). The Appellants on 31st July, 2007 applied thereafter for leave to file an additional list of documents, a witness statement on oath and to apply for subpoena to be issued in respect of certain persons. (Pages 114 – 128 of the record.) The 3rd 5th Respondents filed a counter affidavit to the said application with their written address. Both documents were dated and filed on 7th August, 2007. The 1st & 2nd Respondents on the same date also filed a counter affidavit and written address in opposition to the Appellants application. (Pages 129 – 144 of the record) On 8th August 2007 the tribunal took arguments regarding the pending application and delivered its ruling in respect thereof on 15th August, 2007. It granted the reliefs sought by the Appellants with the exception of the deeming prayer. (Pages 146 – 177 of the record). The Appellants subsequently and on 16th August, 2007 filed the list of additional witnesses to be called and list of additional documents to be relied upon. (Pages 177 – 181 of the record).
Upon the conclusion of the pre-hearing session, the Tribunal framed two issues as agreed upon by the parties, for determination of the petition. The two issues are reproduced thus:
(a) Whether having regard to the provisions of section 65 (2) of the Constitution of the Federal Republic of Nigeria 1999, Sections 32, 34, 36 and 38 of the Electoral Act, 2006 and the circumstances of the emergence of the 1st Respondent as the candidate of the 2nd Respondent, the 1st Respondent was qualified to contest election into the office of member of Senate of Sokoto North Senatorial District held on 21st April, 2007.
(b) Whether in the circumstances of the petition, the 4th Respondent was right in declaring the 1st Respondent as duly elected.
Trial commenced on 7th September, 2007 with the Appellants calling their first witness after documents to which opposing counsel had no objection, had been tendered from the bar and admitted in evidence.
PW1, the 1st Appellant adopted his witness statement on oath in the course of which a document was tendered through him and admitted in evidence. He was cross examined and subsequently discharged. However, in view of the subsequent non availability of the Appellants proposed witness to give evidence, the Appellants applied that PW1 be recalled to depose to additional witness statement in respect of the testimony for which an additional witness statement had earlier been filed. (Pages 184 – 230 of the record).
The 1st and 2nd Respondents filed a counter affidavit to the application accompanied by a written submission, whilst the 3rd – 5th Respondent opposed the same on points of law. The Appellants filed their reply on points of law to the arguments raised.
Arguments were taken on the said application on 12th September, 2007. Thereafter, the Tribunal in a considered ruling granted the application. The Appellants then filed the additional witness statement. (Pages 234 – 249 of the record)
The said PW 1 then adopted the additional witness statement at the resumed sitting of the Tribunal and was further cross examined.
The Appellants then closed their case on 18th September, 2007 whereupon the Respondents commenced their defence. DW1, the Secretary of the Sokoto Chapter of the ANPP adopted his written statement on oath and tendered Exhibit R1, a letter dated 31st January, 2007 and written by the 18t Respondent to the ANPP. He was duly cross examined thereon. The 1st and 2nd Respondents then closed their defence. (Pages 250 – 259 of the record ).
The 3rd – 5th Respondents did not call any witness and rested their defence on the case of the Appellants and the 1st and 2nd Respondents. (Pages 349 of the record) At the close of trial, all the parties filed their respective written addresses, adopted the same and judgment was reserved till 26th October, 2007. (Pages 260 – 299 of the record) The Tribunal on the said date delivered its judgment in the said petition. It dismissed the petition. (Pages 302 – 343 of the record) The Appellants being dissatisfied with the judgment of the Tribunal filed a Notice of Appeal against the said judgment on 15th October, 2007 containing seven grounds of appeal. (Pages 344 – 350 of the record)
Briefs of argument were duly filed and exchanged among the parties. The Appellants identified three issues. They are stated in sub-paragraphs 3.1 – 3. 3 of their brief and reproduced below:
1.1. Whether the qualification of the 1st Respondent to contest an election can only be determined exclusively with reference to Section 65 and 66 of the 1999 Constitution of Federal Republic of Nigeria and what is the effect of the breach of Section 34, 36 and 38 of the Electoral Act, 2006 on the nomination of the 1st Respondent to contest the 21st April, 2007 election? (Grounds 1 and 2 of the notice ).
3.2 Whether the 1st Respondent validly withdrew his candidature as the gubernatorial candidate of ANPP before being nominated as a candidate of the 2nd Respondent (Ground 3 of the notice).
3.3 Whether having regard to Sections 40 – 41 of the Electoral Act, the Appellants established their case against the 1st Respondent and if so, what is the effect of invalid nomination of the candidature of the 1st Respondent? (Grounds 4, 5, and 6, 7 of the notice).
The 1st and 2nd Respondents also distilled three issues for the determination of this appeal. They are couched in the following manner:
ISSUE 1
“Whether or not the Tribunal was right in holding that the matters of alleged breach of Sections 34, 36 and 38 of the Electoral Act are not justiciable before the Electoral Tribunal.”
ISSUE 2
“Whether or not the tribunal was right in holding that the issue of qualification and /or non – qualification of the 1st Respondent to vie for the post of the Senate is determinable only within the confines of the constitution.”
ISSUE 3
“Whether or not the Appellants established any case of invalid substitution or nomination under the Act as pleaded by them.”
The 3rd – 5th Respondents in essence adopted the issues formulated by the 1st and 2nd Respondents. It thus requires no reproduction by me. In my consideration of this appeal, I find the issues framed by the 1st and 2nd Respondents to be apt, succinct and to the points and challenges raised in the notice of appeal. I accordingly adopt the said issues for the determination of this appeal.
ISSUE NO.1
Learned counsel for the Appellants submitted on this issue that recourse must be had to Sections 40 and 41 of the Electoral Act, 2006 read along with S.145 (1) (a) of the same, in order to appreciate the relevance of valid nomination in determining whether a winner at an election was not qualified to contest the said election. It was argued that the Tribunal was wrong when it opined that qualification to contest is only limited to the stipulations contained in Sections 65 and 66 of the 1999 Constitution. That the Tribunal then took the stand that the election of an invalidly nominated candidate who meets all the constitutional requirements for election into elective office of member of Senate under S.65 and 66 of the 1999 Constitution cannot be questioned under S.145 (1) (a) of the Electoral Act, 2006. It was then contended in the Appellants brief that the surest way to contravene S.65 (2) of the 1999 Constitution is for a candidate to be nominated for the same elective office under the Constitution by two political parties in the same election and at the same time. That such a practice has been sanctioned by S.38 of the Electoral Act, 2006.
Citing PDP V. INEC (1999) 11 NWLR (Pt.626) 200, it was further contended that a purposive interpretation is the proper approach towards construction of constitutional provisions. That the purpose for which the law maker enacted the law was to entrench disciplined party politics. Again, that though S.65 (2) of the 1999 Constitution is not self executory, but in fulfillment of the disqualification barrier already imposed by it, S.38 (2) of the Electoral Act, 2006 hold the candidature of a person who was been nominated by two political parties for the same office to be void.
The case of Amaechi v INEC (2008) 5 NWLR (Pt.1080) 227/452-453 para. G – H was cited in support.
Also citing Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367, it was submitted that in all cases covered by Sections 34, 36 and 38 of the Electoral Act, 2006, a willful and flagrant disobedience thereto will disqualify an otherwise constitutionally eligible candidate from contesting in the election. Additionally, that in a case where a political party improperly substitutes its candidate and where a candidate fails to properly withdraw his candidature and where a candidate has been nominated by two political parties for the same seat; the candidate affected by any of these breaches of the Electoral Act, 2006 would be “at the time of the election not qualified to contest the election,” notwithstanding that such a candidate may be constitutionally qualified to so contest. Reference was made to para. 10 (1) of the petition.
Relying on Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530 it was submitted in the Appellants brief that invalid nomination/substitution is a ground of disqualification in an election petition. And that the Tribunal was wrong to have held that the breach of S. 32 (2) of the Electoral Act, 2006 is a pre-election matter which is cognizable only in the High Court, State or Federal and that the Tribunal cannot entertain it under S.145 (1) of the Electoral Act, 2006.
It was contended in another submission that if a person meets the entire constitutional requirements to hold an office, but is not validly nominated owing to breach of the mandatory provisions of the Sections 32, 34, 36 or 38 of the Electoral Act, 2006, then, S.40 of the same Act does not recognize such a person as a contestant who is entitled to be placed on the ballot at the election. Issues of cogency, verifiability of the reasons for the substitution and strict compliance with mandatory requirements of the electoral law were equally raised and argued by the Appellants. It was added that the constitutional provisions regarding qualification to hold office as Senator, do not excuse non – compliance with the mandatory provisions of the Electoral Act to contest election. That qualification cannot validate an invalid nomination. Furthermore, that by virtue of Section 285 (2) of the 1999 Constitution, any such related matter bordering on nomination cannot be ignored in deciding a petition on ground of non-qualification to contest under S.145 (1) (a) of the Electoral Act, 2006. We were urged to resolve issue number one in favour of the Appellants.
In response and on the part of the learned senior counsel for the 1st and 2nd Respondents, it was submitted that the Tribunal was right and it correctly relied on Amaechi v. INEC (supra) and Jang v. Dariye & Ors. (2006) 2 EPR 830/858 to hold that the issues of nomination and substitution of candidates having preceded the lection are pre – election matters which are not justiciable before the Tribunal and in respect of which the Tribunal rightly held that it had no jurisdiction to entertain matters touching on infractions of Sections 34, 36 and 38 of the Electoral Act, 2006. Hence, reliance on Amaechi’s case (supra) and arguments canvassed thereon by the Appellants are unhelpful to their case and position.
It was further argued by the learned senior counsel for the 1st and 2nd Respondents that whatever be the issues of validity or otherwise of nomination and substitution of the 1st and 2nd Respondents ought to and should have been taken up and ventilated before regular courts before the conduct of election on 21st April, 2007. Reference and reliance was made and placed on Alhaji Usman Nasamu Saidu v. Abubakar Mallam Abubakar & 321 Ors. (then Unreported Appeal NO. CA/K/EP/GOV/50/2007 delivered on 11th April, 2008) now reported in (2008) 12 NWLR (Pt.ll00) 201, where the court of Appeal held that issues of nomination and substitution as covered by Section 32, 36 and 38 of the Electoral Act, 2006 have been found to be matters outside the competence of an election tribunal and they are said to be actionable before either a State or Federal High Court. Furthermore, that a person who is not a member of a particular political party directly affected by the act complained of lacked the locus to raise them before the Tribunal which lacks the competence to determine pre -election matters.
It was finally submitted on this issue for the 1st and 2nd Respondents that assuming but without conceding that the 1st Respondent was invalidly nominated and wrongfully substituted, that it is only a member of the 2nd Respondent or ANPP who can challenge the invalid nomination. That it is not within the contemplation of the Electoral Act, 2006 that this could be done at this stage after the election has been concluded. That the issues are clearly pre – election matters for which the Tribunal rightly held that the matters are not justiciable before it and it has no jurisdiction to adjudicate thereon. We were then urged to resolve issue number one in the affirmative.
Learned senior counsel for the Appellants argued issues number two and three together. Citing Amaechi (supra), it was submitted that the Tribunal posed the wrong question on the issue of whether the 1st Respondent validly disengaged from ANPP and validly joined 2nd Respondent before he emerged as its candidate. It was argued that since evidence placed before the Tribunal revealed that he did not participate in 2nd Respondent’s primaries, but emerged as candidate of ANPP at its primaries, thus, there is no room for 1st Respondent to have emerged simultaneously as 2nd Respondent’s candidate. Hence, he could not have won the election, since he was not validly sponsored by the 2nd Respondent.
Furthermore, that there must be strict compliance with 8.36 of the Electoral Act, 2006 which regulates issue of withdrawal of candidates coupled with Article 8 of the regulations and guidelines made by the 3rd Respondent thereon. That there was incontrovertible evidence of double nomination contrary to 8. 38 of the Electoral Act, 2006 and which said act renders the nomination of 1st Respondent to be void. Citing Military Administrator of Benne State v. Ulegede (2001) 17 NWLR (Pt.741) 194, it was posited that where an act is void ab initio, it cannot and will never be made valid by a subsequent act which is valid. Finally, we were urged to resolve the three issues argued, in favour of the Appellants and hold that there are infractions of sections of the Electoral Act, 2006, particularly Sections 34, 36 and 38 thereof. Again, that the constitutional provisions regarding qualification to hold elective office of a Senator when it enjoins that a candidate to be qualified must hold membership of a political party and be sponsored by “that political party” and no other. We were also urged to allow the appeal and grant the relief s therein.
On these two issues are argued, it was the submission of the senior learned counsel for the 1st and 2nd Respondents that the Tribunal was right when it held that the issue of qualification of the 1st Respondent to contest the election in question is determinable only within the confines of the Constitution. That the facts and circumstances relied upon by the Appellants in their petition as supporting the contention that the 1st Respondent was not qualified do not raise any question on the point that the 1st Respondent did not meet the constitutional requirements stipulated under Sections 65 and 66 of the 1999 Constitution. Citing Ugwu v. Ararume (supra), it was pointed out that in anyway, a candidate must meet the conditions for qualification to contest any election before such a candidate is nominated to contest the said election. Furthermore, that it is obvious, that substitution and disqualification are two different things.
While referring to S.32 of the Electoral Act, 2006, it was submitted by the learned senior counsel for the 1st and 2nd Respondents that the contention by the Appellants that the Electoral Act did not lay down any criteria regarding qualification to contest any election is reinforced by the provisions of S.32 of the Electoral act, 2006. It was pointed out that S.32 (2) of the same, states that the affidavit required thereunder must indicate that the candidate has fulfilled all the constitutional requirements for election into the office in question. And that it is in the event of a candidate supplying false information, that a challenge could be mounted by any person before the High Court of a State or the Federal High Court, seeking for the disqualification of such a candidate from contesting the election. It was further submitted that S.32 of the Electoral Act, 2006 has clearly and inexorably shown that the expression “not qualified to contest” is related to and referable only to the constitutional requirements for election.
Citing Akaigbe v. Idama (1964)1 ALL NLR 322/326 it was submitted that the law is trite that a section of an enactment should not be construed in isolation. It must be construed in a way designed to achieve harmony amongst its sections so as to avoid conflict with other relevant provisions of the same law. It was further submitted that the issue of nomination and or substitution is therefore irrelevant and cannot be maintained under S.145 (1) (a) of the Electoral Act, 2006. Again, that if the Electoral Act, 2006 had intended S.145 (1) to be an all comers affair, it would have posed no difficulty in stating it as a ground thereunder by adding the words; “that the nomination and substitution of the candidate is invalid.”
Learned senior counsel for the 1st and 2nd Respondents in another submission, contended that Anazodo’s case (supra) on which the Appellants placed much reliance is in conflict with Doukpolagha v. Alamieyesiegha (1999) 6 NWLR (Pt.607) 502/509 and Imam v. Sheriff (2005) 4 NWLR (Pt.914) 80. It was then observed that it is the law that where there are two conflicting decisions of a higher court, the lower court is free to choose which of the decisions to follow. We were referred to Adegoke Motors v. Odesanya (1988) 2 NWLR (Pt.74) 108/12l.
Again, in a counter argument, the learned senior counsel for the 1st and 2nd Respondents maintained that there is a clear distinction between being qualified to contest election and being nominated to actually contest the election. That an inferior legislation such as the Electoral Act, 2006 cannot be construed in a convoluted manner to the extent of disqualifying an otherwise qualified candidate. We
were urged to resolve Issue No.2 affirmatively.
On Issue No.3, the learned senior counsel for the 1st and 2nd Respondents maintained that the Tribunal was right in its conclusion that the Appellants did not prove their case against the 1st and 2nd Respondents on the issue of withdrawal of prior nomination and subsequent substitution. Furthermore, that the Tribunal was right when it held that both the testimony of DW1 and Exhibit R1 established that the 1st Respondent appropriately withdrew his membership of ANPP and that under 8.36 (1) of the Electoral Act, 2006, it is ANPP that is obliged by law to convey the fact of 1st Respondent’s withdrawal to the 3rd Respondent as the 1st Respondent is not duty bound to do so. It was submitted that the Appellants did not show that the 1st and 2nd Respondents breached any section of the Electoral Act, 2006. That with regards to the allegation of substitution and multiple nominations; the evidence on record show that the Appellants did not establish any infraction of the Electoral Act as pleaded in their petition. We were urged to dismiss the appeal for the foregoing reasons.
A.K. Adeyi Esq, learned senior counsel for the 3rd – 5th Respondents argued all the issues together. It was his submission that for a candidate to be qualified to contest election into the Senate of the Federal republic of Nigeria, he must satisfy the requirements of S.65 of the 1999 Constitution and must not suffer any disqualification as contained under S.66 thereof. It was contended by him, that the two conditions stipulated under S.65 (2) (b) of the 1999 Constitution are membership of a political party and sponsorship by that party. He maintained that the Tribunal was right when it held that in the instant case, when it found that the 1st Respondent was a member of 2nd Respondent and was duly sponsored by it. Reference was made to relevant findings of the Tribunal in its judgment at pages 320 and 324 of the record of appeal, to the effect that the question of membership and sponsorship of the 1st Respondent has been settled and established.
It was then submitted that having duly satisfied the provisions of S. 65 (2) (b) of the 1999 Constitution, that the 1st Respondent has been shown to be qualified within the ambit of the Constitution.
In yet another submission and placing reliance on the cases of Jang v. Dariye (supra) and Doukpolagha v. George & 2 Drs. (1992) 4 NWLR (Pt.236) 444, it was contended by the learned counsel for the 3rd – 5th Respondents that the issue of sponsorship cum nomination under S.32 of the Electoral Act, 2006 being a pre-election matter cannot be taken up by the Tribunal.
Similar submission was made in respect of S.34 of the electoral Act, 2006 which touches on the issue of substitution. That it is only a substituted candidate and or member of a party, who is expected to challenge the same before the regular High Court of a State or the Federal High Court. Furthermore, those complaints involving Sections 32, 34, 36 and 38 of the Electoral Act, 2006 are not justiciable before the Tribunal and the Tribunal was right when it declined the invitation to do so. It was finally submitted that the Appellants did not prove any of the allegations raised in the petition. We were urged to resolve the issues raised in this appeal in the affirmative and dismiss the same accordingly.
Learned counsel for the Appellants in their reply brief, sought to distinguish the case Ojukwu v. Obasanjo (supra) relied upon by the 1st and 2nd Respondents in the course of proffering arguments under Issue No.1 at para. 3.10 of their said brief. I have seen the said para. 3.10 of the 1st and 2nd Respondents brief.
Nothing of the sort was canvassed therein. Paras. 2.1 – 2.4 of Appellants reply brief is hereby discountenanced by me.
In the Appellants reply brief, reference was made and reliance placed on the case of Alhaji Muhammadu Maigari Dingyadi & Anor. v. Aliyu Magatakarda Wamako & Drs. (Unreported) Appeal NO. CAKJEP/GOV/60/2007 delivered on 11th April, 2008.
Now reported as Dingyadi v. Wamako (2008) 17 NWLR (Pt.1116) 395. From Dingyadi (supra), the learned counsel for the Appellants extensively quoted Belgore, JCA in the lead judgment with the submission that the said decision is the last word on the question as to whether invalid nomination of a candidate can be given cognizance under S.145 (1) (a) of the Electoral Act, 2006.
It was further contended for the appellants that those cases in which complaints about nominations in election petition were dismissed, were decided on the provisions of the Electoral Act, 2002. That under the new dispensation, nomination is not an exclusive preserve of the political parties. Reference was made to Ugwu v. Ararume (supra) and the pronouncement of Niki Tobi, JSC at pages 443 – 444 and Muhammed, JSC at pages 499 – 500.
Finally, the point was made that in addition to being liable for double/multiple nominations, the substitution of the 1st Respondent violated the requirement of cogent and verifiable reason for substitution of candidates under S.34 (2) of the Electoral Act, 2006.
It was then stated in conclusion that the Respondents in the instant appeal are caught by the decision of this court in Dingyadi’s case (supra).
Justiciability of a cause of action/subject matter is akin to competence and closely linked with jurisdiction. As it has been firmly established, jurisdiction is the jugular vein of any litigation.
Once raised, it must be dealt with before further steps can be taken in the matter. Indeed, the issue of jurisdiction can be raised at any stage of the proceedings including at the Supreme Court. The law is set in granite, that whether a court has jurisdiction to entertain a suit before it is a matter to be determined by reference to the plaintiff’s claims on the writ of summons and statement of claim. See
Adeyemi v. Opeyori (1979) 9 -10 SC 37; Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt.117) 517.
So what is the position in the instant appeal? In this case, the grounds for the petition as pleaded in paragraph 10 thereof are produced below:
10. And your petitioner’s states that the grounds relied upon in bringing this Petition are as follows:
(i) The 1st Respondent was not at the time of the election qualified to contest the election;
(ii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election;
(iii) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006.
On the other hand, the facts relied upon and in support of this petition, coupled with the reliefs sought from the Tribunal – both painted an entirely different picture. At paragraph 11 (a) – (i) of the petition, the Appellants pleaded as follows:
11. And your Petitioners state that the facts they will rely on in support of the grounds of the Petition are as follows:
a) At all material times to this Petition, one Ibrahim Magaji Gusau was the validly nominated candidates of the 2nd Respondent for the election into Sokoto North Senatorial District of Sokoto State;
b) Your Petitioners state that by a letter dated 5th February 2007, addressed to the 3rd Respondent, the 2nd Respondent purportedly substituted the name of the Ibrahim Magaji Gusau as its candidate for the election and substituted thereafter the name of the 18t Respondent. Both the 18t and 2nd Respondent’s then purportedly filed INEC Forms CF001, EC4B and CF004A.
c) At all material times, the 1st Respondent was then candidate of All Nigeria Peoples Party (ANPP) for the Sokoto North Senatorial District of Sokoto State;
d) Your Petitioners state that the 1st Respondent did not withdraw his candidature for the Sokoto North Senatorial District under the flag of ANPP before the 2nd Respondent also purportedly nominated him as its candidate for Sokoto Central Senatorial District at the same 1st Respondent as its candidate for the Sokoto North Senatorial District at the 21st April 2007 elections when the 1st Respondent also purportedly nominated him as its Senatorial candidate for the same Senatorial District at the same election.
f) Your Petitioners will at the trial rely on a letter dated 9th May, 2007 by the said All Nigeria Peoples Party to one Barr.
Suleiman Usman (the Legal Adviser to the 2nd Petitioner) in reply to his (Suleiman’s) own letter to ANPP dated 2nd May 2007.
Your Petitioners shall at the trial rely on the 2nd Respondent’s letter of substitution of the 1st Respondent for its validly nominated candidate, (Alh. Ibrahim Magaji Gusau) INEC Form CF001, EC4B and CF004A filed by the 1st and 2nd Respondents herein and 3rd Respondent’s list of Senatorial candidates for Sokoto State.
g) Your Petitioners state that the 1st Respondent was as a matter of fact, nominated for Sokoto Central Senatorial District which said Senatorial District does not exist.
h) The chairman of the second respondent has categorically denied signing any letters of withdrawal of originally submitted names of candidates of the second respondent in his letter to the 3rd Respondent dated 19/2/07.
i) The 1st Respondent did not personally fill and append his signature to his nomination Forms (EC4B) as required by law. The Petitioners shall use and rely on all relevant documents relevant to this petition; these are:
1) Form for nomination of the 1st Respondent completed by the 1st petitioner form EC4B
2) Form C.F. 001 completed by the 1st Respondent,
3) Letter dated February 5 2007 from the National Secretariat on the 2nd Respondent to the Chairman of the 3rd Respondent purporting to substitute its earlier candidate,
4) The Notice of Substitution of candidate, Form 004B dated 15th February 2007 by the 1st Respondent and the officers of the 2nd Respondent.
Consequent to the above, the reliefs sought by the Appellants from the Tribunal are:
Whereof your petitioners jointly and severally pray Honourable Tribunal for the following;
a) A declaration that the 1st Respondent was not validly substituted for the 2nd Respondent’s former candidate, to contest for the Sokoto North Senatorial seat under the flag of the 2nd Respondent;
b) A declaration that the 1st Respondent was not validly nominated by the 2nd Respondent to contest for the Sokoto North Senatorial seat under the flag of the second Respondent;
c) A declaration that the 2nd Respondent (Peoples Democratic Party) did not sponsor any validly nominated candidate for the election of Member of Senate in Sokoto North Senatorial District at the Election held on 21st day of April, 2007.
d) An order nullifying the election of the 1st Respondent on the ground that the 1st Respondent was not validly nominated to contest for the Senatorial Election held on 21st April, 2007 in Sokoto North Senatorial District;
e) An Order directing that fresh election be conducted in the said Sokoto North Senatorial District amongst candidates that were validly nominated at the close of nomination before the election held on the 21st April, 2007.
It is elementary rule of interpretation of statute, construction is to be made of all the parts of a statute together and not one part only by itself. Put differently, construction of statutes should be wholistic. See Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355. Thus, the settled position on construction of any document be it wills, contract or statute is that the document must be read as a whole and its part also read in that light. Furthermore, an effort must be made to achieve harmony among its part. See Akaighe v. Idama (supra) Again, it is settled that where the words of a statute are clear, simple and unambiguous, they should be given their plain, literal and ordinary meaning.
Section 32 of the electoral Act, 2006 regulates the submission of names of nominated candidates to INEC while Section 34 of the same deals with the procedure for changing, replacing or substituting previously nominated candidates by political parties. Nomination to participate in an election is the act of forwarding, suggesting or proposing a person by name as a candidate for an elective office, to an electoral body such as the INEC. It certainly and definitely forms segment, aspect or part of the preliminary steps, matters or processes before an election. See Justice Party v. INEC (2006) All FWLR (Pt.339) 907/942; Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) 657. This is moreso, because without a prior valid nomination, an electoral body and in this case INEC has no cause to look into the qualification of a prospective candidate. It is after the hurdle of nomination has been scaled, that the rubicon of contesting in an election as a candidate and upon being screened and cleared will have to be crossed.
Substitution means a designation of a person or thing to take the place of another person or thing. See Ugwu v. Ararume (supra) Howbeit, substitution and disqualification are two different terms meaning two different things. Thus substitution of a previously nominated candidate is not the same thing as disqualification of a nominated candidate. The two terms as used in the electoral process, obviously mean different things. Going by the constitutional and statutory electoral provisions, the circumstances and facts leading to either qualification or disqualification of any candidate for any election are clearly spelt out and a candidate is expected to meet the conditions for qualification to contest any election before being nominated to contest that election by any political party. The political party has the exclusive right of changing or substituting the candidate with another candidate for the election, if it so desires. But, this is subject to certain conditions imposed by the law. Some of the conditions are special while others are general in nature. Thus, a person who is disqualified would have but for the disqualifying fact or factor been qualified. See Ugwu v. Ararume (supra).
Section 34 of the Electoral Act, 2006 is mandatory. Howbeit, sub-section (2) thereof protects the right of the candidate originally presented by the political party for the election from unwarranted and or arbitrary change by a political party. That right is meant for the aggrieved replaced or substituted candidate and none other. In the instant case, since the 1st Appellant is not the truly aggrieved candidate who was substituted by his political party, the 1st Appellant cannot be heard to invoke S.34 (supra) in his avowed bid to unseat the 1st Respondent herein and thereby throw a spanner into the works of the 2nd Respondent.
It should be realized that the provision is not an all pervading or permeating one. It does not admit of all sorts of interveners. It is not an all parties affair. It is an indoor squabble or domestic affair of the substituted and aggrieved candidate and his or her political party. Hence, no political mileage can be taken or milked out of it by another person or his political party. See Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184. In the instant case there has been no whiff of complaint or objection from the previously nominated candidate who was substituted or replaced by the 1st Respondent herein. It is an intra party wrangling and not an inter party conflict.
Even then, the substituted candidate who is truly aggrieved can only take up the matter before the election proper and before the regular States or Federal High Courts.
By virtue of S.36 (1) & (2) of the Electoral Act, 2006 a candidate may withdraw his candidature by the giving of a notice in writing, signed by him and delivered by himself to the political party that nominated him for the election. Thereafter, the political party shall, within the stipulated period of not later than 70 days to the election convey the notice of such withdrawal to INEC. Upon being satisfied with the mode of withdrawal of the withdrawing candidate as provided by law, the affected political party shall be allowed to nominate another candidate not later than 60 days before the date of election in question. See Ugwu v. Ararume (supra) at page 507.
Issues bordering on nomination, substitution and or withdrawal of candidates are pre-election matters. They are outside the ambit of competence of election tribunals. Rather, they are matters slated for either the Federal or State High Courts. See Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227; Ararume v. INEC (2007) 9 NWLR (Pt.l038) 127; Ugwu v. Ararume (2007) 12 NWLR (Pt.l048) 365. In Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489 the Supreme Court held that an election tribunal being a special tribunal created by the Constitution to handle post – election disputes; it has no jurisdiction to adjudicate over pre- election disputes or matters. It has been reiterated times without number that the jurisdiction of the ordinary courts to entertain and determine pre – election matters remain intact and unimpaired by Sections 178 (2) and 285 (2) of the 1999 Constitution. In the instant case, the issues raised and at stake, are clearly pre – election matters, over which the regular courts still have jurisdiction to handle and which said jurisdiction is separate and distinct from that of the election tribunals. Once such an action has been instituted or commenced before the election, it is sustainable irregardless of whether the election has been conducted or not and whatever be the outcome of the said election coupled with activation of the election tribunals.
The Supreme Court in Amaechi v. Ararume (supra) at pages 314 – 315 paras. F – G per Oguntade, JSC said it loud and clear when he held that S. 285 (2) of the 1999 Constitution;
“cannot be construed to destroy the jurisdiction which the ordinary courts in Nigeria have in pre – election matters … It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre – election matters remain intact … ”
See also Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149.
It is also to be noted that the Supreme Court in Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554/604 – 605 declare the position of the law on the these issues as stated in Adeogun (supra) as the correct position of the law.
What is more, the dictionary meaning of “pre” is before while that of post” is after. It is thus obvious and clear that issues of nomination, withdrawal and or substitution are all matters or incidence which took place before the election proper.
In the instant case the substitution was effected by the letter dated 5th February, 2007 admitted in evidence and marked Exhibit P1 (B). The election in question was held on 21st April, 2007. Certainly, the former incident took place before the latter. Howbeit, the Supreme Court having spoken, the Court of Appeal must be taken to have lost its voice on the same issue and facts. Under the doctrine of stare decisis, I am bound by the decisions of the Supreme Court on the point, referred to and cited above. They include Amaechi (supra) and Agbakoba (supra).
In the instant case, even the reliefs sought by the Appellants are squarely rooted on pre- election matters. Consequently, reliefs which form part of the pleadings in the petition and are predicated on pre – election matters are clearly outside the precincts of jurisdiction of Election Tribunals. I therefore have no hesitation whatsoever in finding that the issues in the instant case are pre – election matters. I am thus of the firm viewpoint that the Tribunal lacks jurisdiction over the instant case and consequently, this Court is equally affected thereby. Issue number one is thus answered by me in the affirmative.
As far as I am concerned, the fight is over bar the shouting.
The consideration and determination of Issue NO.1 herein, which is the main crux of this appeal, will serve as the end of it. It has spelt its death knell. The Supreme Court in 7Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt.730) 469/493, held that it is the duty of an appellate court to consider all issues placed before it, but that where it is of the view that a consideration of one, is enough to dispose of the appeal, it is not under any obligation to consider all other issues raised therein. In the instant case, this is moreso because this is the final bus stop – the final appellate court in respect of this matter.
With the above finding and holding, further deliberation on and resolution of other issues in this matter will be tantamount to indulging in an academic exercise, which is merely theoretical, unnecessary and without practical, pragmatic and utilitarian values for the parties herein. I do not intend to bother myself or embark on such a fruitless venture. Consequently, I do not see the need for me to deliberate further and resolve the remaining two issues in this appeal. I decline to so do.
In the premises of all the above, I find that the appeal lacks merit and it is accordingly dismissed by me, with costs assessed in the sum of N30, 000.00 awarded to the 1st and 2nd Respondents.
Ordered accordingly.
Other Citations: (2009)LCN/3281(CA)
