Legalpedia Citation: (2023-11) Legalpedia 58471 (CA)

In the Court of Appeal

Holden At Abuja

Fri Nov 24, 2023

Suit Number: CA/S/EP/SHA/SK/28/2023

CORAM

THERESA N. ORJI-ABADUA JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL

HANNATU LAJA-BALOGUN JUSTICE, COURT OF APPEAL

PARTIES

AMINU GARBA GIDADO

APPELLANTS

1. MOHAMMED MALAMI AHMED
2. PEOPLES DEMOCRACTIC PARTY
3. ALL PROGRESSIVES CONGRESS
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

This is a cross-appeal. The 1st and 2nd Cross Respondents as Petitioners before the lower Tribunal, aggrieved by the declaration and return of the Appellant (1st Respondent at trial Tribunal) as the winner of the Sokoto State House of Assembly election for Sokoto South II State Constituency, filed a petition on the 6th day of April, 2023 on the grounds that the 1st Respondent was at the time of the election not qualified to contest the election and that the election of the 1st Respondent was invalid by reason of corrupt practices and/or non-compliance with the provisions of the electoral Act, 2022; and INEC Regulations and Guidelines for the conduct of the 2022 Election. They also contested that the 1st Respondent was not duly elected by majority of lawful votes cast at the said election.

The Cross Appellant and the third Respondent both filed preliminary objections which were dismissed by the trial tribunal. The trial Tribunal further dismissed the Petition and upheld the election held on the 18th March, 2023 for the Sokoto South II State Constituency seat in the Sokoto State House of Assembly and awarded cost of N500, 000 against the 1st and 2nd Cross-Respondents.

Dissatisfied with the said judgment of the Trial Tribunal, the 1st and 2nd Cross Respondents filed a Notice of Appeal challenging the decision of the trial Tribunal dismissing their petition. On the other hand, the Cross Appellant dissatisfied with part of the said decision of the Tribunal has also filed a Notice of Cross Appeal on the 13th day of October, 2023 raising 2 (two) Grounds of Appeal.

HELD

Cross-Appeal allowed

 

ISSUES

1. Whether the Tribunal was not in error of law when in overruling the preliminary objection of the Cross Appellant and held in its judgment that ground one of the grounds constituted by the 1st and 2nd Cross Respondents to challenge the election of the Cross Appellant is not a pre-election matter and is therefore not statute barred?
2. Whether the Tribunal was right in law and properly evaluated the evidence before it when it held in its judgment that the Cross Appellant tacitly admitted the allegation made against him in the petition by the 1st and 2nd Cross Respondents to the effect that the cross-appellant presented a forged certificate to the 4th Respondent (INEC) in the general elections of 2023?

RATIONES DECIDENDI

CONSTITUTION – WHEN A COURSE OF ACTION IS STATUTE BARRED BY OPERATION OF THE CONSTITUTION

The Cross Appellant is merely being accused of having lied that he had never presented a forged certificate in the process leading to the 2023 election. It is worthy of note that it is a fact such as this, that prompted the Supreme Court, per Eko, JSC, in the case of AKINLADE & ANOR VS. INEC & ORS (2020) 17 NWLR (PT. 1754) 439 to authoritatively state that: “On this point, I hereby remain firm in the opinion l expressed in Atiku Abubakar & Anor v. INEC & Ors- SC. 1211/2019 of the 15th November, 2019; (2020) 12 NWLR (Pt. 1737) 37 that: “The – disqualification of a candidate on grounds of false information in his Form CF001 is a pre-election matter by dint of Section 285(14) of the Constitution. The procedure for ventilating any grievance on this is statutorily provided in Section 31 of the Electoral Act, as amended. And that the right of petitioner to enforce his right to the cause of action would be extinguished by the operation of Section 285(9) of the Constitution unless the action was “filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the action”. A cause of action extinguished and statute barred by operation of Section 285(9) of the Constitution remains extinguished and cannot be revived subsequently in an election petition as a ground for questioning an election.” – Per M. B. Idris, JCA

 

QUALIFICATION – WHETHER QUALIFICATION TO CONTEST ELECTION FOR THE OFFICE OF A GOVERNOR IS A CONSTITUTIONAL MATTER

In LADO & ANOR VS. MASARI (2019) LPELR – 55596 (SC), the Supreme Court, per Okoro, JSC, opined that: “The law is now trite that the qualification to contest election for the office of Governor of any State in Nigeria is a constitutional issue which has been sufficiently provided for by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). And as was rightly expressed by the learned senior counsel for the 3rd respondent, it is not accommodative of conjectures, speculations or inferences. It necessarily follows that any claim of qualification or non-qualification must derive its root from the Constitution. See Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386 at 455 paragraphs A – C, Kubor v. Dickson (2013) All FWLR (Pt. 696) 392, (2013) 4 NWLR (Pt. 1345) 534. – Per M. B. Idris, JCA

DISQUALIFICATION – WHETHER DISQUALIFICATION OF A CANDIDATE ON GROUND OF FALSE INFORMATION IN FORM CF001 IS A PRE-ELECTION MATTER

It is now an established position of the law that qualification of a candidate on ground of false information in his Form CF001 or EC9 is a pre-election matter. See also, ABUBAKAR VS. INEC (2020| 12 NWLR (PT. 1737) 37 AT 161, per Eko JSC, where his lordship held that: “disqualification of a candidate on grounds of false information in his Form CF001 is pre-election matter by dint of section 285(14) (c) of the Constitution.” See also AKINLADE V. INEC (2020) 17 NWLR (PT. 1754) 439 AT 465 TO 466. – Per M. B. Idris, JCA

 

QUALIFICATION – WHEN QUALIFICATION BECOMES A POST-ELECTION MATTER

It is therefore, the law that for qualification to be post-election under Section 134(1) of the Electoral Act, 2022, it must strictly be confined to the provisions of Sections 177 and 182(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and that anything outside what is listed under Section 182(1) of the 1999 Constitution cannot be countenanced at all. – Per M. B. Idris, JCA

 

CERTIFICATE – WHERE A PERSON PRESENTS A FORGED CERTIFICATE TO INEC – WHERE A PERSON LIES ABOUT PRESENTING A FORGED CERTIFICATE TO INEC

The relevant section of the 1999 Constitution of Federal Republic of Nigeria (as amended) in relation to the present case is Section 107(1) (i) which provides that: “No person shall be qualified for election to a House of Assembly if (i) he has presented a forged certificate to the Independent National Electoral Commission.” The determinant phrase in Section 107(1)(i) of the 1999 Constitution is “if he has presented a forged certificate” and not “if he had lied on oath about presenting a forged certificate.” Obviously, presentation of a forged certificate is different from lying about having presented a forged certificate. The issue is, where the person lies in his Form EC9 about having presented a forged certificate in the past, the provisions of Section 29(5) and (6) of the Electoral Act, 2022 will come into play. The said Section provides: “29(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.

(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election.”

The above provision clearly brings the issue within the realm of pre-election matters. – Per M. B. Idris, JCA

 

ELECTION – THE NATURE OF ELECTION AND ELECTION RELATED MATTERS

…the law is that election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See the cases of HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) 547; JAMES VS. INEC (2015) 12 NWLR (PT. 1474) 538. In ORUBU VS. NATIONAL ELECTORAL COMMISSION (1988) 5 NWLR (PT. 94) 323 @ 347, His Lordship Uwais, JSC (as he then was) opined that: “an election petition is not the same as ordinary civil proceedings. It is a special proceedings because of the peculiar nature of elections, which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general in Court.” See OBASANYA VS. BABAFEMI (2000) 15 NWLR (PT. 689) 1 @ 17 A – D per Uwais, JSC (as he then was); Abubakar Vs Yar’Adua (2008) ALL FWLR (Pt.404) 1409 @ 1450 E – F. Since primary elections produce the candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis.”  – Per M. B. Idris, JCA

 

NON-COMPLIANCE – WHERE A PARTY ALLEGES NON-COMPLIANCE WITH THE ELECTORAL ACT

In OYETOLA VS. INEC (2023) 11 NWLR (PT. 1894) 125, the Supreme Court held that for the applicability of Section 137, the non-compliance complained of must be manifestly disclosed on the certified true copies of the documents. Because election petition is in a class of its own, sui generis, it is not within the scope of an ordinary civil or criminal matter where the principles in EREMOSELE VS. FRN (2017) 1 NWLR (PT. 1545) 55 would have easily applied, the principle being that the Court is entitled to look into any documents in its record and make use of the contents. For instance, by Section 137 of the Electoral Act, 2022, where a party did not allege non-compliance with the provisions of the Electoral Act for the conduct of election, it shall be necessary for the party to call oral evidence. The court will only dispense with calling oral evidence where the party alleges non-compliance with the provision of the Act for the conduct of the election and only if the originals or the certified true copies manifestly disclose the non-compliance. – Per M. B. Idris, JCA

 

DECLARATORY RELIEFS – DUTY OF A PARTY SEEKING DECLARATORY RELIEFS

I will refer to the opinion expressed in the case of OBAWOLE VS. WILLAMS (1996) LPELR – 2158 (SC) on whether a party seeking declaratory reliefs must establish his entitlement to the reliefs upon the strength of his own case, thus: “Now, the law is that where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendant, that he is entitled. Eso, J.S.C. in Vincent I. Bello v. Magnus A. Eweka (1981) 1 SC 101 at page 122, said: – “It is my view that it would be a wrong exercise of discretion on the part of a court, which is aware of the issues of competing interest joined by the parties, to close its eyes, against those issues and award declaration to a plaintiff who had adduced no evidence in regard thereto. Indeed, to shift the onus unto the defendant at that stage would be awarding declaration not on the strength of the plaintiff’s case but on the weakness of the defendant’s case.” See also Wallersteiner v. Moir (1974) 3 All ER 217 cited with approval in Bello v. Eweka where Buckley, L J observed at p. 251: “It has always been my experience, and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v. Powell (1894) WN 141, where Kekewich, J. whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence.” As Obaseki, JSC explained it in the case of VINCENT I BELLO VS. MAGNUS A. EWEKA (SUPRA) AT PAGE 102: “The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337, Webber, C.J. Sierra Leone, delivering the judgment of the court said: “The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo& Ors. (1962) 1 SCNLR 352; (1962) WNLR 135 at 134.”  – Per M. B. Idris, JCA

ADMISSION – WHETHER ADMISSION BY A SET OF PARTIES AFFECTS ANOTHER SET OF PARTIES

In the Supreme Court case of Buhari vs. INEC & ors (2008) 19 NWLR Part 1120 page 246, per Tobi, JSC, where it was distinctly on whether admission by a set of parties will affect the other set of parties, the apex court held: “…an admission by one set of respondents cannot bind the other set.” In the case of PDP VS. INEC (2012) LPELR – 7871(CA), this Court per Alagoa, JCA (as he then was), held on whether admission by a set of parties will affect the other set of parties, that: “… In BUHARI V. INEC & ORS. (2008) 19 NWLR (PART 1120) 246 at 422 it was held that for an admission to be valid, it must be an admission made by all the Respondents. Specifically it was stated that an admission by one set of Respondents cannot bind the other set. See also the case of Abubakar V. Yar’adua (2008) 9 NWLR (PART 1120) 1 at 171 to the same effect. – Per M. B. Idris, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No.21) Act, 2017
2. Electoral Act, 2022 

3.INEC Regulations and Guidelines for the conduct of the 2022 Election

 

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