MICHEAL KUFORO ZIDON V. KWAMOTI BITRUS LA’ORI & ORS

Legalpedia Citation: (2015-11) Legalpedia 44029 (CA)

In the Court of Appeal

Holden at Abuja

Fri Nov 27, 2015

Suit Number: CA/A/EPT/577/2015

CORAM

MOORE A.A. ADUMEIN JUSTICE, COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON JUSTICE, COURT OF APPEAL

MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

PARTIES

MICHEAL KUFORO ZIDON

APPELLANTS

KWAMOTI BITRUS LA’ORI

SOCIAL DEMOCRATIC PARTY

INDEPENDENT NATIONAL ELECTORAL COMMISSION  (INEC)

 

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, JUDGMENT, JURISDICTION, CIVIL PROCEDURAL LAW, ELECTORAL LAW, LAW OF EVIDENCE, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal for Adamawa State. The appellant, a member of the People’s Democratic Party filed a petition before the Tribunal contesting the return of the 1st respondent on the ground that he was not qualified to contest the election not having been sponsored by the 2nd respondent or any party whatsoever, the tribunal dismissed the appellant’s petition. Dissatisfied with the judgment, the appellant filed three Notices of Appeal to this instant Court.

HELD

Appeal allowed.

ISSUES

(1) Whether having regard to Section 221, 62(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87 of the Electoral Act 2010, the trial Tribunal was right when it held that the 1st respondent was sponsored by the 2nd respondent as its candidate  to  contest the  2015 General Elections into the House of Representatives for Demsa/Numan/Lamurde Federal Constituency?

(2)    Whether the trial Tribunal properly evaluated the evidence placed before it in arriving at its judgment?

RATIONES DECIDENDI

PRELIMARY OBJECTION – WHETHER OR NOT A PRELIMINARY OBJECTION ADJUDICATED UPON BY A LOWER COURT CAN BE RAISED WITHOUT AN APPEAL ON THE DECISION OF THE COURT

The decision of the Tribunal on the preliminary objection is valid and subsisting and therefore is binding on the parties to the case. If the 1st respondent is dissatisfied with the holding of the Tribunal on the preliminary objection the proper procedure open to him is to challenge the decision of the Tribunal and appeal against it by way of cross-appeal. It is not open to him to raise the same preliminary objection in the respondent’s brief in the appellate court. See cited case Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 564, 592. To raise the same preliminary objection which has otherwise been adjudicated upon by a lower court, without an appeal on the decision of the court will definitely be tantamount to an abuse of the court process. I agree with the learned senior counsel that the procedure is mala fides, and is intended to annoy the appellant. The preliminary objection is hereby dismissed. See O.S.S.I,E.C. v. N.C.P, (2013) 9 NWLR (Pt 1360) 451; Comm. Education, Imo State v. Amadi (2013) 13 NWLR (Pt. 1370) 133; TS A. Ind. Ltd. v. F.B.N. Plc (No. 1) (2012) 14 NWLR (Pt. 1320) 326. PER – TINUADE AKOMOLAFE-WILSON, JCA.

POLITICAL PARTY – WHETHER OR NOT A PERSON MUST BE A MEMBER OF A POLITICAL PARTY BEFORE HE CAN BE QUALIFIED TO CONTEST AN ELECTION INTO NATIONAL ASSEMBLY

The position of the law is certain that by the community reading of Sections 221 and 65(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a person must be a member of a political party and must be sponsored by a political party before he can be qualified to contest an election into the National Assembly. See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 at 145; Onejeme v. Azodo (2005) ALL FWLR {Pt, 275) 550. PER – TINUADE AKOMOLAFE-WILSON, JCA.

POLITICAL PARTY – PROCEDURE FOR THE DETERMINATION AND NOMINATION/SPONSORSHIP OF A CANDIDATE BY ANY POLITICAL PARTY

The procedure for the determination and nomination/sponsorship of a candidate by any political party is statutory. It is as stipulated in Section 87 of the Electoral Act, 2010 (as amended) Section 87 envisages that a political party must conduct primaries so as to determine a successful aspirant who emerges as the candidate of a political party for an elective position amongst the aspirants in the party. If however, there is a sole candidate, by the provisions of subsection (6) of Section 87 of the Act, the party must convene a special convention or congress for such an aspirant for the name to be forwarded to the Independent National Electoral Commission within the stipulated time prescribed by the commission as the candidate sponsored by that party. Undoubtedly, a person who does not emerge as a candidate of a political party through the process of primaries as stipulated in Section 87 of the Electoral Act cannot qualify to contest an elective position under the Constitution, See CPC v. Ombugadu (supra) at 126. PER – TINUADE AKOMOLAFE-WILSON, JCA.

POLITICAL PARTY – WHETHER OR NOT SPONSORSHIP BY A POLITICAL PARTY IS AN INTERNAL DOMESTIC AFFAIR OF A POLITICAL PARTY

It is also settled principle of law that sponsorship of a candidate by a political party is an internal domestic affair of a political party. Members of the party cannot contest the issue before the court. A court also has no jurisdiction to nominate a candidate for a political party or compel a political party to nominate or sponsor a candidate – Onuoha v. Okafor (supra). However, Section 87(9) of the Act confers jurisdiction on the High Courts to hear complaints from aspirants who participated at their primaries and complains about the conduct of the primaries as in breach of the party’s constitution or the Electoral Act. See PDP v. Sylva (supra) at p85. PER – TINUADE AKOMOLAFE-WILSON, JCA

PETITION – THE LOCUS STANDI OF A CANDIDATE WHO PARTICIPATED IN AN ELECTION TO PRESENT A PETITION AT AN ELECTION TRIBUNAL

In summary, Section 137(1) (a) of the Electoral Act, 2010 (as amended), vests in the candidate that participated in an election, the locus standi to present a petition at an election Tribunal. While the issue of intra-party dispute can only be challenged by a member of the same political party as contemplated by Section 87(9) of the Electoral Act, the nomination/sponsorship of a candidate through a faulty process is actionable by a member of another political party on the grounds of qualification as encapsulated under Section 138(1) of the Electoral Act,  2010 (as amended). PER – TINUADE AKOMOLAFE-WILSON, JCA

EVIDENCE – THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE RELEVANT AND MATERIAL

Evaluation of relevant and material evidence is primarily the function of the trial court. Where however it fails to evaluate such evidence properly or at all, an appellate court will intervene and evaluate or re-evaluate such evidence to make its own findings where by the nature of the case evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from proved facts and from contents of documentary evidence. See Tsokwa Motors (Nig) Ltd v- UBN Ltd (1996) 9 NWLR (Pt. 471) 129 at 145; Min. Lodge Ltd v, Ngei (2009) 7 NWLR (Pt. 1173) 254 at 272; Wachukwu v. Owunwane (2011) 14 NWLR (Pt. 1266) 1 at p.19. PER – TINUADE AKOMOLAFE-WILSON, JCA

POLITICAL PARTY – THE POSITION OF THE LAW ON THE CONDITION PRECEDENT FOR A POLITICAL PARTY TO SPONSOR A CANDIDATE FOR AN ELECTIVE POST

Undoubtedly, it is the law that for a political party to sponsor a candidate for elective post, an aspirant for that post must emerge either through direct or indirect primaries as envisaged by Section 87(1) and (2) of the Electoral Act 2010 (as amended) when there is more than one aspirant; or he emerges through a special convention or congress when he is the sole candidate as prescribed by Section 87(6) of the Act. PER – TINUADE AKOMOLAFE-WILSON, JCA

POLITICAL PARTY – WHETHER OR NOT THE LAW PERMITS A PARTY TO JETTISON THE PRIMARY ELECTION AND AT LEISURE PICK ANY PERSON AS ITS FLAG BEARER

The law does not permit a political party to jettison the primary election and at leisure pick any person as its flag bearer without strict compliance with Sections 35 and 87 of the Electoral Act. See CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Dinagyadi & Anor v. Wamako & Ors (2008) 2 LRECN 103 at 109. PER – TINUADE AKOMOLAFE-WILSON, JCA

ELECTORAL ACT, 2010 – THE PURPOSE FOR THE PROMULGATION OF THE ELECTORAL ACT, 2010

In my view the Electoral Act, 2010 (as amended) was promulgated to complement and implement the provisions of the 1999 Constitution relating to conduct of elections into elective offices under the Constitution. Section 153(1)(f) established the Independent National Electoral Commission while paragraph 15 of the 3rd Schedule specified the functions of the commission which include the organization of elections into the elective offices specified in the Constitution, the membership of the House of Representatives inclusive. Section 65(2) (b) of the Constitution is reiterated, provides that for a person to be qualified for election into the House of Representatives, he must be sponsored by a political party. The procedure for sponsorship is as provided by Section 87 of the Electoral Act. Therefore, by the combined reading of Sections 153, Section 65(2) (b), and Section 221 of the Constitution and Section 87 (1), 137 and 138(1) of the Electoral Act, the issue of qualification of a person for election into the House of Representatives, for instance, transcends the provision of citizenship and educational qualification prescribed by Section 65(1) (a) and (b) of the Constitution. I am of the avowed view that it extends to qualification as contemplated by Section 87 of the Electoral Act on the basis of nomination and qualification. PER – TINUADE AKOMOLAFE-WILSON, JCA

QUALIFICATION OF CANDIDATE TO CONTEST – EFFECT OF A PARTY AND ITS CANDIDATE FLOUTING THE LAW REGARDING THE QUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTIVE POST

A party and its candidate who flout the law regarding the qualification of candidate to contest an elective post in accordance with the appropriate provisions of the Constitution, the Electoral Law, the Electoral Guidelines and the Constitution of their party have themselves to blame for the consequences of their action; mainly being that they have disqualified themselves from participating or be deemed as having participated in the elections. PER – TINUADE AKOMOLAFE-WILSON, JCA

CASES CITED

STATUTES REFERRED TO

  Electoral Act 2010

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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