Legalpedia Citation: (2023-12) Legalpedia 93996 (CA)

In the Court of Appeal

Holden At Sokoto

Sat Dec 16, 2023

Suit Number: CA/S/EP/HR/SK/44/2023

CORAM

Ebiowei Tobi Justice, Court of Appeal

Ademola Samuel Bola Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

1. MOHAMMED SAIDU
2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS

1. ALL PROGRESSIVES CONGRESS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

Two elections were conducted in the build up to this suit. The main election was conducted on the 25th day of February, 2023 and a supplementary election was conducted on the 15th day of April, 2023. Thereafter, the Independent National Electoral Commission (2nd respondent) declared one Danbuga Abdulkadir Jelani of the All Progressives Congress (1st respondent) the winner of the election and returned him elected.

The 1st and 2nd appellants, as petitioners, challenged the declaration and return of Danbuga Abdulkadir Jelani of the All Progressives Congress by filing a Petition claiming that the 1st Respondent was at the time of the election not qualified to contest the election and that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022 and by reason of corrupt practices. They further claimed that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.

The Trial Tribunal passed judgment in favor of the Respondents. The Appellant was dissatisfied hence the instant appeal.

The Appellant in filing the Appeal omitted one of the parties (a Respondent) in the original suit (the 1st Respondent) as the party in question was deceased and cannot be a party to the suit. The 1st Respondent in this appeal filed a preliminary objection on the ground that by this action of the Appellant, the Appellant has effectively altered the case without leave of court.

HELD

Appeal allowed

 

ISSUES

1. Whether at the time of conducting the general election of the House of Representatives for Isa Sabon Birni Federal Constituency by the 2nd Respondent, the candidate of the 1st Respondent was qualified to contest the said election?
2. Whether the trial Tribunal was right when its dismiss (sic) the Appellants’ petition for lacking merit?

RATIONES DECIDENDI

NOTICE OF APPEAL – THE IMPORTANCE OF A NOTICE OF APPEAL

A Notice of Appeal is the foundation, substratum and spinal cord upon which an appeal is built and gives life to the appeal. Like a writ of summons in a trial Court, a Notice of Appeal is an originating process that sets the ball rolling for the proper, valid and lawful commencement of an appeal. It is true that an appeal is akin to a continuation of hearing of the suit from the trial Court, but such continuation of trial must be built on legal foundation which is the Notice of Appeal. – Per P. C. Obiorah, JCA

 

JURISDICTION – WHETHER COURTS HAVE JURISDICTION OVER DEAD PARTIES

The jurisdiction of the Court is only exercisable on juristic persons, to wit: human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. The crucial question to ask, is, whether an appeal can be taken out against a deceased person? A human being ceases forthwith to have juristic personality upon death. From the point of death, he belongs to the celestial realm at which only the Almighty God, the Creator of the Universe, operates and beyond the control and authority of mortal institutions and men. The jurisdiction of earthly Courts does not extend to the dead and it is an aberration for a dead person to be sued to Court either by way of writ of summons or notice of appeal, which is an originating process for any Appeal.

In John Andy Sons & Co. Ltd v. Etim (2019) LPELR-47980(CA), where the defendant in the case died and an appeal was taken out against a deceased party named as respondent in the Notice of Appeal, this Court, per Ogbuinya, JCA at pages 13-14 paras. D, held:

“It is settled law, that a dead man/person loses his legal personality and as such cannot sue or be sued in any action. By the same token, such a deceased person cannot initiate or defend an appeal. In the Latin days of the law, the hallowed principle of law was encapsulated in the maxim: Actio personalis moritor cum persona: a personal action dies with the person, see Management Enterprises Ltd. v. Otusanya (1987) 1 NSCC (vol. 18) 577/(1987) 2 NWLR (Pt. 55) 179/(1987) 4 SC 368; Oyeyemi v. Commissioner for L.G. Kwara State (1992) 2 NWLR (Pt. 226) 661; In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531.”

In his own contribution, Nimpar, JCA, at page 21 paras. C, emphasised thus:

“The Court cannot have jurisdiction over a dead party. A dead party cannot participate in any legal proceedings; consequently, the Notice of Appeal is incompetent and must be struck out. Jurisdiction is not negotiable. A Court must either have it or it cannot take a Step. I have nothing more to add. I too strike out the notice of appeal. The Notice of cross appeal also cannot proceed against a dead cross respondent.”

​The fact that the dead person was a party at the trial Court is no reason to include his name in the appeal emanating from the judgment of the trial Court, as long as he died before the appeal was initiated.  – Per P. C. Obiorah, JCA

 

LEGAL PERSONALITY – WHETHER A DEAD PERSON HAS LEGAL PERSONALITY

In Re Otuedon (1995) LPELR-1506(SC) at page 15 paras. C, the Supreme Court, per Iguh, JSC was emphatic that:

“Apart from the legal rights of administrators, executors or the personal representatives of a deceased person, a dead person ceased to have any legal personality from the moment of death and as such can neither sue nor be sued either personally or in a representative capacity. Where, however, the cause of action survives the death of a party, such action is not terminated by death. This principle also applies to an appeal. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533 and Clement Ezenwosu v. Peter Ngonadi (1988) 3 NWLR (Pt. 81) 163.” – Per P. C. Obiorah, JCA

 

ELECTION MATTER – NATURE OF AN ELECTION MATTER

An election petition matter, by its nature, is a personal action that extinguishes with the death of a party. It does not have any interest that survives the candidate such that the Court can entertain an application for the substitution of the deceased with another person to inherit the interest.  – Per P. C. Obiorah, JCA

 

PARTY – EFFECT OF A DEAD PARTY

My Noble Lords, I see no reason why we should depart from the earlier decision of this Court in John Andy Sons & Co. Ltd v. Etim (supra) and other notable judicial authorities on the effect of a dead party. A dead person ceases to have legal personality and his presence in the Appeal will afflict this Appeal with a dangerous and debilitating virus that will asphyxiate the life of the case. The jurisdiction of this Court is over the living and not the dead.  – Per P. C. Obiorah, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL AND CRIMINAL PROCEEDINGS

The law is that he who asserts must prove. In this regard, there is no doubt that the appellants have the initial burden to prove their allegation of non-qualification of the candidate of the 1st respondent. See Sections 131 and 132 of the Evidence Act, 2011.

Electoral dispute, though sui generis, is in the realm of a civil suit. Accordingly, depending on the pleadings of the parties and allegations or assertions made therein, the burden of proof is not static but oscillates between the parties to produce the evidence necessary to establish the existence or non-existence of the facts pleaded. See Sections 133(1) and (2) and 136(1) and (2) of the Evidence Act, 2011.

However, where any party makes a criminal allegation in his pleading, then the standard of proof is guided by Section 135 of the Evidence Act, 2011 which requires that the allegation shall be proved beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR 27, (1983) LPELR-8049(SC), APC & Anor v. Obaseki & Ors (2021) LPELR-55004(SC); Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 and Omisore & Anor v. Aregbesola & Ors (2015) LPELR-25820(CA). – Per P. C. Obiorah, JCA

 

COURTS – CONDUCT OF COURTS IN APPLYING JUDICIAL PRECEDENCE

A judgment of a superior Court shall always be read in the light of the facts and circumstances on which the case was decided. A case can only be authority and act as binding precedent on a subsequent case if the facts are the same. See Oladiran v. State (2023) LPELR-60006(SC). – Per P. C. Obiorah, JCA

 

PLEADINGS – DETERMINING WHETHER PLEADINGS CONTAIN CRIMINAL ALLEGATIONS

The issue of whether a party made a criminal allegation in his pleadings which then makes it mandatory that the proof shall be beyond reasonable doubt is a matter of looking at the pleadings to see the words used and their import, as well as, the circumstances and nature of events and facts pleaded. Where no criminal allegation was made then the standard of proof remains civil which is based on balance of probabilities and preponderance of evidence. – Per P. C. Obiorah, JCA

 

FORGERY – WHERE FORGERY IS ALLEGED – MEANING OF FORGERY – REQUIREMENTS FOR PROVING FORGERY

In APC v. PDP & Ors (2015) 15 NWLR (Pt. 1481) 1, relied upon by the trial Tribunal….

Specifically, His Lordship, Ngwuta, JSC, delivering the leading judgment, held at pages 66-67, paras. G-A, as follows:

“Forgery is a criminal offence and when it is an issue in any proceeding it must be proved beyond reasonable doubt. Forgery is the noun form of the verb “forge” and to forge means, inter alia, to make a copy or an imitation of something in order to deceive people.

See Oxford Advanced Learner’s Dictionary p.462. It means to fabricate by false imitation. See Black’s Law Dictionary Special Deluxe Fifth Edition p.585.

In my view, based on the definition above, to prove forgery or that a document is forged, two documents must be produced:

(1) The document from which the forgery was made, and

(2) The forgery or forged document.

Only one document the allegedly forged HND Certificate was produced. If it is forged, then the genuine document from which the forgery was made must exist. No such document is in evidence. It follows that the allegation of forgery of the HND Certificate was not proved and consequently the appellant failed to prove the allegation that the 2nd respondent presented a forged HND Certificate to INEC.” – Per P. C. Obiorah, JCA

CANDIDATE – DUTY OF A CANDIDATE TO ATTACH EVIDENCE OF HIS EDUCATIONAL QUALIFICATION TO FORM EC9

By the above statement in paragraph C of Exhibit P3 (Form EC9), a candidate is expected to attach evidence of his educational qualifications to the Form. – Per P. C. Obiorah, JCA

 

EVIDENCE – DUTY OF A CANDIDATE TO PRODUCE EVIDENCE OF HIS EDUCATIONAL QUALIFICATIONS

I say this because in light of the failure of the deceased original 1st respondent to produce evidence of his educational qualifications or work experience, there is nothing for the appellants to prove to be false or forged. The appellants are not clairvoyants to know the schools the candidate of the 1st respondent attended and see the certificates to now allege that they are forged. The appellants cannot prove a negative assertion. Rather, it is the candidate of the 1st respondent and his political party who asserted the affirmative that he attended schools and obtained the claimed certificate to now lead evidence in proof of their positive assertion. See Agagu v. Mimiko (2010) 7 EPR 174 at 261; Adighije v. Nwaogu (2010) 13 NWLR (Pt. 1209) 419; Amgbare v. Sylva (2009) 1 NWLR (Pt. 1121) 1; Odom & Ors v. PDP & Ors (2015) LPELR-24351 and Fayemi v. Oni (2011) All FWLR (Pt. 554) 1.

Furthermore, by Section 136(1) of the Evidence Act, 2011, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Subsection (2) of Section 136 thereof, stipulates that in considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.

In the present instance, it is the candidate of the 1st respondent who claimed to have attended schools and obtained certain certificates to know the names of the schools from where he obtained the educational qualifications. The existence and whereabouts of the certificates are also matters within his exclusive knowledge, thereby placing the burden of proof on him. See Section 140 of the Evidence Act, 2011 and Egbuna v. Agha (2015) LPELR-25881(CA). – Per P. C. Obiorah, JCA

 

BURDEN OF PROOF – WHERE THE PETITIONER HAS DISCHARGED THE INITIAL BURDEN OF PROOF – WHETHER A PETITIONER CAN BRING THE ISSUE OF QUALIFICATION BEFORE THE TRIBUNAL

It is not the duty of the petitioners/appellants to ask for “better and further particulars” of the qualifications the late original 1st respondent professed that he had. Having discharged the initial burden of proof that from records the candidate of the 1st respondent did not attend any known school, the ball moved to the Court of the said candidate to show that he attended schools and held the certificates he claimed.

The appellants also need not lodge any complaint to the security agencies, as held by the trial Tribunal. They can bring their complaint directly before the Tribunal since qualification is one of the grounds for challenging an election and a party who decides to bring such ground before the Tribunal cannot be chased away on the basis that he needs to complain first to the security agencies. – Per P. C. Obiorah, JCA

QUALIFICATION – WHETHER THE ISSUE OF QUALIFICATION CAN BE RAISED IN AN ELECTION PETITION – WHETHER THE ISSUE OF QUALIFICATION IS A PRE-ELECTION OR POST-ELECTION MATTER

First, the appellants not being members of the 1st respondent (APC) have no locus standi to challenge by a pre-election suit the nomination and sponsorship of her candidates for election. See Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Aisha Jummai Alhassan & Anor v. Darius Ishaku & Ors (2016) 10 NWLR (Pt. 1520) 230; APM v. INEC & Ors (2023) 9 NWLR (Pt. 1890) 419 and PDP v. INEC & Ors (2023) 13 NWLR (Pt. 1900) 89.

​Secondly, the issue of qualification of a candidate is both a pre-election and a post-election matter. As a post-election matter, it can be challenged at the instance of a candidate challenging the outcome of the election at the Election Tribunal. As was held by this Court in APC v. PDP & Ors (2015) LPELR-24349 (CA) at p. 42, paras. B-C per Abdul Aboki, JCA (later JSC) that:

“In our considered opinion, the issue of qualification or disqualification to contest an Election being a pre-election and post-election matter can be raised in an Election Petition.”

See also Section 134(1)(a) of the Electoral Act, 2022; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Okolie v. Elumelu & Ors (2023) LPELR-61110) (CA) and Akobundu & Anor v. INEC & Ors (2023) LPELR-61232(CA) – Per P. C. Obiorah, JCA

 

SCHOOL CERTIFICATE – THE CONSTITUTIONAL MEANING OF SCHOOL CERTIFICATE OR ITS EQUIVALENT

Section 318(1) of the 1999 Constitution, which provides as follows:

“School Certificate or its equivalent” means –

(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or

(b) education up to Secondary School Certificate level; or

(c) Primary Six School Leaving Certificate or its equivalent and –

(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year; and

(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and

(d) any other qualification acceptable by the Independent National Electoral Commission.”

The above definition is wide enough to accommodate a lot of things as equivalent to school certificate but how will the Court determine if the candidate of the 1st respondent was qualified since he refused, failed or neglected to present the proof of either his educational qualifications or work experience or other factors like ability to read and write in English language. These are not matters for speculation and conjecture. They are matters of fact to be proved by evidence. – Per P. C. Obiorah, JCA

 

CONSTITUTION – THE POSITION OF THE CONSTITUTION – THE DUTY OF POLITICAL PARTIES AND CANDIDATES BASED ON THE PROVISIONS OF THE CONSTITUTION

The Constitution of the Federal Republic of Nigeria, 1999 (as amended), is the grundnorm and fons et origo, and should regulate our conduct as a people of this great nation. If I may ask, what is the intention of stating the qualification of candidates aspiring for certain political offices? My mind tells me it is to ensure that those aspiring to lead the nation meet certain basic educational qualification or work experience or other exposure, as would enable them to comprehend, appreciate and gain knowledge of the affairs of their office in order to aid them discharge the responsibilities of the office competently and diligently. It is for our collective good.

We do violence to our Constitution and our people, if we allow persons who clearly do not possess the requisite qualifications to maneuver and scheme themselves into such sensitive offices of State which puts them in a position to manage the affairs of our beloved nation and the fate of millions of our citizenry. The constitutional qualifications are not meant for anyone in particular. They are very clear and not there for fun. There is nothing stopping any person who sincerely and genuinely desires to hold a political office to first check to see if he is qualified and if not qualified, to take steps to acquire the requisite qualification before venturing to seek and contest for the office.

 

The political parties owe it as a duty to screen and ensure that the candidates they allow to fly their flag at the elections meet the laid down constitutional qualifications and where for whatever reasons, they fail or neglect to do so, then they should live with the fatal consequences because all their efforts to win the election will come to naught as the non-qualification of their candidate if established before the Tribunal or Court will mean that they have laboured in vain. A word is enough for the wise. – Per P. C. Obiorah, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Evidence Act, 2011

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