Rt. Hon. Prince Terhemen Tarzoor V. Ortom Samuel Ioraer & Ors

(Supreme Court – January, 2016)

SC.928/2015

Areas Of Law:
APPEAL, ELECTION PETITION, LAW OF EVIDENCE, LOCUS STANDI, PRACTICE AND PROCEDURE

Summary Of Facts
The Appellant a member of the Peoples Democratic Party (PDP), the 1st Respondent a candidate sponsored by the All Progressive Congress (APC) and six other candidates under the Platform of their respective parties, contested in the April 2015 election into the office of the Governor of Benue State. The 1st Respondent was declared the winner of the Election by the 3rd Respondent. Aggrieved by the result of the election, the Appellant challenged same at the Governorship Election Petition Tribunal constituted for Benue State on grounds that the 1st Respondent was not qualified/disqualified to contest the election, that the declaration and return of the 1st Respondent was invalid by reason of non-compliance with the Electoral Act 2010 (as amended) and the 1999 Constitution of the Federal Republic of Nigeria and that the 1st Respondent was not duly elected by majority of lawful and valid votes cast at the election. The Tribunal in dismissing the petition held that the Petitioner had no locus standi to challenge the validity of the 2nd Respondents’ primary election nominating the 1st Respondent as its candidate at the election. Further appeal to the Court of Appeal was dismissed; hence the Appellant has appealed to the apex Court.

Held
Appeal Dismissed

Issues For Determination

• Was the 1st Respondent qualified/disqualified at the time of the election in which he was a candidate?
• Is the appellant, a member of one party, entitled to raise the question of nomination vel non in another party?

Rationes
ELECTION –SECTION 138 (1)(A) OF THE ELECTORAL ACT 2010 VIS-À-VIS SECTION 177 & 182 OF THE CONSTITUTION ON QUALIFICATION AND DISQUALIFICATION OF CANADIDATES TO CONTEST AN ELECTION
“To determine whether a person is qualified/disqualified to contest an election in terms of Section 138 (1} (a) of the Electoral Act (supra) resort must be had to Sections 177 and 182 of the Constitution {supra). Section 177 settles the question of qualification while Section 182 (2) determines the question of disqualification to contest election.
In other words, the issue of qualification and disqualification, once raised as per Section 138 (1) of the Electoral Act (supra) is determined with reference to Section 177 of the Constitution (supra) in case of qualification and Section 182 (1) in case of disqualification. It is therefore not inconsistent for the appellant to rely on the Electoral Act {supra) at one time and the Constitution [supra) at another time.” PER N.S. NGWUTA, J.S.C

QUALIFICATION FOR ELECTION AS GOVERNOR – SECTION 177 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999
“Section 177 of the Constitution (supra) provides for qualification for election as governor. It provides:
“S.177: A person shall be qualified for election to the office of Governor of a State if,
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of thirty-five years;
(c) he is a member of a political party and is sponsored by that political party;
(d) he has been educated up to at least School Certificate level or its equivalent.” PER N. S . NGWUTA, J.S.C

GOVERNORSHIP ELECTION – QUALIFICATION FOR CONTESTING GOVERNORSHIP ELECTION
“In my humble view, Section 177 states the qualification for contesting in a governorship election while Section 138 (1) (a) of the Electoral Act means that a person who has not satisfied all the conditions specified in Sections 177 and 182 (1) of the Constitution [supra) at the time of the election is not qualified to contest the election. Also Section 182 (1) of the Constitution (supra) lists grounds for disqualification.” PER N. S. NGWUTA, J.S.C

PRIMARY ELECTION- PROPER PARTY IMBUED WITH LOCUS TO CHALLENGE A PARTY’S PRIMARY ELECTION
“Primary elections are in-house matters of a political party. A non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue. See Section 87 (9) (a) of the Electoral Act [supra).” PER. N.S . NGWUTA JSC

PRIMARY ELECTION – WHO HAS LOCUS STANDI TO CHALLENGE THE CONDUCT OF A PRIMARY ELECTION
“This Court has made many pronouncements on who has the locus to challenge the conduct of a primary election. See the case of Daniel v INEC (2015) 9 NWLR (PL 1463) page 113 at 155-157. In the most recent of the plethora of cases on the point, Okoro JSC, speaking for the Court said, inter alia:
“… Only an aspirant at the primary election is permitted by Section 87 (9) of the Electoral Act 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorised to file an action to challenge the selection or nomination of a candidate by a political party for an election.”
See the judgment in SC.907/2015 (not yet reported) delivered by this Court on Friday, 8th January, 2016. PER N. S. NGWUTA, J.S.C

PRIMARY ELECTION – PROPER VENUE TO INSTITUTE AN ACTION CHALLENGING THE CONDUCT OF PRIMARY ELECTION
“The proper venue for such challenge is the High Court of a State, the Federal High Court or the High Court of the Federal Capital Territory, Abuja, as the party filing the action may chose.” PER N. S. NGWUTA, J.S.C

NOMINATION OF CANDIDATE FOR AN ELECTION – LIMIT ON THE JURISDICTION OF COURTS ON THE NOMINATION OF CANDIDATES FOR ELECTION
“I must stress here, that this court had in a plethora of decided authorities, settled that, courts have no jurisdiction to dabble into issue of nomination of candidate for an election by a political party. The political party always has the unfettered prerogative to conduct its primary election without any change, except under the exceptions provided in Section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act 2010, as amended. PER A. SANUSI, J.S.C

CONCURRENT FINDINGS OF FACT BY LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDINGS OF LOWER COURTS
“It is settled that where there is sufficient evidence to support concurrent findings of fact by two lower courts, such findings should not be disturbed by this court unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, or some miscarriage of justice or some material violation of some principle of law or of procedure is shown. See Amadi v Nwosu (1992) 6 SCNJ 59, Onwujuba v Obienu (1991) 4 NWLR (ptl88) 16, Odofin v AyooJa (1984) 11 SC, 72 Ogundipe v Awe (1988) 1 NWLR (pt88) 188 Eholor v Osayande (1992) 7 SCNJ 217.” PER J. I. OKORO, J.S.C

POLITICAL PARTY – DUTY OF A POLITICAL PARTY IN AN ELECTION – SECTION 87 OF THE ELECTORAL ACT, 2010 (AS AMENDED)
“Issue of nomination of candidates for election in this country is provided for in section 87 of the Electoral Act, 2010 (as amended). Under the said section, it is prescribed that a political party seeking for election under the Act shall hold primaries for aspirants to all elective positions. The procedure, according to 87(2) thereof, shall be by direct or indirect primaries”. PER J. I. OKORO, J.S.C

NOMINATION AND SPONSORSHIP OF CANDIDATES FOR ELECTION –THE ISSUE OF NOMINATION AND SPONSORSHIP OF CANDIDATES FOR ELECTION IS NON JUSTICEABLE
“It is trite that section 87 of the Electoral Act 2010 (as amended) regulate the nomination of candidates for election through the internal mechanism of each political party. That is to say, issue of nomination and sponsorship of candidates by political parties for election fall within the internal affairs of political parties and therefore, not justiceable. See Onuoha v Okafor (1983) 2 SCNLR 244, Daniel v INEC (2015) 9 NWLR (pt 1463) 113 at 155 – 157, PDP v Sylva (2012) LPELR – 7814 (SC)”. PER J. I. OKORO, J.S.C

MEMBERSHIP OF A POLITICAL PARTY- WHO IS A MEMBER OF A POLITICAL PARTY
“A member of a political party is one who is registered with that party as its member, is issued with its membership card and fulfills all requirements of membership. It is therefore the political party concerned that can state, conclusively, that a person is its member as can be demonstrated by production of its membership register and other relevant documents, if the issue arises.” PER W. S. N. ONNOGHEN, J.S.C

SPONSORSHIP OF A CANDIDATE FOR ELECTION – SPONSORSHIP OF A CANDIDATE FOR ELECTION BY A POLITICAL PARTY – SECTION 87 OF THE ELECTORAL ACT, 2010
“Sponsorship of a person by a political party is as regulated under the provisions of section 87 of the Electoral Act, 2010, as amended, by way of direct or indirect primary election for nomination of party candidates.” PER W. S. N. ONNOGHEN, J.S.C

NOMINATION OF CANDIDATES FOR ELECTION – THE NOMINATION OF CANDIDATES FOR ELECTION IS WITHIN THE INTERNAL AFFAIRS OF A POLITICAL PARTY
“It has been held in a plethora of cases that nomination of a candidate of a political party for an election is the internal affairs of the political parties over which the courts have no jurisdiction.” PER W. S. N. ONNOGHEN, J.S.C

NOMINATION OF CANDIDATES FOR ELECTION – WHO HAS THE LOCUS STANDI TO INVOKE THE JURISDICTION OF COURTS ON THE ISSUE OF NOMINATION OF CANDIDATES FOR ELECTION
“Also settled is the principle that the only way the courts can get involved in matters of nomination of candidates of political parties is as provided under section 87 (8) or (9) or (10) depending on which version of the Electoral Act, 2010, as amended, one is using, and that only a candidate who participated in the primary election or contests in the processes leading to the emergence of a candidate of the party for the election, has the locus standi to invoke the jurisdiction so conferred on the courts to challenge the said nomination. It is not every or any other member of the political party concerned that has the locus standi to do so. The position of a person who is not a member of the political party concerned is the same.” PER W. S. N. ONNOGHEN, J.S.C

Statutes Referred To:
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Electoral Act 2010 (as amended)