ALL PROGRESSIVES CONGRESS v. PEOPLES DEMOCRATIC PARTY & ORS.

CORAM

STANLEY SHENKO ALAGOA (OFR) -JUSTICE COURT OF APPEAL

JOHN HEZEKIAH OMOLOLU-THOMAS -JUSTICE COURT OF APPEAL

IBRAHIM KOLAPO SULU-GAMBARI -JUSTICE COURT OF APPEAL

STANLEY SHENKO ALAGOA (OFR) -JUSTICE COURT OF APPEAL

STANLEY SHENKO ALAGOA (OFR) -JUSTICE COURT OF APPEAL

PARTIES

ALL PROGRESSIVES CONGRESS (APC) APPELLANTS

1. PEOPLES DEMOCRATIC PARTY (PDP)

2. MR. PETER AYODELE FAYOSE

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

4. THE CHIEF OF DEFENCE STAFF

5. INSPECTOR GENERAL OF POLICE

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Petitioner/Appellant filed a petition against the Respondents jointly and severally at the trial Tribunal challenging the return of the 2nd Respondent,  Mr. Peter Ayodele Fayose, by the 3rd Respondent as the winner of the Ekiti State Governorship Election held on the 21st day of June, 2014 on the grounds that the 2nd Respondent was not duly elected by majority of lawful votes cast and that the said election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in addition to the fact that the 2nd Respondent was not qualified to contest the election having forged educational certificates  and found guilty of Gross Misconduct involving embezzlement of funds  by the Ekiti State Code of Conduct  Tribunal which culminated into his impeachment from office as the Governor of Ekiti State in 2006. The Petitioner/Appellant further prayed the trial Tribunal to declare the Petitioner/Appellant’s candidate, John Olukayode Fayemi, as the winner of the Ekiti State gubernatorial election, or in the alternative nullify the above Governorship election and order a fresh Election.

On being served with the petition, the 1st Respondent filed a notice of preliminary objection praying the trial Tribunal to strike out the petition for non-joinder of John Olukayode Fayemi who was the linchpin of the reliefs sought in the petition presented by the Appellant. The trial Tribunal dismissed the Petitioner/Appellant’s petition. Dissatisfied with the decision of the trial Tribunal, the Petitioner/Appellant appealed to the Court of Appeal whiles the 1st Respondent cross-appealed.

HELD

Appeal dismissed and Cross-Appeal partly allowed.

ISSUES

1.Whether the Appellant’s Brief of argument was filed within the time allowed by the practice direction on Election appeals to the Court of appeal and whether this does not render the entire appeal incompetent and liable to be struck out Main Appeal?

2.Whether having regard to the provisions of Section 138 of the Electoral Act 2010 (as amended) dealing with the Grounds for the presentation of an Election petition and the interpretation of same by the Supreme Court, the Election Tribunal was right in its decision to strike out paragraphs 110 – 120 of the petition and relief 125A thereof on the Ground that the issue concerning the qualification of the 2nd Respondent for the Election, being a pre-Election matter, the Tribunal had no jurisdiction to entertain same and that the Appellant ought to have challenged same before the regular Court long before the Election? Covers Ground 1 in the Notice of Appeal.?

3.Whether the Lower Tribunal was right when it struck out the names of the 4th and 5th Respondents and all allegations against them as well as paragraphs 60, 63, 69, 72, 76, 77, 83, 85, 100, 101 and 103 of the petition? Covers Grounds 2 and 3 in the Notice of Appeal.?

4.Whether or not the Election Tribunal was right to have reviewed the decision of the panel that found 2nd Respondent guilty of breach of the Code of Conduct? Covers Grounds 10, 11 and 5.Whether in the light of the clear provisions of Sections 182 (1) (e) and 188 of the 1999 Constitution as amended, the Election Tribunal was right in its decision that the panel that found the 2nd Respondent guilty of breach of the Code of Conduct had no power to find him guilty as such? Covers Ground 12 in the Notice of Appeal.?

6.Whether in the light of the provision of the law and the case made by the Appellant, the Tribunal was right in applying the decision in Omoworare Vs Omisore against the Appellant? Covers ground 13 in the Notice of Appeal.?

7. Whether in its decision on the petition, the Election Tribunal properly applied the Court of Appeal, Benin Division Judgment tendered before it? Covers Ground 14 in the Notice of Appeal.?

8.Whether the report of an allegation of forgery to security agencies for investigation and possible prosecution is a requirement for proof of same before a Court or Tribunal and whether the Appellant did not prove the allegation of forgery against the 2nd Respondent? Covers Ground 7 in the Notice of Appeal.?

9.Whether on the strength and evidential value of documentary evidence tendered by the Petitioner, the Tribunal is justified in concluding that the allegation of presentation of forged certificate was not proved, more so, that the 2nd respondent whose Conduct was personally in issue did not give any personal evidence to rebut the allegation against him? Covers Grounds 6 and 8 in the Notice of Appeal.?

10.Whether the Tribunal was right in adjudging the evidence of PW9 and PW11 as hearsay without appreciating the fact that Exhibits G & P being Certified True Copies of Public documents can be tendered and commented on by anybody not necessarily the maker of the document? Covers Ground 9 in the Notice of Appeal.?

11.Whether considering the totality of pleadings and the need to put all facts before the Court, the Tribunal was justified in striking out paragraph 13 of the Petitioner’s reply when that paragraph of reply was in essence a clear rebuttal of the claim made by the 2nd Respondent that the certificate in issue belongs to him? Covers Ground 5 in the Notice of Appeal.?

12 Whether or not the Election Tribunal was right when it held that it had no jurisdiction to determine whether or not Armed Force have role to play in Election? Covers Ground 4 in the Notice of Appeal.Cross-Appeal?

13.Whether the Tribunal was in error to hold that the 1st Cross Respondent had a right under the Electoral Act 2010 (as amended) and was competent to claim all the reliefs contained in the Petition despite the absence of its gubernatorial candidate as a co-petitioner.?

14.Whether the Tribunal was in error to hold that the allegation of the 1st Cross Respondent on the issue of disqualification of the 2nd Cross Respondent was founded on the contravention of the Code of Conduct and not impeachment.

RATIONES DECIDENDI

QUALIFICATION OR DISQUALIFICATION TO CONTEST AN ELECTION – WHETHER AN ISSUE OF QUALIFICATION OR DISQUALIFICATION TO CONTEST AN ELECTION CAN BE RAISED IN AN ELECTION PETTITION

“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. In the case of Dangana Vs Usman (Supra) at 89-90; It was specifically stated:
“That the qualification/disqualification to contest a matter is both pre-election and on election matter.” PER A. ABOKI, J.C.A.

GROUND FOR DISQUALIFICATION OF A GUBERNATORIAL CANDIDATE- IMPEACHMENT IS NOT ONE OF THE GROUNDS FOR THE DISQUALIFICATION OF A PERSON SEEKING ELECTION TO THE OFFICE OF A GOVERNOR OF A STATE

“The law is now trite that impeachment is not one of the grounds for the disqualification of a person seeking the office of a Governor of a State. See Section 182(1)(e) of the 1999 Constitution. This principle of law was very well articulated by this Court in the case of Omoworare V Omisore (2010) 3 NWLR (Pt.1180) 58 per Ogunbiyi, JCA, (as she then was).” PER A. ABOKI, J.C.A

DETERMINATION OF LOCUS STANDI IN ELECTION PETITION- THE ELECTION PETITION TRIBUNAL IN DETERMINING LOCUS STANDI IS BOUND ONLY BY THE AVERMENTS IN THE ELECTION PETITION

“Under the Electoral Act, a Tribunal in determining locus standi is bound only by the averments in the Petition. In addition to this, the Tribunal is enjoined to give strict interpretation to the statute in a way to give effect to the intendment of the Legislature. See Ndoma-Egba v. Chukwuogor (2004) LPELR-1974, Pg.13 paras G-H); (2004) 17 NSCQR 399 per Uwaifo, JSC:
“It is the law that the literal rule is the golden rule method of interpretation when the words of a statute are plan and unambiguous. It is a fundamental rule that such words should be given their ordinary plan meaning. It is not in such circumstances permissible to refrain from its meaning, even though it gives an unreasonable unfair result, and to go outside what the words themselves actually convey, in an attempt to consider what other things they ought to be capable of meaning.”PER A. ABOKI, J.C.A

ROLE OF THE ARMED FORCES/MILITARY IN THE CONDUCT OF ELECTIONS – WHETHER THE ARMED FORCES/MILITARY HAS ANY ROLE IN THE CONDUCT OF ELECTIONS

“The Armed Forces (the Military) has no role in the Conduct of elections and must not be involved, except perhaps in the areas of logistic services to agencies of Government in the preparation for the elections. They should not be called out on the streets or places of elections in the name of security, as that would militarize the process and create an atmosphere of military siege, fear and intimidation of the public”. PER A. ABOKI, J.C.A

RESOLUTION OF DOUBT WHERE AN ALLEGATION OF CRIME HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT- WHERE AN ALLEGATION OF THE COMMISSION OF A CRIME HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT, ALL POSSIBLE DOUBTS MUST BE RESOLVED IN FAVOUR OF THE ACCUSED PERSO

“On the other hand, where an allegation of the commission of a crime has not been proved beyond reasonable doubt, all possible doubts must be resolved in favour of the person accused of committing such a crime. See: Kalu Vs. The State (1988) 4 NWLR (Pt. 90) page 503; Okonji V. The State (1987) 1 NWLR (Pt. 53) page 65; A.D. VS. Fayose & Ors (2005) 10 NWLR (Pt. 932) page 151.” PER A. ABOKI, J.C.A

PRESENTATION OF AN ELECTION PETITION – PERSONS WHO CAN PRESENT AN ELECTION PETITION – SECTION 137(1) OF THE ELECTORAL ACT, 2010 (AS AMENDED)

“Undoubtedly, the interpretation of Section 137(1) of the Electoral Act, 2010 (as amended) is the pivot of this issue. The contents are therefore set out hereunder for ease of reference as follows:

137 – (1) An election petition may be presented by one or more of the following persons –

(a) A candidate in the election;

(b) A political party in the election.

By the literal or golden rule of interpretation, it is unarguably the law that both a candidate, as well as the political party sponsoring the candidate or both, may present an election petition.” PER A. ABOKI, J.C.A

REVIEW OF THE DECISION OF AN INVESTIGATION PANEL – NO COURT OF LAW AND ELECTION TRIBUNAL POSSESS THE JURISDICTION TO REVIEW THE SETTING UP, COMPOSITION AND/OR QUESTION THE VALIDITY OF THE DECISION OF THE INVESTIGATION PANEL SET UP BY THE HOUSE OF ASSEMBL

“Consequently, the Election Tribunal does not possess the jurisdiction to review the setting up, composition and/or question the validity of the decision of the investigation panel set up by the House of Assembly. See Belgore V Ahmed (2013) 8 NWLR (Pt.1335) 60. Indeed, no court of law, and by the same token no Governorship Election Tribunal, has the jurisdiction to review the proceedings of a panel set up under Section 188 of the Constitution to investigate the allegations of misconduct made against a Governor. Again, for the avoidance of doubt, Section 188(10) of the Constitution states:

“No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court of law.” PER A. ABOKI, J.C.A

RESPONDENT IN AN ELECTION PETITION – CATEGORIES OF PERSONS WHO CAN BE A RESPONDENT IN AN ELECTION PETITION

“The law, having expressly specified and legislated on who can be a respondent in an electoral petition, it appears conclusive that whoever is contemplated to be a respondent to defend an election petition, must fall into any of the two categories named in Section 137 (2) and (3) of the Electoral that is:

(i) The person whose election is complained of (normally the political party/candidate who won the election, or was declared winner) and

(ii) The person who conducted the election, that is, the Electoral Commission (and whoever acted for the Commission as agent or servant who did one thing or the other to advance or realize the objective of the Commission.

It is noteworthy that sub Section (3)(b) of the Section 137 of the Electoral Act includes the phrase “or such other persons” and the same falling within the confines of persons acting on behalf of the Electoral Commission for which Electoral commission is deemed to be defending the petition on their behalf, i.e. “its officers and such other persons”. PER A. ABOKI, J.C.A

DISQUALIFICATION OF CANDIDATES FOR GUBERNATORIAL ELECTION- GROUNDS FOR THE DISQUALIFICATION OF A CANDIDATE TO CONTEST GUBERNATORIAL ELECTION- SECTION 182 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED

“Section 182 (1) of the constitution of the Federal Republic of Nigeria 1999 as amended, stipulates the grounds for the disqualification of a candidate to contest Gubernatorial Election thus:

“No person shall be qualified for Election to the office of Governor of a state if:

(a) Subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(b) He has been elected to such office at any two previous Elections; or

(c) Under a law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or

(d) He is under a sentence of death imposed by any competent Court of law or Tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any Court or Tribunal or substituted by a competent authority for any other sentence imposed on him by such a Court or Tribunal; or

(e) Within a period of not less than ten years before the date of Election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or

(f) He is an undercharged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or

(g) Being a person employed in the public service of the federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the Election; or

(h) He is a member of any secret society; or
(i) He has presented a forged certificate to the Independent National Electoral Commission.”PER A. ABOKI, J.C.A

WITNESSES – PARTIES ARE FREE TO PICK AND CHOOSE WITNESSES IN PROOF OF THEIR CASE

“In the case of Orugbo & Ors Vs. Bulara Una & ORS 11 NSCQR 537 at 552; Niki Tobi, JSC had this to say –
“There is no law known to me that parties to a given action must give evidence at their trial. Parties are free to pick and choose witnesses they think can give cogent evidence to prove their case. If the law had required all parties to give evidence, the Court will be exposed in some cases to a village or community of witnesses and that will protract the litigation.” PER A. ABOKI, J.C.A

ROLE OF THE ARMED FORCES OR THE MILITARY IN ELECTION – THE ROLE OF THE ARMED FORCES OR THE MILITARY IN ELECTION IS RESTRICTED TO EXERCISING THEIR RIGHT OF FRANCHISE TO VOTE

“The law does not appear to make any provision or provide a role for the Armed Force or the Military to dabble in civil activities like elections to elect civilian leaders except perhaps, to exercise their right of franchise to vote, in their Barracks”. PER A. ABOKI, J.C.A

NATURE OF A POLITICAL PARTY AND ITS CANDIDATES- A POLITICAL PARTY AND ITS CANDIDATE ARE INSEPARABLE LIKE SIAMESE TWINS SO MUCH SO THAT IT WINS OR LOSES ELECTIONS BY THE CANDIDATE IT SPONSORS AND IT WOULD BE INCORRECT TO STATE THAT IT IS ONLY A CANDIDATE T

“Certainly, the candidate cannot contest independently of the political party. He can only contest on the platform of a political party since, as afore-stated, independent candidature is not permitted in our laws – (see again Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Consequently, the fortunes of the candidate and its political party are intricately interwoven together. They are inseparable like Siamese/conjoined twins who are dependent on each other.

Thus, political parties win or lose elections by the candidates they sponsor. As a result, a loss or a success inures as much for the political party as well as for the candidate. It is therefore not a true and correct statement of the law to argue that it is solely the candidate that has a vested right in the office of the Governor. Both the political party and the candidate, by virtue of the relevant statutes and the case law on the subject, have vested rights in the office of the Governor.” PER A. ABOKI, J.C.A

ELECTION PETITION – WHERE THE ELECTORAL COMMISSION IS A PARTY TO THE SUIT, IT IS DEEMED TO BE DEFENDING THE PETITION FOR ITSELF AND ON BEHALF OF ITS ELECTORAL OFFICERS

“Section 137(2) and (3) says:
“(2) A person whose election is complained of is, in this Act, referred to as the Respondent.
(3) If the Petitioner complains of the Conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons, notwithstanding the nature of the complaint and the Commission shall, in this instance be:

(a) Made a respondent; and

(b) Deemed to be defending the petition for itself and on behalf of its officers or such other persons.” PER A. ABOKI, J.C.A

MILITARY – FUNCTIONS OF THE MILITARY

Section 217 (1) and (2) of the 1999 constitution provides for the establishment and functions of the Military. The functions are:

(a) Defending the Nation from external aggression;

(b) Maintaining its territorial integrity and securing its borders from violation on land, sea or air;

(c) Suppressing insurrection and acting in aid of civil authorities, to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and

(d) Performing such other functions as may be prescribed by an Act of the National Assembly”.
PER A. ABOKI, J.C.A

ALLEGATION OF PRESENTING A FORGED CERTIFICATE – CONDITIONS FOR SUSTAINABILITY OF AN ALLEGATION OF PRESENTING A FORGED CERTIFICATE

“An allegation of presenting a forged Higher National Diploma Certificate to an Electoral body INEC is an allegation of crime.
However, in order to substantiate the allegation, two conditions must be fulfilled to the satisfaction of the Court or Tribunal namely –

(a) That the said certificate presented by the candidate i.e. 2nd Respondent was forged:

(b) That it was the candidate that presented the certificate,
See; K.I. Imam Vs. Senator A. M. Sherif & Ors (2005) 10 NWLR (Pt. 914) page 80.

The above two ingredients have to be proved beyond reasonable doubt pursuant to Section 138(1) of the Evidence Act. PER A. ABOKI, J.C.A

FILING A PETITION – THE POLITICAL PARTY OR THE CANDIDATE OR BOTH MAY FILE A PETITION CONTESTING THE OUTCOME OF AN ELECTION

“The law is now certain that either the political party or the candidate or both may file a petition contesting the outcome of an election and seek necessary reliefs as sought in the Petition. See CPC V INEC (supra); & Okonkwo V Ngige (2006) 8 NWLR (Pt.981) 119 @ 136 per Adekeye JSC”. PER A. ABOKI, J.C.A

CASES CITED

STATUTES REFERRED TO

1.Constitution of the Federal Republic of Nigeria 1999, as amended

2.Election Tribunal and Court practice direction, 2011

3.Electoral Act 2010 (as amended)

4.Practice Directions on Election Appeals to the Court of Appeal

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