Legalpedia Citation: (2023-12) Legalpedia 58436 (CA)

In the Court of Appeal

Holden At Sokoto

Sat Dec 16, 2023

Suit Number: CA/S/EP/HR/SK/46/2023

CORAM

Ebiowei Tobi Justice, Court of Appeal

Ademola Samuel Bola Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

1. YUSUF UMAR YABO
2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. UMAR ABUBAKAR
3. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The election which gave rise to the Petition was conducted on the 25th day of February, 2023. At the end of the day, the two leading candidates were the 1st appellant (Yusuf Umar Yabo) of the Peoples Democratic Party and the 2nd respondent (Umar Abubakar) of the All Progressives Congress who were credited with 24,792 votes and 22,497 votes, respectively.

​On the 26th day of February, 2023, the Returning Officer for the election declared and returned the 1st appellant as the winner of the election. Subsequently, and as the 2nd and 3rd respondent alleged, the Independent National Electoral Commission (1st respondent) declared the election inconclusive along with other elections for the Senate and House of Representatives conducted across all the Senatorial Districts and Federal Constituencies in Sokoto State and set down the 15th day of April, 2023 for supplementary elections.

The said supplementary election did not hold for the House of Representatives on the 15th day of April, 2023 and the 1st respondent later issued a Certificate of Return to the 1st appellant authenticating him as the winner of the election.

The 2nd and 3rd respondents, as petitioners, challenged the declaration and return of the 1st Appellant of the Peoples Democratic Party by filing a Petition, predicated on the ground that the election of the 2nd respondent was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

The lower Tribunal delivered its judgment in favour of the petitioners by declaring the election inconclusive and ordering the 1st respondent to conduct a supplementary election in 26 polling units in order to determine the winner of the election. The 2nd and 3rd respondents, now appellants, were dissatisfied with the judgment of the trial Tribunal hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether in the circumstances of this case, the Petition is statute barred having been filed 66 days after the expiration of the requisite 21 days for filing an election petition?

• Whether in the circumstances of this case and having regards to evidence adduced before the Tribunal, the election that returned the 1st Appellant elected as the duly elected member for the House of Representatives for Yabo/Shagari Federal Constituency of Sokoto State in the National Assembly was appropriate and in substantial compliance with the Electoral Act, 2022 and ought to have been affirmed by the Tribunal?

RATIONES DECIDENDI

CAUSE OF ACTION – MEANING OF CAUSE OF ACTION

In simple terms, and by several judicial authorities, a cause of action is the factual situation and events that will crystallize to give a party the right to sue and seek redress from the Court. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20; Ojie & Ors v. Govt. of Cross River State & Anor (2016) LPELR-41381(CA) and Woherem v. Emereuwa (2000) 3 NWLR (Pt. 650) 529 at 538. – Per P. C. Obiora, JCA

ELECTION PETITION – TIME FOR FILING AN ELECTION PETITION

The time for the filing of an election petition is specifically provided for in Section 285(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states:

“An election petition shall be filed within 21 days after the date of the declaration of result of the elections.”

The above provision is very clear and immutable. It imposes a mandatory limitation period and once a petition is filed outside the 21 days period, it is incompetent and deprives the Tribunal or Court of the requisite jurisdiction to entertain it. The key event to kick start the calculation of the 21 days stipulated by the Constitution is the “date of the declaration of result of the elections.” – Per P. C. Obiora, JCA

LIMITATION – INDICES USED TO DETERMINE PERIOD OF LIMITATION

Like every statute of limitation, the question now is how to determine this period of limitation which is the foundation for checking if the petition is statute-barred. The answer to the question appears quite simple and three indices are used:

(a) the date when the cause of action accrued;

(b) the date of commencement of the suit; and

(c) the period of time prescribed by the statute for bringing an action. – Per P. C. Obiora, JCA

MARGIN OF LEAD – THE ‘MARGIN OF LEAD’ PRINCIPLE IN OPERATION

The margin of lead principle for Federal Constituency election is enshrined in Paragraph 75 of the Regulations and Guidelines for the Conduct of Elections, 2022 and states as follows:

“Where the margin of lead between the two leading candidates is not in excess of the total number of collected PVCs of the Polling Unit(s) where election was not held or was cancelled in line with Sections 24, 47 and 51 of the Electoral Act, the Returning Officer shall decline to make a return until polls have been conducted in the affected Polling Units and the results incorporated into a new Form EC8D(II) and subsequently recorded into Form EC 8E(II) for Declaration and Return.”

The above provision is clear and unambiguous. My understanding of this clear provision is that where the election was cancelled or not held in certain polling units, meaning that there are no results from those polling units, the registered voters will not be disenfranchised but must be given the opportunity to vote, particularly when their number is in excess of the margin of win between the two leading candidates. The obvious rationale being that the outcome of the election in the affected polling units can swing the victory to either side.

In Effiom v. Bassey & Ors (2022) LPELR-58652 at 17, paras. B-F, Georgewill, JCA in affirming the effect and application of the ‘Margin of Lead Principle’ held as follows:

“In law, the principle of ‘Margin of Lead’ would readily arise after the final results had been collated at the Constituency level at which time the person who scored the majority of lawful votes would be disclosed before the ‘Margin of Lead’ can be determined to warrant postponement of the declaration of the final result and a winner for the purpose of conducting supplementary elections in the affected polling units or wards to determine the overall winner when the results of such postponed elections are added to the subsisting results. See Faleke v. INEC (2017) 3 NWLR (Pt. 1543) 16. See also Sharta Benjamin Elohor & Anor v. Independent National Electoral Commission & Ors (2019) LPELR-48806(CA), per Sir Biobele Abraham Georgewill, JCA, Oputa v. Ishida (1992) 1 LRECN 140, Ejike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462.

See also PDP v. Okogbuo & Ors (2019) LPELR-48989(CA) and Mohammed Aliyu Sarkin Kasuwa & Anor v. INEC & Ors, Appeal No. CA/G/EPT/HR/YB/06/2023, judgment delivered on the 2nd day of November, 2023 (unreported) per Peter Obiorah, JCA. – Per P. C. Obiora, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Regulations and Guidelines for the Conduct of Elections, 2022
4. Regulations and Guidelines on the Conduct of Elections, 2023

CLICK HERE TO READ FULL JUDGEMENT