Ernest Nama Bamaiyi & Anor V. Honourable Bala Na-allah & Ors (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A

This is an appeal against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Bernin Kebbi, Kebbi State in petition No KB/EPT/HR/2/2007 wherein the Tribunal dismissed the Appellants’ petition which said judgment was delivered on 10th October, 2007. On the 21st day of April, 2007 the 3rd Respondent, the Independent National Electoral Commission conducted elections into the House of Representatives in the Zuru/Danko/Wasagu/ Sakabo/Fakai Federal Constituency of Zebbi State. In the said election, the 1st Appellant was a candidate sponsored by the 2nd Appellant, the Democratic Peoples Party (DPP). The 1st Respondent, who also was a candidate, contested on the platform of the 2nd Respondent, The peoples’ Democratic Party (PDP). One Haruna Abuyayi Chonoko of the ANPP also contested the said election. At the end of the election, the 1st Appellant scored a total of 11,084 votes, the 1st Respondent scored 130,997 while the ANPP candidate scored 24,590 votes. Based on this result, the 1st Respondent was declared winner and returned elected. Not being satisfied with the return of the 1st Respondent, the Appellants as petitioners, by a petition dated 21st May, 2007 challenged before the Lower Tribunal the return of the 1st Respondent as member representing the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency of Kebbi State. The Petition was initially anchored on two grounds as contained in paragraph 13 of the petition. However the petition was fought on one ground only, i.e., that the 1st Respondent was at the time of the election, not qualified to contest the election. The second ground relating to non-compliance with the provisions of the Electoral Act, 2006, was abandoned as contained on page 179 of the record of proceedings. At the end of trial, the Lower Tribunal upheld the election of the 1st Respondent and dismissed the petition for lacking in merit.

Dissatisfied with the stance of the Tribunal in dismissing their petition, the Appellants, on 30th October, 2007 filed Notice of Appeal dated the same date which notice contains five grounds of appeal. From the five grounds of appeal, the Appellants have distilled two issues for determination. The issue is:-

1. “Whether or not the 1st Respondent was at the time of election qualified to contest election into the House of Representative for the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency, on 21st April, 2007 having regard to the combined effect of Section 34, 36, and 38 of the Electoral Act 2006.
2. Whether or not in view of the facts before the trial tribunal, the Appellants proved their case and whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate.”

It is however the view of the learned counsel for the 1st and 2nd Respondents that this appeal can be determined on one issue only. That issuer according to him is as follows:-

”’Whether or not the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the election into the House of Representatives for the Zuru/Danko/Wasalgu/Sakaba/Fakai Federal Constituency on the 21st April, 2007.”

The 3rd and 4th Respondents did not file any brief and as such, they have nothing to urge this court on. Although this appeal can be effectively determined only on the 1st issue as formulated by the Appellants, which was also noted by the learned counsel for the 1st and 2nd Respondents, I shall consider the two issues presented by the Appellants.

It is the contention of the Appellants that the 1st Respondent was initially the candidate sponsored by the All Nigeria Peoples Party (ANPP) for the aforesaid House of Representatives seat for the election billed for the 21st April, 2007. They further contend that as at the time the 2nd Respondent (PDP) sponsored the 1st Respondent, the 1st Respondent had not withdrawn his candidature under the platform of the ANPP. Also that although the 1st Respondent asserted that he had withdrawn as a candidate of the ANPP; he did not lead credible evidence to prove a valid withdrawal. Having not led evidence to prove the averment that he had withdrawn from the ANPP, the learned counsel for the Appellants submits that the appellants had abandoned the averment. He cited the cases of Latifu Iluyomade V. Mrs. Comfort Ogunshakin (2001) 8 N.W.L.R. (Pt 716) 559. Jacobson Eng. Ltd. V. UBA. Ltd. (1993) 3 N.W.L.R. (Pt. 283) 586. Dikwa V. Modu (1993) 3 N.W.L.R. (Pt 280) 170. Sanusi V. Makinde (1994) 5 N.W.L.R. (Pt. 343) 214.

He further contended that although the 1st Respondent may have satisfied the requirement under Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 to contest the election, as there are facts showing breach of sections 34, 36 and 38 Pf the Electoral Act 2006, it should be held that he was not qualified to contest the said election. That if nomination of a candidate to contest is invalid, the fact of meeting constitutional requirements for holding his office cannot validate the invalid nomination. He cited the case of Military Administrator of Benue State V. Utegede (2001) 17 N.W.L.R. (Pt 741) 194. Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt 1048) 367.

Furthermore, that a person who fails to comply with mandatory provision of the procedure set out in the Electoral Act, thereby violating the rule of contest cannot take refuge under the constitutional provisions of section 65 and 66 as to qualification to be elected. He opined that before a person can be said to have qualified to contest election, he must satisfy both the constitutional and statutory requirements. He cited the case of PPA & anor V. Saraki & Ors. (CA/IL/EPT/GOV/2007) unreported. P.D.P. V. INEC (1999) 11 N.W.L.R. (Pt. 626) 200.

Learned Counsel concluded that the 1st Respondent having not established that as at 5/2/2007 when his name was submitted by the 2nd Respondent as a substitute candidate he had withdrawn his candidature under ANPP, it is not in doubt that on the 5/2/2007, he stood nominated by two political parties for the same seat. He urged this court to hold that this is an infraction of section 38 of the Electoral Act and that this issue be resolved in favor of the Appellants.

In his reply, the Learned Counsel for the 1st and 2nd Respondents submitter that the Lower Tribunal was right in holding that the 1st Respondent was qualified to contest the election into the House, of Representatives for the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency. That contrary to the contention of the appellants to establish a case under section 145 (1) (a) of the Electoral Act 2006, they did not plead or adduce any evidence at the trial to prove that the 1st Respondent suffered any constitutional disability to contest the election. That section 34, 36 and 38 of the Electoral Act, 2006 relied upon by the Appellants cannot be interpreted to the effect that they have enlarged, added to or expanded sections 65 and 66 of the 1999 constitution. He submitted further that the qualification of the 1st Respondent cannot be validly questioned under section 145 (1) (a) of the Electoral Act on the basis of non-compliance with Sections 34, 36 and 38 of the same Act. That the criteria for the 1st Respondent to contest election as a member of the House of Representatives are prescribed in section 65 of the 1990 Constitution. Furthermore, he opined that no other provision of the Electoral Act can enlarge, add to, expand, amend or even explain the constitutional provisions. He relies on the cases of INEC V. Musa (2003) 3 N.W.L.R. (Pt 806) 72 and A. G. Abia State V. A. G. Federation (2002) 6 N.W.L.R. (Pt. 763) 264, PDP V. Haruna (2004) 16 N.W.L.R. (Pt 900) 597, at 612.

Learned Counsel further submitted that having abandoned Ground Two of the Petition which relates to invalidity of the election on the reason of corrupt practices and non compliance with the mandatory provisions of the Electoral Act, 2006, the Appellants did not and should not expect to be taken seriously on their complaints concerning the alleged non compliance with sections 34, 36 and 38 of the Electoral Act 2006.

On the cases of Ugwu V. Ararume (2007) 6 S.C. (Pt. 1) 88 and Amaechi V. INEC & Anor (2008) 5 N.W.L.R. (Pt.1080) 227 relied upon by the Appellants, Learned Counsel for the 1st and 2nd Respondents urged this court to discountenance them as the facts in the two cases are radically different from the instant case. On the whole, he urged this court to resolve this issue against the appellants.

By section 137 of the Evidence Act, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Whoever therefore desires any court to give judgment as to any legal right or liability depending on the existence of facts which he asserts must prove that those facts exist. The onus of proving a particular fact rests on the party who asserts it. And by the rule of pleading, where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation lies or rests squarely on him. See AD V. Fayose (2005) 10 N.W.L.R. (Pt 932) 151, Melifonwu V. Egbuji (1982) 9 S.C., 145.