Ibrahim Musa Argungu & Anor V. Umar Abubakar T. Argungu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Birnin Kebbi, Kebbi State in petition No KB/EPT/SEN/4/2007 delivered on 15th October, 2007 wherein the Tribunal dismissed the Appellants’ petition and affirmed the return of the 1st Respondent as the winner of the election to the Kebbi North Senatorial District seat in the National Assembly. A brief fact will suffice. Election for the seat of the Kebbi North Senatorial District in the Senate of the Federal Republic of Nigeria was conducted by the Independent National Electoral Commission (INEC) i.e. the 3rd Respondent in conjunction with the 4th and 5th Respondents on 21st April, 2007. In the said election, the appellant was the candidate of the Democratic Peoples’ Party (DPP) which is the 2nd appellant while the 1st Respondent was sponsored by the 2nd Respondent- the People’s Democratic Party (PDP). Other political parties including All Nigeria People Party (ANPP) also contested the election with their candidates at the end of which the 1st Respondent was declared winner with 203, 986 votes as against the Appellant’s 9,597 votes. By a petition dated 21st May, 2007, the Appellants as petitioners challenged the return of the 1st Respondent as a member representing the Kebbi North Senatorial district of Kebbi State. The lower Tribunal in its judgment dated 15th October, 2007, dismissed the petition and upheld the return of the 1st Respondent.

Dissatisfied with the stance of the Tribunal, the Appellants filed Notice of appeal dated 5th November, 2007 containing five grounds. From the five grounds, the Appellants have distilled two issues for the determination of this appeal as follows:-

1. Whether having regard to the combined Effect of Sections 34, 36 and 38 of the Electoral Act 2006, the 1st Respondent “was at the time of the election not qualified to contest the election” held on the 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.
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 was however the view of the 1st and 2nd Respondents that only one issue is relevant for the just determination of this appeal thus:-

“Whether having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act, 2006, the 1st Respondent “was at the time of the election not qualified to contest the election” held on the 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.”

The 3rd – 5th Respondents did not file any brief in this appeal and were also not present when the appeal was heard. Their absence does not affect the hearing of this appeal since they were duly served with hearing notice and were given adequate opportunity to be heard in the appeal. I intend to determine this appeal on the two issues formulated by the Appellants.

On the first issue, it was the contention of the Learned Senior Counsel for the appellants that invalid nomination implies non – qualification to contest an election even if the candidate is qualified to hold the elective office. He referred to the case of Anazodo V. Audu (1999) 4 N.W.L.R. (Pt. 600), 530. Also, that the Electoral Act 2006, does not, and cannot provide for disqualification of a candidate from being elected and so it limits its application to matters regulating being qualified to contest. That way, it never re-enacted, abridged or modified the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the Senate of the Federal Republic of Nigeria.

Further, the Learned Silk submitted that in order to appreciate whether a winner at an election was not qualified to contest, recourse ought to be had to Section 40 and 41 of the Electoral Act, 2006 and read along with Sections 145 (1) (a) and 146 (1) of the same Act. Moreover, that the stand taken by the lower Tribunal that if a person was not validly nominated, in that his nomination was in breach of the Electoral Act, he cannot be said not to be qualified to contest at the time of the election cannot be allowed to stand. It was the Appellants’ further contention that the provisions of Section 65 and 66 of the Constitution prescribe criteria for general qualification for any person to be elected as a Senator but do not prescribe the conditions to be met by a person to qualify to contest election.

Furthermore, that those who do not qualify to contest by reason of invalid nomination cannot be heard to assert that at the time of the election they were qualified to contest and that all the hurdles set up by the Constitution and the Electoral Act must be surmounted before a candidate can lawfully contest an election and cited the case of Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt. 1048) at 498. Moreover, that if a person meets the entire constitutional requirements but is not validly nominated owing to breach of the mandatory provisions of Sections 32, 34, 36 or 38 of the Electoral Act, Section 40 of the Electoral Act does not recognise such a person as a contestant entitled to be placed on the ballot at the election. Learned Senior Counsel argued that the Tribunal misapplied the ratio in Attorney General Abia State V. Attorney General Federation (2002) 6 N.W.L.R. (Pt. 763). Learned Counsel then referred this Court to Item 22 on the Exclusive Legislative list under the 1999 Constitution and the power of the Independent National Electoral Commission to “carry out such other functions as may be conferred upon it by an Act of the National Assembly” under paragraph (i) of Part I in the Third Schedule to the 1999 Constitution.

On pages 15 – 16 of the brief of the appellants, the lists of Exhibits tendered at the trial are listed. The Learned Senior Counsel submitted that since the parties had agreed that the petition should be determined solely on the basis of the listed exhibits, the Tribunal ought to have properly evaluated the documents in order to come to a just determination of the case in their judgment. Reliance was placed on the cases of Tangale Traditional Council V. Fawu (2001) 17 N.W.L.R. (Pt. 742) 293 and UBA PLC V. Mustapha (2004) 1 N.W.L.R. (Pt. 855) 443.

It was a further contention of the Learned SAN that the lower Tribunal failed to evaluate the evidence placed before it and then from pages 16 – 27 of their brief, efforts were made to show how the Tribunal ought to have evaluated the documentary evidence placed before it. I need not go beyond this as the issue before us has nothing to do with non evaluation of evidence by the Tribunal.

Again, that the 1st Respondent having not shown that prior to the submission of his name by the 2nd Respondent as its candidate he had withdrawn his candidature under ANPP, his nomination was in breach of the provisions of Sections 34 and 36 of the Electoral Act 2006 and as such he was not qualified to contest notwithstanding that he might have met all the Constitutional requirements to be elected to the Senate. Finally on the issue, it was submitted that Section 38 of the Electoral Act frown at double nomination and that a person who is afflicted by this fundamental vice like the 1st Respondent cannot be said to be qualified. He then urged this Court to resolve the 1st issue in favour of the Appellants.

Arguing issue No.2, the Learned Senior Counsel submitted that against the backdrop of the pleadings and evidence led at the trial, it is crystal clear that notwithstanding the assertion of the 1st and 2nd Respondents to the contrary, there was indeed and alleged “merger” agreement entered into on the 8th February, 2007 (Exhibit P 5). That in spite of the fact that evidence was led on the merger agreement (Exhibit 5), the Respondents did not plead any fact in rebuttal nor challenge same with contrary evidence. That the 1st Respondent had a burden to show that the previous candidate of PDP withdrew in writing and that same was attached to his substitution form as well as the signature of the withdrawing candidate. Also, that the ANPP’s alleged substitution of candidate should have followed the same pattern.

Learned Counsel further opined that the fact that ANPP subsequently submitted another person’s name as its candidate for the same Senatorial seat is only evidence of double nomination on the part of the ANPP as no evidence of withdrawal of the first candidate in writing was pleaded or placed before the Tribunal. Furthermore, that the misplacement of burden of proof on valid withdrawal of 1st Respondent invites an intervention of this Court to review and return the correct finding as submitted to the lower Tribunal by the Appellants vide Section 15 of the Court of Appeal Act. This is moreso, when the trial was predicated largely on the undisputed and uncontradicted witness statements that were not subject to cross examination or test of demeanur and credibility of witnesses on oral testimony. He cited the case of Intercity Bank PLC V. Faiscial Travel Agency Limited (2006) 4 N.W.L.R. (Pt. 971)504.