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Engr. Mustapha Yunusa Maihaja V. Alhaji Ibrahim Gaidam & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This appeal emanates from the judgment of the Court below, that is the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/809/2015 between ENGR. MUSTAPHA YUNUSA MAIHAJA VS ALHAJI IBRAHIM GAIDAM & 2 OTHERS, CORAM MOORE A.A. ADUMEIN, JOSEPH E. EKANEM AND MUHAMMED MUSTAPHA JJCA. The judgment being appealed against was delivered by the Court below on the 28th of July, 2016 as captured at pages 824 to 867 of the Record of Appeal. In the judgment, the Court below partly resolved issue one (out of the three issues formulated) in favour of the Appellant but dismissed the appeal of the Appellant.

Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal dated 11th August, 2016 containing five (5) grounds of appeal. The Notice of Appeal is contained at pages 868 to 876 of the Record of Appeal. The Appellant also filed another Notice of Appeal on the 12th of October, 2016 in expressing his grievances and dissatisfaction with the judgment of the Court of Appeal. He (the Appellant) has however indicated in paragraph 5.1 of his Brief of Argument to rely on

his Notice of Appeal filed on the 12th day of October, 2016 containing six (6) grounds of Appeal as set out on pages 30 to 44 of the Supplementary Record of Appeal transmitted to this Honourable Court at the instance of the Appellant.

SUMMARY OF THE FACTS

The Appellant was the plaintiff in an Originating Summons filed in Suit No. FHC/ABJ/CS/220/2015, ENGR, MUSTAPHA YUNUSA MAIHAJA V. ALHAJI IBRAHIM GAIDAM & 2 ORS dated 19th day of March, 2015 and filed at the Registry of the Federal High Court, Abuja. The suit sought a number of declaratory reliefs and sundry orders including nullification of the nomination of the 1st Respondent as the candidate of the 2nd Respondent in the 2015 Governorship election of Yobe State.

The grouses of the Appellant, from the inception of the political tussle, are summarised thus; that:

i) The 1st Respondent made false information in his Form CF001, Affidavit of Personal Particulars (Exhibit MAIHAJA 1 attached to the Originating Summons) by annexing a primary Leaving Testimonial dated 22nd day of December, 1969 issued by Yunusari Local Education Authority (LEA) of Borno State of Nigeria.

ii) The

Appellant also alleged that the 1st Respondent submitted the said Primary School Leaving Testimonial to the 3rd Respondent knowing same to be a forged Certificate contrary to Section 182(1)(J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and pursuant to Section 31(5) of the Electoral Act 2010 (as amended).

iii) The Appellant also claimed that the 1st Respondent ought to be disqualified from contesting for the office of the Governor of Yobe State on the grounds of false declaration in Form CF001 and for allegedly presenting a forged Certificate to the 3rd Respondent contrary to the provision of Section 182(1)(J) of the Constitution (Supra) and pursuant to Section 31(5) of the Electoral Act 2010 (as amended).

iv) The 1st Respondent was also alleged to have furnished some other documents along with Form CF001 and which documents bear some other dates of birth different from 15th September, 1956 contained in Form CF001 and the birth certificate Exhibit MAIHAJA 13A issued by the National Population Commission to the 1st Respondent.

v. The 1st Respondent was alleged not to be eligible to contest the 11th April, 2015

Governorship election of Yobe State on the ground that by virtue of the combined effects of Sections 180(2)(a), 181(1), 182(1)(b) and 185(1) of the Constitution (Supra) he had been twice elected into the office of the Governor of Yobe State, and.

vi) The Appellant’s position is that, being the only other aspirant for the office of Governor of Yobe State in respect of the 11th April, 2015 Governorship election under the platform of the 2nd Respondent, he was entitled to take the place of the 1st Respondent.

The case of the 1st and 2nd Respondents on the Originating Summons as canvassed at the trial stage was that:

i) The Appellant did not submit his forms as required by the Guidelines of the 2nd Respondent and because of the said failure, he could not participate in the screening of the aspirants on 30th of November, 2014.

ii) The Appellant therefore was not an aspirant at the primary election where the 1st Respondent emerged as the winner.

iii) The 1st and 2nd Respondents also state that prior to the election of 11th April 2015, the 1st Respondent had only been elected as the Governor of Yobe State once and that was in the election of

April 2011.

iv) It was also the case of 1st and 2nd Respondents that the 1st Respondent was born on the 15th September, 1956 as shown in his birth certificate issued by the National Population Commission (Exhibit A) and the 1st Respondent only noticed the discrepancy in the date and month of his birth wrongly stated in 1st Respondent’s National Youth Service Corp Exemption Certificate and in his Voters Card when he read the affidavit in support of the Originating Summons.

v) It was also contended that there was no time the 1st Respondent gave any information that he was born on any other date other than 15th September, 1956 to the National Youth Service Corps and/or the 3rd Respondent and that his School Leaving Testimonial of Primary Education was issued to the 1st Respondent by the relevant authority long after he left the school.”

The originating Summons was heard by the trial Court on 21st May, 2015 along with the Notice of Preliminary objection of the 1st & 2nd Respondents and judgment was delivered by the trial Court on the 16 November, 2016 upholding the Preliminary Objection of the 1st & 2nd Respondents and striking out the

entire suit of the Appellant for want of jurisdiction.

Aggrieved by the decision of the trial Court, the Appellant filed an appeal at the lower Court which appeal was heard on 31st May, 2016 and judgment delivered on 28th day of July, 2016 as earlier indicated above. The lower Court allowed the appeal in part while it substantially dismissed the appeal of the Appellant. The lower Court after dismissing the Preliminary Objection filed by the 1st and 2nd Respondents to the appeal partially resolved in favour of the Appellant Issue No. 1 on the question of the jurisdiction of the Federal High Court to entertain the Appellants Originating Summons and duty of the trial Court to express its opinion or decision on all issues canvassed before it even if the preliminary objection succeeded.

The Court of Appeal resolved issues No. 2 and 3 in the appeal in favour of the Respondents and also dismissed the Appeal with costs. But, being dissatisfied with the judgment of the Court of Appeal the Appellant decided to come meet us upstairs; a not too long journey of a few meters from the Abuja Division of the Court of Appeal to the Supreme Court. That, in

not-too-brief, is a summary of the facts and background to this appeal.

Towards resolving the knotty issues in this appeal, the Appellant filed his Brief of Argument dated 25th November, 2016 and a Reply Brief in response to the 1st and 2nd Respondents dated 28th February, 2017. The Appellant formulated three issues for the determination of this appeal contained in pages 7-8, paragraph 7.0 7.5 of the Brief of Argument as follows:-

“Whether having regard to the provisions of Section 31(5) of the Electoral Act, 2010 (as amended) read together with Section 182(1) (J) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the undisputed depositions contained in the affidavit in support of the Originating Summons, the provisions of the States (Creation and Transitional Provisions) Decree No. 12 of 1976, which clearly established the creation of BORNO STATE on the 3rd of February 1976, the lower Court properly came to the conclusion that, the Appellant failed to show that the Primary School Leaving Testimonial purportedly issued by BORNO STATE GOVERNMENT of Nigeria, on the 22nd of December 1969, which the 1st Respondent presented to INEC

along with his Form CF001 (Affidavit of Personal Particulars) was forged, as to disqualify him (the 1st Respondent) from contesting the election for the office of Governor of Yobe State, held on the 11th of April 2015

Grounds 1 and 6.

Whether having regard to the provisions of Section 182(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the false representation made by the 1st Respondent in his Form CF001 as to his eligibility to contest for the office of Governor of Yobe State and the decision of this Court in MARWA V. NYAKO (supra), the lower Court was not wrong in coming to the conclusion that the 1st Respondent was not elected in two (2) previous elections, as to disqualify him from contesting the election into the office of Governor of Yobe State held on 11th April 2015 and further that the Appellant’s case did not fall with the jurisdiction of the Federal High Court under Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and 87(a) of the Electoral Act 2010 (as amended) Grounds 2 and 3.

Whether giving the peculiarities of the Appellant’s case as

constituted in the Originating Summons, the lower Court was not wrong in coming to the conclusion that the Appellant was not an Aspirant and that his complaint did not fall within the ambit of Section 87(a) of the Electoral Act 2010 (as amended) Grounds 4 and 5.”

On their part, the 1st and 2nd Respondents filed their Respondents’ Brief on 14th February, 2017 and also formulated three issues for determination at pages 5-6, paragraphs 3.1 to 3.1.3 of the Respondents’ Brief of Argument as follows:-

“Whether having regard to the Appellant’s affidavit evidence in support of his Originating Summons inter alia that he did not submit his nomination form to contest in the 2015 Yobe State Governorship primary election of the 2nd Respondent and having regard to the clear provisions and intendments of Section 87(9) of the Electoral Act, 2010 (As Amended), the lower Court was not right to have held that the Appellant was not an aspirant who could in law invoke the provisions of Section 87(9) of the Electoral Act, 2010 (As Amended) to complain of any breach of the Guideline of the 2nd Respondent in the conduct of the said primary election and/or that the Appellant

was otherwise excluded from the said primary election (Grounds 4 & 5).

Whether the lower Court was not right in holding that the Appellant did not in law establish his allegation that the 1st Respondent forged the document(s) attached to the 1st Respondent’s INEC FORM CF001 or that the 1st Respondent otherwise gave false information in his INEC FORM CF001 sufficient in law to disqualify the 1st Respondent from contesting the Gubernatorial election of Yobe State in the 2015 general election

(Grounds 1 and 6),

Whether having regard to the clear and unambiguous provisions of Section 182(1) (3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the lower Court was not correct in law to have distinguished the facts in the case of MARWA V. NYAKO (2012) 6 NWLR (Pt.1296) in coming to the conclusion that the 1st Respondent had not been elected into the office of Governor of Yobe State and had not taken oath of office and oath of allegiance as a Governor more than once before April 11, 2015 election when he contested and won the election to remain in office as Governor of Yobe State

(Grounds 2 & 3).”

The 3rd

Respondent, the “Referee” in the election that culminated in the subject matter of this appeal also followed the path charted by the Appellant and 1st and 2rd Respondents respectively by likewise formulating three issues at pages 7-8, paragraphs 3.0 of its Brief of Argument dated 4th January, 2017 as follows:-

“Whether the Lower Court was right when it held that the Appellant had no locus standi to question the primaries of the 2nd Respondent conducted on 4th December, 2014 having not participated in same.

Whether the Appellant discharged the evidential burden of proof that the 1st Respondent presented forged certificate to the 3rd Respondent or gave false information in INEC Form CF001 and ipso facto disqualified from contesting the Yobe State Governorship election conducted in April, 2015.

Whether having regard to the materials placed before the Court, the 1st Respondent has been shown to have been elected as Governor of Yobe State in two previous elections prior to the April, 2015 Governorship election in Yobe State.”

On this side, I am in accord with the parties that the several issues in this appeal will, and could, be adequately

resolved and answered under three issues. Therefore, for the purpose of this judgment, I have reformulated three (3) issues not entirely different from those formulated by the parties, but with necessary modifications to avoid verbosity and long sentences as grammarians have taught us, thus:

“1) Whether the lower Court was right to have held that the Appellant was not an aspirant in the 2nd Respondent’s primaries dated 4th December, 2014 culminating in this appeal for the purpose of invoking the provisions of Section 87(9) of the Electoral Act (as amended).

2) Whether the lower Court was right in holding that the Appellant has not established the allegation of forged documents and declaration regarding the 1st Respondent’s INEC Form CF 001 bordering his certificate and date of birth.

3) Whether the lower Court was right in holding that the 1st Respondent had not been elected into office as Governor of Yobe State more than twice in two previous elections prior to the April 2015 Governorship election.”

CONSIDERATION AND RESOLUTION OF RELEVANT ISSUES:

ISSUE 1:

“Whether the lower Court was right to have held that the Appellant was

not an aspirant in the 2nd Respondent’s primaries dated 4th December, 2014 culminating in this appeal for the purpose of invoking the provisions of Section 87(9) of the Electoral Act (as amended).”

The first issue formulated by the Court in this appeal was made issue No. 1 by the Appellant. In his arguments on the issue, the learned Senior Counsel to the Appellant contended that the lower Court was wrong in holding that the Appellant did not participate in the primary election conducted by the 2nd Respondent. Counsel hinged his submission on the fact that the learned Justices of the lower Court failed to advert their minds to the jurisdiction of the Federal High Court over political matters under Section 87(9) of the Electoral Act (as amended) which states that:

“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or Federal Capital Territory, for

redress.”

The learned Senior Counsel argued that the Appellant’s Originating Summons complained specifically about breaches of specific provisions of the Electoral Act, the 2nd respondent’s Constitution and the 2014 Guidelines for the nomination of candidates for public office. Reliance was placed on Section 156 of the Electoral Act 2010 (as amended) which defines Aspirants to mean a person who aspires or seeks or strives to contest an election to a political office.

Counsel cited the case ofUKACHUKWU V. PDP (2014) 17 NWLR (PT. 1435) Pages 134 per Kekere-Ekun JSC at Page 182 Paragraphs E-H. Counsel also quoted in page 57, second paragraph of the Appellants Brief the reference made in the above cited case to UWAZURIKE V. NWACHUKWU (2013) 3 NWLR (PT. 1342) 503 at 526, E-G to the effect that, The complainant must be an aspirant who participated in the primary that produced the sponsored candidate.”

In urging this Court to reverse the decision of the lower Court on the issue, the learned Senior Counsel concluded his submission by amplifying the fact that since there was no primaries and having demonstrated the

steps taken in purchasing the necessary forms for nomination among others, the Appellant is qualified as an Aspirant as defined by Section 156 of the Electoral Act (as amended).

The 1st and 2nd Respondents argued in support of issue one in this appeal, which also forms issue number one in their Brief of Argument. The learned Counsel submitted that it is now settled that in order to be qualified to complain about the propriety of the conduct of a primary election of a political party, a member of the political party must establish by preponderance of evidence that he actually participated in the said primary election otherwise, he would be held by the Courts to lack the locus standi under the provision of Section 87(9) of the Electoral Act, 2010. Counsel cited the case of PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA & ORS (2012) 13 NWLR (PT. 1316) 85 at 126.

The learned counsel also relied on the case of UKACHUKWU V. PDP (2014) 17 NWLR (PT. 1435) 134, where this Court again laid down two conditions that would confer the necessary locus standi on a person before he could invoke the provisions of Section 87 (9) of the Electoral Act, 2010 (As Amended) which are

that: (a) There must be complaint that the party’s guidelines or the provisions of the Electoral Act were not observed in the nomination process, and (b) The Complainant must have participated in the primary election. These two conditions must be present and not as alternatives.

The learned counsel quoted extensively the position of this Court per Kekere-Ekun, JSC in UKACHUKWU V. PDP (supra) at page 182 Paragraph F-H on the effect and purport of that Section 87(9) of the Electoral Act as well as the case of UWAZURIKE V. NWACHUKWU (2013) 3 NWLR (pt. 1342) 503 at 526, E-G.

The learned counsel also placed reliance on the decision of this Honourable Court on the provision of Section 87(9) of the Electoral Act 2010 (as amended) in DANIEL V. INEC & ORS (2015) 3-4 MJSC 1 at 45, F-G to the effect that before a candidate for the primaries can have a locus standi to sue on the conduct of the primaries, he must be screened, cleared by his political party and participate at the said primaries. Anything short of that, the candidate who did not participate in the primaries could be conveniently classified as a meddlesome interloper with no real interest

in the primaries. The learned Counsel to the 1st and 2nd Respondent concluded that the only conclusion to draw in view of the foregoing is that the Appellant did not participate in the primary election that produced the 1st Respondent as the candidate of the 2nd Respondent for the 2015 gubernatorial election in Yobe State. He therefore urged this Court to uphold the position of the lower Court on this issue.

The 3rd respondent also formulated issue number one as same in this regards with slight modification. The 3rd Respondent posited that having clearly admitted in paragraph 24 of the affidavit in support of the Originating Summons deposed to by the Appellant, the claim made by the Appellant is at best on pre-primaries issues and an internal affair(s) of the 2nd Respondent in respect of which the Courts had no jurisdiction. The learned Counsel to the 3rd Respondent further submitted that the limited jurisdiction vested in the Courts under Section 87(9) of the Electoral Act 2010 (as amended) is not exercisable in respect of powers of a political party. Counsel relied on the case of PDP V. SYLVA (2012) 13 NWLR (PT. 1316) 85 at 125 Paras. C-E and also the

case of APGA V. ANYANWU (2014) 7 NWLR (PART 1407) 541, 575, ANYANWU V. OGUNEWE (2014) 8 NWLR (Pt.1410) 437 and UKACHUKWU V. PDP (2014) 17 NWLR (Pt.1435) 134. In his concluding arguments, the learned Counsel submitted that having not participated in the primaries of the 2nd Respondent dated 4th December, 2014 the Appellant cannot avail himself the benefit of Section 87 of the Electoral Act (Supra). Counsel cited the case of PDP V. SYLVA & 2 ORS (2012) 18 NWLR (pt. 1316) 85 and urged His Lordships to affirm the decision of the lower Court and resolve issue one against the Appellant.

I have chewed and digested the respective arguments put forward for and against by the parties on issue one. One central fact keeps resonating as to the position of the law under Section 87(9), whether it exists for the benefit of a party who did not participate in the party primaries. Having quoted the said provisions verbatim above, what remains for me to do is x-ray the law vis-a-vis the facts of this matter on issue one. Beyond doubt, the said section permits an aspirant who complains that any of the provision of the Electoral Act (Supra) or the Guideline of a political

party has not been complied with in the selection or a nomination of a candidate of a political party for election may apply to a Federal High Court, or the High Court of a State or FCT for redress.

Did the Appellant participate in the primary election of the 2nd Respondent conducted on the 4th December, 2014 or was he prevented, or did he not, for whatever reason or reasons, participate in the said primaries. As I shall justify below, the law seems settled on these legal arguments. The evidence of the Appellant, as contained in pages 14-18, paragraphs 8, 9, 14, 15, 24 and 25 of the Appellant’s affidavit in support of the Originating Summons, is to the effect that another agency or institution prevented him from submitting his nomination forms which he spent Five Hundred Thousand Naira (N500, 000) for the Expression of Interest and another Five Million Naira (N5m) to procure. To be specific, paragraph 14 of the Affidavit is to the effect that men of the Nigeria Police Force directly and/or on the alleged instruction of the State party Chairman of the 2nd Defendant prevented the Appellant from gaining access to the State Secretariat of the Party to submit

his expensive nomination forms, among other formalities. Regrettably, neither the police nor the Chairman of the Yobe State chapter of the 2nd Respondent against whom specific allegations have been made was made a party to the suit when it was filed.

More revealing are the depositions in paragraphs 24 and 25 of the Appellant’s affidavit of 9th March, 2015 in support of the Originating Summons which unequivocally showed, from the horse’s mouth (by the Appellant) that no access was allowed for the conduct of the primaries and that, as a matter of fact (deposed on oath by no one other than the Appellant himself), no primary election was conducted on 4th December, 2014 by the 2nd Respondent.

Two possibilities exist here. One is the Appellant was excluded or prevented from accessing the secretariat of the 2nd Respondent by the Police. The other possibility is that the Appellant; for personal, private, political, religious or other considerations failed to participate in the said primaries. The law is too well settled to warrant restatement. For the avoidance of doubt, this Court will endeavour to repeat itself on this vital issue of law. It was, and

remains our firm conviction, informed by law, that in order to be qualified to complain about the propriety of the conduct of a primary election of a political party, the Appellant would need to show convincingly, by unassailable evidence, that he actually participated in the said primary election that formed the basis of this appeal. Otherwise, he would have robbed himself of the legal right, put differently, his suit will lack the legal potency to avail him any protection under Section 87(9) of the Electoral Act, 2010 (supra). See PEOPLES DEMOCRATIC PARTY V. TIMIPRE SYLVA & ORS (2012) 13 NWLR (pt. 1316) 85 at 126, where this Court held as follows:

“Section 87(9) of the Electoral Act confers jurisdiction on the Courts to hear complaints from a candidate who participated at his partys primaries. The fact in this case are conclusive that the 1st Respondent did not participate as candidate in the PDP primaries which held on 19/11/11 to choose the party candidate for general election for Governor of Bayelsa State which was fixed for 12/12/12. The 1st Respondent not being a candidate at the primaries cannot be heard to complain about the conduct of

the primaries. Section 87(9) of the Electoral Act is thus not applicable. The PDP has the right to bar the 1st Respondent, or any of its members from contesting its primaries if it so desires.”

We are also bound by our earlier decision in UKACHUKWU V. PDP (2014) 17 NWLR (pt.1435) 134, on this issue where we restated that to invoke the provisions of Section 87(9) of the Electoral Act, 2010 (As Amended) would necessarily require that: (1) there must be complaint that the party’s guidelines or the provisions of the Electoral Act were not observed in the nomination process and (2) The Complainant must have participated in the primary election. In the words of this Court per Kekere-Ekun, JSC in UKACHUKWU V. PDP (supra) at page 182 paragraph F – H. The learned jurist had stated the unambiguous position of the law as follows:-

“The Point being made by this Court is that Section 87(9) of the Electoral Act is very narrow in scope as to the jurisdiction exercisable by the Court. The literal interpretation of Section 87(9) of the Electoral, Act is that an aspirant has a right to complain where the provisions of the Electoral Act and/or the guidelines of a

political party have not been complied with in the selection or nomination of a candidate for election…However, the provision is not at large. The complainant must be an aspirant who participated in the primary election that produced the sponsored candidate. See UWAZURIKE v. NWACHUKWU (2013) 3 NWLR (Pt. 1342) 503 at 526. E – G.”

The above position was also re-stated in DANIEL V. INEC & ORS (2015) 3-4 MJSC 1 at 45, F-G that before a candidate for the primaries can have a locus standi to sue on the conduct of the primaries, he must be screened, cleared by his political party and participate at the said primaries. Anything short of that, the candidate who did not participate in the primaries could be conveniently classified as a meddlesome interloper with no real interest in the primaries.

As stated above, the evidence of the Appellant as stated in pages 14-18, paragraph 8, 9, 14, 15, 24 and 25 of his Affidavit in support of the Originating Summons, is to the effect that, another agency or institution prevented him from submitting his nomination forms which he spent Five Hundred Thousand Naira (N500, 000) for the Expression of Interest and

another Five Million Naira (N5m) to procure. The lower Court also got it right, in my opinion on the issue of the affidavit evidence of the Appellant upon which the Court of Appeal found, and rightly so, at page 27 of its judgment contained at pages 850 – 851 of the Record of Appeal thus:-

“In this case, by his depositions in the affidavit in support of the originating summons, the appellant alleged unequivocally that he was not screened by his political party. By his own showing as stated earlier, the appellant did not participate in any primary election which produced the 1st Respondent as the 2nd Respondent’s candidate for the election in issue.

Therefore, the appellant, who was not screened by his political party in respect (sic) of any governorship primary election and who did not participate in any governorship primary election has no locus standi as he failed to bring himself with (sic) the provision of Section 87(9) of Electoral Act, 2010 (As Amended).”

By his own admission, the Appellant did well in stating correctly what transpired before the primary election conducted by the 2nd Respondent on 4th December, 2014 while I sympathise with

the Appellant, I am unable to close my eyes to the resonating facts of non-participation in the primaries. Assuming he was wrongly or unlawfully excluded, his remedies would be elsewhere in other forms of civil claims in damages for the refund of political expenses and sundry remedies. Section 87(9) of Electoral Act, 2010 (as amended) appears to me to fall within the category of ‘closed rights’. It is not open-ended. I am of the considered view that it does not capture (wrongful) exclusion, prevention or obstruction orchestrated by or through the instrumentality of third parties or agencies. May be this is saved for future amendment of the Electoral Act. A recap of the provision of Section 87(9) of the Electoral Act 200 (as amended) states that: “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to this Federal High Court or the High Court of a State or Federal Capital Territory, for redress.”

Given the above

analyses and expositions on facts, statutory provisions and case law, I resolve issue one against the Appellant. I hold that, by his own affidavit evidence, the Appellant did not participate in the primary election conducted by the 2nd Respondent on 4th December, 2014 and thus unable to take benefit of the provisions of Section 87(9) of the Electoral Act 200 (as amended).

ISSUE 2:

“Whether the lower Court was right in holding that the Appellant has not established the allegation of forged documents and declaration regarding the 1st Respondent’s INEC Form CF 001 bordering his certificate and date of birth.”

This is argued as issue number one in the Appellant’s Brief of Argument. The Appellant contended that, in completing or deposing to Form CF 001 (Affidavit of Personal Particulars), the 1st Respondent falsely indicated he never presented a forged certificate to the 3rd Respondent The contention of the learned Senior Counsel is that the Primary School Leaving Testimonial (as against certificate) presented by the 1st Respondent was purportedly issued to him (1st Respondent) on 22nd December, 1969 by Borno State Government, whereas no State existed

at that time by name “Borno State”. The Learned Senior Counsel then submitted that the 1st Respondent, by so doing, had made false declaration in Form CF001 and presented a forged certificate to the 3rd Respondent contrary to Section 31(5) of the Electoral Act 2010 (as amended) and Section 182 (1)(i) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel relied on the case of AUDU V. INEC (NO.2) (2010) 13 NWLR (PT 1212) PAGE 456; AREBI v. GBABIJO (2008) 2 LRECN PAGE 467 and STATES (CREATION AND TRANSITIONAL PROVISION) DECREE NO. 37 OF 1991 as well as SECTION 122(2)(A) OF THE EVIDENCE ACT 2011 in concluding that the lower Court was wrong to have held otherwise.

On the sub-issue of date of birth, the Appellant contended that the 1st Respondent’s date of birth indicated on Exhibit MAIHAJA 13A3 was 15th September, 1956 which also appeared on the voter’s card of the 1st Respondent as well as the certificate issued by the National Population Commission (MAIHAJA 13A4). Counsel harped on the fact that Certificate of Exemption purportedly issued by National Youth Service Corps (Exhibit MAIHAJA 13A6) gave the date of birth of the 1st

Respondent as 8th February, 1956 and 22nd September 1956 respectively. Counsel also contended that the Certificate of Bachelor of Science Degree in Accounting dated 14th August 1990 from Ahmadu Bello University (MAIHAJA 13A4) and the certificate of Exemption MAIHAJA 13A6) all issued to “Ibrahim Geidam” and “Geidam Ibrahim” respectively who was born on three different dates of birth. He therefore concluded by urging us to hold that the 1st Respondent, having made false declarations in his Affidavit of Personal Particulars. MAIHAJA 13, and having presented MAIHAJA 13A9 to the 3rd Respondent, coupled with the falsity in his alleged date of birth, was not qualified or was disqualified from contesting for the office of Governor of Yobe State.

In strenuous opposition to the submissions of the Appellant, the 1st and 2nd Respondents addressed this issue also as issue number two (2) in their Brief of Argument. On whether or not Borno State was in existence at the material time, Counsel submitted that the 1st Respondent did not in anyway state that Borno State was created in 1969 and/or that it was Borno State that issued the Testimonial in question. On the face of the

said Testimonial, nothing indicates the fact that the Testimonial was issued by Borno State or by Yunusari Local Education Authority. He contended that there is no evidence from the Appellant that “Yunusari Primary School” which the 1st Respondent stated in his Form CF001 (Exhibit MAIHAJA 13) that he attended between 1963 to 1969, was never in existence at that particular period.

On the allegations of dates of birth, the learned Counsel countered that by virtue of paragraph 21 (c) and (d) of the Counter Affidavit filed by the 1st Respondent at page 247 of the Record of Appeal, he (the 1st Respondent) was born on 15th September, 1956 and this, according to him, is further corroborated by Form CF001 filed on oath (page 118 of Record of Appeal) by the 1st Respondent and by Exhibit MAIHAJA 13A1 which was issued by National Population Commission which has the statutory responsibility under Section 6(1)(b) of the National Population Commission Act, Cap N7, Laws of Federation, 2004. In his final submission, the learned Counsel prayed us to resolve issue two in favour of the 1st and 2nd Respondents.

On his Part, the 3rd Respondent submission on issue two

tallies with that of the 1st and 2nd Respondents. I will therefore not repeat same having extensively given what qualifies as “detailed” summary of submission of parties on the issue. In sum, the leaned Counsel to the 3rd Respondent also hinged his arguments on failure to prove perjury and/or forgery against the 1st Respondent. In his conclusion, the learned Counsel to the 3rd Respondent urged us to resolve issue two against the Appellant and affirm the decision of the lower Court as, according to him, same is correct and unassailable.

Beyond doubts, having carefully read and digested the submissions of Counsel to the parties on this issue, I felt immersed in the waters of criminal procedures. This, although unintentional has therefore, becomes unavoidable given the direction of the respective arguments and submissions of parties which made legal, clinical and evidentiary details of criminal proceedings handy in resolving those weighty allegations bordering on certificate forgery, inconsistencies in dates of birth, and false declarations particularly in Form CF001 submitted to the 3rd Respondent.

I recall the ugly days of the “Toronto Saga” where a

convicted but later pardoned former Speaker of the House of Representatives was found to have forged his certificate to assume that prominent National Office. This Court has since taken a stern position on the issue of falsification of document or forgery of certificates particularly to ensure unmerited political advantages. Only recently, in another similar but different scenario involving political gladiators in the case of HON. HASSAN ANTHONY SALEH V. CHRISTIAN ADABAH ABAH (SUPREME COURT SUIT NO. SC/144/2016), this Court was emphatic in declaring that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which onus must be discharged by the Appellant. This becomes crucial in view of the far-reaching implications of the provisions of Section 182(1)(j) of the 1999 Constitution (as amended) which is to the effect that, quote:

“182. (1) No person shall be qualified for election to the office of Governor of a State if –

(j) he has presented a forged certificate to the Independent National Electoral Commission.”

The law is very clear to warrant any

form of colourated interpretations. The question is whether a certificate that turned out to be forged has ever been presented, and not whether the forger has ever been charged, tried or convicted on this. I made it abundantly clear in SALEH V. ABAH (supra), and our position in that case is instructive in this circumstances, that:

“The intention of the Constitution is that anyone who had presented a forged certificate to INEC should stand automatically disqualified. No decent system or polity should condone, or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contest. This Court must take the lead in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our water are, and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity.”

The above is a pointer that our position is stern against certification forgery

when and if we found it sufficiently and satisfactorily proved. The necessary question is what must a party prove to succeed on the allegation of forgery and false declaration. As rightly held by the Court below, it is crucial to prove:

“1) The existence of a document in writing;

2) That the document or writing was forged;

3) That the forgery was by the person being accused;

4) That the party who made it knew that the document or writing was false; and

5) The party alleged intended the forged document to be acted upon as genuine.”

See ALHAJI KASHIM IBRAHIM IMAM & 2 ORS V. SENATOR ALI MODU SHERIFF & 11 ORS. (2005) 4 NWLR (PT.914) 89 and APC VS PDP (2015) 15 NWLR (PT. 1482) 1.

I have noted conjectures, speculative and inferential analogies on the part of the Appellant in drawing a nexus between the documents submitted by the 1st Respondent to the 3rd Respondent in form CF001 (Exhibit MAIHAJA 13). The 1st Respondent did not state in the said declaration that Borno State was created in 1969 and/or that it was Borno State that issued the Testimonial in question. The Appellant has also not debunked or disproved the fact

that, on the face of the said testimonial, nothing indicates the fact that it was issued by Borno State or by Yunusari Local Education Authority. I also agree with the learned Counsel to the 1st and 2nd Respondents that there is no evidence from the Appellant that “Yunusari Primary School”, which the 1st Respondent stated in his Form CF001 (Exhibit MAIHAJA 13) that he attended between 1963 to 1969, was never in existence at that particular period.

The allegations of dates of birth made by the Appellant as basis for seeking the nullification of the 1st Respondent elected is also, in our considered view misplaced. This is because the deposition in paragraph 21 (c) and (d) of the counter Affidavit filed by the 1st Respondent at page 247 of the Record of Appeal that the 1st Respondent indicated that he was born on 15th September, 1956. This evidence is unchallenged and also further corroborated by Form CF001 filed on oath (page 118 of Record of Appeal) by the 1st Respondent and by Exhibit MAIHAJA 13A1 which was issued by National Population Commission which has the statutory responsibility under Section 6(1)(b) of the National Population Commission Act, Cap.

N7, Laws of Federation, 2004.

The consequence of submitting forged document to the 3rd Respondent is grave. It therefore required direct, sharp and somewhat precise evidence and proof which leads to no other conclusion that the 1st Respondent forged documents and made false declaration to the 3rd Respondent. The nature of evidence required in this kind of situation is similar to that of “mathematical precision” of two multiplied by two, equals four (2×2=4). In KAKIH V. PDP (2014) 15 NWLR PT 1430 374, this Court held thus:

“By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine. In this case, for the appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine…”

In politically-oriented litigation, where the allegation of presentation of

forged certificate to INEC is in issue, the accusing party must prove that the certificate presented to the INEC was forged and that it was the candidate that presented the certificate and that the two ingredients must be proved beyond reasonable doubt as held in AUDU V. INEC (No.2) (2010) 13 NWLR (Pt. 1212) 456 at 507 paras E-F. In resolving issue two, it is my considered view that the lower Court was right to have held on page 859 of the Record of Appeal that the Appellant in order to establish criminal allegation of forgery of the Testimonial in question under the provision of Section 135 of the Evidence Act, 2011 must do so by proof beyond reasonable doubt of the said allegation. I see no logical or legal basis for disturbing the mandate of the 1st Respondent on this ground.

The existence of those facts, if at all, only resonates in the imagination of the Appellant who has refused and/or failed to prove that there is no “Yunusari Primary School” that could have issued such certificate, or that the 1st Respondent was not born on the 15th September, 1956 being the date declared in Form CF001.

In view of the above, issue two is also resolved against the

Appellant. Put differently, issue two is resolved in favour of the 1st, 2nd and 3rd Respondents.

ISSUE 3:

“Whether the lower Court was right in holding that the 1st Respondent had not been elected into office as Governor of Yobe State more than twice in two previous elections prior to the April 2015 Governorship election.”

The Appellant dealt with issue three as issue number two in his Brief of Argument. The Appellant contention was that the 1st Respondent contested as running mate of Late Senator Mamman Ali and took oath of allegiance and office on the 29th of May 2007, and continued to hold office as Governor of Yobe State from 28th January 2009 until his reelection in the year 2011 when he allegedly took a second oath of allegiance and office on the 29th May, 2011 for a term of four years which ended on the 29th May, 2015.

The learned Senior Counsel to the Appellant relied on the provisions of Section 180(1)(a), 181(1), 182(1)(b), 185(1), 186 and 191 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the decision of this Court in the case of MARWA V. NYAKO & ORS (2012) 6 NWLR (PT 1296) PAGE 199 and submitted

that having been elected into the office of Governor of Yobe State and taken oath of allegiance and office at two previous elections, the 1st Respondent is ineligible to contest or be elected as Governor of Yobe State.

In his conclusion, the learned Senior Counsel for the Appellant urged us to resolve this issue in favour of the Appellant and to hold that, on the authorities of PDP v. INEC and MARWA V. NYAKO (supra), the 1st Respondent was disqualified from contesting the election held on the 11th of April, 2015 into the office of Governor of Yobe State.

In the 1st and 2nd Respondents’ Brief of Argument, the learned Counsel contended, in opposition to the Appellant’s submission that a calm reading and analytical perception of Sections 180(1), (a), (2)(a), 181(1), 182(1)(b), 185, 186 and 191(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), will reveal that the 1st Respondent had not been elected into the office of Governor of Yobe twice prior to the holding of the Governorship election on the 11th of April, 2015 in Yobe State. Counsel submitted further that the operative phrase in the section is “elected” to such office

at any two previous elections.

Counsel contended that the 1st Respondent was only first sworn in as Governor by operation of Section 191(1) of the Constitution (Supra) and upon the demise of the then Governor of Yobe State. In other words, the 1st Respondent did not assume office as Governor in 2009 as a result of his election into that office. Thus, Counsel submitted that the situation at hand where the 1st respondent will spend more than eight (8) years cumulatively as Governor is not contemplated by Section 182(1)(b) of the Constitution and therefore not prohibited by any provision of the Constitution.

In his conclusion, the learned Counsel to the 1st and 2nd Respondents urged this Court to hold that the 1st Respondent having not been elected and sworn in as Governor of Yobe State before the 29th day of May, 2011 had not held office as elected Governor of Yobe State on two previous occasion. He implored us to resolve the issue in favour of the 1st and 2nd Respondents by holding that the 1st Respondent was not disqualified under the provision of Section 182(1)(b) of the Constitution or under any of its other provisions to contest the Governorship

election of Yobe State in 2015.

The 3rd Respondent (INEC) dealt with issue three summarily. In its Brief of Argument, the learned Counsel to the 3rd Respondent contended that the Appellant had unambiguously stated in paragraphs 36, 37 and 38 of the affidavit in support of Originating Summons that the 1st Respondent became the Governor of Yobe State on 28th January, 2009 by operation of the Constitution of the Federal Republic of Nigeria following the death of Senator Ali Mamman who was elected Governor in 2007. He contended that the 1st Respondent by necessary implication only stepped in and completed the tenure of Late Senator Ali Mamman as Governor. He stressed further that the 1st Respondent only contested and won for the first time as Governor of Yobe State in his own right in 2011, and thus qualified to contest the Governorship election in Yobe State in 2015. In his final submission, the learned Counsel to the 3rd Respondent cited and interpreted the provisions of Section 181(1)(b) of the Constitution (supra) and the case of CHIEF CHUKWUEMEKA ODUMEGWU OJUKWU V. CHIEF OLUSEGUN OBASANJO (2004) 12 NWLR (Pt. 886) at 169 and urged this Court to resolve

this issue against the Appellant.

The salient issue here is whether Section 182 (1)(b) of the Constitution affects or impacts on when tenure is spent-out by operation of Section 191(1) of the same Constitution. The duty of Court, particularly ours as the Apex Court, is to interpret the statute in accordance with the intention of the law makers. In UGWU V. ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 this Court stated thus:-

“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature”.

The principles of interpretation of the provisions of the Constitution enjoin the Court to interpret the Constitution as a whole taking into consideration, related Sections. The lead judgment of this Court in BRIG. GEN. MOHAMMED BUBA MARWA & ORS. V. ADMIRAL MURTALA NYAKO & ORS (supra) is instructive Quoting the decision in A.T LTD V. A. D. H. LTD (2007) 15 NWLR (Pt. 1056) 118 at 166 – 167,

in the lead Judgment, Onnoghen JSC (as he then was; now CJN) stated thus:

“The law is settled law that when a Court is faced with the interpretation of a Constitutional provision, the entire provision must be read together as a whole so as to determine the object of that provision. Secondly, it is settled principle of law that where a Court is faced with alternatives in the course of interpreting the Constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail as held in Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 al 579; I must remember that this Court has said it several times that the provisions of the Constitution ought to be read and interpreted as a whole in that related Sections must be construed togetherFinally, I must approach from the view point that since the decision of this Court in RABIU V. OGUN STATE (1981) 2 NCLR 293, this Court has opted for the principle of construction often expressed in the maxim: ut res magis valeat quam pereat. This means that even if alternative construction are equally open, I shall opt for that alternative which is to be

consistent with the Constitution read as a whole as set out to regulate, and so the alternative which will disrupt the smooth development of the system is to be rejected.” Per ONNOGHEN, J.S.C (Pp. 56-57, paras. A-B).”

The above casts upon institutional duties of ensuring that Constitutional language is to be given a reasonable construction and absurd consequences are to be avoided. Constitutional provisions dealing with the same subject matter are to be construed together. Seemingly conflicting parts are to be harmonized, if possible, so that effect can be given to all parts of the Constitution. See BRIG. GEN. MOHAMMED BUBA MARWA & ORS. V. ADMIRAL MURTALA NYAKO & ORS (supra) Per ONNOGHEN, J.S.C (Pp. 52-54, paras. C-B).

Turning to the issue at hand, there is no dispute as to the fact that the 1st Respondent became Governor by operation of Section 191(1) of the Constitution (Supra) upon the demise of the then Governor of Yobe State. Put differently, the 1st Respondent did not assume office as Governor in 2009 as a result of his election into that office. He was constitutionally “holding”, and held the office in trust for the duration of the

remaining tenure of the late Governor Senator Ali Mamman. Section 182(1)(b) of the Constitution does not affect or impact on when tenure is spent-out by operation of Section 191(1) of the same Constitution. A community reading of Sections 180(1), (a), (2)(a), 181(1), 182(1)(b), 185, 186 and 191(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reveal that the 1st Respondent had not been elected into the office of Governor of Yobe State twice prior to the holding of the Governorship election on the 11th of April, 2015 in Yobe State.

The above becomes even more compelling given the fact that the Appellant had unambiguously stated in Paragraphs 36, 37 and 38 of the affidavit in support of Originating Summons that the 1st Respondent became the Governor of Yobe State on 28th January, 2009 by operation of the Constitution of the Federal Republic of Nigeria following the death of Senator Ali Mamman who was elected Governor in 2007. The 1st Respondent, by necessary implications, only stepped in and completed the tenure of Late Senator Ali Mamman as Governor in holding capacity. Therefore, the 1st Respondent validly, legally and

Constitutionally contested and won for the first time as Governor of Yobe State in his own right in 2011, and thus qualified to contest the Governorship election in Yobe State in 2015.

For clarity, I will endeavour to shed further lights on the provisions of Section 191 (1) of the Constitution. It states, and I quote:

“191. (1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the governor from office for any other reason in accordance with Section 188 or 189 of this Constitution.”

The word is “hold office of Governor” such person only acts in position of Governor by ‘holding’ the office in a kind of public trust (and I also think for the dead, the living and unborn) till expiration of the tenure of the late Governor. To the best of my understanding, given the fact that the words used in the said provisions of the Constitution was clear and unambiguous, “holding” connotes acting in the capacity of Governor, by operation of Section 191(1) of the Constitution of the Federal Republic of Nigeria (as

amended). The person “holding” the office of Governor under this provision continues to function, and may step-aside in the very unlikely event that the former, deceased Governor resurrects from the dead, or, under miraculous circumstances, had his permanent incapacity turned around to become subsequently active and capable. The section does not envisage “permanence” or a permanent tenure. It envisages “holding office” in a kind of interim’ stop-gap arrangement to avoid a vacuum, which the Constitution abhors and provides against under Section 191(1) of the Constitution of the Federal Republic of Nigeria (as amended).

In my candid opinion, the 1st Respondent had not been elected into the office of Governor of Yobe twice prior to the holding of the Governorship election on the 11th of April, 2015 in Yobe State. He is therefore qualified to contest the April 2015 election which he had already contested and won.

On this note, and given the above, I resolve issue three against the Appellant. In sum, this appeal fails and is hereby dismissed. I affirm the judgment of the lower Court. I make no order as to costs.

SC.758/2016

Engr. Mustapha Yunusa Maihaja V. Alhaji Ibrahim Gaidam & Ors (2017) LLJR-SC

Engr. Mustapha Yunusa Maihaja V. Alhaji Ibrahim Gaidam & Ors (2017)

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