Hon. Prince Terhemen Tarzoor V. Ortom Samuel Ioraer & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

The 3rd Respondent in this appeal, the Independent National Electoral Commission (INEC), conducted the Governorship Election for Benue State on the 11th April, 2015.

Appellant and the 1st Respondent contested in the said election and so did six other candidates who were sponsored by their respective political parties. Appellant was sponsored by his party, the Peoples Democratic Party (PDP). The 1st Respondent, in the words of the appellant, was “purportedly” sponsored by his party, the All Progressive Congress (APC). The result of the election as declared by the electoral umpire, the INEC, showed that the 1st Respondent of the APC polled a total of 422,932 votes against the total of 313,878 votes polled by the appellant of the PDP. The 3rd Respondent declared the 1st Respondent winner of the election and returned him as the elected Governor of Benue State; the 1st Respondent having satisfied other condition for such declaration and return.

Aggrieved by the result of the election in which he was the runner-up, the appellant challenged same at the Governorship Election Petition Tribunal constituted

1for Benue State. Appellant challenged the election and return of the 1st Respondent on three grounds, hereunder reproduced:

“GROUNDS UPON WHICH THE PETITION IS BASED:

1. Your petitioner states that the 1st Respondent, Artom Samuel Ioraer, was at the time of election, not qualified/disqualified to contest the election.
2. Your petitioner states that the declaration and return of the 1st Respondent aforesaid was invalid by reason of non-compliance with the mandatory provisions of the Electoral Act, 2010 (as amended) and the 1999 Constitution of the Federal Republic of Nigeria (as amended).
3. Your petitioner states that the 1st Respondent was not duly elected by a majority of lawful and valid votes cast at the Governorship Election in Benue State held on the 11th day of April, 2015 and announced on 13th day of April, 2015.”

In his petition, appellant pleaded facts relating only to the first ground of his petition. He pleaded no facts in respect of the second and third grounds of his petition and the said two grounds were deemed abandoned and struck out. It follows that the appellant conceded that he did not challenge the declaration and return of the appellant on

2

either of the said grounds. The petition was determined exclusively on the single ground that:

“Your petitioner states that the 1st Respondent, Ortom Samuel loraer was, at the time of the election, not qualified/disqualified to contest the election.”

The parties herein, through their respective learned Counsel, filed many other processes in addition to their respective briefs. It is surprising that so many various processes including the process in relation to the cross-appeal were filed in respect of the lone and simple issue in this appeal.

I have studied each process including the preliminary objection before going into the merit of the appeal, I will dispose of the preliminary objection of the 1st Respondent which relates to the competence of the petition. The preliminary objection was predicated on the following two grounds:

“(i) The appellant is pursuing this appeal as an independent candidate contrary to S. 221 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

(ii) The ultimate reliefs sought by the petitioner/appellant is not grantable in law by virtue of S.140(2) of the Electoral Act, 2010 (as amended).”

Section 221 of the

3 Constitution (supra) is on prohibition of political activities by certain associations.

It provides, S. 221:

“No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”

Now the provision is concerned with associations, not an individual such as the appellant. It does not apply to the appellant.

Section 140(2) of the Electoral Act provides:

“S.140(2): Where an election tribunal or Court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the election tribunal or Court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election.”

With profound respect to the learned Silk for the 1st Respondent, it seems to me that the section of the Electoral Act, 2010 was cited and relied on in error. It has nothing to do with the allegation that the appellant was

4

pursuing the appeal as an independent candidate. On the other hand, Section 137(1) of the Electoral Act (supra) makes provision for those who can present Election Petitions.

It provides:

“S.137(1): An election petition may be presented by one or more of the following persons:

(a) a candidate in an election;

(b) a political party which participated in the election.”

The appellant was a candidate at the April 11th Governorship election for Benue State. He is qualified to present a petition alone or in conjunction with his party. This is implicit in the expression “by one or more…” in Section 137(1) of the Electoral Act reproduced above.

Also Section 140(2) of the Electoral Act (supra) deals with nullification of election and does not relate to whether a candidate files his petition alone or joins his party by the 1st Respondent.

I am constrained to, and I do hereby, over-rule the 1st Respondent’s preliminary objection on each of the two grounds relied upon by the 1st Respondent. Appellant who was a candidate at the election is one of those authorized to present an election pursuant to Section 137(1) of the Electoral Act, 2010 (as amended) . I do not share the

5 view of the learned Silk for the 1st Respondent that the appellant is not consistent in the presentation of his case in that he pleaded the Electoral Act but made submissions on Section 177 of the Constitution (supra).

Section 138(1) states the grounds for questioning an election. Section 177 of the Constitution (supra) enumerates in (a – d) what qualifies a person for election to the Office of Governor of a State. Section 182 of the Constitution (supra) lists grounds for disqualification for election to the Office of Governor of a State. To determine whether a person is qualified/disqualified to contest an election in terms of Section 138(1)(a) of the Electoral Act (supra) resort must be had to Sections 177 and 182 of the Constitution (supra) Section 177 settles the question of qualification while Section 182(2) determines the question of disqualification to contest election.

In other words, the issue of qualification and disqualification, once raised as per Section 138(1) of the Electoral Act (supra) is determined with reference to Section 177 of the Constitution (supra) in case of qualification and Section 182 (1) in case of disqualification. It is

6

therefore not inconsistent for the appellant to rely on the Electoral Act (supra) at one time and the Constitution (supra) at another time.

For the purpose of proper determination of the appeal I will ignore the rest of the preliminary objections in as much as they do not question the jurisdiction of the Court to hear and determine the appeal. I will also ignore the myriad of issues formulated by the parties and frame issues appropriate for the determination of the sole question in the appeal. See Stirling Civil Eng. Nig. Ltd. v. Mahmood Yahaya (2005) 22 NSCQR 1.

(1) Was the 1st Respondent qualified/disqualified at the time of the election in which he was a candidate

(2) Is the appellant, a member of one party, entitled to raise the question of nomination vel non in another party

These issues flow from ground 19 of the notice of appeal.

I will deal with qualification first. It would appear that the appellant relied on Section 138(1) of the Electoral Act (supra) in his case that the 1st Respondent was not qualified to contest the election.

The Section provides:

“S.137(1): An election may be questioned on any of the following grounds, that is to say-

(a) That a

7 person whose election is questioned was at the time of the election, not qualified to contest the election” …. (b) (c) (d).”

Section 177 of the Constitution (supra) provides for qualification for election as governor. It provides:

“S.177: A person shall be qualified for election to the office of Governor of a State if,

(a) he is a citizen of Nigeria by birth;

(b) he has attained the age of thirty- five years:

(c) he is a member of a political party and is sponsored by that political party;

(d) he has been educated up to at least School Certificate level or its equivalent.”

Section 137(1) of the Electoral Act provides for grounds upon which an election may be questioned. It deals with qualification to contest election in negative terms, while Section 177 of the Constitution (supra) states the qualification in positive terms. In my humble view, Section 177 states the qualification for contesting in a governorship election while Section 138(1)(a) of the Electoral Act means that a person who has not satisfied all the conditions specified in Sections 177 and 182(1) of the Constitution (supra) at the time of the election is not qualified to contest the election. Also

8 Section 182(1) of the Constitution (supra) lists grounds for disqualification.

In his argument, the learned Silk for the appellant relied heavily on Section 177 of the Constitution (supra), saying that he can rely on a branch of the provision of the Constitution (supra) to challenge the election of the 1st Respondent. However, learned Senior Counsel stopped short of demonstrating that:

(a) the 1st Respondent was a foreigner or not a citizen of Nigeria by birth – Section 177(c) or

(b) that he was any age below 35 years at the time of the election Section 177(b) or

(c) that he was not a member of a political party or

(d) that the said party did not sponsor him – Section 177(c) or

(e) that he was not educated up to at least School Certificate level – Section 177(d) or that he is caught by any of the disqualifying factors in Section 182(1) of the Constitution (supra).

Appellant said that the 1st Respondent was purportedly sponsored at the election by APC. Why the use of the word “purported” Did the APC to which he belongs and which purportedly sponsored him deny his membership or its sponsorship of the 1st Respondent Did the 3rd Respondent, the

9 statutory observer at the primary election of every political party deny knowledge of the process leading to the emergence of the 1st Respondent as the standard bearer or the APC at the Governorship election it conducted in Benue State on 11th April, 2015 Did INEC query the conduct of the primary it observed

On the facts before the court, I must return a negative answer to each of the above questions and this means that contrary to the case of the appellant, the 1st Respondent was qualified and not disqualified to contest the Governorship election in Benue State on 11th April, 2015.

The next question is the locus standi of the appellant to impugn the exercise of primary election in a party other than his own, especially as he could not have participated in the primary election he complained about.

Primary elections are in-house matters of a political party. A non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue. See Section 87(9)(a) of the Electoral Act (supra).

This Court has made many pronouncements on who has the locus to challenge the conduct of a primary election. See the case of

10

Daniel v. INEC (2015) 9 NWLR (Pt. 1463) page 113 at 155-157. In the most recent of the plethora of cases on the point, Okoro JSC, speaking for the Court said, inter alia:

“… Only an aspirant at the primary election is permitted by Section 87(9) of the Electoral Act 2010 (as amended) to challenge the selection or nomination of a person for an elective office. Apart from an aspirant who took part in the primary election, no other person is authorised to file an action to challenge the selection or nomination of a candidate by a political party for an election.”

See the Judgment in SC.907/2015 (not yet reported) delivered by this Court on Friday, 8th January, 2016.

The proper venue for such challenge is the High Court of a State, the Federal High Court or the High Court of the Federal Capital Territory, Abuja, as the party filing the action may choose. As I said earlier, the appellant is a member of the PDP, not APC and even if he is a member of the APC, he would have no locus to challenge the nomination of the 1st Respondent as he is not one of the aspirants who participated in the primary election.

In my view, appellant is a meddlesome interloper who, having

11

assumed the role of a hired mourner, is crying more than the bereaved.

A lot of resources in terms of money and valuable time have been expended in this avoidable contest which has now turned out to be a storm in a tea cup, as it were. Success and failure are the end products of our electoral process and in fact any contest at all. If in the end the process does not produce a winner and losers it has failed to achieve its goal and is inconclusive.

While it is necessary for a politician aspiring to elective office to have a mindset to win, he has to appreciate, and be prepared to accept, the fact that success and failure are the opposite sides of the end product of all contests, including elections. An electoral process is geared towards eliminating the many to pave way for the emergence of one.

If there are no reasonable grounds for challenging the result of an election, the losing party should exhibit some sportsmanship and save his resources and the precious time of the tribunal and the courts. In conclusion, it is my humble view that the appellant, not being a member of the APC, and so could not have participated in the party’s primary election, cannot

12challenge the nomination of the 1st Respondent either before the Election Petition Tribunal or the High Court of a State, Federal High Court or the High Court of the Federal Capital Territory. See Section 87(a) of the Electoral Act (supra).

The appeal is devoid of merit and it is hereby dismissed. I affirm the judgment of the Court below in favour of the 1st Respondent.

The cross-appeals have been overtaken by the judgment in the main appeal and are hereby struck out.

Appellant is damnified in cost in the sum of N150,000 to each of the 1st and 2nd Respondents. The 3rd Respondent (INEC), the nominal respondent, is to bear its own cost.

Appeal dismissed. Judgment of the Court below affirmed.

---

SC.928/2015