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Between
MAHMUD ALIYU SHINKAFI
PEOLPES DEMOCRATIC PARTY (PDP)
and
ABDULAZEEZ ABUBAKAR YARI
ALL PROGRESSIVE CONGRESS (APC)
INDEPENDENT NATIONAL ELECTIONAL COMMISSION (INEC)
Judgement
(DELIVERED BY JOHN INYANG OKORO, JSC)
This is an appeal against the judgment of the Court of Appeal sitting in Sokoto, in Appeal No. EPT/CA/S/GOV/005/2015 delivered on 12th November, 2015 wherein the court below dismissed the Appellants' appeal against the judgment of the Election Petition Tribunal that earlier dismissed the Appellants' Petition in a judgment delivered on 17th September, 2015. A synopsis of the facts giving birth to this appeal will suffice.
The 1st Appellant herein contested in the Gubernatorial Elections of 11th April, 2015 as the candidate of the Peoples Democratic Party - the 2nd Appellant, to the office of the Governor of Zamfara State. The 1st Respondent also participated in the same elections as the candidate of the All Progressives Congress - the 2nd Respondent. The said election was conducted by the 3rd Respondent, as I said, on 11th April, 2015. At the end of the polls and collation of results, the 3rd Respondent declared the 1st Respondent the winner and returned him the duly elected Governor of Zamfara State. Eighteen (18) other parties also fielded their candidates at the said Election.
As would be expected, the Appellants were dissatisfied with the result of the election and the return of the 1st Respondent as the Governor of Zamfara State. They thereafter approached the Governorship Election Petition Tribunal, holden at Gusau, Zamfara State and filed Petition No. EPT/ZMS/GOV/2/2015 against the Respondents. The Petition was anchored on the grounds that there was want of the 21 days Statutory notice given to the 3rd Respondent (INEC) before the conduct of the 2nd Respondent - APC's primary election to select their Governorship candidate. Secondly, that there was over-voting at the 11th April, 2015 general Election to the office of the Governor of Zamfara State.
Each set of the Respondents filed their respective replies to the Petition and in each of their replies, they gave notices of their preliminary objections to the hearing of the Petition. The Appellants at the trial of the Petition, called Six (6) witnesses whilst one (1) witness testified for the Respondents. Some documents were tendered in evidence by the parties and were received and marked as Exhibits. At the end of hearing, Counsel to the respective parties filed and exchanged written addresses. In its judgment, the Tribunal found for the Respondents and dismissed the petition. The Appellants, not being satisfied with the decision of the Tribunal, appealed to the court of Appeal. The lower court found the appeal unmeritorious and dismissed same, thus affirming the judgment of the trial Tribunal.
Again, dissatisfied with the judgment of the lower court, the Appellants have appealed to this court via Notice of Appeal dated 17th November, 2015 but filed on 20th November, 2015. The said notice of appeal has eleven grounds of Appeal. On 16th December, 2015, when this appeal was argued, all parties to this appeal through their respective counsel, identified, adopted and relied on their respective briefs.
In the Appellants' brief dated 29th November, 2015 but filed on 1st December, 2015 by learned Senior Counsel, Yunus Ustaz Usman, SAN, six issues were distilled for the determination of this appeal.
The six issues are as follows:
1. Whether the Hon. Learned Justices of the Court of Appeal erred in law in holding at pages 11 -13 of their Lordship's judgment that want of compliance with Sections 85 and 87 of the Electoral Act, 2010 (as amended) which are a (sic) statutory provision does not disqualify the 1st Respondent from contesting the Gubernatorial election (Grounds 1 and 8).
2. Whether the Hon. Justices of the Court Appeal erred in law when their Lordships held at paragraph 17 of their Lordship's judgment that: "The above notwithstanding, I do not agree with the submission of the learned senior counsel to the Appellants that if
Exhibits A, A1, A3, were not relied upon by the Tribunal, there would be no evidence to disprove the allegation of violation of Section 85 of the Electoral Act, 2010 (as amended). If I may ask, who has the burden of proving the allegation of the violation of Section 85 of the Electoral Act, 2010 (as amended)? It is elementary and the law is well settled to the effect that it is he who alleges that has the onus of proof (Grounds 2, 6 and 10).
3. Whether the Hon. Learned Justices of the Court of Appeal erred in law in holding that there was no over-voting or violation of the provision of the Electoral Act, 2010 (as amended) and that even if there was such non-compliance, such non-compliance does not substantially affect the principles behind the Electoral |Act, 2010 (as amended) (which is free and fair election) or substantially affected the result of the election. (Grounds 3, 4 and 5).
4. Whether the Hon. Learned Justices of the Court of Appeal were right in holding that the 2nd Respondent (APC) gave the mandatory 21 days Statutory notice to INEC before conducting its primary election of 4th December, 2014 (Ground 7).
5. Whether the Hon. Learned Justices of the Court of Appeal violated the Petitioners/Appellants' constitutional rights to fair hearing as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) when it refused to determine on issues 4 and 10 raised by the Appellants against the decision of the trial Tribunal. (Ground 9).
6. Whether the judgment affirming the judgment of the trial Tribunal is not against the weight of evidence. (Ground 11).
Also, in the brief settled by A. J. Owonikoko, SAN, leading other Counsel on behalf of the 1st and 2nd Respondents, two issues are however formulated for the determination of this appeal. The two issues may be stated thus:
1. In light of circumstances of this appeal, whether it can be said that the 2nd Respondent did not duly sponsor the 1st Respondent in his election as the Governor of Zamfara State.
2. Whether the Appellants were able to prove over-voting and substantial non-compliance with the provision of the Electoral Act as to justify a nullification of the Gubernatorial Election in Zamfara State.
The 3rd Respondent, through its Counsel, Victor 0. Odjemu, Esq., also filed brief in this appeal. Two issues for determination are distilled as follows:
- Whether non-compliance with the provisions of Section 85 and 87 of the Electoral Act, 2010 (as amended) can disqualify a candidate from contesting for the office of Governor of a State.
- Whether the Appellants were able to prove substantial non-compliance with the provisions of the Electoral Act as to justify a nullification of the Gubernatorial election
- in Zamfara State.
The Appellants filed two reply briefs to the brief of the two sets of Respondents.
Having regard to the Notice and grounds of appeal, the issues formulated by the parties vis-a-vis the facts pleaded in the petition, I hold a strong view that the two issues formulated by the learned senior counsel for the 1st and 2nd Respondents are apt and real issues for the determination of this appeal. I shall accordingly be guided by the two issues.
On the 1st and 2nd Respondents' first issue, which encompasses Appellants' issues 1, 2 and 4 and the 3rd Respondent's issue I, it was submitted for the Appellants that while Section 177 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) merely stipulates that for a person to be qualified to contest an election as a Governor of a State, he must belong to a political party and be sponsored by that political party, Learned Senior Counsel for the Appellants contends that Sections 85 and 87 of the Electoral Act, 2010 (as amended) provides for the processes to be followed by a person before he can be legally qualified to have been sponsored by a political party. He submits further that once a Petitioner alleges that the winner of an election has violated the provisions of Sections 85 and 87 of the Electoral Act, 2010 (as amended), all he is alleging is that the winner has not satisfied the provisions of Section 177 (1) (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended] and was therefore not qualified to contest the election and not gone through all the stages of the election under Section 141 of the Electoral Act to be so declared winner.
According to the learned Silk in his issue 2, a breach of either Section 85 or 87 of the Electoral Act is not waivable because it leads to a breach of Section of 141 of the same Act, relying on the cases of Okechukwu V. INEC (2014) 17 NWLR (Pt. 1436] 255 at 553 - 554, Omisore v Aregbesola (2015)15 NWLR (Pt. 1482) 205 at 285, and Yev V. Iyortyom (2015) 14 NWLR (Pt. 1428) 575.
Learned Senior Counsel submitted finally on this issue that while partially conceding to the lower court - to the effect that the burden of proving allegation of violation of Section 85 of the Electoral Act, 2010 (as amended) lies on the Petitioners, where the Respondents have admitted the violation of the provision both in their pleadings and viva voce evidence, the violation has been proved, placing reliance on the cases of Waziri Ibrahim Vs. Shagari (1993)14 NSCC 431 at 445 - 446, Kayili Vs. Yilbuk (2015) 7 NWLR (Pt.1457) 26 at 63. He urged the court to resolve these issues in favour of the Appellants.
In his response on the first issue, learned Senior Counsel for the 1st and 2nd Respondents, A. J. Owonikoko, SAN, submitted that there is a world of difference between nomination of candidates for an election and qualification of a candidate for an election. He posits that while nomination relates to the emergence of an aspirant of a political party through the internal mechanism of that political party, qualification relates to the criteria that would enable a candidate to contest a general election. According to the learned silk, these two procedures are governed by Sections 85 and 87 of the Electoral Act, 2010 (as amended) for nomination and Sections 177 and 182 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) for qualification.
It is his submission that contrary to the allegation and claims of the Appellants, the 1st Respondent was duly qualified under the constitution and the Electoral Act, 2010 (as amended) to have contested the election into the office of the Governor of Zamfara State. According to him, Sections 85, 87 and 141 of the Electoral Act do not prescribe qualification for a candidate at general election to be conducted by INEC.
Again, learned Senior Counsel submitted that having sent a notice to INEC on the conduct of party primaries which produced the 1st Respondent as candidate of APC and INEC having sent its monitoring team to observe the said election, Section 85 of the Electoral Act, 2010 (as amended) had been complied with. Learned Counsel relies on Exhibit A3.
Relying on the cases of Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 534 and PDP V INEC (2014) 17 NWLR (Pt 1437) 525, learned silk urged this court to resolve this issue against the Appellants as they have failed to show that the 1st Respondent infracted Sections 177 and/or 182 of the constitution of the Federal Republic of Nigeria, 1999 (as amended). According to him, the Electoral Act cannot expand the material for qualification to contest an election under the Constitution. That any such attempt will render such effort null and void. He urged the court to resolve this issue against the Appellants.
The learned Counsel for the 3rd Respondent has also responded to this issue. The said learned Counsel, Victor O. Odjemu Esq, has meticulously argued that issue of nomination and qualification are not the same as different laws govern them. His arguments are in tandem with that of the learned senior counsel for the 1st and 2nd Respondents. I need not repeat the exercise here.
The Appellants filed reply briefs to these arguments and I shall refer to them where appropriate.
The pith and substance of this issue is whether failure to comply with Sections 85 and 87 of the Electoral Act, 2010 (as amended) is a disqualifying factor for a person duly nominated and sponsored by his political party to contest election as Governor of a State. Although this court has made it clear in several decisions that there is a clear and unambiguous difference between nomination of a candidate for an election on the one hand and qualification of a candidate for election on the other hand, parties still approach the courts on the issue feigning ignorance of the correct position. I shall use this opportunity to drum it once again into the ears of litigants this well settled principle of law.
Whereas Sections 85 and 87 of the Electoral Act, 2010 (as amended) provide for issues of nomination of candidates for election, Sections 177 and 182 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide for issues relating to qualification and disqualification of candidates seeking office of a Governor of a State. The two sets of provisions, to my mind, are mutually exclusive. They do not regulate the same issue. See Kubor V. Dickson (2013) 4 NWLR (Pt.1345 534, PDP V. INEC (2014) 17 NWLR (Pt. 1437) 525.
Now, Section 85 of the Electoral Act provides:
"85(1) Every registered political party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act.
(2) The Commission may with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of:-
(a) electing members of its executive committees or other governing bodies;
(b) nominating candidates for an election at any level; and
(c) approving a merger with any other registered political party.
(3) The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid bodies, shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.
(4) Notice of any congress, conference or meeting for the purpose of nominating candidates for Area Council elections shall be given to the Commission at least 21 days before such congress, conference or meeting.
Also, Section 87 of the Act states:
"87(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political party for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined below:
(a) in the case of nomination to the position of Presidential candidate, a party shall -
(i) hold a special Presidential convention in the Federal Capital Territory or any other place within the Federation that is agreed by the National Executive Committee of the party where delegates shall vote for each of the aspirants as the designated centre; and
(ii) the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the Presidential primaries of the political party and the aspirant name shall be forwarded to the Independent Electoral Commission as the candidate of the party.
(b) in the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:
(i) hold a special congress in the State Capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the part; and
(ii) the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant's name shall be forwarded to the Commission as the candidate of the party, for the particular State;
(c) in the case of nomination to the position of a candidate to the Senate, House of Representatives and State House of Assembly, a political party shall, where it intends to sponsor candidates:
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre on specified dates; and
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant's name shall be forwarded to the Commission as the candidate of the party;
(d) in the case of the position of a Chairmanship candidate of an Area Council, a political party shall, where it intends to sponsor candidates:
(i) hold special congresses in the Area Councils, with delegates voting for each of the aspirants at designated centres on a specified date, and
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant's name shall be forwarded to the Commission as the candidate of the party.
(5) In the case of a Councillorship candidate, the procedure for the nomination of the candidate shall be by direct primaries in the ward and the name of the candidate with the highest number of votes shall be submitted to the Commission as the candidate of the party.
(6) Where there is only one aspirant in a political party for any of the elective positions mentioned in paragraph (4)(a), (b), (c) and (d), the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the party.
(7) A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting, in addition to delegates already prescribed in the constitution of the party.
(8) A political appointee at any level shall not be an automatic voting delegate at the Convention or Congress of any political party for the purpose of nomination of candidates for any election, except where such a political appointee is also an officer of a political party.
(9) 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.
(10) Nothing in this section shall empower the Courts to stop the holding of primaries or general election or the processes thereof under this Act pending the determination of a suit".
A community reading of Sections 85 and 87 of the Electoral Act 2010 (as amended] clearly show that they regulate the nomination of candidates for election through the internal mechanism of each political party. In other words, issue of nomination and sponsorship of candidates by political parties for election fall within the internal affairs of political parties and therefore not justiciable. See Onuoha V Okafor (1983) 2 SCNLR 244; Lado V. CPC (2012) ALL FWLR (Pt.607) 598 at 622, Nicholas Chukwuejekwu Ukachukwu V. Peoples Democratic Party and Ors. (2014) LPELR-22115 (SC).
A calm consideration of Section 85 of the Electoral Act 2010 (as amended) would reveal that the purpose of the provision is for a political party to give sufficient notice of its conventions, congresses, conferences or meetings to the 3rd Respondent i.e INEC to enable it, if it so wishes, to monitor and observe any such event of such a political party. As was observed by learned counsel for the two sets of Respondents, it does not create a new criteria for qualification in addition to those already stated in Section 177 of the Constitution nor does it stipulate that a violation of same amounts to a disqualifying factor in addition to the disqualifying factors already stated in Section 18 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
In the instant case, the grouse of the Appellants is not that there was no notice to INEC at all but that the notice was short of 21 days as demanded by Section 85(4) of the Act. There is evidence that the 3rd Respondent herein duly attended and monitored by a team of six officials of its state office and two officials from the National Office, the Governorship Primaries of 4th December, 2014 which produced the 1st Respondent and the candidate of the 2nd Respondent, the APC. See Exhibit A3 tendered at the trial tribunal which is titled "Report on Governorship Primaries of the All Progressives Congress (APC) in Zamfara State".
For me, I think Exhibit A3 settled any doubts as to whether the conduct of the said primary election complied with the provisions of Section 85 of the Electoral Act, 2010 (as amended).
Thus, I am persuaded to agree with the submission of the learned senior counsel for the 1st and 2nd Respondents that where the notice given to INEC is short of twenty-one (21) days as stipulated in Section 85(4) of the Electoral Act and INEC finds it convenient to send its monitoring team as was done in this case, the question of whether the notice was up to 21 days or not will no longer be of any moment.
Let me say also that the Electoral Act, 2010 does not state that any party which fails to give notice of its congress etc to INEC will forfeit the right to field a candidate who emanates from such congress. The punishment for non-compliance with the provision of Section 85 thereof is as provided in Section 86(4) of the Act. It states:
"86(4) - A Political party which fails to provide the required information or clarification under sub-section (2) of this Section or carry out any lawful directive given by the commission in conformity with the provisions of this Section is guilty of an offence and liable on conviction to a fine of not less than N500,000.00".
Definitely, there is no other punishment under the Act for failure to give the said notice. The importation of the word "disqualification" into the Section by the Appellants herein does not fly at all.
Now under Section 87 of the Act which I had earlier reproduced in this judgment, a political party seeking to nominate candidates for elections under the Act shall hold primaries for aspirants to all elective positions. The procedure shall be either by direct or indirect primaries. I had earlier stated in this judgment that the right to nominate or sponsor candidate by a political party is a domestic right of the party. It is a political matter within the exclusive discretion of the party. See also PDP V. Sylva (2012) LPELR - 7814 (SC) (Consolidated), Hope Uzodinma V. Senator Osita Izunaso (2011) Vol. 5 (Pt.1) MJSC P.27. Indeed the position has not changed since Onuoha V. Okafor (supra). A court has no jurisdiction to determine who a political party should sponsor in an election.
However, it is now trite that where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct of the primaries, the courts have jurisdiction by virtue of the provision of Section 87(9) of the Electoral Act 2010 (as amended) to examine if the conduct of the primary was in accordance with the party's Constitution and Guidelines. The reason is that in the conduct of its primaries, the courts will never allow a political part to act arbitrarily or as it likes. A political party must obey its Constitution.
Now, Section 87(9) of the Electoral Act provides:
"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 above provision which is clear and unambiguous gives only one person the locus standi to challenge the nomination of a person for an election during a primary election. 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 authorized to file an action to challenge the selection or nomination of a candidate by a political party for an election.
In Daniel V. INEC (2015) 9 NWLR (Pt. 1463) 113 at 155,156-157 paragraphs G-S and 158 paragraph G, this court held that:
"By the provision in Section 87(9) of the Electoral Act 2010 (as amended) it is an aggrieved aspirant who physically participated in a primary election conducted by the National Executive Committee of his party that is imbued with the locus standi to raise a finger of complaint... The Appellant admitted that he did not participate in the primary. He is not an aspirant in terms of Section 87(9) of the Electoral Act. He is not imbued with the locus standi to challenge the said primary."
Evidence on record shows that the Appellants were not aspirants who participated at the primary election of the APC (2nd Respondent] held on 4th December, 2014. Their complaint before this court is a challenge to the selection or nomination of the 1st Respondent herein by his party. Their complaint was first made at an Election Petition Tribunal. The truth is that apart from the fact that the Appellants were not among the persons permitted by Section 87(9) of the Electoral Act 2010 (as amended) to challenge the nomination or selection of a candidate for election, they failed to approach the appropriate court which has jurisdiction to hear the matter. Section 87(9) of the Electoral Act 2010 (as amended) provides that such an aggrieved aspirant "may apply to the Federal High Court or the High Court of a State or Federal Capital Territory for redress". Certainly an Election Petition Tribunal is not mentioned there. All I have said above is that the Appellants had no locus standi to challenge the election or nomination of the first Respondent by his political party, the APC at its primary election of 4th December, 2014. The simple reason being that they were not aspirants at the said primary election. According to Section 87(9] of the Electoral Act 2010 (as amended) only an aspirant who participated in a primary election can challenge its outcome. The provision is restrictive in nature.
I shall now turn my attention to Section 177 and 182 of the Constitution which make provision for qualification and disqualification of persons seeking election to the office of Governor of a State. The said Section 177 of the Constitution provides:
"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; and
(d) He has been educated up to at least School Certificate level or its equivalent".
Also, Section 182(1) of the said Constitution, dealing with disqualification provides:
"182 - No person shall be qualified for election to the office of Governor of a State if-
(a) Subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) He has been elected to such office at any two previous elections; or
(c) Under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) He is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(e) Within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or
(f) He is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
(g) Being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or
(h) He is a member of any secret society; or
(i) Deleted (2010, No. 1)
(j) He has presented a forged certificate to the Independent National Electoral Commission.
Taking the above provisions together i.e Sections 177 and 182(1) of the 1999 Constitution (as amended) it is seen that both the provis