Hon.Justice Sidi Dauda bage jsc

“….In Order To Invoke The Provisions Of Section 87(9) Of The Electoral Act, There Must Be Complaint That The Party’s Guidelines Or The Provisions Of The Electoral Act, Were Not Observed In The Nomination Process, And The Complainant Must Have Participated In The Primary Election”

In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 2nd Day of June, 2017

Before Their’ Lordships
Walter Samuel Nkanu Onnoghen, CJN
Musa Dattijo Muhammad
Kudirat Olatokunbo Motonmori Kekere-Ekun
Ejembi Eko
Sidi Dauda Bage
Justices, Supreme Court
SC.758/2016

Between
Engr. Mustapha Yunusa Maihaja …. Appellant

And
1. Alhaji Ibrahim Gaidam
2. All Progressive Congress (APC) _Respondents
3. Independent National Electoral Commission (INEC)

Lead Judgement delivered by Hon. Sidi Dauda Bage, JSC

The Appellant commenced this suit at the Federal High Court, Abuja against the Respondents, seeking amongst other reliefs, the nullification of the nomination of the 1st Respondent as the candidate of the 2nd Respondent in the 2015 Governorship election for Yobe State. The Appellant alleged that the 1st Respondent gave false information, in his Form CF001 (Affidavit of Personal Particulars) submitted to the 3rd Respondent Further, ihe Appellant alleged that the 1st Respondent was not eligible to contest the election because he had twice been elected into the office of the Governor. The Appellant claimed that being the only other aspirant for the position, he is entitled to take the place of the 1st Respondent.

The 1st and 2nd Respondents on the other hand, asserted that the Appellant did not submit his nomination forms as required by the 2nd Respondent’s guideline; and so, he could not participate in the screening for aspirants. Therefore, the Appellant was not an aspirant at the primary election. They countered the assertion that the 1st Respondent had been elected twice, and stated that he had only been elected as Governor of Yobe State once. They equally debunked the assertion that he gave contrary information about his age as shown on Hs birth certificate, and stated that the 1st Respondent’s School Leaving Testimonial was issued by the relevant authority- long after he left school. The 1st and 2nd Respondents, filed a Preliminary Objection to the suit The Court upheld the Preliminary Objection and struck out the suit for want of jurisdiction. The appeal to the Court of Appeal, was allowed in part. Still dissatisfied, the Appellant further appealed to the Supreme Court.

Issues for Determination

The Supreme Court considered the following issues in its determination of the appeal:

  • Whether the Court of Appeal, was right to have held that the Appellant was not an aspirant in the 2nd Respondent’s primaries for the purpose of invoking the provisions of Section 87(9) of the Electoral Act (as amended);
  • Whether the Court of Appeal, was right in holding that the Appellant has not established the allegation of forged documents and dedaration regarding the 1st Respondent’s INEC Form CF001 bordering his certificate and date of birth.
  • Whether the Court of Appeal, was right in holding that the 1st Respondent had not been elected into office as Governor of Yobe State twice in two previous elections, prior to the April, 2015 Governorship election.

Arguments

Arguing the first issue, the Appellant contended that the Court of Appeal was wrong in holding that the he did not participate in the primary elections. He also argued that, the Court of Appeal did not consider the jurisdiction of the Federal High Court under Section 87(9) of the Electoral Act, 2010 by which an aspirant can complain that any of the provisions of the Act or party guidelines, has not been complied with in the nomination of a candidate. He argued further that, the suit complained about breaches of the specific provisions of the Electoral Act, the Constitution of the 2nd Respondent and the 2014 Guidelines for the nomination of candidates for public office. He relied on Section 156 of the Electoral Act, which defines an aspirant and cited the case of UKACHUKWU v PDP (2014) 17 NWLR (Pt. 1435) Pg. 134. The Appellant concluded that, since there were no primaries and having demonstrated the steps taken in purchasing the necessary forms for nomination, he was an aspirant.

The 1st and 2nd Respondents argued that in order to be qualified to complain about the propriety of the conduct of a primary election, a member of the political party, must establish that he participated in the primary election. They also relied on the case of UKACHUKWU v PDP (supra), and urged the Court to hold that the Appellant did not participate in the primary election.

On its part, the 3rd Respondent submitted that having not participated in the primaries, the Appellant cannot avail himself of the benefit of Section 87 of the Electoral Act. It relied on the case of PUP v SYLVA & 2 ORS. (2012) 18 NWLR (Pt. 1316) 85.

On the second issue, the Appellant argued that the 1st Respondent presented a Testimonial (instead of a certificate), which he purported was issued to him on 22nd December, 1969, by Borno State Government, when no State existed at that time as Borno State. The Appellant alleged that by so doing, the 1st Respondent had made false declaration in his Form CF001, and presented a forged certificate to the 3rd Respondent contrary to Section 31(5) of the Electoral Act and Section 182(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999. The Appellant also argued that, the 1st Respondent’s date of birth as indicated on his birth certificate and some other documents,  is different from his date of birth as indicated on the Certificate of Exemption issued by the National Youth Service Corps and another document. He urged the Court to hold that the 1st Respondent was not qualified to contest the Governorship election.

The 1st and 2nd Respondents argued that, the 1st Respondent did not state that Borno State was created in 1969. They argued that on the face of the Testimonial, nothing indicated that same was issued by Bomo State, and there was no evidence that Yunusari Primary School, which the 1st Respondent stated that he attended, never existed. They further argued that by virtue of the Counter- Affidavit filed by the 1st Respondent, he was born on 15th September, 1956, and this was corroborated by evidence before the Court. The 3rd Respondent, likewise, submitted that, the Appellant failed to prove perjury and/or forgery against the 1st Respondent.

On the third issue, the Appellant contended that, the 1st Respondent contested as the running mate of late Senator Mamman Ali, and took oath of allegiance and office on 29th May, 2007. He continued to hold office as Governor from 2009 until his re-election in 2011, when he took a second oath of allegiance and office. The Appellant relied on the provisions of Sections 180(1)(a), 181(1), 182(1)(b), 185(1), 186 and 191 of the Constitution, as well as the case of MARWA v NYAKO & ORS (2012) 6 NWLR (Pt. 1296) Pg. 199 in submitting that having been elected into the office of Governor at two previ­ous elections, the 1st Respondent was ineligible to contest as Governor of Yobe State.

In response, the 1st and 2nd Respondents argued that, the 1st Respondent was sworn in as Governor of Yobe State in 2009 by operation of Section 191(1) of the Constitution, upon the demise of the then Governor. They submitted that the 1st Respondent having not been elected and sworn in as Governor before 29th May, 2011, he had not held office as elected Governor of Yobe State on two previous occasions. Counsel for the 3rd Respondent relied on the case of OJUKWU v OBASANJO (2004) 12 NWLR (Pt 886) in presenting similar arguments as the 1st and 2nd Respondents.

Court’s Judgement and Rationale

On the first issue, the Court relied on its earlier decision in UKACHUKWU v PDP (supra) to hold that, in order to invoke the provisions of Section 87(9) of the Electoral Act, there must be complaint that the party’s guidelines or the provisions of the Electoral Act, were not observed in the nomination process, and the complainant must have participated in the primary election. This provision falls into the category of closed rights. It does not capture (wrongful) exclusion, prevention or obstruction, orches­trated by or through the instrumentality of third parties 

or agencies. The evidence before the High Court, was that the Appellant was prevented from submitting his nomination forms; he therefore, did not participate in the primaries and he is unable to benefit from the provisions of Section 87(9) of the Electoral Act, 2010 (as amended).

On the second issue, their Lordships held that to succeed in proving an allegation of forgety and false declaration, it is crucial to prove: (i) the existence of a document in writing (ii) that the document was forged; (iii) that the forgery was by the person being accused; (iv) that the party who made it, knew that the document was false; and (v) the party alleged intended the forged document to be acted upon as genuine. The Court held that, the facts alleged by the Appellant are speculative. The Appellant did not prove that the 1st Respondent’s school was never in existence, and the evidence that he was born on 15th September, 1956, was unchallenged.

Deciding the third issue, it was held that the 1st Respondent became Governor by operation of Section 191(1) of the Constitu­tion, upon the demise of the then Governor. The Court opined that Section 182(1)(b) of the Constitution, did not impact on when a tenure is spent out by operation of Section 191(1) of the Constitution. Therefore, the 1st Respondent was qualified to contest the Governorship election in 2015.

Appeal Dismissed.

Representation:

I.Y.0 Macyau (SAN) with T.R. Agbamu, TA. Rapu, M. Abiodun, P.A. Joseph, A. Belgore, H.A. Matunji, P.C. Nwozor and N. Umar for the Appellant.

H. Fajimite with B. Olumo, A.A. Shehu, S.A. Yelwa, KO. Isrwal, A.O. Usman and SA Oke for the 1st and 2nd Respondents.

Alhassan A. Umar with 0. Dcechulcwu, G.A. Ismail, E. Agbaje, B. M. Abubakar and I. S. Mohammed for the 3rd Respondent.

Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))

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