The Supreme Court has restate that Amaechi V INEC is no longer a good law. This position was reached by the five-man panel of the Supreme in suit No. SC.90/2019 between ABDULRAUF ABDULKADIR MODIBBO V MUSTAPHA AND 2 ORS on the 30th of July, 2019. It held that only a person who has participated in all the stages of an election can be declared a winner.
Summary Of The Facts
On 7th October the Appellant and the 1st respondent contested at the primary election conducted by the All Progressives Congress (APC) seeking nomination as APC candidate to represent to contest at the General Election as member representing Yola/North-South/Girei Federal Constituency of Adamawa State. The 1st Respondent as Plaintiff at the trial court did not dispute that he lost the primary election. His grouse, however, was that the information on oath about the Appellant which APC submitted to INEC were forged.
The 1st Appellant took out the summons apparently pursuant to the provisions of section 31(5) & (6) of the Electoral Act, 2010, as amended, that provide:
“(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Submission of list of candidates and their affidavits by political parties Court against such person seeking a declaration that the information contained in the affidavit is false.
(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”
Section 66(1)(i) of the constitution provides that:
“No person shall be qualified for election to the Senate or the House of Representatives if – he has presented a forged certificate to the Independence National Electoral Commission” (INEC).”
The 1st Respondent paragraph 3 of his Affidavit provided the particulars of the forgery to the effect that the Appellant is a graduate of public administration from Adamawa State University, Mubi and was undergoing compulsory national youth service in Gombe state. That primary elections were conducted on the 7th of October while the Appellant passed out of National Youth Service on the 18th of October, 2018. That date of birth he supplied to the National Youth Service Corps was September 29th, 1989. That he had deposed on oath at various times and places as to his age as 29th day of September, 1885 at Gomber, 29th day of September, 1886 at FCT Abuja, 29th day of September, 1889 at Gombe. Furthermore, the Appellant collected his Primary School Certificate in 2005 wherein his date of birth was 29th day of September 1885; he forged another primary school certificate whereon his date of birth is stated as 29th day of September, 1886 and gave further facts to show some contradictions in the certificate and that Girei 1 Primary did not possibly issue both certificates.
The parties filed and exchanged affidavits that were irreconcilably hostile and contentious factually and were therefore ordered to file and exchange pleadings. The trial court in its final judgment declared among others that the Appellant by dint of the National youth Service Corps Act (Bye Law 2011) No. S. 4 of 2011 was not qualified to have been nominated as the candidate of APC at the general elections since at the material time he was under obligation to serve compulsorily to serve for one year in the NYSC scheme and the 1st Respondent being the 2nd Runner Up during the primary election was ordered to replace the Appellant. Miffed by the decision, the Appellant appealed to the Court of Appeal. The Court of allowed the appeal in part. Both the Appellant and the 1st Respondent aggrieved by the decision appealed to the Supreme Court as Appellant and Cross Appellant respectively.
The three issues before the court were as follows:
- “Whether in the entire circumstances of this suit, the court was right in upholding the findings of the trial court to the effect that the 1st Respondent’s suit was not statute barred.
- “Whether the court below was right in upholding the findings of the trial judge to effect that the 1st Respondent had discharged the burden of proof of forgery against the appellant beyond reasonable doubt
- “Whether the court below was right in upholding the findings of the trial judge to effect that the Appellant be replaced with the 1st Respondent as the candidate of the 2nd Respondent at the house of representative election for North/Yola South/Girei Federal Constituency held on the 23rd February, 2019 when the said 1st Respondent did not participate in all the stages of the election.”
The sole issue in the cross-appeal reads thus:
“Whether regards being had to the provisions of the 1999 constitution, as amended, the court of appeal was right in holding that the 1st cross respondent cannot be disqualified from contesting the house of representative election for North/Yola South/Girei Federal Constituency of Adamawa state except as provided by the provisions of the constitution itself.”
The Appellant argued that the trial court was wrong in holding that the action of the 1st Respondent was not statute barred because the cause of action accrued on 18th October, 2018 when APC submitted the name of the Appellant and his particulars to INEC. The court disagreed with the appellant and referred to section 31(2)&(3) of the electoral act 2011, as amended and held that it is only upon the said publication that the cause of action ripens
“I agree with the 1st respondent and the concurrent judgements of the two court below that the said 25th October 2018, being the date of the statutory publication, was the date the cause of action for the suit under section 31(5) of the electoral act, accrued to the 1st respondent. From the said date to 5th Novermber 2018, when the suit was filed, being only 11 days from the date of the occurrence of the event, or action complained of, the suit file timeously cannot, therefore, be statute barred by virtue of section 285(9) of the constitution, as amended.”
On the second issue for determination, the court agreed with the Appellant that once at crime is in issue in civil proceedings, same shall be proved beyond reasonable doubt. However, the court reproduced the affidavit of the 1st Respondent and affirmed the concurrent findings of the two court below and held that forgery consists of making false document or writing knowing same to be false with the intent to deceive and that it may be used as a genuine document. The Appellant particulars submitted to INEC are corrupted or tainted by the forged primary school leaving certificate are all forged document for the purpose of section 66(1) of the constitution.
Before resolving the third issue, the Supreme Court first resolved the sole issue in the 1st Respondent’s cross appeal, that is, the illegality of the Appellant participating in partisan politics during his compulsory youth service year, whether he was qualified to contest for election into the house of representative in North/Yola South/Girei Federal Constituency? The court agreed with the trial court that the appellant contravened paragraph 9 of section 4 of the NYSC act Bye-Law. It disagreed with the Court of Appeal and held that continuous service for one year is compulsory and default is a crime by dint of section 13 of the NYSC act and such default goes beyond mere Indiscipline of engaging in partisan politics which under the 2011 revised Bye-Law makes the offending NYSC corps member liable to three months without pay. The court disagreed with the Appellant that a candidate cannot be disqualified from contesting a general election to an office under the constitution, under any other law except by the constitution, it therefore resolved the issue in favour of the cross appellant.
Lastly, the court considered the third issue which is basically on the legality or otherwise of declaring the 1st Respondent as the Appellant’s replacement haven’t participated in all the stages of the election. The appellant referred to the provisions of section 285(13) of the constitution which provides as follows:
“An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participate in all the stages of the election”
The Appellant argued vehemently that the 1st Respondent, at the time of the trial court order on 3rd May, 2019 did not participate in all the stages of the election. The court agreed with him and added that section 285(13) of the constitution is in pari materia section 141 of the electoral act. That AMECHI v INEC is no longer a good law as same has been set aside by the aforementioned section of the Electoral Act. The court held:
“My lords, when section 285(13) of the constitution is read together with section 31(1),(5),(6)&(8) of the Electoral Act, it becomes very obvious the order, that the Appellant, standing disqualified be replaced by the 1st the Respondent as the candidate of the 2nd respondent of the already concluded election, was made per incuriam. The order was a nullity the courts below have made the order ultra vires”
Issues one and two of the issues for determination were resolved in favour of the Respondents but the third issue in favour of the Appellant. The cross appeal also succeeded.
“Haven found and held that the 2nd Respondent (APC) had no candidate, in law, at the general election conducted on 23rd February, 2019 to elect the member in the House of Representatives to represent Yola North/Yola South/Girei Federal Constituency of Adamawa State; the 3rd Respondent (INEC) is hereby ordered to declare and return as elected the candidate (other than the APC “candidate”) who polled the majority of lawful votes cast in the said election”
S. Atung, Esq. with Dr. A.A. Adewole; A.S. Modibbo, Esq and E.H. Agbiti for Appellant/Cross Respondent
Olugbenga Adeyemi, Esq. with O.O. Alau, Esq. for 1st Respondent/Cross-Appellant
S. Shuaibu, Esq. for the 2nd Respondent
A.A. Umar, Esq with I.S. Mohammed, Esq. for the 3rd Respondent