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SHINKAFI & ANOR

V.

YARI & ORS

 

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 8TH DAY OF JANUARY, 2016

SC.907/2015

LN-e-LR/2016/55 (SC)

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

NWALI SYLVESTER NGWUTA, J.S.C

MARY UKAEGO PETER-ODILI, J.S.C

OLUKAYODE ARIWOOLA, J.S.C

MUSA DATTIJO MUHAMMAD, J.S.C

JOHN INYANG OKORO, J.S.C

AMIRU SANUSI, J.S.C

 

BETWEEN

I. MAHMUD ALIYU SHINKAFI

2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1 ABDULAZEEZ ABUBAKAR YARI

2. ALL PROGRESSIVE CONGRESS (APC)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)


REPRESENTATION

Yunus Ustaz Usman, SAN with him, lbrahim ldris, Esq., Tola Mohammed, Esq., Uyi Obayagbona, Esq., Ibrahim Jibril, Esq., E. I. Okoye, Esq., Nana Usman (Miss), Sadiya Usman (MIss), Mainasara Mikailu, Esq., M. D.Isah Esq., A. A. Jibrin, Esq., A. I. Maru, Esq., Misbahu Salahudeen, Esq., J.E. Udor, Esq. and Francis Osuagwu, Esq. - For Appellant

AND

A. J. Owonikoko, SAN with him, Mahmud A. Magaji, SAN, Chief Richard Orna Ahonaruogho, Danjuma G. Ayeye, Esq., Isa Abubakar, Esq., Amira Zukogu (Miss), Christian Ketechi Odeoyibo, Esq., Efut Okoi, Esq., Kenechukwu Azie, Esq., Hamidu M.Tukur, Esq., Munakur Grema Modu (Mrs.), Muzzammil Yahaya, Esq., Paulinus lgwe Nwagu, Esq., Adekola Olawoye, Esq., S. P. Ashiekaa, Esq., Sirajo Carba, Esq., and Vitus C. Ohakosim, Esq. - for the 1st and 2nd Respondents

V. O. Odjemu,Esq. with him, N. Egbet, Esq. and M. U. Ukponu, Esq. - for the 3rd Respondent For Respondent

 


[EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]


 

MAIN JUDGMENT

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment):

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 3 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 O. Odjemu, Esq., also filed brief in this appeal. Two issues for determination are distilled as follows:

1.       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.

2.       Whether the Appellants were able to prove substantial noncompliance 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 parries 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.

 

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. INDC [2014] 17 NWLR (Pt. 1436) 255 at 553 554, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 285, and Jev 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 v. Shagari (1993) 14 NSCC 431 at 445 - 446, Kayili v. 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 duty 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 27 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 anal 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 duty 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 27 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

(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

(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

(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 at 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 17(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 182 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 - A 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 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 dote 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 provision for qualification and that for disqualification are so comprehensive which makes them exhaustive. Thus, the Constitution as the grundnorm (supreme law of the land), having made such elaborate and all encompassing provisions for qualification and disqualification of persons seeking the office of Governor of a State, does not leave room for any addition to those conditions already set out.

 

I had held that Section 85 of the Electoral Act, 2010 (as amended) does not contemplate any issue relating to qualification or disqualification of a person seeking the office of Governor of a State. Even assuming that it has, by reason of its being subordinate to the Constitution it cannot override, add to or supplant the express and exhaustive provisions on the subject matter of qualification and disqualification for election into office of Governor of a State. The Latin Maxim "expressio unis est exclusion alterius" meaning: "the express mention of one excludes any other which otherwise would have applied by implication with regard to the some issue" applies. See PDP v. INEC (supra).

 

The Constitution has listed in Section 182(1) very exhaustively all issues that can disqualify a person from contesting for the office of Governor of a State. From the record of this Court the facts have not disclosed any evidence to show that the 1st Respondent was not qualified to contest election into the office of Governor of Zamfara State. It is my view that once a candidate sponsored by his political party has satisfied the provisions set out in Section 177 of the Constitution and is not disqualified under Section 182(1) thereof, he is qualified to stand election to the office of Governor of a State. No other law can disqualify him.

Accordingly, I hold that the 1st Respondent, having not been shown to have breached any of the provisions in Section 177 of the Constitution or being afflicted by any of the provisions in Section 182(1) of the Constitution, he was eminently qualified to have contested election into the office of Governor of Zamfara State. Section 85 or 87 of the Electoral Act 2010 (as amended) cannot disqualify him. This issue is accordingly resolved against the Appellants.

 

The next issue for resolution has to do with allegation of over-voting and non-compliance with the provisions of the Electoral Act. This is covered by the Appellants' 3rd issue, 1st and 2nd Respondents second issue and the 3rd Respondent's issue two.

 

Learned Senior Counsel for the Appellants submitted that although it is the law that to prove over-voting, the petitioner must tender voters register, tender statement of result in the appropriate forms which would show the number of registered and accredited voters and number of actual votes, relate each of the documents to the specific area of his case in respect of which the documents are tendered and show that the figure representing the over-voting if removed would result in victory for the Petitioner, the usage of the card reader in ascertaining the number of accredited voters has taken away the burden placed on the petitioner as stated above. According to him, the cases of Haruna v. Modibbo (2014) 16 NWLR (Pt.900) 487, Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639, Iniama v. Akpabio (2008) 17 NWLR [pt. 1116] 225 and Audu v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 which were decided before the introduction of accreditation of voters via card reader machines are no longer good law on how to prove over-voting.

 

Learned Senior Counsel further submitted that since the document (Exhibits A4 and 4) which proved over-voting were both made by INEC and Exhibit A4 tendered by DW1 (official of INEC) who also made the admissions against interest, there was no longer any burden on the Appellants (Petitioners at the Tribunal) to prove same.

 

Referring to Exhibits A4 and 4, which is the table showing the number of votes of the 2015 Governorship Election in Zamfara State, learned silk opined that in the circumstance as seen in the chart, it will be wrong to hold that the over-voting was not substantial. Learned counsel submitted that there was substantial non-compliance with the provisions of the Electoral Act 2010 (as a mended). That for the parties to allow over-voting in the face of the INEC warning in Exhibits 2 (Press Statement) and 4 (Accredited Voters List) is substantial non-compliance; relying on the case of Omisore v. Aregbesola (unreported) SC 204/2015 delivered on 27th May, 2015. Also that violation of Sections 85, 87 and 141 of the Electoral Act are other items of non-compliance as a result of want of giving 21 days notice before the 2nd Respondent held its primary election.

Learned Senior Counsel urged this Court to resolve this issue in favour of the Appellants.

 

Responding to the above argument by the Appellants, the Learned Senior Counsel for 1st and 2nd Respondents submitted that the allegation of over voting by its nature could not have been possibly established through the DW1, whom the Appellant's Counsel attempted to use since DW1, was neither the maker nor was he the agent in the polling units where the alleged over-voting took place. Learned Senior Counsel insisted that the good old way of proving over-voting still hold sway, relying on Haruna v. Modibbo (supra), Kalgo v. Kalgo (supra), Audu v. INEC supra).

 

The Learned Silk submitted that the Appellants in substantiating their allegation of over-voting did not observe any of the mandatory dictates of the law including failure to tender the voter's register.

Referring to Sections 53(2) ,(3) and (4) of the Electoral Act 2010 (as amended), Learned Senior Counsel submitted that it is not enough for Appellants to allege that there was over-voting by 86,045 voters, they must show by credible evidence the exact polling units in which the over-voting occurred; but they failed to do so. Furthermore, that even if that had been done and the said 86,045 are cancelled from the overall results, the 1st respondent would still be declared the winner of the election as he scored a total of 716,964 as against the 1st Appellant's score of 201,938 votes.

 

Finally, Learned Counsel submitted that by Section 139 of the Electoral Act 2010 (as amended) a complaint of non-compliance must not only be substantial, it must also substantially affect the result of the election which according to him, is not the case here. He relies on the cases of Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367, Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241, Haruna v. Modibbo (supra). He urges this Court to resolve this issue in favour of the 1st and 2nd Respondents.

 

The submissions of Learned Counsel for the 3rd Respondent on this issue are substantially the same with those of the 1st and 2nd Respondents.

In the circumstance, there is no need to repeat the exercise. The 3rd Respondent's Counsel also urged this Court to resolve this issue against the Appellants.

 

The grouse of the Appellants in this issue, basically, is that there was over-voting and because of that, there was substantial non-compliance with the Electoral Act. To prove over-voting, the law is trite that the Petitioner must do the following:

1.       Tender the voters' register.

2.       Tender the Statement of Result in the appropriate forms which would show the number of registered accredited voters and number of actual votes.

3.       Relate each of the documents to the specific area of his case in respect of which the documents are tendered.

4.       Show that the figure representing the over-voting if removed would result in victory for the petitioner.

See generally Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487, Kalgo v. Kalgo (199) 6 NWLR (Pt.606) 639 and Audu v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456.

The Learned Senior Counsel for the Appellants at page 28 of their brief of argument agrees that the above steps were necessary in order to prove over-voting. However, the Learned Silk opines that with the Introduction of the Card Reader Machines, it would no longer be necessary to tender the voters' register and other steps set out earlier. He went on to say that Haruna v. Modibbo (supra), Kalgo v. Kalgo (supra), Iniama v. Akpabio (supra) and Audu v. INEC No.2 (supra) are no more good law. My view on this is that a principle of law that is well established, cannot be abolished simply because an Appellant failed to prove his case in accordance with those principles. My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter's card and to prevent multi-voting by a voter. I am not aware that the Card Reader Machine has replaced the voter's register or taken the place of statement of result in appropriate forms. As it stands, it appears that the Appellants did not lead any evidence to prove over-voting. The findings of the Court below on the issue can be found on page 1127 of the record as follows:

"To prove over-voting, the Appellants relied on the evidence of DW1, in cross-examination, Exhibit I (Form EC8E ý Declaration of result form), Exhibits 4 (certified true copy of list of accredited voters) and Exhibit A4. These tended to show generally over-voting.

Exhibit I was tendered from the Bar, Neither the PW1 nor the DW1 made the document. This also applied to Exhibits A4 and 4 which were not made by the DW1 who read the documents and concluded that there was over-voting. No probative values could be placed on these documents and the evidence of DW1. See Belgore v. Ahmed (supra) and Buhari v. Obasanjo (supra) at 177 and 182 where Uwais, CJN, held that INEC results from polling units tendered through a witness who did not make them were not reliable.

In Haruna V. Modibbo (supra) 544 - 545, it was held by this Court that tendering of Form EC8A without the testimony of its maker or clear reasons for his absence is valueless. The evidence of PW7 and DW7 on Exhibits 1, 4 and A4 which were not made by them is valueless to prove over-voting."

 

From the findings above, I agree with the Court below that the Appellants failed woefully to prove over-voting in accordance with the principles laid down by law. The reliance on the evidence of DW1, through a document he did not make has not made any difference.

 

There is no doubt that a Petitioner is entitled to contend that an election or return in an election be invalidated by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. For a Petitioner to succeed on this ground, he has to prove ý

1)      that the corrupt practice or non-compliance took place;

2)      that the corrupt practice or non-compliance substantially affected the result of the election.

See Sections 138(1)(b) and 139(1) of the Electoral Act 2010 (as amended). See also Awolowo v. Shagari (1979) A NLR 120, Ibrahim v. Shagari (1983) 2 SCNLR 176, Buhari v. Obasanjo (supra) PDP v. INEC (supra).

 

There is need for a petitioner who alleges over-voting to lead concrete evidence to show that there was indeed over voting and that it inured to the winner of the contest. Without doubt, over-voting in an election can be in favour of either the Appellant, the Respondents or other contestants who participated and lost out at the election but are not parties to the Petition. Therefore, the onus is on the petitioner to show that the over-voting was in favour of the Respondent and that it was as a result of the over-voting that the 1st Respondent won the election. This is why the law requires the Petitioner to lead evidence right from the polling unit in order to show that the alleged over-voting was solely to the advantage of the Respondent.

 

In this case, the Appellants alleged that there was over voting by 86,045 votes. Assuming that the Appellants were able to prove over-voting by that figure, a reduction of that number from the score of the 1st Respondent put at 776,964 votes against the 1st Appellant's score of 201,938 votes will not change the position of the result of the election.

The 1st Respondent would still be left with a score of 630,919 votes against the 1st Appellant's score of 201,939. So, even if the Appellants have proved non compliance, they have failed to show how the alleged non-compliance substantially affected the result of the election.

 

The Appellants also made reference to Sections 85 and 87 of the Electoral Act 2010 (as amended) . It is their argument that there was non-compliance with these Sections. I had taken time to deal with these two Sections of the Electoral Act while resolving issue 1 in this appeal. There remains nothing new to be said again on them. All that remains to be said is that this issue does not avail the Appellants at all.

 

Having resolved all the issues adopted for the determination of this appeal against the Appellants, it is crystal clear that this appeal is devoid of any scintilla of merit and is accordingly dismissed. I uphold the decision of the Court of Appeal delivered on 12th November, 2015 which said judgment affirmed the judgment of the trial tribunal upholding the election and return of the 1st Respondent as Governor of Zamfara State. I award costs of N100,000.00 against the Appellants and in favour of the 1st and 2nd Respondents.

 

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: This appeal is against the judgment of the Court of Appeal, Holden in Sokoto in appeal No. EPT/CA/S/GOV/005/2015 delivered on the 12th day of November, 2015 in which the Court dismissed the appeal of the present appellants against the judgment of the Governorship Election Petition Tribunal, Holden at Gusau, Zamfara State in petition No EPT/ZMS/GOV/2/2015 delivered on the 17th day of September, 2015 dismissing the petition of the petitioners, now appellant before this Court.

 

The facts of the case have been stated in detail in the lead judgment of my learned brother OKORO JSC which makes it unnecessary for me to repeat them herein except as may be needed to emphasis the point being made.

 

Learned Senor Counsel for appellants, YUNUS USTAZ USMAN, SAN formulated six (6) issues for determination in the appellants brief filed on 1/12/15. These are:

"1.     Whether the Honourable learned Justices of the Court of Appeal erred in law in holding at pages 11-13 of their Lordships judgment that want of compliance with Sections 85 and 87 of the Electoral Act, 2010 (as amended) which are statutory provision (sic) does not disqualify the 1st respondent from contesting the gubernatorial election. (Grounds 1 and 8 of the Notice and Grounds of Appeal).

2.       Whether the Honourable Justices of the Court of Appeal erred in law when their Lordships held at page 17 of their Lordships' judgment that:

"The above notwithstanding, I do not agree with the submission of the learned senior counsel to the Appellants that their exhibits A, A1, A3, were not relied upon by the Tribunal, there would be no evidence to dispose 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 the elementary and the law is well settled to the effect that it is he who alleges that has the anus of proof".

(Grounds 2, 6 and 10)

3.       Whether the Honourable learned Justices of the Court of Appeal erred in law in holding that there was no over-voting or violation of the provisions of the Electoral Act, 2010 (as amended) and that even if there was such non-compliance, such non-compliance does notýsubstantially 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 Honourable 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 Honourable 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 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)"

 

I have to observe that the present six issues, supra, had their origin from the three issues submitted to the Election Tribunal for the determination of the petition, to wit:

(1)     Whether the 1st respondent was not duly elected and returned by the majority of lawful votes cast at the Governorship Election for Zamfara State held on 11th April, 2015.

(2)     Whether the election to the office of Governor of Zamfara State held on 11th April, 2015 was not conducted in substantial compliance with the provisions of the 1999 Constitution and the Electoral Act, 2010 (as amended).

(3)     Whether by virtue of Provisions of the 1999 Constitution and the Electoral Act, 2010 (as amended) the 1st Respondent was not qualified to have contested as the Governor of Zamfara State at the Gubernatorial Election of Zamfara State held on 11th April, 2015.

 

The above three issues were also agreed upon by counsel for the petitioners and 1st and 2nd respondents.

 

On the other hand, the three issues formulated by learned counsel for the 3rd respondent, at the tribunal are as follows:-

"(1)   Whether non-compliance with the provisions of SS. 85 and 87 of the Electoral Act, 2010 (as amended) can disqualify a candidate from contesting for the office of Governor of a state.

(2)     Whether the Petitioners have the locus standi to challenge the nomination of the 1st Respondent.

(3)     Whether there was substantial non compliance with the provisions of the Electoral Act as to justify a nullification of the Election.

 

It should be pointed out that it is the resolution of the above three issues, which are substantially identical, by the Tribunal that gave rise to a twenty-six grounds of appeal by the appellants to the lower Court! ý See pages 923-945 of vol 1 of the record of appeal - and twenty - six issues for determination!!- See pages 954-985 of vol. 2 of the record.

 

I have had to bring out the above facts to emphasis the point that parties/counsel should do their best to limit themselves to the main issues in controversy between the parties and deal with same and not to waste their time and, most importantly the time of the Courts in multiple issues which are substantially repetitions of one another. Has it not been said, time without number, that repetitions do not improve an argument? Has it also not been stated variously that counsel and/or parties are not allowed to change their case/cause from one Court to another?

 

It is with the above in mind that I hold the view that the instant further appeal ought to be determined bearing in mind, the original issues controversy between the parties as resolved by the lower Courts. It follows therefore that in my view only two issues call for determination of the appeal before us. These are:

1.       Whether the non-compliance with the provisions of Section 85 and 87 of the Electoral Act, 2010 (as amended) disqualified as candidate from contesting for the office of Governor of a State  or

Whether having regard to the facts and circumstances of this case the 2nd respondent did not duly sponsor the 1st respondent in the Governorship election of Zamfara State, and,

2.       Whether there was over-voting which substantially affected the result of the election and/or substantial non-compliance with the Provisions of the Electoral Act, 2010 (as amended) as to justify a nullification of the gubernatorial election in Zamafara State.

 

I should say that I have had the benefit of reading draft, the lead judgment of my learned brother, OKORO. JSC just delivered and I agree with his reasoning and conclusion that his appeal has no merit and ought to be dismissed. My learned brother has dealt exhaustively with the issues relevant to the determination of the appeal. I however, wish to comment on the purport and legal effects of compliance and/or non-compliance with the Provisions of Section 85 and 87 of the Electoral Act, 2010, (as amended) which seems to be the main plank of the petition and complains before the appellate Courts, on the result(s) of an action.

 

In arguing issue 1, learned senior counsel for appellants referred to the decision of the lower Court at pages 11 - 13 of the record and Sections 85 and 87 of the Electoral Act, 2010 (as amended) and submitted that an election can be questioned for violation of the provisions of either the Constitution of the Federal Republic of Nigeria, 1999, (as amended) or of the Provisions of the Electoral Act, 2010 (as amended), of Ngige v. INEC (2015) 1 NWLR (pt. 1440) 281 at 31 ý 321; Kolawole v. Folunsho (2009) 8 NWLR (Pt.1143) 338 at 388.

 

It is the further submission of learned senior counsel that Section 177 of the 1999 Constitution 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 party whereas Sections 85 and 87 of the Electoral Act, 2010, as amended provide for the process to be followed by a person before he can be legally qualified for sponsorship by a political party; that once a petitioner alleges that the winner of an election has violated the Provisions of Section 85 and 87 of the Electoral Act, 2010, as amended, all he is alleging is that the said winner has not satisfied the Provisions of Section 177(1) (c) of the 1999 Constitution, as amended and is consequently not qualified to contest the election thereby failing to go through all the stages of the election under Section 141 of the Electoral Act 2010,as amended, to be declared a winner, that Sections  85 and 87 of the Electoral Act, 2010, as amended are complimentary to and not in conflict with Sections 177 and 182 of the 1999 Constitution, as amended, because the said Sections 85 and 87 of the Electoral Act, 2010, as amended, explain the purport of Sections 177 and 182 of the 1999 Constitution as amended. Learned senior counsel relied on the case of Dangana v. Usman (2013)6 NWLR (pt. 1399) 89-90; Wamba v. DONATUS (2015) MJSC 178 at 213;  45219-220; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525 and submitted that the provisions of Sections 85 and 87 of the Electoral Act 2010, as amended, are mandatory and that non-compliance therewith is fatal to the qualification of the 1st respondent to contest the election in issue; that the 1st respondent was consequently not sponsored by his political party neither did he contest the election in question - relying on Onisaodu v. Elenju (2006) 13 NWLR (pt. 998) 517 at 529 - 510 and urged the Court to favour of the appellants and allow the appeal.

 

On his part, learned Senor and leading counsel for 1st and 2nd respondents, A.J. Owonikoko SAN in his 1st and 2nd respondents brief of argument filed on 5/12/15 submitted that there is a difference between nomination of a candidate for an election and qualification of a candidate for an election while nomination is an internal process of a political party leading to the emergence of its candidate for an election, qualification according to senior counsel, relates to the criteria that would enable a candidate to contest a general election, that whereas Sections 177 and 182 of the 1999 Constitution, as amended make provisions for qualification or of the Electoral Act 2010, as a mended, make provisions for nomination of candidates.

 

It is the view of learned senior counsel for 1st and 2nd respondents that appellants are in error in submitting that the primary election of the 1st and 2nd respondents took place less than 21 days from the date the 3rd respondent was notified of same and that the resultant nomination of 1st respondent at the primary so held was invalid and the 1st respondent not qualified to contest the election issue that the above submission of appellants amounts to stretching the meaning of Sections 85 and 87 of the said Electoral Act 2010, as amended, beyond the express provisions and intendment of the legislature; that 1st respondent was qualified to contest the election question both under the Provisions of the 1999 Constitution, as amended, and Sections 85 and 87 of the Electoral Act, 2010, also, as amended.

 

It is the further submission of learned senior counsel that exhibit A dated 19th September, 2014 shows that the congress for nomination of gubernatorial candidate had earlier been scheduled to hold on 15th November, 2014 and that the period between 19th September, 2014 to 19th November, 2014 is 47 days but that the said congress was re-scheduled to 4th December, 2014 vide exhibit 2; that INEC duly sent a monitoring team to observe the primary election so conducted on 4th December, 2014 and that exhibit A2 dated 4th December, 2014 shows that 1st Respondent emerged the winner of the primary as he was unopposed, but potted a total of 2,298; that exhibit A3 confirms that the conduct of the primaries conformed with the provisions of Section 85 of the Electoral Act, 2010, as amended that Section 85 of the Electoral Act, 2010, as amended, does not make provisions for consequences of non-compliance with the requirement of 21 days notice; that the essence of the notice under Section 85, supra, is to enable INEC monitor the conduct of the congresses of nomination of candidates for election - relying on Section 86 of the Electoral Act, 2010, as amended; that where there is total failure to involve INEC in the process of congresses and/or nomination of candidates, the punishment is N500,000:00 upon conviction under the said Section 86 of the Electoral Act,2010 as amended; that where the notice given to INEC is less than 21 days but INEC sends its team of monitors, who monitored the primaries the question of short notice no longer arises.

 

It is the further submission of learned senior counsel that the case of appellants not founded on non-compliance with the provisions of Section 177 or any other provision of the 1999 Constitution as amended; that the provisions of Section 85 of the Electoral Act, 2010, as amended, cannot override add to or supplant the express and exhaustive provisions of the 1999 Constitution, as amended on the subject of qualification and/or disqualification for election into office of the Governor of a State; that the only person who has any locus to complain against non compliance with the giving of 21 days notice is an aspirant in the party primaries and not a candidate; or member of other political parties, retying on Section 87(9) of the Electoral Act, 2010, as amended; Daniel v. INEC (2015) 9 NWLR (Pt.1463) 113 at 156 -157 and urged the Court to resolve the issue in favour of 1st and 2nd respondents.

 

On his part, learned counsel for 3rd respondent O.v. ODEJEMU ESQ, in the 3rd respondent brief filed on 4/12/15 made submissions on issue 1 very similar to those of senior counsel for 1st and 2nd respondents. In addition, counsel submitted that the word "qualification" does not appear in Sections 85 and 87 of the Electoral Act, 2010 as amended, meaning that the said Act does not make compliance with Sections 85 and 87 thereof a criteria for qualification to contest an election for the office of Governor of a State and that to import the word into the interpretation of the statutory provisions is not permissible by law, relying on Oyeyemi v. Commissioner of Local Government, Kwara State (1992) 2 NWLR (pt. 226) 661 at 681; that Sections 85 and 87 of the said Act do not create new criteria for qualification of candidates in addition to those already stated in the Constitution neither is it stated that any violation of same amounts to a disqualification; that qualification and disqualification to contest governorship election by a candidate are as provided under Sections 177 and 182 respectively of the 1999 Constitution, as amended relying on Kubor v. Dickson (2013) 4 NWLR (Pt.1345) 554 at 569 ý 570; PDP v. INEC (2014) 7 NWLR (Pt.1437) 525 at 559-560.

 

It is a further submission of counsel that only an aspirant of the 2nd respondent who participated in the primary election in which 1st respondent emerged as a winner can complain about any non-compliance with the relevant provisions of the Electoral Act 2010, as amended regulating nomination of candidates as provided under Section 87(9) (sic) of the said Electoral Act, 2010, as amended, and that appellants not being members of the 2nd respondent and not being aspirants in the nomination exercise have no locus to challenge the said exercise and urged the Court to resolve the issue against appellants.

 

The provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended (hereinafter referred to as the 1999 Constitution as amended) and the Electoral Act, 2010 as amended in the issue under consideration are Sections 177 and 182 of the 1999 Constitution and 85 and 87 of the Electoral Act 2010 as amended. They provide, inter alia, as follows:-

"177:

A person shall be qualified for election to the office of a Governor of a state if:

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

(b)     He has attained the age of 35 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 182(1):

"No person shall be qualified for an election to the office of Governor of a state if:-

a.       Subject to the provisions of Section 28 of the 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 in 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)

(e)

(f)

(g)

(h)

(i)

(j)"

 

On the other hand, Section 85 of the Electoral Act, 2010 as amended provides, thus:

"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 monitor and attend 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 and election at any level;

(c)     Approving a merger with any other registered political party.

(3)     The election of members of the executive committees or other governing bodies 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 to duty elected delegate 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 ....."

 

Section 87 of the said Act provides, also inter alia as follows:-

"(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 nomination of candidates by political parties 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 the members of the party.

(4)     A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:

(a) .........

(b)     In the case of nominations to the position of Governorship candidate, a political party shall, where they intend to sponsor candidates:

(i)      hold special congress in each of the state capital with delegates voting for each of the aspirants at the congress to be held in designated centres on specified date appointed by the National Executive Committee (NEC) of the party; 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, for the particular state.

(c) .........

(d) .........

(5) ....

(6)     Where there is only one aspirant in a political party for any of the elective positions mentioned in Sub section 4 (a), (b), (c) and (d) the party shall convene a special convention or congress at the designated centre an a specified date far 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) ...

(9)     Notwithstanding the provisions of the 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 of a state or FCT for redress..."

 

It should be noted that in a version of the Electoral Act, 2010, as amended, the above provision in Sub-section (9) of Section 87 is contained in Sub-section (8) thereof, whereas in another, it is Subsection (10).

 

It is equally important to note that Sub-section (9) of the Electoral Act 2010 as amended relied upon by learned senior counsel for appellants contains a completely different enactment, that is to say:

''(9)   Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue".

 

Another provision cited and relied upon in argument by counsel for the parties is Section 141 of the Electoral Act, 2010 as amended which provides as follows:

"An election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election."

 

The issue for consideration is whether the want of compliance with the provisions of Sections 85 and 87 of the Electoral Act, 2010 as amended does not disqualify the 1st respondent from contesting the gubernatorial election of Zamfara State conducted on the 11th day of April, 2015

 

It is settled law that the issue of nomination of a candidate by a political party for any election is within the exclusive preserve of the political parties and that the Courts have no jurisdiction to interfere therein as decided in a number of cases including Onuoha v. Okafor and Ors (1983) NSCC 494; Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310 etc.

 

Equally settled is the fact that as at the moment, the only window opened for the Courts to entertain actions on and/or concerning nomination of candidates for any election by political parties is as provided under Section 87(8) or (9) or (10) of the Electoral Act, 2010, as amended and earlier reproduced in this judgment. As a result of the above provision conferring this Court has held, in very many cases, that only an aspirant in the primary election conducted by the political party can question the result or nomination or declaration of any person by the party as the winner of the primary election and consequently the sponsored candidate of the Political party concerned in the election is issue. It follows, therefore, that no other person or member of the political party let alone a total stranger or a non-member of the political party concerned, has the locus to challenge or question the nomination of any candidate by a political party for any election.

 

In respect of this case it is not dispute that a primary election of the 2nd respondent to determine or elect its candidate for the Zamfara State Governorship election scheduled for 11th April, 2015 was duly held and that 1st respondent emerged the winner of the said primary election and that as a consequence thereof the name of 1st respondent was duly sent by the 2nd respondent to the 3rd respondent as its candidate for the said gubernatorial election. In other words, the 1st respondent was the sponsored candidate of 2nd for the Zamfara State Governorship election.

 

The question is whether the fact that the primary election which resulted in the nomination of 1st respondent as candidate of the 2nd respondent for the election in question was allegedly held following a notice to INEC, 3rd respondent herein, which was less than 21 days as provided by law rendered the said primary election invalid thereby leaving the 2nd respondent without any legally recognizable sponsored candidate for the said election?

 

As reproduced earlier in this judgment Section 85(1) on which heavy weather has been made of provides that a political party intending to organize "any convention, congress, conference or meeting convened for the purpose of electing members of its executive committee, other governing bodies or nominating candidates for any of the elective offices specified under this Act is to give 21 days notice of the event to INEC" (3rd respondent herein). It is the case of appellants that the length of notice given by 2nd respondent for the primaries which was won by 1sr respondent was less than 21 days thereby invalidating the nomination of 1st respondent thereat and rendering him (1st respondent) "not qualified" to contest the election in question.

 

It is true that by the provisions of Section 138(1)(b) of the Electoral Act, 2010, as amended, the grounds for questioning an election or challenging same includes an allegation of "non compliance with the provisions of this Act" In other words, a breach of a mandatory provision of the Electoral Act 2010, as amended, in the conduct or process leading to an election in question constitutes a ground for challenging the result of the said election as canvassed by appellants herein. The question, however is whether the provision in question, is mandatory in nature Appellants contend that it is, due to the use of the word "shall" therein while the respondents are of the view that it is not applicable to the facts of this case in that the original notice given was more than 21 days and that the purpose for the notice being to afford the 3rd respondent (INEC) time to send a team to monitor the primaries which they did in the instant case the provisions of the Act was duly complied with. It should be noted that the 21 days notice required to be given to the 3rd respondent (INEC) by a political party in relation to any convention, congress conference or meeting is not limited to the nomination of candidates for any of the elective offices specifically under the Electoral Act, 2010, as amended, but extends to such convention, congress, conference or meeting for the purpose of electing members of its executive committees, or other governing bodies. If the interpretation of the appellants is adopted, it follows that any election of members of the executive committee and other governing bodies of a political party whose notice of the event given to INEC by the political party is less than 21 days is invalid .The question then is whether anybody other than a member of that political party will have the locus to challenge such an election. Can a member of another political party sue on the complaint of non-compliance with Section 85(1) supra? We will soon get to the question of notice of meeting or congress etc for nomination of candidates.

 

The question, however, is whether the word "shall" used in Section 85(1) of the Electoral Act, 2010, as amended is mandatory or permissive?

If it is mandatory, as contended by appellants, it means that any notice short of 21 days is invalid and the subsequent election or nomination is invalid despite the fact that INEC did send a team of monitors to the event.

It should be kept in mind, always, that the purpose of giving the 21 days notice to INEC is not a precondition for validation of any election at the congress conference meeting etc but for INEC to put together a team of observers. Also that where INEC is not so notified the consequences is as contained in Section 86(1) of the Electoral Act, 2010 as amended to wit;

Payment of N500,000= fine upon conviction!!!

 

It should also be borne in mind that the requirements of a valid nomination of a candidate of a political party for any election are as stated under Section 87 of the Electoral Act 2010, as amended and earlier reproduced in this judgment, which include inter alia, holding of a special congress in each of the local government areas of the states with delegates voting for each of the aspirants at a congress to be held in designated centres on specified dates, and 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 his name shall be forwarded to INEC as the candidate of the party concerned.

 

In the case of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345)534 which dealt, inter alia with the interpretation of the consequences of non-compliance with the requirement of Section 34 of the Electoral Act, 2010 as amended which required INEC to publish or cause to be displayed at its office, or on its website, a statement of the full names and addresses of all candidates standing nominated at least 30 days before the date of the election, I stated, at page 575 thus; inter alia.

"It is true that Section 34 of the Electoral Act makes provision for and enjoins the 3rd respondent to publish names of candidates for election but I hold the view that the provision though employed the word "shall" is not mandatory but discretionary as its effect is the same as the ward may which is permissive Publication of the name of a candidate cannot validate an otherwise invalid nomination and sponsorship of a candidate..."

 

In the instant case, there is evidence that 3rd respondent was given notice of about 47 days to the nomination exercise though the event had to be rescheduled. Though the further notice of the rescheduled event was less than 21 days, INEC was duly informed and it sent its observes to Section 85 supra, is reasonable notice not necessarily a 21 days notice.

The notice should be reasonable to enable INEC raise a team to observe the event as was done in the instant case. To me the 21 days provided under Section 85 supra is not mandatory but permissive as a reasonable length of notice would suffice. Where the length of notice is too short thereby making it impossible for INEC having regard to its programmes to discharge its functions under the Electoral Act, 2010, as amended, the length of time of the notice would be unreasonable and consequently the provisions of Section 86(1) of the Electoral Act, 2010, as amended, may be resorted to.

The above is not the end of the matter. The question is who has the right to complain of the inadequacy of the notice? I am of the opinion that it is not any busy body. It is either INEC itself or a member of the political party concerned who is adversely affected by the result or the inadequate notice. It cannot be an outsider or another political party or member thereof - as in the instant case. I am of the considered opinion that a party who complains of a breach of the provisions of Section 85 supra must not only establish the breach but also how the alleged breach adversely affected him or his right(s).

 

I hold the considered view that the conditions precedent for a valid nomination and sponsorship of a candidate by a political party are as laid down in Section 87 of the Electoral Act 2010, as amended. It follows therefore that the submission of learned senior counsel for appellants to the effect that for a candidate to be validly nominated and sponsored by his political party it must comply with the provisions of Section 85(1) as amended is misconceived. The political party needs to comply only with the provisions of Section 87 of the said Electoral Act 2010, as amended.

 

The above holdings notwithstanding there is the provision in the Electoral Act, 2010 as amended cited and relied upon, particularly Section 87(9) thereof, enacts thus:

''(9)   Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue."

 

It is on the basis of the above provision that learned senior counsel has submitted that the provision of Section 85(1) supra is mandatory and that any non-compliance therewith renders the nomination exercise of a political party invalid. It is my view that the above provision does not adversely affect my opinion as expressed on the provisions of Section 85(1) supra which has been found not to be mandatory in nature and effect but directory or permissive. For non-compliance with the provisions of the Electoral Act, 2010, as amended to invalidate nomination and sponsorship of a candidate by a political party, the provision of the Act not complied with must be demonstrated to be mandatory.

 

Secondly, we must not forget that we are talking of nomination of a candidate by a political party for election which process has always been and still remains the exclusive pressure of the political parties and the only way the Courts can intervene is if the matter comes within the provisions of Section 87(10) of the Electoral Act, 2010, as amended which provides thus:-

(10)   Notwithstanding the provisions of the 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 for redress."

 

It is clear from the above and as has been consistently held by this Court that the only person who can take advantage of the jurisdiction so conferred on the Court, supra is an aspirant and not any busy body. So even if the complaint involves non-compliance with the provisions of the Electoral Act, 2010 as amended as a whole or in relation to nomination of a candidate, once the matter involves nomination or selection of a candidate by a political party, only an aspirant who participated in the primary election in question can complain. Any other complainant is a busy body without locus See Daniel v.ýINEC (2015) 9 NWLR (Pt 1463) 113 at 155.

 

Finally I agree with learned counsel for the respondents that once a candidate has been duly nominated in accordance with the provisions of the Electoral Act, 2010, as amended particularly Section 87 thereof he is qualified to contest a gubernatorial election if he does not otherwise fall fowl of the provisions of Sections 177 and 182 of the 1999 Constitution as amended . See Kubor v.ýDickson supra; PDP v.ýINEC (2014) 17 NWLR (pt. 1437) 525.

 

It is for the above reasons and the more detailed reasons assigned in the lead judgment of my learned brother OKORO, JSC that I too find no merit in the appeal and consequently dismiss same.

 

I abide by the consequential orders made in the said lead judgment including the order as to costs.

 

Appeal dismissed.

 

NWALI SYLVESTER NGWUTA, J.S.C.:

I read with admiration the lead judgment just delivered by my learned brother, Okoro, JSC. I agree with the reasons leading to the inevitable conclusion that the appeal is bereft of merit and ought to be dismissed.

 

I wish to put in a few words in support of the judgment.

 

The 1st and 2nd appellants predicated their petition on three grounds and one alternative ground reproduced hereunder:

"(1)   The 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the said gubernatorial election.

(2)     The votes credited to the 1st and 2nd Respondents were invalid and thrown away votes and should not be taken into account in determining the winner of the said election.

(3) T as duly elected."

 

In the alternative to the above grounds:

The election was marred by massive electoral irregularities, corrupt practices and non-compliance with the provisions of the Electoral Act 2010 (as amended)."

 

In paragraph 12 of the Petition, it was pleaded that:

"Your petitioners further state that the facts upon which the petition is predicated are as follows:

(a)     The 2nd Respondent conducted its primary elections to select candidates contest the governorship election in Zamfara State in less than 21 days after giving its notice to do so to Independent National Electoral Commission (INEC) contrary to the mandatory provisions of Section 85 of the Electoral Act, 2010 (as amended).

(b)     Your petitioners aver that the said primary election conducted by 1st Respondent as well as the return of the 1st Respondent as the candidate to contest the election into the office of the governor of Zamfara State on April 11, 2015 is a nullity."

 

The 1st petitioner/appellant is the candidate of the 2nd petitioner/appellant, the Peoples Democratic Party in the April 11, 2015 election while the 1st Respondent is the candidate of the All Progressive Congress (APC) (the 2nd Respondent) in the questioned election.

 

Sections 85 , 86 and 87 reproduced in the lead judgment deal with the procedure for nomination of a party's candidates for election. They regulate the internal affairs of a party in its primary election and only an aspirant who took part in the primary can seek redress in relation thereto. It is a pre-election matter which should be canvassed not in the election petition Tribunal but in the regular Courts - the Federal High Court, the High Court of a State and the High Court of the Federal Capital Territory, Abuja. Section 87 (9) of the Electoral Act 2010 (as amended) .

 

The 1st appellant is a member of the PDP, not the APC. He could not have participated in the primaries of the APC as an aspirant not being a member of that party. Neither the 1st appellant norýhis party, the 2nd appellant (PDP), can prey into the internal affairs of another party, the APC in search of materials to scuttle the election and return of the APC'S candidate at the election.

 

The two appellants are busy bodies and their meddlesome attitude is akin to that of a man who sneaks into his neighbour's bedroom to say the bed is not properly made and so the neighbour cannot sleep in it. Appellants complained that the primary election of the APC was held in less than 21 days after notice of same to the INEC.

The notice was given to the INEC, not to the appellant and INEC did not mandate any or both of them to complain on its behalf.

 

Infractions of Sections 85, 86 and 87 of the Electoral Act 2010 (as amended) do not fall under Section 138 (1) (a) of the Electoral Act (supra) for non-qualification to contest the election or Section 177 of the Constitution for qualification to contest or Section 182 for factors that disqualify a candidate in election.

 

Section 86 (4) of the Electoral Act (supra) imposes a fine of N500,000 in conviction. There is no provision for double jeopardy for infraction of any provision of the Act.

 

For the above and the fuller reasons in the lead judgment I also dismiss the appeal for lack of merit. I adopt the order on costs.



MARY UKAEGO PETER-ODILI, J.S.C
.:

I agree with the judgment just delivered by my learned brother, John Inyang Okoro JSC who graciously obliged me with the draft from which I perused the reasoning which I am in agreement with. I shall make some comments to underscore my support.

 

The background details leading to this appeal are well stated in the lead judgment and I shall restrict myself to the issue which seems to me germane to the entire appeal which is as follows:


In the 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.

 

The stance of the appellants as canvassed by Yunus Ustaz Usman SAN is that the 1st and 2nd respondents had failed to comply with the mandatory provisions of Sections 85, 87 and 141 of the Electoral Act, 2010 (as amended) in that the Primary Election conducted by 2nd respondent (APC) on 4/12/2014 contravened the provisions of Section 85 of the said Act since the 2nd respondent had not given to the INEC at least 21 days before their congress in the process of ifs primary election. That the implication of that default is that the declared winner of the general election has not satisfied the provisions of Section 177 (i) (c) of the Constitution of the Federal republic of Nigeria, 1999 (as amended) and has therefore not qualified to contest the election as it cannot be said that such a candidate had gone through all the stages of the election under Section 141 of the Electoral Act, 2010 (as amended) to be declared winner.

 

Mr. Owonikoko SAN of counsel for the 1st and 2nd respondents disagreed with the position of the appellants contending that nothing in the provisions of Sections 85, 87 and 141 of the Electoral Act, 2010 prescribed qualification for a candidate at general election to be conducted by INEC.


That the essence of notice under Section 85 of the Electoral Act is to enable INEC exercise its authority in monitoring the conduct of political parties as it relates to congresses, conventions, meetings and conferences convened for the purpose of electing members of its executive committee or nominating candidates for any of the offices specified under the Act and by Section 86 of the said Act the punishment for failure of such notice and that sanction is a levy of fines on the conviction of any offending party and not a disqualification of a particular candidate leading to the nullification of such on election or the declaration of the next to the declared winner as the proper winner.

 

Learned counsel for the 3rd respondent, Victor O. Odjemu argued along the same lines as the 1st and 2nd respondents contending that the alleged non-compliance with Sections 85 and 87 of the Electoral Act do not disqualify the 1st respondent from election to the office of Governor and that the appellants lack the locus standi to bring the petition under that ground.

 

For guidance in wading through the arguments on either side, I shall recast the provisions of the referred to Sections of the Electoral Act, 2010 (as amended) and the prescriptions of the 1999 Constitution in relation thereto and these are:


Sections 85, 86, 87, 141 of the Electoral Act.

"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 election members of its executive committee, 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 monitor and attend 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:

(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. Monitoring of political parties."


S"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 nomination of candidates by political parties 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 candidate shall adopt the procedure outlined below:

(a)     ....................

(b)     In the case of nominations to the position of Governorship candidate, a political party shall, where they intend to sponsor candidates:

(i)      hold special congress in each of the States Capital with delegates voting for each of the aspirants at the congress to be held in designated centres or specified date appointed by the National Executive Committee (NEC) of the party; 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 an aspirant's name shall be forwarded to the Commission as the candidate of the party, for the particular State.

(c) ..........

(d) ...............

(5) .................

(6)     Where there is only one aspirant in a political party for any of the elective positions mentioned in Sub section (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)     Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complaints that any of the provisions of this Act and the guidelines of a political party has 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 FCT, for redress.

(9)     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 sui"

"S.141" An election tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election."

S.86"

(1)     The Commission shall monitor and keep records of the activities of all the registered political parties.

(2)     The Commission may seek information or clarification from any registered political party in connection with any activities of the political party which may be contrary to the provisions of the Constitution or any other law, guidelines, rules or regulations made pursuant to an Act of the National Assembly.

(3)     The Commission may direct its enquiry under Subsection (2) of this Section to the Chairman or Secretary of the Political Party at the National, State, Local Government or Area Council or Ward level, as the case may be.

(4)     A political Party which fails to provide the required information or clarification under Subsection (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. Nomination of Candidates by Parties.

 

On the matter of who has qualified or not to contest for Governorship I shall refer to Sections 177 and 182 of the 1999 Constitution which provide thus:

S.177

"A person shall be qualified for election to the office of a Governor of a State if:

(a)     He is a citizen of Nigeria by birth:

(b)     He has attained the age of 35 years

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

(d)     He had been educated up to at least school certificate level or its equivalent".


Again, Section 182 of the Constitution states thus:

S.182 (1)"No person shall be qualified for an election to the office of Governor of a State if:

(a)     Subject to the provisions of Section 28 of the 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 in 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 named called) or any other offence imposed or him by any Court or Tribunal or substituted by a competent authority of any other sentence imposed on him by such a Court or Tribunal; or

(e)     Within a period of less than ten years before the day of the 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 undercharged 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:

(h)     He is a member of any secret society; of

(i) H   e has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or any Administrative Panel of Inquiry or a Tribunal setup under the Tribunal of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government; or

(j)      He has presented a forged Certificate to the Independent National Electoral Commission."

 

From the provisions of the Constitution in particular reference to Sections 177 and 182 , it is clear that the matter of who qualifies to contest for election as Governor has been graphically provided for and exhaustively stipulated and so nothing outside those constitutional prescriptions such as an inferior legislation to which the Electoral Act would be situated come into the arena of qualification or non qualification to so contest. In a similar presentation in Kubor v. Dickson (2013) 4 NWLR (pt. 1345) 534 this Court per Onnoghen JSC had stated thus:

"It is true that Section 34 of the Electoral Act makes provision for and enjoins the 3rd respondent to publish names of candidate for election but I hold the view that the Provision though employed the word "shall" is not mandatory but discretionary as its effect is the same as the word "may'' which is permissive. Publication of the name of a candidate cannot validate an otherwise invalid nomination and sponsorship of a candidate. In the situation where the 3rd respondent fails or neglects to publish the name of an otherwise validly nominated candidate of a political party for an election, the failure cannot be visited on the candidate to deprive him of the right conferred on him by the nomination to contest election in question....................... Publication by 3rd respondent therefore is truly an administrative act with no serious legal consequences on the nominated and sponsored candidate in case of failure to publish the name."


Chukwuma-Eneh JSC in the same light said:

"Before rounding off in the matter, there can be no doubt that the qualification or non-qualification of a candidate for election purposes is within the purview of Section 177 and 182 of the 1999 Constitution as amended and not Section 34 of the Electoral Act as failure to comply with provisions of Section 34 (supra) cannot in my view succeed to disqualify a candidate properly so sponsored by his political party. Howbeit, once a sponsored candidate has satisfied the provisions of Section 177 and 182 (Supra) he is qualified to stand for election to the office of Governor. He 1st respondent is therefore qualified to stand election to the office of Governor of Bayelsa State having so qualified under the aforesaid provisions of the amended Constitution. And so hold."


If follows that the matter of the primary Election of the 2nd respondent upon which it presented its candidate to the 3rd respondent is not an action that comes within the purview of whether or not the 1st respondent is qualified to contest the general election or not as provided for under Sections 177 and 182 of the Constitution. That is to say that the provisions of Sections 85, 86 and 87 of the Electoral Act, 2010 as amended are a different ball game in the issue of qualification rather they are within the ambit of administrative processes to be handled by a particular political party and in this case the 2nd respondent. In compliance with the supervisory role of the 3rd respondent, INEC and the Electoral Act has even provided for the punishment for infraction in the nature of fines and so any failure in compliance thereto cannot run into the disqualification of an individual candidate or to be tantamount to the said political party not contesting the general election. See Kubor v. Dickson (supra) Saidu v. Abubakar (2008) 12 NWLR (pt. 1100) 201 at 265, a decision of the Court of Appeal which is apt for our purpose herein.


Furthermore, assuming even, that there is a leg room for the challenge of the qualification of the 1st respondent to contest the general election, the question that would naturally crop up, as, who is to throw that stone of the dispute as we see herein, the 1st appellant who is undeniably from the opposition party and not a member of the 2nd respondent. The provisions of the Electoral Act have stipulated where there is dissatisfaction in who becomes the candidate of a political party and in that regard is Section 87 (9) of the Electoral Act, 2010 (as amended). It stipulates thus:

"Notwithstanding the provisions of the 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 FCT for redress".


This Court had in Daniel v. INEC (2015) 9 NWLR (pt.1463) 113 at 156 - 157 interpreted that prescription thus:

"By the provisions  Section 8(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 locus standi to raise a finger of complaint....... The appellant admitted that he did not participate in the stated primary. He is not an aspirant in terms of Section 87(9) of the Electoral Act .


He is not imbued however with the locus standi to challenge the said primary."

 

It is clear that assuming there was a breach of Sections 85 and 87 of the Electoral Act, 2010 (as amended) the appellants lack the locus standi to question the infraction or breach as it is an internal matter within the exclusive domain of the 2nd respondent and only its members particularly those who had contested in the said primary that have the right to throw their hat into the ring of a challenge and not a complete outsider as the 1st appellant or his political party, the 2nd appellant. In this I take refuge in the case of the Attorney-General Adamawa State v. A. G. Federation (2005) 18 NWLR (Pt.958) 581 at 648 wherein this Court stated thus:

"It is not enough for a plaintiff to merely state that on Act is illegal or unconstitutional. He must show how his civil rights and obligations are breached or threatened."

 

From the above it is easy to see that the questioning of whether or not the notice within 21 days to the INEC was done by 2nd respondent is not a matter to be raised by the appellants as they are strangers who cannot come from outside the political party to question what they had done within their domestic affairs. In that light and fuller and better reasoning in the lead judgment I see no merit in this appeal which I dismiss. I abide by the consequential orders as made.

 

OLUKAYODE ARIWOOLA, J.S.C. :

I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Okoro JSC. I admire the way His Lordship dealt with all the issues involved and Iýam in total agreement with the reasoning and the conclusion that the appeal is indeed devoid of merit. It deserves to be dismissed. Accordingly, I hereby dismiss same.

 

I abide by the consequential orders the said lead judgment including the order on costs.

 


MUSA DATTIJO MUHAMMAD, J.S.C.:

I had a preview of the lead judgment of my learned brother Okoro JSC, whose reasonings leading to the conclusion that the appeal is bereft of merit I hereby adopt as mine. I also imbibe the consequential orders made in the lead judgment including the order on costs.



AMIRU SANUSI, J.S.C.:

I had a preview of the judgment of my learned brother John Inyang Okoro, JSC and am in entire agreement with his reasoning and conclusion that this appeal is meritless and deserves to be dismissed. I however wish to chip in few comments on some points canvassed by learned senior counsel to the parties even if they will merely serve as emphasis or amplification on them.

 

My noble lord had adequately summarised the facts of the case leading to this appeal as well as the submissions of learned counsel when arguing this appeal which I do not intend to repeat them here.

 

From the facts and circumstance of this appeal it will not be out of place to say that this appeal is centred basically on the issue of compliance or otherwise with the provisions of Section 85 , Section 87 and Section 141 of the Electoral Act 2010 as amended (the Act for short) and Section 177 and Section 182 of the Constitution of the Federal Republic of Nigeria 1999, as amended . I will reproduce those provisions of the Act and the Constitution hereunder for ease of reference.

Section 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 at 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.

 

Section 87 of the said Act provides thus:-

(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 at indirect primaries.

(3)     A political patty 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)     not relevant

(b)     In the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:

(c)     not relevant

(d)     not relevant

(5)     Not relevant

(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 centred 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)     Not relevant

(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 FCT, for redress.

 

However, it should be noted that, the learned senior counsel for the appellant relied on an differently worded provisions of Sub section 9 of Section 87 of the Act which reads as below:

"Where a political party fails to comply with the provisions of this Act in the conducts of its primaries, its candidate for election shall not be included in the election for the particular position in issue."

 

Section 141 Act 2010 as amended reads thus:-

"An election Tribunal or Court shall not under any circumstance declare any person a winner of an election in which such a person has not fully participated in all the stages of the said election."

 

Section 177 of 1999 Constitution as amended reads thus:-

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.

 

Section 182 of 1999 Constitution as amended reads thus:-

"(1)   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 aýsentence 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.

(2)     Where in respect of any person who has been -

(a)     adjudged to be a lunatic;

(b)     declared to be of unsound mind;

(c)     sentenced to death or imprisonment; or

(d)     adjudged or declared bankrupt, an appeal against the decision is pending in any Court or law in accordance with any law in force in Nigeria, Subsection (1)of this Section shall not apply during a period beginning from the date when such appeal is lodged and ending on the dote when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier."

 

One of the saliant issues canvassed by the learned counsel to the parties, in my view, is "Whether the alleged noncompliance with the provisions of Sections 85 and 87 of the Act as amended did not disqualify the 1st respondent from contesting the election held on 11/4/2015 for the governorship post of Zamfara State?" My understanding of the wordings of Section 85 of the Act is that when a political party gets set to conduct primary election, it should give INEC notice for its conventions, congress, conference or meetings so that the electoral body, i.e third respondent herein, will watch, monitor and observe the process or event. The grouse of the appellant's senior counsel is that the notice given to INEC (the 3rd Respondent) was short of the 21 days as required by Subsection 4 of Section 85 of the Act before 2nd Respondent held its primaries. Here, we should not loose sight of the fact that an earlier notice was given to the 3rd Respondent by the 2nd respondent before the primary elections was rescheduled.

The appellant did say that the 3rd Respondent failed to monitor the primary election due to utter want of notice because it is a well known fact, that INEC had really witnessed and monitored the primary election held by the 2nd respondent. From the contents of Exhibit A3 therefore, I have no reason to share the appellant's learned silk's view that there was non-compliance with the provisions of Section 85 of the Act as amended. To my mind, the purpose of giving notice as contemplated by Subsection 4 of Section 85 is simply to notify the electoral body of the forthcoming primary election to be held by the political party and invite it to be present at the venue to watch, monitor or witness the event rather than to keep it unaware of that all important event. That purpose was in my view, achieved in this instant case, since INEC had infact attended and monitored the event and it did not complain at all. In any case, there is no provision in the Electoral Act 2010 (as amended) which stated that failure to give notice to INEC will make a political party its unfetted right to hold or sponsor a candidate to contest election. All that the provisions of the Act provide in its Section 86(4), is that such failure will simply amount to an electoral offence which attracts a fine of N500,000.00 period.

This brings me to the provisions of Section 87 of the Act as amended. By the provisions of Section 87 of the Act as reproduced supra, where a political party intends to participate in an election it must hold primary election to choose or select a candidate it would sponsor to contest a particular election on its ticket. Candidates seeking to be sponsored for the election by the political party are often referred to as "aspirants', and the process to be adopted in choosing or selecting such candidate/aspirant is ordinarily referred to as "primary election" which could be conducting through "direct" or "indirect" method. It is through the conduct of such primary election, that a candidate to represent the political party will emerge and such process is required to be monitored by INEC but is conducted by the National Executive Committee or any committee approved by the party machinery. After the conduct of the primary election, whoever emerged as winner of such election will be nominated by the political party to represent it at the election. However, where there is dispute with regard to the nomination of a political party candidate for election, the jurisdiction of the Court is limited to the provisions of Section 87(4) (c) (ii) of the Act (as amended). And if there are dispute(s) in the conduct of the primary election, only person who took part in the primary election is an aspirant within the meaning of Section 87(9) of the Act. That is to say, it is only ASPIRANT that has the locus standi to approach the Court to seek redress, pursuant to Section 87(9) of the Act.

 

Therefore, this precludes any person who though a member of the political party but did not participate at the primary election not to talk of any person who is even not a member of the said political party, as the present appellant who is a member of an entirely different political party. The appellant herein, therefore lacks the locus to complain in the manner a primary election of his adverse political party was conducted.

 

He is merely a busy body, he, not being, an aspirant. He will therefore have no grievance against that primary election since he was not a participant or even a member of the 2nd respondent party. See YarAdua v. Yandome (2015) 4 NWLR (Pt 1448) 723; Emeka v. Okadigbo (2012) 18 NWLR (Pt 1316) 55. Onuoha v. Okafor (1983) 2 SC NLR 244; Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310, PDP v. Sylva (2012) 13 NWLR (Pt 1316) 123.

 

Perhaps it needs to be emphasised here, even though this Court has settled it in a plethora of its decided authorities, that Courts have no jurisdiction to dabble into issue of nomination of candidate for an election by a political party. The political party always has the prerogative to conduct it, even though the Court is vested with a very limited jurisdiction under Section 87(4) (b) (ii), (c) (ii) and (9) of the Electoral Act 2010 (as amended), for instance, in order to examine if the primary election was conducted in accordance with the party's Constitution and Guidelines. See Emeka v. Okadigbo (supra).

 

Thus, it is in the light of these few comments of mine and the detailed reasons given in the lead judgment of my learned brother John Inyang Okoro, JSC which I am in entire agreement ,with that I also see no merit in this appeal and I accordingly dismiss it. I affirm the decision of the Court of Appeal of 12th November, 2015 which upheld the decision of the tribunal and returned the 1st Respondent as the duly elected Governor of Zamfara State of Nigeria. I also endorse the order on costs made in the lead judgment.


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