➥ CASE SUMMARY OF:
Allied Peoples Movement (APM) v. Independent National Electoral Commission (INEC) & Ors. (2023) – CA/PEPC/04/2023
by Branham Chima (SAL).
Allied Peoples Movement (APM)
- Independent National Electoral Commission (INEC)
- All Progressives Congress (APC)
- Tinubu Bola Ahmed
- Kashim Shettima
- Kabiru Masari
Presidential Electoral Petition Tribunal – CA/PEPC/04/2023
➥ JUDGEMENT DELIVERED ON:
Wednesday, THE 6th day of September, 2023
➥ THIS CASE IS AUTHORITY FOR:
⦿ NEW FACTS CANNOT BE INTRODUCED VIA A PETITIONER’S REPLY
It is therefore clear that paragraph 16(1) of the First Schedule to the Electoral Act does not permit a Petitioner in his Reply to introduce or bring in any new issue or fact which ought to have been raised in the petition itself. In other words, a Petitioner cannot in the guise of a Reply to a Respondent’s Reply, introduce a new issue of fact which was never raised in his Petition nor raised by the Respondent. To do that will amount to amending or adding to the petition, and also taking the Respondent by surprise because at that stage, the Respondent will not be in a position to react to such new issue or fact. It will therefore breach the Respondents fundamental right to fair hearing. Therefore, the Petitioner is not permitted to repair or rehash his averments in the Petition in such a way that it will amount to an amendment or reconstruction of the petition. See Dingyadi v. Wamako (2008) 17 NWLR (pt. 116) 395. — H.S. Tsammani, JCA.
⦿ DOUBLE NOMINATION IS A PRE-ELECTION MATTER; THE BASIS OF QUALIFICATION/DISQUALIFICATION
Considering the facts pleaded above, it is clear that, the claim of disqualification or non-qualification of the 3rd Respondent is centred solely on the invalid or double nomination of the 4th Respondent. However, it is the settled law that, the issue of nomination of a candidate at an election is a pre-election matter. Therefore, the issue of qualification or disqualification can only be ventilated on the grounds enumerated in Sections 131 or 137 of the Constitution … It therefore means that, the conditions of qualification or disqualifica are those prescribed under Sections 131 and 137, in case of persons contesting for Presidential Office. That means that, where it is alleged in an election petition, that a person is or was not qualified to contest election to the office of President of Nigeria, as stipulated in Section 134(1)(a) of the Electoral Act, 2022, it is Sections 131 and 137 of the Constitution of the Federal Republic of Nigeria that are applicable. See PDP v. INEC (2014) 17 NWLR (pt.1437) 525; Kakih v. PDP (2014) 15 NWLR (pt. 1430) 424-425, Ucha v. Onwe (2011) 4 NWLR (pt. 1237) 386 at 427 and Captain Idris Ichaila Wada & Or v. Yahaya Bello & Ors (2016) LPELR 41263 (CA). Thus, where election has been conducted and result declared, such election cannot be questioned on grounds of qualification save under Sections 131 and 137 of the Constitution, in the case of a Presidential election. This postulation is supported by Section 134(3) of the Electoral Act where it is stipulated that: “With respect to Subsection 1(a), a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of Sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of Sections 66, 107, 137 or 182 of the Constitution.” As stated earlier, the applicable provisions are Sections 131 and 137 of the Constitution. It is clear from the plenitude of the pleadings in this petition, that the facts grounding the Petitioner’s claim of disqualification or non-qualification of the 3rd and 4th Respondents is hinged on double and invalid nomination of the 4th Respondent. I had pointed out earlier in the course of this Ruling that, the issue of qualification or disqualification of a candidate at an election is strictly a requirement of the Constitution. It is held by the Supreme Court in Alhassan & Anor v. Ishaku & Ors (2016) LPELR 40083 (SC) That: “…, by virtue of the provisions of Section 138(1)(a) of the Electoral Act, a Tribunal’s power to decide whether a person is qualified to contest an election is restricted to establishing the requirements of Section 177 and 182 of the Constitution against the adverse party. An Election Tribunal has no jurisdiction to inquire into the primaries of a political party.” — H.S. Tsammani, JCA.
⦿ WHAT QUALIFIES AS ABUSE OF COURT PROCESS
It is trite law that, abuse of Court or judicial process simply means, the use of a Court process mala fide or in bad faith to the annoyance of the opponent. One variety of it is the institution of multiferous actions between the same parties with regard to the same subject matter and same issue, in the same or another Court. See Abdu Yunusa Indabawa v. Garba Magashi & Anor (2016) LPELR 41626 (CA) and Umeh v. Inu (2008) 8 NWLR (pt. 225) at 245. A quick look at the Originating Summons in Suit No: FHC/ABJ/CS/1275/2022 will show that, same was instituted in the Federal High Court, Abuja on the 27th day of July, 2022. Being a pre election matter, it ought to have been determined within 180 days as required by Section 285(10) of the 1999 Constitution. It therefore means that it lapsed by January, 2023 about a month before the Election in question was conducted. This petition having been instituted on the 20/3/2023 when Suit No: FHC/ABJ/CS/1215/2022 was no more alive, does not qualify as an abuse of Court process. This ground for this objection is also discountenanced. — H.S. Tsammani, JCA.
⦿ WHEN DOES ISSUE ESTOPPEL ARISES
Issue estoppel arises when the issue has been decided upon to finality by a Court of competent jurisdiction. In other words, once an issue has been raised and distinctively determined between the parties, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either party again in the same or subsequent proceedings except in special circumstances. See Adone & Ors v. Ikebudu & Ors (2001) LPELR 191 (SC) and Tukur v. Uba & Ors (2012) LPELR 9337 (SC). For issue estoppel to apply, the following conditions must be satisfied: (a) The same question was decided in both proceedings; (b) The decision which creates the estoppel must be final; and (c) The parties to the judicial decision or their privies to the proceedings in which the estoppel is raised. To determine whether the above three elements exist (they must co exist), the Court will closely examine the reasons for the judgment and other relevant facts that were actually in issue in the proceeding. See Oyekola & Ors v. Amodu (2017) LPELR-42391 (CA); OSPM Ltd v. Nibel Co. Nig. Ltd (2017) 3 NWLR (pt.1552) 207 at 234 and Dasuki (Rtd) v. F.R.N. (2018) LPELR-43969 (CA). — H.S. Tsammani, JCA.
⦿ A CANDIDATE OF A POLITICAL PARTY MUST NOT BE JOINED IN THE PETITION FILED BY THE POLITICAL PARTY
The 2nd Respondent/Applicant also contended that the Petition is not properly constituted as the candidate sponsored by the Petitioner has not been joined as a Co-Petitioner in the petition. The short answer to that is that, Section 133(1)(b) of the Electoral Act, 2022 entitles the Petitioner as a political party to institute an election petition. The Applicant has not referred us to any provision of the Electoral Act, or any authority that mandates the political party to file an election petition, only where its candidate has been joined as Co-Petitioner. It is true that, it is proper for the candidate of the party to be so joined but there is no law that compels the political party to join its candidate in the petition. Afterall, the purpose of such joinder is so that the candidate be bound by any judgment or order of the Court or Tribunal but any non-joinder will not invalidate the Petition. This is particularly so when Section 133(1) of the Electoral Act (supra) states that: “An election petition may be presented by one or more of the following persons – (a) a candidate in an election; or (b) a political party which participated in the election.” By the use of the disjunctive word “or”, it means that an Election Petition may be filed by the candidate alone, or the political party alone, or both of them. See Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (pt. 841) 446 and APC v. PDP & Ors (2015) LPELR – 24349 (CA). The objection on this ground is therefore discountenanced. — H.S. Tsammani, JCA.
⦿ WHO ARE NECESSARY RESPONDENTS IN AN ELECTION PETITION
Generally, necessary respondents in an election petition are the persons whose election or return is complained of, and the Electoral body that conducted the election. See Section 133(2) and (3) of the Electoral Act, 2022. Those are what are termed statutory respondents. It should be remembered the Election Petitions are sui generis, and its procedure strictly regulated by statute. Thus, where a person does not fall within the category of statutory respondents, they are not necessary parties in an election petition. See Agbareh v. Mimra (2008) All FWLR (pt.409) 559; APC v. PDP (2015) LPELR – 24587 (SC) and Buhari v. Yusuf (2003) 4 NWLR (pt.841) 446 at 498. Thus, in Waziri v. Gaidam (2016) 11 NWLR (pt. 1523) 230 at 265 paragraphs F-G; the Supreme Court held that: “From the above, I have no difficulty in going along with the submissions of the respective counsel for the respondent that Section 137(2) and (3) of the Electoral Act, 2010 has no room for the joinder of the 5th Respondent who neither won the election nor performed any role as electoral officer or agent of the third Respondent in the election petition challenging the result of such an election and even no relief was claimed against the said 5th respondent and indeed, he had nothing to gain or lose in the petition aforesaid.” — H.S. Tsammani, JCA.
⦿ WHERE CONSTITUTION HAS STATED THE QUALIFICATION FOR A PERSON TO CONTEST AN ELECTION, COURTS CANNOT ADD TO SUCH QUALIFICATION
That being so, where the Constitution has stipulated the qualifications to be attained by a person contesting or seeking to contest for any elective office created by the Constitution, the Courts cannot create or import into the Constitution any other qualifying or disqualifying factor. This has been the position of the Supreme Court and dutifully followed by this Court. It has therefore been held that qualification or disqualification of candidates to contest election is exclusively determined within the context or scope of the Constitution; and that nothing can be added to it. In other words, the Constitution being the grund norm is superior to any other law, including the Electoral Act. Therefore, where the Constitution has qualified a person or candidate to contest an election, no other Law except the Constitution itself, can disqualify him. See Agi v. PDP & Ors (2016) LPELR-42578 (SC); ANPP v. Usman (2008) 12 NWLR (pt. 1100) 1; PDP v. INEC (2014) 17 NWLR (pt. 1437) 525 at 559-560 and Nwaogu v. Atuma (2013) 11 NWLR (pt. 1364) 117. — H.S. Tsammani, JCA.
⦿ INTERMEDIATE COURT WILL PROCEED TO LOOK AT THE CASE MERIT
While I am tempted to put an end to this petition at this stage, but realising that this Court is not the final Court on the matter, I am constrained to look at the merit of the petition. — H.S. Tsammani, JCA.
⦿ REQUIREMENT FOR ESTOPPEL PER REM JUDICATA
Now, for a judgment to constitute issue estoppel the following conditions must be satisfied: – 1. the same question must be for decision in both proceedings (i.e. the same question for decision in the current suit must have been decided in the previous suit); 2. the decision relied upon to support the plea of issue estoppel must be final; 3. the parties or their privies must be the same. The three elements must be present and co-exist for a plea of estoppel per rem judicata to apply. See Ito v. Ekpe & Ors (2000) 3 NWLR (pt. 650) 678; Oshoboja v. Amida & Ors (2009) LPELR-2803 (SC) and Oleksandr & Ors v. Lonestar Drilling Co. Ltd & Anor (2015) LPELR – 24614 (SC).
⦿ A CONCURRING OPINION HAS EQUAL WEIGHT AND FORCE AS A LEAD JUDGEMENT
It is settled law that a contributory or concurring judgment has equal weight as the lead judgment. It is part of the lead judgment and therefore has the same force and binding effect. The mere fact that a concurring or contributory judgment contains what is not in the lead judgment will not whittle down its binding effect. Thus in Olufeagba & Ors v. Abdur Raheem (2009) LPELR-2613(SC), my Lord Fabiyi, JSC said: “A concurring judgment, has equal weight with or as a lead judgment. A concurring judgment compliments, edifies and adds to the lead judgment, when the justice, add to it certain aspects which the writer of the lead judgment did not remember to deal with. In so far as a concurring judgment performs same or all the above functions, it has equal force with or as the lead judgment in so far as the principles of stare decisis are concerned.” — H.S. Tsammani, JCA.
⦿ JUDGEMENT IN REM – IT DETERMINE THE STATUS OF A THING OR PERSON
Now, in Law, a judgment in personam is a judgment against persons who are parties or privies to the particular suit or proceeding alone. It is referred to as judgment inter parties. It is a judgment binding on the parties to the action alone. A judgment in rem on the other hand, is a judgment that determines the status of a person or thing as distinct from referred to as a the particular interest of a party to the litigation. It judgment contra-mundum, binding on the whole World. It is therefore binding, not only on the parties to the dispute but even on non-parties. Therefore, once the status of a person or thing has been pronounced upon by a Court of competent jurisdiction, no person is permitted to assert the contrary of what the Court has determined. See Black’s Law Dictionary (11th Edition) at page 1008; Gbemisola v. Bolarinwa (2014) 9 NWLR (pt. 1411) 1 at 19; Yanaty Petrochemical Ltd v. EFCC (2017) LPELR -43473 (SC) and Ladejobi & Ors v. Oguntayo & Ors (2015) LPELR-4170 (CA). A judgment in rem therefore, is an adjudication which pronounced upon the status of a particular subject matter, by a Court of competent jurisdiction. — H.S. Tsammani, JCA.
⦿ WHEN DOES A WITHDRAWAL TAKE EFFECT – WHEN LETTER US DELIVERED TO THE POLITICAL PARTY, NOT INEC
It is glaring from the express wordings of Section 31 of the Electoral Act 2022 that the legislative intention is that the withdrawal should take effect upon the nominated candidate personally delivering a written notice of his withdrawal to the political party and not when the political party conveys it to INEC. Section 31 states that what the party conveys to INEC is the withdrawal. The provision gives the party not later than 90 days to the election to convey the withdrawal of its candidate to INEC. Since the election held on 25-2-2022, the political party had up to 24-11-22 to convey the 4th Respondent’s withdrawal to INEC. So, it matters not if it was conveyed in 10-7-2022, 15-7-2022 or any other date, provided it is conveyed not later than 90 days to the election. The date of the conveyance within the prescribed period has no effect on the withdrawal that had already been done. Therefore, the 4th respondent withdrew as the 2nd respondent’s Senatorial candidate for Borno Central Senatorial District on 6-7-2022 when his written letter of withdrawal dated 6-7-2022 was received by his party on 6-7-2022.
⦿ FRESH PRIMARY ELECTION IS NOT NEEDED FOR SUBSTITUTED VICE PRESIDENTIAL CANDIDATE
By the proviso thereto, the political party affected, is enjoined to conduct a fresh primary election for the purpose of producing a new or fresh candidate to submit to the Electoral Commission. The grouse of the Petitioner here is that, the 5th Respondent withdrew his nomination as Vice-Presidential candidate of 2nd Respondent but the 2nd Respondent did not conduct another primary election for the purpose of producing a new Vice-Presidential candidate within the 14 days prescribed by Section 33 of the Electoral Act. It should be remembered that by Section 142(1) of the 1999 Constitution, a Presidential candidate for election to the office of President has the sole discretion, authority or power of nominating his associate who shall run with him in the election as Vice-President. The choice or nomination of a Vice-Presidential candidate is, not the product of any primary election. Therefore, in my view, the requirement to conduct a fresh primary election does not apply to the nomination of a Vice-Presidential candidate. Thus, my Lord Augie, JSC highlighted the point in his contributory judgment in PDP v. INEC & 3 Ors (Exhibit X1) as follows: “No; the fourth Respondent was not required to buy any nomination Form. He was the second Respondent (APC’s) candidate at the election into the office of Senator representing Borno Central Senatorial District. But before the election could hold, he was nominated as the third Respondent’s associate, who is to occupy the office of Vice President. The fourth Respondent did not buy a nomination Form for the said office, and most importantly, did not contest any primary election in order to emerge as APC’s Vice-Presidential candidate.”
➥ LEAD JUDGEMENT DELIVERED BY:
Haruna Simon Tsammani, JCA
⦿ FOR THE PETITIONER
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The Petitioner herein (ALLIED PEOPLES MOVEMENT) participated in the Presidential Election conducted by the 1st Respondent on the 25/2/23 by sponsoring a candidate (Ojei Princess Chichi). Aggrieved by the declaration and return at the election, has vide its Petition filed on the 20th day of March, 2023 prayed this Court, at paragraph 31 of the Petition, to grant it the following reliefs, inter alia: ‘WHEREOF your Petitioner claims and prays as follows: (i) That it may be determined that: (a) The 3rd Respondent was not qualified to contest as the Presidential candidate of the 2nd Respondent as at 25th February, 2023, when the Presidential Election was conducted by the 1st Respondent in the Federal Republic of Nigeria, having violated the provisions of Section 142(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. (b) A DECLARATION that the return of the 3rd Respondent by the 1st Respondent as the President elect of the Federal Republic of Nigeria is null, void and of no legal effect whatsoever, the 3rd Respondent having violated the provisions of Section 142(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the 4th Respondent having violated the provision of Section 35 of the Electoral Act, 2022.’
The Respondents were duly served the Petition and also responded by filing their Replies. The 1st Respondent’s Reply to the Petition was filed on the 9/4/2023. The 2nd Respondent’s Reply to the Petition was also filed on the 9/4/2023 while that of the 3rd and 4th Respondents was filed on the 13/4/2023. The 5th Respondent also filed a Reply to the Petition on the 16/4/2023. The Petitioner then filed Replies to the respective Replies of the Respondents to the Petition. The Respondents filed a number of Motions all of which challenged the competence of the Petition. Those Motions were duly heard during the pre-hearing session and Rulings reserved.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether in the Petitioner’s reply, new facts were introduced, and ought to be struck out?
RULING: IN RESPONDENT’S FAVOUR.
A. NEW FACTS ARE NOT TO BE INTRODUCED VIA PETITIONER’S REPLY
[‘In my view, the provisions of paragraph 16(1) of the First Schedule to the Electoral Act, 2022 are clear, unequivocal and unambiguous. It does not therefore, require any technical rule of interpretation to be understood. From a holistic reading of that provision, it would be seen that it is meant to explain the purpose of Petitioner’s Reply to the Respondent’s Reply. Its purpose is to raise answers to the defence, or any fact which must be specifically pleaded and which has the effect of destroying the Respondent’s defence, or make it not maintainable. The bottom line is that, a Petitioner is permitted by the First Schedule to the Electoral Act, 2022, to file a Reply where the Respondent to the petition has in his Reply raised new issues of fact in the defence, which fact the Petitioner has not dealt with in the petition. However, in doing so, the Petitioner’s Reply shall not introduce new facts, grounds or prayers tending to amend or add to the contents of the Petition. See APC v. PDP (2015 15 NWLR (pt. 1481) 1 at 31.’
‘With the state of the law as stated above, at the back of my mind, I have endeavoured to scrutinize the pleadings in the Respondents’ respective Replies to the petition, vis-à-vis the specific paragraphs of the Petitioner’s Replies complained of. I start with the 1st Respondent’s complaint. The 1st Respondent’s complaint is against paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Petitioner’s Reply. I have carefully studied those paragraphs of the Petitioner’s Reply. It is my view that paragraphs 1, 6, 7, 8, 12 and 14 of the Petitioner’s Reply to the 1st Respondent’s Reply are competent as they are proper replies to the 1st Respondent’s Reply. However, paragraphs 2, 3, 4, 5, 9, 10, 11, 13 and 15 of the said Petitioner’s Reply are not competent as they are either rehash of facts pleaded in the petition or they introduce and/or add new facts to the petition. Being incompetent, they are hereby struck out.’]
II. Whether the statement on oath accompanying the Petitioner’s reply to the Respondent reply are competent?
RULING: IN RESPONDENT’S FAVOUR.
A. STATEMENTS ON OATH ACCOMPANY REPLIES STRUCK OUT WILL BE STRUCK OUT ACCORDINGLY
[‘It is settled law that where a respondent raises in his Reply to the Petition, fresh or new issues, it will be necessary for the Petitioner to file a Reply to the Respondent’s Reply to the Petition. At that stage, the Petitioner may also file further written statement(s) on oath of witnesses he may wish to call in rebuttal of the new issues(s) raised by the Respondent. This is because, any failure by the Petitioner to reply or answer to those new issues raised by the Respondent will be deemed that the Petitioner has conceded to such fresh or new issues. See Idriss v. ANPP (2008) 8 NWLR (pt. 1088) 1 and Dingyadi v. Mammako (2008) 17 NWLR (pt. 1116) 395 at 442. That being so, the written statements on oath of witnesses, filed along with the Petitioner’s Reply to the Respondent’s Replies, in proof of the paragraphs struck out are accordingly struck out.’]
III. Whether the claim of double nomination on Shettima is a pre-election matter not meant for the tribunal to hear?
RULING: IN RESPONDENT’S FAVOUR.
A. DOUBLE NOMINATION IS A PRE-ELECTION MATTER
[‘It is apparent therefore that issues of nomination or sponsorship of candidates by political parties come under pre-election matters and should be instituted and determined before the conduct of the election. See Shinkafi & Anor v. Yari & Ors (2016) LPELR 26050 (SC) and Ella & Ors v. Agbo & Anor (1999) LPELR-6609 (CA). That being so, a ground of election petition questioning the election of a person duly qualified to contest such election as required by the Constitution cannot be sustained where it is predicated on nomination or sponsorship of such candidate. Therefore, a Petitioner who relies on non-qualification of his opponent to nullify the election must bring the facts of such non-qualification within the ambit of Sections 131 and 137 of the 1999 Constitution.’
‘As a fall out to my findings above, I hold the firm view that the issue of nomination or sponsorship of the 4th Respondent being a pre-election matter ought to have been ventilated by the Petitioner before the Federal High Court, as this Court has no original jurisdiction to delve into the matter. Even if, this Court has such jurisdiction, the cause of action being on a pre-election matter is statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).’]
IV. Whether the Petitioner has the locus standi to challenge the double nomination of Shettima?
RULING: IN RESPONDENT’S FAVOUR.
A. ONLY A PARTICIPANT IN THE PRIMARIES CAN CHALLENGE NOMINATION OF A POLITICAL PARTY
[‘On the issue of locus standi, I had also held in the previous Motions filed on the 7/5/23. 12/5/23 that, issues of nomination or sponsorship of candidate by political parties for an election come under pre-election matters. It is settled that, the issue of nomination of candidates by substitution is purely a pre-election matter, the only person with the locus standi to challenge the nomination is an aspirant who participated in the process of such nomination. In other words, apart from an aspirant who took part in the primary election, no other person is authorised to challenge such nomination by a political party for an election. Such process of challenging the nomination is sanctioned by Section 84(14) of the Electoral Act, 2022, 285(14) of the Constitution. See also Shinkafi & Anor v. Adulazeez A. Yari & Ors (2016) 7 NWLR (pt. 1511) 340 and Alhassan & Anor v. Ishaku & Ors (2016) LPELR 40083 (SC).’
‘It therefore follows that, the cause of action in this petition which is rooted in the nomination or sponsorship of the 4th Respondent is a pre election matter. Being a pre-election matter, the Petitioner herein has no locus standi to challenge or question such nomination or sponsorship of the 4th Respondent by the 2nd Respondent. Thus, in Peoples Democratic Party (PDP) Vs. Independent National Electoral Commission & 3 Others unreported decision of the Supreme Court delivered on the 26th day of May, 2023 in SC/CV/501/2023, Jauro, JSC held at page 31 lines 1-16 thereof as follows: “The provision does not make the filing of pre-election matters by political parties an allcomers affair. It is not the purpose of the provision that the floodgate of pre-election litigation be open to political parties who will hide under it to challenge the actions or inactions of rival political parties under the guise of challenging the decision or activities of INEC. The application of Section 285(14)(c) of the Constitution does not extend to a political party poking into the affairs of another. The position of the law has always been that no political party can challenge the nomination of the candidate of another litical party. No matter how pained or disgruntled a political party is with the way and manner another political party is conducting or has conducted its affairs concerning its nomination of its candidates for any position, it must keep mum and remain an onlooker, for it lacks the locus standi to challenge such nomination in Court.”’
‘It is clear therefore, that a political party, such as the Petitioner herein, only has the locus standi to file a pre-election matter when the situation affects it or its own candidate by virtue of Section 285(14)(c) of the 1999 Constitution. That being so, as in the instant petition where the grounds of the petition is rooted on the nomination or sponsorship of the candidate of another political party, this Petitioner will have no locus standi to institute the action, be it in the Federal High Court or an Election Tribunal. For that reason, it is my view that the cause of action in this petition being on the nomination and sponsorship of the 3rd and 4th Respondents by the 2nd Respondent/Applicant, the petition is incompetent for lack of locus standi on the petition to institute same. It is also liable to be struck out for being incompetent.’]
V. WHETHER THE 5TH RESPONDENT NAME BE STRUCK OFF THE PETITION?
RULING: IN RESPONDENT’S FAVOUR.
A. THE PETITION CONFERS NO BENEFIT NOR AFFECTS THE 5TH RESPONDENT
[‘Indeed, a holistic reading of the facts of this petition does not disclose any complaint against the 5th Respondent. The only fact that relates to the 5th Respondent, relevant to the petition, is the act of withdrawal of his candidacy as the running mate of the 3rd Respondent. That is an act that occurred within the pre-election period, therefore, cannot amount to any act done by the 5th Respondent at the election. It cannot therefore ground any complaint by the Petitioner against the 5th Respondent in an election petition. It may be relevant in a pre-election matter but not in an Election Petition. It is therefore my finding that, there is no any claim on the 5th Respondent. In other words, the reliefs sought in the petition will not in anyway affect the 5th Respondent as he did not participate in the petition either as a candidate or agent of the 2nd Respondent, and no declaration was made in his favour by the 1st Respondent. In that respect, I hold that the objection of the 5th Respondent on this ground has merit. Accordingly, I order that the name of the 5th Respondent be struck out of this Petition.’]
I. Whether the 4th Respondent was not qualified to jointly contest with the 3rd Respondent for the Presidential Election held on 25th February, 2023, having been purportedly nominated by the 2nd respondent as its candidate for more than one office?
RULING: IN RESPONDENTS’ FAVOUR.
A. IMPROPER NOMINATION IS NOT A GROUND FOR DISQUALIFICATION TO CONTEST PRESIDENTIAL ELECTION
[‘In the Rulings earlier delivered on Motions and Preliminary Objections, I had ruled that the petition grounded solely on the issue of invalid nomination or improper nomination is not a cognizable ground of disqualification under the Constitution. In other words, the claim in the petition that the 3rd Respondent was not qualified to contest the Presidential election because he nominated an associate whose nomination was invalid, does not flow from any ground of disqualification of a candidate to the office of President as stipulated in Sections 131 and 137 of the 1999 Constitution. See Balewa v. Muazu (1999) 5 NWLR (pt. 604) 638 at 647; Faleke v. INEC (supra) and Tarzoor v. loraer (2016) 3 NWLR (pt. 1500) 463.’
‘It has not been contended by the Petitioner that either the 3rd or 4th Respondent is trammelled by the provisions of Sections 131; or 137 of the 1999 Constitution. The complaint of the Petitioner rooted on nomination and sponsorship of the 3rd and 4th Respondent will find accommodation in a pre-election dispute, which the Petitioner cannot even pursue, not being a member of the 2nd Respondent. See Sections 84(14) of the Electoral Act, 2022 and 285(14) of the Constitution.’]
B. THE ISSUE OF DOUBLE NOMINATION WAS SETTLED FINALLY BY THE SUPREME COURT IN PDP V INEC (2023)
[‘I have endeavoured to quote extensively the dicta of the Law Lords of the Supreme Court in PDP v. INEC & Ors (supra), in order to show that the issue of double or even multiple nomination of the 4th Respondent as the Senatorial candidate and Vice-Presidential candidate of the 2nd Respondent in the 25th February, 2023 general election has been settled to finality. It is a judgment in rem, therefore, binding on the parties to this petition, and in fact, the entire World. Being the judgment of the final Court of this land, the Supreme Court, no person is permitted to again raise and litigate on it in any other action or proceeding. It is therefore settled, and remains settled, that this Petition which questions the qualification; and seeks to disqualify the 3rd and 4th Respondents from contesting for and occupying the seat of President and Vice-President of Nigeria, on ground of double or multiple nomination of the 4th Respondent as Vice President Candidate of the 2nd Respondent, on ground of double or multiple nomination of the 4th Respondent has no substance.’]
C. THE MENS REA & ACTUS REA OF DOUBLE NOMINATION WAS NOT PROVED
[‘It is clear to me therefore, that from the oral and documentary evidence adduced by the parties in this petition, the intention and fact of knowingly allowing himself to be nominated in more than one constituency, as alleged by the Petitioner, against the 4th Respondent has not been established. In other words, both the mens rea and actus reus of the act prohibited by Section 35 of the Electoral Act, 2022 were not established.’]
‘ On that note, I hereby hold that the Petitioner failed to prove the lone ground of its petition, to the effect that the 3rd and 4th Respondents were not qualified to contest the Presidential Election held on the 25th February, 2023 for the reason of double nomination of the 4th Respondent. Having resolved the sole issue of the Petition against the Petitioner, this Petition is also devoid of any merit.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)