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Unlawful Exclusion from Election: Whether a Pre-election or Post-election Matter


In the Bayelsa State Governorship Election Petition Tribunal
Holden at Abuja
On Monday, the 17th day of August, 2020

Before Their Lordships
Muhammad I. Sirajo (Chairman)
Yunusa Musa (Member I)
S.M. Owodunni (Member II)
Judges, High Court
EPT/BY/GOV/03/2020

Between

Advanced Nigeria Democratic Party (ANDP) …Petitioner
And

1. Independent National Electoral Commission (INEC)
2. Peoples Democratic Party (PDP)
3. Douye Diri ….Respondents

(Lead Judgement delivered by Honourable Justice Yunusa Musa (Member I))

Facts
The Petitioner was a registered Political Party in Nigeria, who sponsored candidates for the gubernatorial election in Bayelsa State. The Petitioner nominated and sponsored a certain Hon. Lucky King-George as its Governorship candidate, and submitted his name along with that of Mr. David Peter Esinkuma to the 1st Respondent (INEC). Upon receipt of the nomination and sponsorship of the Petitioner’s candidate, INEC informed the Petitioner that its Deputy Governorship candidate had not attained the constitutional age of 35 years. The Petitioner thereby, forwarded the name of Miss Inowei Janet (who was also below the constitutional age of 35) to INEC, to substitute the former. INEC also rejected the second name on the basis that nomination of candidates had closed, and informed the Petitioner that its name and logo would not be on the ballot papers for the election.

At the Gubernatorial election of 16th November, 2019, the name of the Petitioner and its logo weren’t on the ballot papers, though the Petitioner had sponsored candidates and mobilised its agents to the wards for the election.
At the end of the exercise, the candidate of All Progressives Congress (APC), Lyon David Pereworimin was declared the winner of the election. The 2nd Respondent (PDP) challenged the declaration made by INEC, and on 13th February, 2020, the Supreme Court, in Appeal No. SC.01/2020 – PDP & 2 ORS. v BIOBARAKUMO DEGI EREMIYO & 2 ORS., disqualified the candidates of the APC who were declared winners of the election by INEC. The court ordered that INEC declare the candidate with the highest number of lawful votes cast with the requisite constitutional or geographical spread, as the winner.

Based on the foregoing, INEC declared the 2nd and 3rd Respondents as winners of the election. Displeased with the declaration, the Petitioner, who had withdrawn its earlier Petition filed in November, 2019 after the conduct of the election, presented the present Petition on 26th February, 2020, further to the return of the 3rd Respondent as winner of the Governorship election based on the directive of the Supreme Court. By the Petition, the Petitioner sought the nullification of the election, alleging that it was unlawfully excluded from participating in the election in breach of Section 138(1)(d) of the Electoral Act, 2010 (as amended).
The 1st and 3rd Respondent filed separate Replies to the Petition and Notices of Preliminary Objection thereto.

Issues for Determination
With respect to the Preliminary Objections of the 1st and 3rd Respondent to the Petition, the following issues of the parties were considered by the tribunal –
Whether the prayers of the Applicant in the present application should not be granted considering the circumstances and contents of the Petition vis-à-vis the mandatory provisions of the Electoral Act, 2010 (as amended), the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and established judicial decisions.
Whether having regard to all the defects, incompetence, lack of locus standi, statute barred, want of jurisdiction, this Petition is not liable to be struck out/dismissed.

Issues in the Main Petition
1. Whether the Petition as constituted is not frivolous, vexatious and a gross abuse of the court process.

2. Whether the Petitioner was validly nominated but unlawfully excluded by the 1st Respondent, from the Bayelsa State Governorship Election of 16th November, 2019.

Arguments
Counsel for the Petitioner challenged the validity of the application of the Respondents seeking to strike out the Petition, alleging that there is no valid affidavit in support of the application. Counsel invited the tribunal to strike out paragraphs 7(b), (e) and (g), 8, 9, 10, 11, 12, 13, 14, 15, 17 and 18 of the affidavit which he described as offensive to Section 115 of the Evidence Act, 2011.

Arguing their Preliminary Objections and their defence to the Petition, the Respondents submitted that the Petition is a pre-election complaint which borders on the refusal of INEC to accept the nomination of the Petitioner’s candidate on the ground of his age, and the replacement of the said candidate. They urged the tribunal to strike out the sole ground of the Petition as being incompetent, arguing that the Petitioner founded its Petition on Section 138(1)(d) of the Electoral Guidelines and made pursuant to the Constitution and the Electoral Act. It was their submission that by Section 285(14) of the 1999 Constitution, the issue of nomination of candidates for election is a pre-election matter which can only be determined by regular High Courts, and not an Election Petition Tribunal. Further, being a pre-election matter, they argued that the Petitioner ought to have approached the court within 14 days as provided in Section 285(9) of the constitution. The Petitioner countered the above submission, arguing that Section 138(1)(d) of the Electoral Act, which relates to unlawful exclusion, is a post-election matter capable of being challenged before an Election Petition Tribunal. More so, the issues of qualification and nomination/exclusion are now pre-election and post-election matters that can be entertained by an election tribunal – MOHAMMED & ANOR. v SALLAU & ORS. (2015) LPELR-40752.

The Respondents argued further that, assuming the ground of the Petition is conceded as a post-election matter, the Petition is still statute barred as same was not filed within 21 days of declaration of the election results in compliance with the Electoral Act. They contended that election was conducted on 16th November, 2019 and the declaration of result was done on 17th November, 2019. They argued that aside the declaration by INEC on the foregoing date, no other declaration was made as the action of INEC on 14th February, 2020 in compliance with the order of the Supreme Court, is not a declaration. The Petitioner responded to the above submission by stating that its cause of action arose when INEC made the declaration of 14th February, 2020, pronouncing the 3rd Respondent as winner of the election.

Court’s Judgement and Rationale
On the Preliminary Point raised by the Petitioner to the competence of some paragraphs of the affidavit in support of the Preliminary Objections, the tribunal found that the said paragraphs offend the provisions of Section 115 of the Evidence Act, in that they contain legal arguments, prayers, conclusions and legal opinion. The paragraphs were consequently struck out. The tribunal also found that the said affidavit, which had become hollow with nothing in it to support the motion, was also defective as the Commissioner for Oaths merely initialed same contrary to Section 56 of the Oaths Act, 1963 – MARAYA PLASTIC INDUSTRIES LIMITED v INLAND BANK OF NIGERIA PLC (2002) FWLR (Pt. 120) 1732.

Assuming without conceding that the affidavit was useful, the tribunal considered the following points in its determination of the Preliminary Objections – (i) validity of the sole ground of the Petition vis-à-vis the provisions of Section 285(9) and (14) of the Constitution of the Federal Republic of Nigeria, 1999; (ii) waiver of Petitioner’s right to challenge actions or inactions of INEC; (iii) non-participation by the Petitioner in the election; (iv) non-inclusion of result of the election in the Petition; (v) corporate personality of the Petitioner and its capacity to maintain the Petition; and (vi) whether the instant Petition constitutes a review of the judgement of the Supreme Court in SC.01/2020 – PDP & 2 ORS. v BIOBARAKUMO DEGI EREMIYO & 2 ORS.

With regard to the submission on the Petition being statute barred because the Petition was not filed within 21 days in compliance with the Electoral Act, the election having held on 16th November, 2019 and declaration made a day after, the tribunal held that, given the order and directive of the Supreme Court in its judgement of 13th February, 2020, and the subsequent compliance thereto by INEC, the new date of declaration was 14th February, 2020 – TAKORI v MATAWALLE (Unreported Supreme Court judgement in) Suit No. SC.1540/2019 delivered on 23rd January, 2020. The cause of action arose on 14th February, 2020 when INEC made a new declaration which brought in the 3rd Respondent as the winner of the 16th November, 2019 elections. It follows that, the Petitioner filed the Petition within the period stipulated by Section 285(5) of the constitution.

On the point that the Petition is a pre-election complaint, the tribunal held that a pre-election matter may crystallise into post-election dispute; for instance, where the issue of disqualification goes into a post-election issue recognised by Section 138(1) of the Electoral Act. The issue here concerns election/declaration and return. Once the election has been conducted, only the tribunal has jurisdiction in line with Section 138(1)(d) of the Electoral Act – IGBEKELE & ANOR. v INEC & 2 ORS. (2019) LPELR-48536(CA). Although, Exhibit P.8, the letter of INEC dated 27th September, 2019 and addressed to the Petitioner, clearly stated that its logo will not be on the ballot paper, and one may argue that the Petitioner ought to have gone to court within 14 days of receiving the letter; however, in view of the decision of the tribunal that the actions of INEC in refusing the nomination of the Petitioner’s candidate is illegal, the Petitioner need not go to court because the action of INEC never took place in the eye of the law – JELILI v ADEBOMI (2009) LPELR-4351(CA). Cause of action does not arise until all facts necessary to sustain the facts, have occurred.

Regarding the issue of locus standi to claim the reliefs for the Governorship and Deputy Governorship candidates who had withdrawn from the Petition, the tribunal found that having declared the action of INEC illegal, null and void, it follows that Honourable Lucky King-George and Mr. David Peter Esinkuma are still the candidates of the Petitioner, as there is no evidence before the tribunal of their resignation, withdrawal of their nomination or death.

On the issue of deregistration of the Petitioner by INEC, the tribunal adjudged the issue as spent, given the decision of the Court of Appeal dated 10th August, 2020 in Appeal No: CA/A/507/2020, by which the appellate court declared that INEC cannot de-register parties listed in that suit. The tribunal took judicial notice of the above decision in recognising the Petitioner as a legal person in the eye of the law, competent to present a Petition under Section 137 of the Electoral Act.

Deciding the second issue, the tribunal outlined the requirements to establish a Petition on the ground of valid nomination but unlawful exclusion thus: (i) there was valid nomination; (ii) the election was conducted; (iii) the winner was declared; and (iv) the name/logo of the Petitioner was not on the ballot papers used for the election – ABUBAKAR & 2 ORS. v YAR’ADUA & 813 ORS (2010) 12 S.C. (Pt. II) 1. The Petitioner conducted its primaries in accordance with Section 87 of the Electoral Act, and sent the details of its nominated and sponsored candidates to INEC. Hence, the decision of INEC in rejecting the candidacy of Mr. Esinkuma (the nominated and sponsored Deputy Governorship candidate of the Petitioner), on the ground of age, is in excess of the powers of INEC. The action, which is null and void, is a nullity ab initio as the court is the only institution robed with authority and power to make such determination. Given the provisions of Section 31(1) of the Electoral Act, INEC does not have the power to disqualify any candidate. The action of INEC in this case was ultra vires its powers. INEC cannot screen a candidate, its duty is to supervise; it has no quasi-judicial authority or function – INEC v JIME & ORS. (2019) LPELR-48305(CA). Thus, it is safe to assume that the said disqualification never happened, as the nomination of the Petitioner’s candidate stands.

From the evidence before the tribunal, it was established that the Petitioner nominated its candidates and forwarded their names to INEC. The tribunal having found that the nomination and sponsorship of these candidates stand, it follows that the Petitioner and its candidates were unlawfully excluded from participating in the election conducted on 16th November, 2019. Where unlawful exclusion is proved, the court/tribunal is bound to nullify the election.
Consequent on the above findings, the tribunal nullified the declaration and return of the 3rd Respondent as the winner of the 2019 Bayelsa State Governorship Election; Ordered INEC to conduct fresh election throughout Bayelsa State within 90 days; and include the name and logo of the Petitioner and its candidates in the fresh election.

Petition Allowed by a majority of 2:1 with Honourable Justice Muhammad I. Sirajo Dissenting.

Representation
Kehinde Ogunwumiju, SAN with other counsel for the Petitioner.

Ibrahim K. Bawa, SAN and Usman O. Sule, SAN with other counsel for the 1st Respondent.

Chief Chris Uche, SAN and Gordy Uche, SAN with other counsel for the 2nd Respondent.

Emmanuel Enoidem, Esq. with other counsel for the 4th Respondent.

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

Quote
“…… A PRE-ELECTION MATTER MAY CRYSTALLISE INTO POST-ELECTION DISPUTE; FOR INSTANCE, WHERE THE ISSUE OF DISQUALIFICATION GOES INTO A POST-ELECTION ISSUE RECOGNISED BY SECTION 138(1) OF THE ELECTORAL ACT”



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