➥ CASE SUMMARY OF:
Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)
by Branham Chima.
➥ ISSUES RAISED
Invalid primary election;
Election conducted outside of constituency.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Imo State, sitting at Mararaba, Nasarawa State, Coram: Anthony Olotu Akpovi J., (Chairman), A. S. Kudu j., (Member) and Ibrahim Mohammed J., (Member) in Election Petition No. EPT/IM/HR/17/2023: Hon Austin Nwachukwu & Anor V. Hon Jonas Okeke & Others delivered on 10/92023, wherein the petition filed by the 1st and 2nd Respondents as Petitioners against the 1st and 2nd Appellants as Respondents, was granted and the declaration and return of the 1st Appellant of the 2nd Appellant by the 3rd Respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election.
The Appellants were peeved with the said judgment and had appealed against it to this Court vide their Notice of Appeal filed on 25/9/2023 on 14 grounds at pages 1405 – 1425 in Volume 2 of the Record of Appeal.
It was the case of 18 the 1st and 2nd Respondents, which was vehemently denied by the Appellants, that in contravention of the provisions of Section 84(5)(C)(i) of the Electoral Act 2022, which prescribed that where a political party chooses to adopt indirect primaries it shall hold delegate elections. In Imo State, the 2nd Appellant, PDP, purported to have conducted its primary election in Imo State for the National and State Houses of Assembly sponsorship exercise for all the constituencies in Imo State, including the Ehime Mbano/Ihitte Uboma/Obowo Federal Constituency on the 25/5/2022 at the Aladinma Mall Owerri, Imo State, a location outside the Ehime Mbano/Ihitte Uboma/Obowo Federal Constituency as required by law.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the lower Tribunal was right to have held that Ground ii and Relief 1 of the Petition are valid, AND whether the lower Tribunal was correct in declaring the sponsorship of the 1st Appellant by the 2nd Appellant invalid, AND whether the lower Tribunal was right to have assumed jurisdiction to hear and determine the Petition which is based and/or bordered on the issue of the Primary election of the 2nd Appellant, which is a Pre – election matter, on the nomination and sponsorship of the 1st Appellant by 2nd Appellant?
RESOLUTION: IN RESPONDENTS’ FAVOUR. ().
[THE 1ST APPELLANT DID NOT EMERGE AS A PRODUCT OF A VALID PRIMARY ELECTION
‘The Apex Court has spoken as above not just once but twice and thrice have I heard that a primary election conducted in contravention of the relevant and salient provisions of the Electoral Act 2022 is a nullity and no person who had purportedly emerged from such a farce is qualified to contest a general election under the Electoral Act 2022 by INEC, and so it is with the 1st Appellant!’
THE PRIMARY ELECTION WAS CONDUCTED OUTSIDE THE FEDERAL CONSTITUENCY
‘Now, on the above undisputed facts between the parties, the primary election of the 2nd Appellant in which the 1st Appellant emerged as candidate of the 2nd Appellant and participated in the questioned election which took place at Owerri outside the affected Federal Constituency as required by law, and that was not all. It was also not in any contention or dispute that the said primary of the 2nd Appellant from which the 1st Appellant had allegedly emerged as its candidate in the questioned election had been invalidated by the Supreme Court.’
THE TRIBUNAL RIGHTLY ASSUMED JURISDICTION AS THE MATTER WAS NOT A PRE-ELECTION ISSUE
‘This is so because issues of non-qualification of a candidate to contest an election are cognizable grounds in an Election Petition challenging the declaration and return of the person so declared and returned by INEC, and in such a claim, the 1st Respondent, though not a member of the 2nd Appellant and having also not participated in the primaries of the 2nd Appellant, would have the requisite locus standi to challenge, in an Election Petition, the valid nomination and sponsorship of the 1st Appellant as candidate of the 2nd Appellant, a locus standi he would have lacked if the claims were in a pre – election matter before the Federal High Court for being a mere busy body dabbling into the internal affairs of the 2nd Appellant. Thus, whilst the issue of nomination of a candidate cannot be questioned by a person who is neither a member of the affected political party and who did not also participate in the questioned primary election and nomination of a candidate in a pre-election matter by reason of lack of requisite locus standi, yet the same issue of valid nomination and sponsorship by a political party as required by Section 35 of the Electoral Act 2022 can rightly ground a complaint in an Election Petition before the lower Tribunal and the issue of locus standi would not operate against such a person and so also would the jurisdiction of the lower Tribunal not be ousted by the mere fact that the person so challenging the qualification of the other person declared and returned as the winner of the questioned election is not a member of the political party of the other person so declared and returned as winner and had also not participated in the alleged primary of that political party that had thrown up the other person as the candidate of his political party. It follows therefore, if a claim such as the one filed by the 1st and 2nd Respondents, which I hold was competently before the lower Tribunal, which also had the requisite jurisdiction to hear and determine it according to law, is made out it would result into the nullification of the declaration and return of the 1st Appellant, having not been validly sponsored as the candidate of a political party and thus, not qualified to contest the questioned election. The only way out of all these is simply the entrenchment of internal democracy and obedience to the provisions of both their constitution and guidelines by all the registered political parties in Nigeria in the due conduct of their affairs.’
THE PRIMARIES OF THE 2ND APPELLANT HAD EARLIER BEEN DECLARED INVALID BY THE SUPREME COURT
‘I have looked at the averments in the replies filed by the 1st and 2nd Appellants respectively, and it is little wonder, more particularly on the face of the valid and impeccable decisions of the Supreme Court in Hon. Jerry Alagbaoso v. Independent National Electoral Commission & Ors. (2023) LPELR-59702 (SC); and Hon. Nnamdi Thankgod Ezeani v. Jones Onyeneri & Ors. (2023) LPELR-59701(SC), which invalidated the primaries conducted by the 2nd Appellant, including the nomination of the 1st Appellant, none of the 1st and or 2nd Appellants denied the facts relied upon by the 1st and 2nd Respondents on this fact in their petition challenging the declaration and return of the 1st Appellant by the 1st Respondent as the winner of the questioned election. I have for myself taken time in the course of writing this judgment to read these decisions of the Apex Court and I believe and I so hold that they sound a death knell on all the contentions of the Appellants in this appeal, which merely await a decent burial by way of a dismissal.’
SINCE APPELLANT RETURN IS DECLARED NULL, THE SECOND HIGHEST WITH VOTES SHOULD BE DECLARED THE VALIDLY RETURNED CANDIDATE
‘On the 1st Respondent notice, the essence of which is seeking an order of this Court directing the 3rd Respondent, INEC, to hold a rerun between the Appellant, who scored third highest of the valid votes cast at the questioned election and the candidate of the APC who score the second highest valid votes cast at the questioned election is, in my view, and I so firmly hold, neither in sync with or in compliance with the very succinct provisions of Section 136 (2) of the Electoral Act 2022 pursuant to which it was made. Under the above Section, there is absolutely no provision for the holding of a rerun, as what is explicitly provided for is the declaration of the person who had the second highest lawful votes cast in the questioned election, which going by the 1st Respondent’s notice was the candidate of the APC who is not a party to this appeal. The 1st Appellant scored the highest votes cast of 19, 468 now invalidated by reason of his non-qualification to contest in the questioned election on 25/22023. The candidate of the APC scored the second highest valid votes cast of 15, 920, while the 1st Respondent scored the third highest valid votes cast of 6, 877. Applying the provision of Section 136 (2) of the Electoral Act 2022 to the established facts and scores, the proper person to be declared as having been duly returned as the winner in the questioned election is the candidate of the APC, who incidentally is not a party to this appeal.’]
.
.
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✓ DECISION:
‘In the result, the judgment of the National and State Houses of Assembly Election Tribunal, Imo State, sitting at Mararaba, Nasarawa State, Coram: Anthony Olotu Akpovi J., (Chairman), A. S. Kudu J., (Member) and Ibrahim Mohammed J., (Member) in Election Petition No. EPT/IM/HR/17/2023: Hon Austin 37 Nwachukwu & Anor V. Hon Jonas Okeke & Others delivered on 10/92023, wherein the petition filed by the 1st and 2nd Respondents as Petitioners against the 1st and 2nd Appellants as Respondents, was granted and the declaration and return of the 1st Appellant of the 2nd Appellant by the 3rd Respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election, is hereby affirmed. Consequentially, the nullification of the declaration and return of the 1st Appellant, candidate of the 2nd Appellant by the 3rd Respondent, INEC, as the winner and duly elected in the election into the Ehime Mbano/Ihitte Uboma/Obowo Fed. Constituency in Imo State held on 25/2/2023 is hereby affirmed. There shall be no order as to cost.’
➥ FURTHER DICTA:
⦿ INVALID NOMINATION PROCESS CANNOT PRODUCE A VALID CANDIDATE FOR AN ELECTION
It is my thinking, and I hold the firm view on this, that by Section 29(1) of the Electoral Act 2022, the sponsorship referred to in Section 65(2)(a) & (b) of the Constitution of Nigeria 1999 (as amended), means nothing else than a valid sponsorship by a political party. It cannot be otherwise. Thus, a sponsorship by a political party which results from an invalid nomination process would be incapable of meeting the stringent requirement of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended). Therefore, a person who is shown to have emerged from an invalid primary or nomination process of a political party as required by law is not and cannot be said to have been sponsored by that political party since such a sponsorship is invalid by virtue of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended), and I so hold firmly. The law is and has always been, that a primary election of a political party conducted in contravention of the provisions of Section 84 (5) (c) (i) of the Electoral Act 2022, as where for instance such a primary election of the 2nd Appellant for a Federal Constituency was on 25/5/2022 at the Aladinma Shopping Mall, Owerri, Imo State a location outside the Ehime Mbano Ihitte Uboma Federal Constituency, is a nullity and of no legal consequence whatsoever. It follows therefore, a candidate who purportedly emerges from such an illegal primary election is not and cannot be said to be qualified to contest an election conducted under the Electoral Act 2022 by INEC. He remains disqualified for all purpose and if inadvertently declared and returned elected in an election conducted by INEC, which on its own has no power to disqualify him, and if he is challenged before an Election Tribunal, his declaration and return would be nullified and the candidate with the second highest lawful votes cast at the questioned election would be declared and returned at the winner of such an election by the Election Tribunal, or this Court where the lower Tribunal fails to do so. See Section 136 (2) and (3) of the Electoral Act 2022. See also Hon. Jerry Alagbaoso v. Independent National Electoral Commission & Ors. (2023) LPELR-59702 (SC), Hon. Nnamdi Thankgod Ezeani v. Jones Onyeneri & Ors. (2023) LPELR-59701(SC). — B.A. Georgewill JCA.
⦿ NON-QUALIFICATION IS A GROUND TO NULLIFY THE RETURN OF A CANDIDATE IN AN ELECTION; IT IS NOT A PRE-ELECTION MATTER
This is so because issues of non-qualification of a candidate to contest an election are cognizable grounds in an Election Petition challenging the
29 declaration and return of the person so declared and returned by INEC, and in such a claim, the 1st Respondent, though not a member of the 2nd Appellant and having also not participated in the primaries of the 2nd Appellant, would have the requisite locus standi to challenge, in an Election Petition, the valid nomination and sponsorship of the 1st Appellant as candidate of the 2nd Appellant, a locus standi he would have lacked if the claims were in a pre – election matter before the Federal High Court for being a mere busy body dabbling into the internal affairs of the 2nd Appellant. Thus, whilst the issue of nomination of a candidate cannot be questioned by a person who is neither a member of the affected political party and who did not also participate in the questioned primary election and nomination of a candidate in a pre-election matter by reason of lack of requisite locus standi, yet the same issue of valid nomination and sponsorship by a political party as required by Section 35 of the Electoral Act 2022 can rightly ground a complaint in an Election Petition before the lower Tribunal and the issue of locus standi would not operate against such 30 a person and so also would the jurisdiction of the lower Tribunal not be ousted by the mere fact that the person so challenging the qualification of the other person declared and returned as the winner of the questioned election is not a member of the political party of the other person so declared and returned as winner and had also not participated in the alleged primary of that political party that had thrown up the other person as the candidate of his political party. It follows therefore, if a claim such as the one filed by the 1st and 2nd Respondents, which I hold was competently before the lower Tribunal, which also had the requisite jurisdiction to hear and determine it according to law, is made out it would result into the nullification of the declaration and return of the 1st Appellant, having not been validly sponsored as the candidate of a political party and thus, not qualified to contest the questioned election. The only way out of all these is simply the entrenchment of internal democracy and obedience to the provisions of both their constitution and guidelines by all the registered political parties in Nigeria in the due conduct of their
affairs. — B.A. Georgewill JCA.
⦿ WHERE A PERSON WHO ATTAINED THE HIGHEST VOTE IS DECLARED NULL, THE SECOND HIGHEST WITH VOTES IS TO BE DECLARED THE WINNER
By Section 136 (2) of the Electoral Act 2022, it is provided thus: “Where an Election Tribunal or Court nullifies an election on the grounds that person who obtained the highest votes at the election was not qualified to contest the election, the Election Tribunal or Court shall declare the person who scored the second highest number of valid votes cast at the election who satisfied the requirement of the Constitution and the Act as dully elected.” In law, once an Election Petition succeeds under Section 134 (1) of the Electoral Act 2022, the only consequential order for the Election Tribunal or Court, where the Election Tribunal fails to do so, is an order declaring and returning the candidate with the second highest score of lawful votes as the winner of the said election. Indeed, neither the Election Tribunal nor this Court, has any discretion in this matter nor is it dependent on the reliefs claimed or not claimed by the Petitioner. — B.A. Georgewill JCA.
⦿ A RESPONDENT NOTICE IS TO AFFIRM THE LOWER TRIBUNAL’S JUDGEMENT ON OTHER GROUND THAN THE ONE REACHED BY THE TRIBUNAL
At any rate, a Respondent’s notice is for the affirmation of the judgment of the lower Tribunal grounds other than the ground relied upon by the lower Tribunal. It is certainly not for a Respondent to ask an appellate Court to make a consequential order which the lower Tribunal did not make, which would be more appropriate, perhaps, through the means of a cross – appeal except where the 1st Respondent was the person who scored the second highest valid votes at the questioned election. In the latter circumstances, I would be prepared to declare the 1st Respondent if he had been the person who had the second highest valid votes cast at the questioned election even without a cross-appeal in tandem with the spirit and letter of the provision of Section 136 (2) of the Electoral Act 2022. The 1st Respondent notice, being bereft of neither any jurisprudential basis nor any legal foundation or statutory backing, is dead on arrival and it is accordingly dismissed for lacking in merit. — B.A. Georgewill JCA.
➥ PARTIES:
⦿ APPELLANT(S)
Hon. Jonas Okeke
Peoples Democratic Party (PDP)
⦿ RESPONDENT(S)
Hon. Austin Nwachukwu
Labour Party
Independent National Electoral Commission (INEC)
➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A..
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Osita Mbamalu Esq.
L.C. Ekene–Okwunma Esq.
⦿ FOR THE RESPONDENT(S)
Alex N.N. Williams Esq. & Prof Joshua Alobo, for 1st Respondent;
V.P. Odogbe Esq, holding the brief of Emeka Iwebulam Esq., for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
