➥ CASE SUMMARY OF:
Yusuf Kabir v. APC, INEC, NNPP (CA/KN/EP/GOV/KAN/34/2023, 17TH DAY OF NOVEMBER 2023)
by Branham Chima.
➥ ISSUES RAISED
Membership of a political party;
Invalid votes deducted.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Governorship Election Petition Tribunal (Coram: Hon. Justice Oluyemi Akintan-Osadebay (Chairman), Hon. Justice I. Gandu (Member I) and Hon. Justice Benson Anya (Member II)) holden in Kano, Kano State, delivered on the 20th day of September, 2023 where the 1st respondent’s petition was held to have succeeded and its candidate declared as having scored the majority of lawful votes cast. Miffed by the tribunal’s decision, the appellant filed a notice of appeal on the 2nd day of October, 2023.
The appellant contested the aforementioned governorship election on the platform of New Nigeria People’s Party (NNPP) and was declared the winner by the 2nd respondent with a total votes of 1,019,602; while the 1st respondent, which sponsored one NASIRU YUSUF GAWUNA, was said to have scored a total of 890,705 votes. Being dissatisfied with the declaration and return of the appellant, the 1st respondent filed a petition on the grounds that: ‘(1) The election and return of the 2nd Respondent as Governor of Kano State was invalid by reason of non-compliance with the provision of Electoral Act. (2) That 2nd Respondent whose election is being questioned was, as at the time of the election not qualified to contest the election. (3) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.’
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the CTC can be admitted at the stage they were admitted and after the Petitioner had closed its case, on the hallowed principle of fair hearing as canvassed by the objectors?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE TRIBUNAL ACTED IN THE INTEREST OF JUSTICE
‘It should be noted that the objection to the admissibility of exhibits “P170”, “P171 (1-14) and “B126 B171” was not even raised by the appellant, but by the 2nd respondent, who was the 1st respondent in the tribunal, and who was supposed to accord the appellant and the 1st respondent equal rights, opportunities, access to documents in its custody and justice. As can be seen from the underlined portions of the parts of the tribunal’s judgment, reproduced above, the tribunal acted in the overall interest of justice. This is because a court or tribunal has no business condoning any litigation as a game of “hide and seek”, as the 2nd respondent tried to do, by releasing copies of public documents to the 1st respondent piecemeal, so as to defeat the ends of justice.’
THE ORDER VARYING THE PRETRIAL AGREEMENT FOR TENDERING WAS WITH THE CONSENT OF COUNSEL
‘In any case, the order of the tribunal made on 23rd of June, 2023 varying its order in the Pre-Trial Report was “with the joint consent of counsel to the parties” and the appellant cannot now be heard to complain. The law requires that a party must be consistent and will not be permitted to approbate and reprobate over one and the same issue. See the case of Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 3 NWLR (Pt. 1316) 1 at 22.’]
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II. Whether the tribunal could grant judgement to the candidate of the 1st Respondent who was not joined in the petition?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[EITHER THE PARTY OR ITS CANDIDATE CAN BE A PARTY TO AN ELECTION PETITION; OR EVEN BOTH
‘The cases relied upon, including Andrew v. INEC (2017) LPELR 42161 (CA), by the appellant to advance his case are not applicable to this case, with its peculiar circumstances and facts. Without any rigmarole, the appellant’s complaints that the candidate sponsored for the general election by the 1st respondent, Nasiru Yusuf Gawuna, was a necessary party who ought to have been joined as a petitioner to the 1st respondent’s petition has no sound legal prop upon it can stand. This is because under section 133(1) of the Electoral Act, 2022 “an election petition may be presented by… a candidate in an election; or… a political party which participated in the election.” The use of the word “or” by the Legislature in section 133(1) of the Electoral Act, 2022 is very instructive, because in the interpretation of statutes the word “or”, in its ordinary usage, is disjunctive. See the case of Da Karikim & Anor. v. Hon. Justice Luke Emefor & 6 Ors. (2009) 14 NWLR (Pt. 1162) 602 at 623-624, per Onnoghen, JSC; at 640, per Muntaka-Coomasie, JSC. Thus, under section 133(1) of the Electoral Act, 2022 an election petition can be presented either by a candidate who contested the election or the political party which sponsored the candidate. Both the candidate and his political party can also present a joint election petition. Where it is only a political party that presents an election petition, the petition is be deemed as having been presented on behalf of the party’s candidate also. This analogy was made by the Supreme Court, whilst interpreting section 137 of the Electoral Act, 2010 in pari materia with section 133 of the Electoral Act, 2022.’
‘In the case of All Progressives Congress v. Peoples Democratic Party (2019) LPELR 49499 (CA) this court, per Agim, JCA (as he then was, now JSC) held that: ‘Therefore such a petition is a representative action by the political on behalf of its candidate for the election and its members, the political party’s candidate for the election is an unnamed party for his benefit and that of the political party. An unnamed party in a representative action is a party to the action.’
THE PETITIONER EVEN SHOWED WHO HE WAS PRESENTING THE PETITION FOR
‘The 1st respondent clearly presented its petition for itself and its candidate, when it averred in paragraphs 3, 9, 17, 91 and 99 (4), (6) and (9) as follows: “3. Your Petitioner duly sponsored NASIRU YUSUF GAWUNA as its Candidate to contest the Governorship election held on the 18th day of March 2023.” “9. Your Petitioner has the right to present this Petition having participated as a political party that sponsored its candidate NASIRU YUSUF GAWUNA, in the election to the Office of Governor of Kano State held on Saturday, 18th March, 2023.”’
‘Since the 1strespondent’s petition was a representative petition and whether or not her (1st respondent’s) candidate was a named party, he would be entitled to reap the benefits of the success of the said petition. See Boko v. Nungwa & Ors. (2018) LPELR-45890 (CA).’
AFTER REMOVAL OF THE INVALID VOTES THE 1ST RESPONDENT BECAME THE WINNER OF THE ELECTION
‘This court was highly justified to pluck all the invalid votes off and deduct same from the 2nd Respondent’s votes. After the deduction of the invalid votes. The Petitioner became the rightful person that scored the majority of lawful votes in the said Kano State Election. This initial return of the 2nd Respondent was like building something on nothing. The effect of building in the air is that the wind will blow the structure away and bring it to nothing. That is what this Tribunal done. We dedare the Return of the 2nd Respondent by the 1st Respondent as manifestly wrong and I so hold.’
THE APPELLANT DID NOT EVEN CHALLENGE THE FACT THAT HE IS NOT A MEMBER OF THE POLITICAL PARTY
‘Even on the face of the pleadings of the parties, the appellant and his alleged political party the 3rd respondent did not put forward any resistance to the 1st respondent’s serious allegation that the appellant was not a registered member of the political party, which purportedly sponsored him in the disputed election. Whereas it is settled that: “…membership of a political party is a domestic affair of a party concerned. Therefore, the courts do not have jurisdiction to determine who the members of a political party are.” per Clara Bata Ogunbiyi, JSC; in Agi v. Peoples Democratic Party & Ors. (2016) LPELR-42578 (SC). See also the cases of Onuohav. Okafor (1983) 2 SCNLR 244; ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1; Lado v. CPC (2011) 18 NWLR (Pt. 1279) 689; PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85 and APGA v. Anyanwu (2014) 7 NWLR (Pt. 1407) 541.’
‘Therefore, the adjudged failure by the appellant and 3rd respondent to comply with the provisions of session 177(c) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) is fatal to their election. A person must first be a member of a political party before he can be legally or validly sponsored by that party as a candidate for a general election. Where a political party carelessly sponsors a person who is not its member as a candidate for an election, such an act of sponsorship, like a court or tribunal, which undertakes to exercise jurisdiction, which it does not have or possess, is nothing but a nullity, irrespective of whether such a person performs excellently well in the questioned election. Sponsorship without membership is like putting something on nothing and it cannot stand. The applicable legal maxim is: “Ex nihilo nihil fit” which means: “From nothing nothing comes”. In this case, the 3rd respondent shot herself in its foot by undertaking to sponsor the appellant before fishing for his membership of the party after the election.’]
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✓ DECISION:
‘ I will conclude by stating that the live issues in this appeal are hereby resolved in favour of the 1st respondent and against the appellant. Therefore, I find no merit in this appeal which is liable to be and is hereby dismissed.’
➥ FURTHER DICTA:
⦿ WHERE LEAVE IS REQUIRED BUT WAS NEVER FIRST SOUGHT AND OBTAINED
The law is settled that where leave is required and it was neither first sought nor obtained, any process filed or step taken by a party will be. incompetent and liable to be struck out or discountenanced. See Abubakar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 213. — M.A.A. Adumein JCA.
⦿ THE BEST EVIDENCE OF MEMBERSHIP OF A POLITICAL PARTY IS HIS REGISTER OF MEMBERS
The appellant relied on the case of Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 500-501, where it was held that the register of members of a political party is not the only proof of who is a member of the party. It is true that it was so decided in that case. However, a political party qualifies as “a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name” by virtue of section 77(1) of the Electoral Act, 2022. Being a body corporate, just as a company or body incorporated under the Companies and Allied Matters Act, its best evidence of its members is its register of members as mandated by section 77(2) of the Electoral Act, 2022; just as the relevant register of members of a Company under sections 105, 109, 110, and 111 of the Companies and Allied Matters Act, 2020 (as amended) constitutes the best legal evidence of membership of a duly incorporated company, association and partnership. — M.A.A. Adumein JCA.
⦿ CANDIDATE MUST BE SPONSORED BY HIS POLITICAL PARTY
It is trite that for a person to qualify as a candidate for a general election, he must not only be a member of a political party but he must have been sponsored for the election by his political party. See the cases of Gwede v. INEC & Ors. (2014) LPELR-23763 (SC); and Al-Hassan & Anor v. Ishaku & Ors. (2016) LPELR-40083. — M.A.A. Adumein JCA.
➥ PARTIES:
⦿ APPELLANT(S)
Yusuf Abba Kabir
⦿ RESPONDENT(S)
All Progressives Congress (APC)
Independent National Electoral Commission (INEC)
New Nigeria People’s Party (NNPP)
➥ LEAD JUDGEMENT DELIVERED BY:
Moore Aseimo Abraham Adumein, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Wole Olanipekun (SAN).
⦿ FOR THE RESPONDENT(S)
Chief Akin Olujimi (SAN), for 1st Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
