Proper Respondents in an Election Petition Within the Electoral Act’s Contemplation 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th day of January, 2024

Before Their Lordships

John Inyang Okoro

Uwani Musa Abba Aji 

Mohammed Lawal Garba

Tijjani Abubakar

Emmanuel Akomaye Agim 

Justices, Supreme Court

SC/CV/1202/2023

Between

1. GBAGI KENNETH OMEMAVWA

2. SOCIAL DEMOCRATIC PARTY (SDP)                                                   APPELLANTS

And

1. INDEPENDENT NATIONAL ELECTORAL  RESPONDENTS

    COMMISSION (INEC)

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. SHERIFF FRANCIS OROHWEDOR OBOREVWORI

4. MONDAY ONYEME

5. ALL PROGRESSIVES CONGRESS (APC)

6. OMO-AGEGE OVIE AUGUSTINE

7. FRIDAY OSANEBI

8. LABOUR PARTY (LP)

9. KENNEDY K. PELA

10. JULIE NWAGOGO MUKORO

11. ALL PROGRESSIVES GRAND ALLIANCE (APGA)

12. GREAT OVEDJE OGBORU

13. CHINEDU SYDNEY ALLANAH

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The 1st Appellant, along with other contestants, participated in the Delta State Governorship Election conducted by the 1st Respondent on 18th March, 2023. After the polls, the 3rd Respondent who contested on the platform of the 2nd Respondent was declared and returned as the winner for scoring majority of the lawful votes cast at the election, while the Appellant came 5th in the election. 

Aggrieved by the declaration of the 3rd Respondent as the winner, and the other contestants who scored higher than them, the Appellants filed a petition at the Delta State Governorship Election Tribunal. The Appellants’ petition was predicated on the ground that the 3rd Respondent and the other contestants were not qualified to contest election, and that the election was invalid by reason of non-compliance with the provisions of 1999 Constitution and the Electoral Act. 

At the conclusion of trial, the Tribunal dismissed the petition for failure by the Appellants to prove the grounds in their petition. Dissatisfied, the Appellants appealed to the Court of Appeal. The Court of Appeal however, dismissed the appeal and affirmed the decision of the Tribunal. Consequently, the Appellants filed a further appeal to the Supreme Court.

Issues for Determination

 The Supreme Court adopted the following four issues submitted by the Appellants, in its resolution of the appeal:

(i) Whether the lower Court was not wrong when it affirmed the decision of the Tribunal which struck out the names of the 5th to 13th Respondent, on the ground that they are not necessary and statutory Respondents to a Petition.

(ii) Whether the lower Court was not wrong when it affirmed the decision of the Tribunal that issues of qualification of the 3rd and 4th Respondent are pre-election matters, which the Tribunal had no jurisdiction to adjudicate upon.

(iii) Whether the lower Court was not wrong when it affirmed the decision of the Tribunal that the Appellants failed to plead and prove sufficient facts, in respect of the ground that the 3rd Respondent was not duly elected by majority of lawful votes cast.

(iv) Whether the lower Court was not wrong when it affirmed the decision of the Tribunal which failed to consider the documents tendered by the Appellants, on the ground that they were dumped on the Tribunal.

Arguments

Counsel for the Appellants argued on the first issue, that inasmuch as there were complaints against the 5th – 13th Respondent regarding their non-qualification and since they scored more votes than the Appellant, they were necessary and proper parties to defend the petition, and if the allegations against them are proved, the Appellants who scored the next highest votes and satisfied the requirements of the Constitution and the Electoral Act can be returned as duly elected under Section 136(2) of the Act.

Counsel for the 1st Respondent argued conversely that Section 133 of the Electoral Act 2022 does not envisage an election petition between two or more losers of an election such as the Appellants and the 5th – 13th Respondent. He submitted that Section 133 of the Electoral Act and Section 285(2) of the Constitution make it clear that the only competent respondents to an election petition are the winner of the election and the body which conducted the election. 

On the second issue, counsel for the Appellants argued that the complaints on the qualification of the 3rd, 4th, 6th, 7th, 9th, 10th, 12th and 13th Respondents are post-election matters within the purview of the provisions of Section 182(1)(j) of the Constitution and Section 134(1)(a) & of the Electoral Act 2022, over which the Tribunal has the requisite jurisdiction to entertain.

Responding, counsel for the 1st Respondent submitted that the law is settled that the issue of qualification or disqualification of a candidate on the basis of his Forms CF001 or EC9 or falsification of documents such as school results and birth certificates, are pre-election matters which an election tribunal does not have the jurisdiction to entertain. He submitted that the gravamen of the Appellants’ case against the qualification of the 3rd and 4th Respondent being that they allegedly provided false information with respect to their particulars in their Forms CF001 and EC9,  the Court of Appeal rightly held that they are pre-election matters which an election tribunal has no jurisdiction to entertain.  

Arguing the third and fourth issues together, counsel for the Appellants submitted that the Appellants had elegantly pleaded the relevant facts necessary in respect of the ground that the 3rd and 4th Respondent were not duly elected by a majority of the lawful votes cast, and adduced both oral and documentary evidence to prove same. He argued that the provisions of Section 137 of the Electoral Act 2022 and paragraph 46(4) of the 1st Schedule to the Electoral Act 2022 have dispensed with the need for a petitioner alleging non-compliance to call oral evidence, if the original or certified true copies of documents tendered in evidence manifestly disclose the non-compliance alleged, and that the documents tendered by the Appellant manifestly disclosed and proved the non-compliance alleged by the Appellant, contrary to the findings of the Tribunal and the Court of Appeal.

In reaction, counsel for the 1st Respondent submitted that the Appellants failed to specify the particulars of the alleged infractions hence the allegations are mere speculations and conjectures. He contended that the 1st Appellant was the sole witness who testified in support of the allegations of non-compliance, and not been omnipresent or omniscient, his evidence of what transpired at all the polling units where non-compliance was alleged, was inadmissible. Counsel argued that Section 137 of the Electoral Act did not obviate the need for the Appellants to call oral evidence of the makers of the documents they tendered, to link the said documents to specific aspects of their complaint.

The submissions of the counsel for the other Respondents, are similar to the arguments canvassed by the 1st Respondent.

Court’s Judgement and Rationale

On the 1st issue, the Apex Court held that Section 285(2) of the 1999 Constitution and Section 133 of the Electoral Act 2022 recognise (i) the winner of the election subject of the petition; and (ii) the electoral umpire which is the Independent National Electoral Commission (INEC), as only two categories of persons that may be Respondents in an election petition. The Court, relying on its decisions in APC v PDP & ORS (2015) LPELR – 24587 (SC) and BUHARI & ORS v OBASANJO & ORS, held that the 5th – 13th Respondent do not come within the purview of the two categories of Respondents contemplated under the two sections, in view of the fact that none of them is a person who has been elected to the office of a Governor or Deputy Governor of a State and candidates/political parties who lost at an election are not envisaged to be sued as Respondents in an election petition challenging the declaration and return of the winner of the election.  The Court held that the 5th – 13th Respondent lost, and were not declared and returned as winners, hence, no competent election petition can be filed against them and a Governorship Election Tribunal established under the provisions of Section 285(2) of the Constitution would lack the requisite jurisdiction to entertain such petition.

Deciding the second issue, the Apex Court held that the allegation of submission of false information by a candidate in the Forms submitted to INEC before the conduct of an election for which he is nominated by his political party, which is provided for under Section 29(5) of the Electoral Act, 2022 is distinct from the allegation of presentation of forged certificate by a candidate who contested an election and becomes disqualified thereafter, within the contemplation of the provision of Section 182(1)(j) of the Constitution. The Court held that although both provisions relate to disqualification, an allegation of presentation of false information by a candidate to INEC in Forms CF001 and/or EC9 in preparation for the conduct of an election within the dint of the provisions of Section 29(5) of the Electoral Act, is a pre-election matter, which an election tribunal lacks the jurisdiction to entertain. 

The Apex Court held that the gravamen of the Appellants’ challenge to the qualification of the 3rd and 4th Respondent, being that the 3rd Respondent allegedly submitted false information about his personal particulars and his eligibility to contest in his Forms CF001 and EC9, and that the 4th Respondent  failed to disclose his alleged dismissal from employment of the National Open University of Nigeria in his Form EC9; there was no doubt that the Appellants’ petition was on pre-election matters, which the Tribunal had no jurisdiction to entertain. 

In resolving issues three and four, the Apex Court held that the provisions in Section 137 and Paragraph 46(4) of the 1st Schedule of the Electoral Act, 2022 which dispense with the necessity of calling oral evidence in demonstration of an allegation of non-compliance with the provisions of the Act in the conduct of an election; would only apply where the originals or certified true copies of the documents tendered by the petitioner manifestly disclose the non-compliance alleged, i.e. if the non-compliance alleged by a petitioner is apparent, prima facie obvious and patent at a glance or cursory look by the ordinary human eyes without any difficulty howsoever. Where however, any kind of explanation is needed to determine the nature, character or extent of the non-compliance alleged, then the provisions would not apply to relieve the party making the allegation the duty to call oral evidence to prove the non-compliance alleged.

The Court held further that for documents tendered through the Bar to be of any use, they must be specifically identified by evidence of witnesses to be connected to specific aspects of the case, in order to enable the court or tribunal to properly assess them alongside other piece of evidence adduced. The Court held that the various allegations of non-compliance made by the Appellants such as non-accreditation of voters by BVAS, over-voting, vote buying, alteration of results, snatching of ballot boxes cannot be said to be manifest on the few and negligible forms EC8As and EC8Es tendered by the 1st Appellant, who had no direct link to them, as to be competent to answer questions on them.

The Court held that since the documents tendered did not manifestly disclose the alleged non-compliance, and the Appellants failed to specifically identify the various forms tendered to show any connection to the specific incidences of non-compliance alleged in the petition, they had failed to discharge the burden on them to prove that the 3rd Respondent was not validly elected by majority of the votes cast at the election.  

Appeal Dismissed.

Representation

Ahmed Raji, SAN with others for the Appellants.

T. Gbashima  with others for the 1st Respondent.

E. Owuovoriole, SAN with others for the 2nd Respondent.

A. Asala, SAN with others for the 3rd Respondent.

Samson A. Eigege with others for the 4th Respondent.

Prof A. A. Kana  with others for the 5th Respondent.

Robert Emukpoeruo, SAN with others for the 6th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)An Affiliate of Babalakin & Co.