EFFECT OF AN UNCONTESTED ISSUE THAT WAS VALIDLY RAISED IN A BRIEF OF ARGUMENT

PEOPLES DEMOCRATIC PARTY v. ADVANCED NIGERIA DEMOCRATIC PARTY (2020) LPELR-50993(CA)

JUDGMENT DATE: 2ND OCTOBER, 2020

PRACTICE AREA: ELECTION

LEAD JUDGMENT: OBANDE FESTUS OGBUINYA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Electoral Matters.

FACTS

This appeal is against the majority decision of the Bayelsa State Governorship Election Tribunal, holden at Abuja, (hereinafter addressed as “the tribunal”, coram judice: Yunusa Musa, J. (Member) and S.M. Owodunni, J. (Member) in Petition No: EPT/BY/GOV./03/2020, delivered on 17th August, 2020. The Chairman of the Tribunal, Mohammad I. Sirajo, J., dissented in a minority judgment. Before the tribunal, the appellant, the second and third respondents were the second, first and third respondents respectively while the first respondent was the petitioner.

The facts of the case are that the second respondent, the Independent National Electoral Commission (INEC for short), is a body constitutionally charged the burden responsibility to organise elections in Nigeria. In the discharge of that onerous duty, INEC conducted election to the office of the Governor of Bayelsa State on 16th November, 2019. Prior to that, it issued Regulations and Guidelines for the conduct of the election. Several registered political parties (44 in number) partook in the election. The third respondent was the flag bearer of the appellant, Peoples Democratic Party, (PDP) – a registered political party in Nigeria. The first respondent, another registered political party, had Lucky King-George and Mr. David Peter Esikuma and Miss Inowei Janet as its candidates for the positions of Governor and Deputy Governor respectively. Lyon David Pereworimini and Biobarakuma Degi-Eremienyo were the standard bearers of the All Progressives Congress (APC) – a duly registered political party in Nigeria. The first respondent alleged that the second respondent unlawfully excluded it and its candidates from participating in the election. After the polls, the second respondent declared and returned Lyon David Pereworimini of APC as the winner of the election on 17th November, 2019. The first respondent and its candidates, on 5th December, 2019, filed a petition, Petition No: EPT/BY/GOV/02/2019, against the election on grounds of unlawful exclusion from its conduct. At the behest of those petitioners, that petition was dismissed on 21st January, 2020.

The third respondent and the appellant challenged the declaration and return made by INEC in the Tribunal. The petition meandered from the tribunal via the Court of Appeal to the Supreme Court. On 13th February 2020, the Supreme Court, in Appeal No: SC.1/2020, disqualified the candidates of APC and nullified the declaration/return of the 17th November 2019 and ordered the second respondent to declare the candidate with the highest number of votes in that election of 16th November 2019. In due obedience to that decision, the second respondent declared the third respondent as the winner of the election on 14th February 2020. Sequel to the return, the first respondent, with its three candidates whose names were later struck out on their application, beseeched the tribunal, via a petition filed on 26th February 2020, and tabled against the appellant, the second and third respondents the following reliefs:

(i) That the election be nullified in that the election was invalid by reason of the unlawful exclusion of the 1st Petitioner and its candidate in breach of Section 138(1)(d) of the Electoral Act, 2010 (as amended).

(ii) That the declaration and return of the 3rd Respondent as winner of the 2019 Bayelsa State Governorship Election be nullified.

(iii) That INEC be ordered to conduct fresh election throughout Bayelsa State, also that INEC be ordered to include the name and logo of the 1st Petitioner together with the names of 2nd and 3rd Petitioners as its candidates in the said fresh election.

(iv) That INEC be ordered to recognize the 2nd and 3rd Petitioners as the 1st Petitioners Governorship and Deputy Governorship for the said fresh election.

OR IN THE ALTERNATIVE:

(i) That the election be nullified in that the election was invalid by reason of the unlawful exclusion of the 1st Petitioner and its candidate in branch of Section 138 (1) (d) of the Electoral Act, 2010 (as amended).

(ii) That the declaration and return of the 3rd Respondent as winners of the 2019 Bayelsa State Governorship Election be nullified.

(iii) That INEC be ordered to conduct fresh election throughout Bayelsa State for the election of the Governor and Deputy Governors of Bayelsa State, also that INEC be ordered to include the name, and logo of the 1st Petitioner together with the names of the 2nd and 4th petitioners as candidate of the 1st Petitioner in the said fresh Election.

(iv) That INEC be ordered to recognize the 2nd and 4th Petitioners as the 1st Petitioner’s candidates for the fresh Election.

In reaction, the appellant, the second and third respondents separately joined issue with the first respondent and denied liability by filing their respective replies to the petition. They also challenged the petition by dint of preliminary objections.

​Following the rival/discordant claims, the Tribunal had a full-scale determination of the preliminary objections and the petition. In proof of it, the first respondent fielded two witnesses, PW1 and PW2, and tendered tons of documentary evidence: exhibits P1 – P29. In disproof of it, the appellant called no witness but tendered, from the bar, exhibitR1. At the closure of evidence, the parties, through counsel addressed the tribunal in manner required by law. In a considered majority judgment, incorporating the preliminary objections, delivered on 17th August, 2020, the tribunal granted the petition. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATIONhttps://drive.google.com/file/d/1uG76ZbbYuDy2MmeKZu7MXzsnjWj-lLj2/viewhttps://drive.google.com/file/d/1uG76ZbbYuDy2MmeKZu7MXzsnjWj-lLj2/view

The Court determined the appeal on these issues couched as follows:

1. Whether having regard to Exhibits P7, P8 and P27 at pages 63, 61 and 114 of the record of appeal, respectively and the provisions of Section 285(9) and (14) of the 1999 Constitution (as amended by the 4th Alteration No, 21) Act, 2017, the Petition of the Petitioner now 1st Respondent was not statute-bared

2. Whether having regard to Exhibit P7 at page 63 of the record of appeal, Exhibits P10, P11, P12, P18 at pages 155, 100, 88 and 113 of the record of appeal, and the provisions of Sections 177, 186, 187 of the 1999 Constitution (as amended), Section 87 (1) (2) and (4)(b) of the Electoral Act, 2010 (as amended) and the Evidence of PW2 at pages 916 – 920 of the record of appeal, the Petitioner now 1st Respondent can be said to have made a valid nomination as to file a Petition for unlawful exclusion.

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The Court set aside the majority judgment of the Bayelsa State Governorship Election Tribunal delivered on 17th August, 2020. The declaration of the third respondent, Douye Diri, as the Governor of Bayelsa State, made by the second respondent, the Independent National Electoral Commission (INEC) on 14th February, 2020, was affirmed.

RATIOS:

• APPEAL- BRIEF OF ARGUMENT: Effect of uncontested issue that was validly raised in a brief of argument

• ELECTORAL MATTERS- PRE-ELECTION MATTERS: Time within which to file a pre-election matter and effect of a pre-election matter filed out of time; Proper Court to file pre-election matters and effect of a tribunal hearing a pre-election matter without jurisdiction

• ELECTORAL MATTERS- NOMINATION FOR ELECTION: Principles of law with respect to nomination/qualification of a candidate for election; onus on a party alleging unlawful exclusion after valid nomination; whether there can be an unlawful exclusion where there is no valid nomination

• EVIDENCE- AFFIDAVIT EVIDENCE: Contents of an affidavit and the test to determine facts and circumstances in an affidavit; effect of the presence of legal arguments in an affidavit

• JUDGMENT AND ORDER- PERVERSE DECISION: When a decision of Court is said to be perverse