WHETHER THERE CAN BE AN UNLAWFUL EXCLUSION WHERE THERE IS NO VALID NOMINATION

CASE TITLE: INEC v. ANDP & ORS (2020) LPELR-50950(CA)

JUDGMENT DATE: 2^ND OCTOBER, 2020

PRACTICE AREA: ELECTION PETITION.

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

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Electoral Petition.

FACTS

This appeal interrogates the majority decision of the Bayelsa State Governorship Election Tribunal, holden at Abuja, 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 first, second and third respondents respectively while the first respondent was the petitioner.

The appellant, 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 the 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 that election. Several registered political parties (44 in number) partook in the election. The third respondent was the flag bearer of the second respondent, the 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 appellant unlawfully excluded it and its candidates from participating in the election. After the polls, the appellant 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/02/2020, 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 second and the third respondents challenged the declaration and return made by appellant, 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 appellant to declare the candidate with the highest number of votes in that election of 16th November, 2019. In due obedience to that decision, the appellant declared the third respondent as the winner of the election on 14th February, 2020. Sequel to 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. At the closure of evidence, the parties, through counsel, addressed the Tribunal in manner required by law. In a considered majority judgment, the Tribunal granted the petition.

The appellant was aggrieved by the decision hence this appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

1. Whether having regard to the Petition and the evidence led, the Petition which is a challenge on the action or decision of the appellant in respect of nomination of candidates of the 1st Respondent for the Bayelsa State Governorship election, is not a pre-election dispute as defined by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus statute-barred.

2. Whether having regard to the combined provisions of Section 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Tribunal was right when it held that the 1st Respondent proved that its candidates were validly nominated but unlawfully excluded from the Bayelsa State Governorship election held on 16th November, 2019.

3. Whether the Tribunal was right when it granted reliefs that inure in favour of person who voluntarily withdraw from the petition.

DECISION/HELD

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

RATIOS:

• 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
• ELECTORAL MATTERS – QUALIFICATION/DISQUALIFICATION: Whether disqualification of a candidate is a pre-election matter
• 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
• PRACTICE AND PROCEDURE – APPLICATION(S)/MOTION(S): Content of an affidavit; Effect of an affidavit that does not comply with the provisions of the Evidence Act on a motion/application