Ogembe Salau Ahmed & Anor. V. Senator Mohammed Abdusalami Ohiare & 2 Ors. (CA/A/EPT/617/2015 & CA/A/EPT/617A/2015): in this case, the Court of Appeal was asked to consider whether the Tribunal at first instance, was right in affirming the election of the 1st Respondent, despite a finding that he was not qualified to stand. Justice James Shehu Aribiyi of the Court of Appeal who read the lead judgment, in allowing the appeal, held that, “I agree entirely with learned Senior Counsel for the Appellants that the Tribunal, having found that the 1st Respondent was not qualified to contest the election, it was a contradiction in terms for the Tribunal to affirm his election and return. If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or Court shall nullify the election. See Section 140 (1) of the Electoral Act. The Tribunal in my view ought to have nullified the election as required by law…it would have had no reason to dismiss the petition. . . the order of the Tribunal dismissing the petition and ordering a return of the 2nd Respondent in the Kogi Central District are hereby set aside.
The Election and Return of the 1st Respondent is hereby nullified. INEC is hereby ordered to conduct fresh election for the Kogi Central Senatorial District within 90 days from today”. In this instance, the Court made no consequential order as to the status of the 1st Respondent or whether the 2nd Respondent was permitted to substitute its candidate. Abdulrahman Abubakar & APC Vs Senator Atai Aidoko Ali Usman & ORS. (CA/A/ EPT/609/2015 & CA/A/EPT/609A/2015); the Court of Appeal sitting in Abuja which heard this appeal from Kogi state National and State Assembly Election Petition Tribunal that nullified the election of the Appellant to the Kogi East Senatorial seat due to his disqualification from the contest. The Tribunal had further returned the candidate with the next highest votes to office as duly elected. Justice James Shehu Abiriyi that read the lead judgement held that “in my view the above finding of the Tribunal cannot be faulted. I too have gone through the said exhibit 135. I cannot see how it is evidence of primary election. Since it was not established that the 2nd Appellant did hold primary election, it is not surprising that the Tribunal held that a political party that did not validly submit a candidate for any elective position would not be in a position to legitimately substitute him for any other person… this in my view sufficiently disposes of Issue 4 which I resolve in favour of the Respondents… Justice Abiriyi further held that “having found that (the) circumstances of this case did not warrant the order of the Tribunal declaring the 1st Appellant (or Respondent) duly elected and ordering that the 3rd Respondent to issue a Certificate of Return to him as winner of the election held on 28th March 2015 in the Kogi East Senatorial District in the Senate, the said orders are hereby set aside by me. The Court then directed that fresh elections be held at Kogi East Senatorial District, without making a consequential order excluding the disqualified candidate from contesting or stating whether or not the Party was disqualified from fielding a candidate as ordered by the Tribunal.
It merely held that the Tribunal was right to bar the political party from substituting. APC Vs. Abdul Ogwu Alhassan, PDP, INEC & Hassan Abdullahi (CA/A/EPT/779/2015 & CA/A/EPT/779B/2015), where the Court was asked to consider whether the Tribunal at first instance, was right in nullifying the Elections at Okura State Constituency of Kogi State, on the ground that the Appellant did not duly nominate the 4th Respondent as its candidate, consequent to which, it disqualified the 4th respondent from participating in the said re-run elections. Justice James Shehu Abiriyi of the Court of Appeal who read the lead judgment and upheld the appeal, stated that “ in my view the tribunal rightly nullified the election having found that the 4th Respondent was not qualified to contest having not been elected through a primary election conducted by the Appellant. The consequence of nullification in my view was the order for fresh election”. However, the same Court further held that “the order excluding the 4th respondent from the fresh election in my view was unnecessary”, contrary to the ratio in Alwa’u & Ors. V. Yakubu & Ors. (CA/K/EP/SHA/30/2003), without reason or rationale.
Dr. Ali Friday Adoyi & Anor. V. Comrade Salifu Isah Idachaba, APC & INEC (CA/A/ EPT/739/2015); the Court of Appeal in Abuja, which heard an Appeal from a decision of the Kogi National and State Assembly Election Petition Tribunal affirmed the election of the 1st Respondent. The Appellants sought to question the validity of the Election of the 1st respondent, on the ground that no valid Primaries had been held by the 2nd Respondent from which the 1st Respondent could have emerged as its candidate. Justice James Shehu Abiriyi, held that “the 1st and 2nd Respondents on their part said primary election was conducted and that they will prove this by the constitution of the 2nd Respondent and guidelines for the conduct of elections. They however tendered purported primary election result-Exhibit R5, which does not show that INEC was represented. It does not show where the purported election was held. It was not sent to INEC. Exhibit R5 for the foregoing reasons especially since it was not pleaded cannot be evidence of primary election. Rather, on the pleadings and Exhibit P2, the Appellants have established that the 2nd Respondent (APC) did not hold any primary election to sponsor a candidate at the election… as the Appellants have established that the 2nd Respondent held no primary election to elect the 1st Respondent to contest the election, the election is hereby nullified”.
The Court then directed that fresh elections be held at Ofu State Constituency of Kogi State, without excluding the disqualified candidate or his party from contesting, especially, given their failure to hold primaries that would have validly given them a candidate to contest. Chief Victor Umeh & Ors. V INEC & ORS. (CA/E/EPT/28/2015) where the Court of Appeal, Enugu, was faced with an appeal that sought to determine, inter alia, whether the 11th respondent, who was returned as having won the said election, had been qualified to stand at the time of the elections. The Petitioner/ Appellants had argued that valid Primaries had not been held by the Respondent’s Party because the Party had not had a State Executive to conduct the Primaries in the State prior to elections. The Tribunal at first instance declined jurisdiction, holding that the question of whether a candidate had been properly nominated via Party primaries was a pre-election matter. However, Justice Abubakar Datti Yahaya of the Court of Appeal held that: “the 11th respondent was (therefore) not the product of a valid primary and was therefore not duly and legitimately nominated. That has disqualified her from contesting the election into the Anambra Central Senatorial District”. But Justice Yahaya further held that “consequently, the perverse decision which held that the 11th respondent had been properly and legitimately sponsored by the 12th respondent must and is hereby set aside”.
Once again, in disqualifying the candidate and nullifying an election, the Court called for INEC to hold an election within 90 days, without excluding the disqualified candidate from contesting. This resulted in confusion as to the status of the disqualified person and his Party. Comrade Murtala Badaru Adamu V. Hon. Shuaibu M. Lamaiya & ORS. (CA/A/ EPT/621/2015 & CA/A/EPT/621A/2015) where the Court of Appeal, Abuja was faced with an Appeal from a Judgment of the Niger State National Assembly and Legislative Houses Election Petition Tribunal, Minna. The Appellants sought to overturn the decision of the Tribunal in the first instance which nullified the election of the Appellant and disqualified him from standing in the subsequent re-run elections. Justice Mojeed Adekunle Owoade of the Court of Appeal ruled that the Appeal lacked merit and proceeded to direct that fresh elections be held at Suleja State Constituency of Niger State, without excluding the disqualified candidate from contesting, as per the decision of the Tribunal at first instance. This arguably led to uncertainty as to the status of the disqualified candidate. Vincent Venman Bulus V. Jackson Ponzhi Danladi & Ors. (CA/J/EP/SHA/9/2015), here, the Court of Appeal sitting in Jos, heard an Appeal from the decision of the National and State Assembly Election Petition Tribunal, and voided or nullified the election of the Appellant to the Plateau State House of Assembly.
Justice Joseph Shagbaor Ikyegh however held that. “the Judgment of the Tribunal to the effect that the Appellant’s conviction and sentence for the offence of cheating by (im)personation contrary to Section 324 of the Penal Code, an offence involving dishonesty, disqualified the Appellant from contesting the election under Section 107(1)(d) of the 1999 Constitution, as amended, (supra) cannot be faulted”. Yet, when the Court consequently directed that fresh elections be held, it did this without excluding the disqualified candidate from contesting in the fresh election as had been done in established earlier authorities, thus creating the potential for confusion as to the status of the Appellant.
PDP & Hon. Ismaila Muazu Hassan V. Hon. Barambu Umaru Kawuwa & ORS. (CA/YL/ EPT/GMB/HR/2015); the Court of Appeal in Yola that sat and heard this appeal from the decision of the Gombe State National and State Assembly Election Petition Tribunal, dismissed the Petition of the Appellant pertaining to the return of the 1st Respondent as winner of the election to the Akko Federal Constituency. The Appellant argued that the 1st Respondent was not duly qualified to contest the election because he was still a member of the PDP and not the 2nd Respondent Party, having failed to formally resign his membership of the party. They further contended that he also lacked the educational qualification as prescribed under the 1999 Constitution (as amended), by not having valid primary school and secondary school certificates respectively. Consequently, Justice Biobele Abraham Georgewill, declared the elections invalid and the candidate unqualified to contest, saying that “in my finding therefore, the Appellant having proved their case in line with their pleadings ought to have been granted their reliefs one (invalidation of the election) and two (disqualification of the 1st Respondent) by the Lower Tribunal, to which they are rightfully and legally entitled. I therefore grant reliefs 1 and 2 as claimed by the Appellants against the Respondents…I shall make an order for the conduct of fresh election by the 3rd Respondent, INEC, in which only duly qualified candidates shall participate within 90 days from the date of this Judgment”.
Although the Panel rightly directed that fresh elections be held at Akko Federal Constituency of Gombe State, without the disqualified candidate, the question left open was whether the Party could hold Primaries and substitute its candidate or whether they were also barred from fielding a candidate for the rerun election. The failure of the Court of Appeal to make consequential orders and to give direction to INEC on the status of the party whose candidate has been disqualified ridiculously caused suits to be filed before the Federal High Court to interpret the decision of some Court of Appeal panels. In this category includes the case of Hon. Hamma Adama Ali Kumo & APC Vs INEC (FHC/ABJ/CS/29/2016) in which the Court was asked to determine on the validity of the renomination of another candidate by the APC as a result of the disqualification of its previously nominated candidate by the Court of Appeal in the PDP & Hon. Ismaila Muazu Hassan V. Hon. Barambu Umaru Kawuwa & Ors. (CA/YL/EPT/GMB/HR/2015). Instead to follow the established authorities in Labour Party V. INEC (2008) All FWLR (Part 498) at Pages 332-333 (Paras. D-F), just as in the case of Labour Party V. INEC (2009) 6 NWLR (PT. 1137) 315 S.C, Justice Anwuli Chikere of the Federal High Court in Abuja averred that, “going by the dictionaries definitions of the adjective “fresh”, the Judgment of the Court of Appeal in Suit No. CA/YL/EPT/GMB/HR/76/2015 and Section 140 (2) of the Electoral Act 2010 as amended contemplates a “new election”, adding further that the election ordered by the Court of Appeal was a fresh election between duly qualified candidates including the 1st Plaintiff, despite the clear opinion of established Authorities cited above, which posit that the disqualified candidate, and by extension his party, were disqualified from participating in subsequent election. After all, the status of the disqualification was to return parties to status quo. In the same vain, in the cases of Comrade Salifu Isah Idachaba & APC Vs INEC (FHC/ ABJ/CS/84/2016); Senator Mohammed Abdusalami Ohiare & 2 Ors Vs Ogembe Salau Ahmed & Anor and Senator Abdulrahman Abubakar & APC Vs INEC & Ors., the Federal High Court was also requested for the interpretation of the Court of Appeal judgement, yet, Justice Chikere declined jurisdiction at this point to sit upon and determine the meaning of a Judgment of a higher Court. This is in stark contrast with its earlier decision in the cases of Hon. Hamma Adama Ali Kumo & APC Vs INEC (FHC/ABJ/CS/29/2016) and PDP Vs INEC (FHC/ABJ/CS/97/2016), based on similar facts.