With its recent landmark decision in the case of Abdulrauf Abdulkadir Modibbo vs Mustapha Usman, the Supreme Court may have corrected an error it made in its judgment installing Chibuike Amaechi whose name was not on the ballot for election as Governor of Rivers State as against Celestine Omehia, writes Davidson Iriekpen
Twelve years after the Supreme Court sacked then Rivers State Governor, Celestine Omehia from office and replaced him with Rotimi Chibuike Amaechi, the court may have admitted that the judgment could not serve as a reference point anymore in Nigeria’s jurisprudence.
The controversial judgment according to the court has been set aside by Section 141 of the Electoral Act, which says before anybody is declared elected in any election, such person must participate in all the stages of the election.
The apex court came up with this decision while delivering judgment in the case between Abdulrauf Abdulkadir Modibbo vs Mustapha Usman and two others over matters arising from the rightful contestant, winner and actual representative of Yola-North-South/Girei Federal Constituency in the House of Representatives.
Due to certain controversies that characterised the rightful governorship candidate of the Peoples Democratic Party (PDP) in Rivers State, then governor of the state, Dr. Peter Odili and the party had settled for Omehia, who did not participate in the primary election as against Amaechi, who came first in the election.
But in a shocking judgment, the highest court of the land sent Omehia packing on the grounds that he never existed in the eyes of the law despite the fact he his name was on the ballot. In his place, the Supreme Court ordered that Amaechi, who was disallowed to take part in the general election be sworn in as governor. The former Speaker of the Rivers State House of Assembly, who was in self-exile in Ghana, became the first man in the annals of Nigeria’s political history to become a governor of a state in a democracy without his name on the ballot.
Justice George Oguntade, who delivered the lead judgment made it explicitly clear that without a political party in Nigeria, a candidate cannot contest election. He said since there was provision for independent candidacy in the Nigeria, it is a political party that wins election in Nigeria not the candidate.
According to him, a good or bad candidate may enhance or diminish the prospect of his party in winning an election but that at the end of the day, it is the party that wins or loses an election.
“Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election.” The judgment had elicited divergent views locally and internationally from legal practitioners and political analysts. While many had hailed it, others condemned it for awarding victory to a person, who did not contest an election, other faulted it for assuming that a party primary was the same as a popular election, especially when the beneficiary of the former did not, in fact, canvass for popular vote or was voted for by the electorate.
Specifically, Prof. Ben Nwabueze (SAN) and the late Chief Gani Fawehinmi (SAN) had both faulted the judgment of the court. Even the then President, Umaru Musa Yar’Adua, had expressed some reservations over the judgment.
Since the decision in 2007, a new and strange standard had been set for the country’s judiciary as to whether a candidate that did not canvass for votes, did not vote and voted for could be deemed a governor in Nigeria.
After the Amaechi vs Omehia’s case, the Supreme Court on two occasions, equally used the case as a reference to sack a former senator from Taraba State, Abubakar Danladi and lawmaker representing Benue State in the House of Representatives, Herma Hembe in 2017.
But just recently, in an attempt to correct the wrong done in the past, the Supreme Court while adjudicating in another matter, which the Amaechi vs Omehia case was cited, admitted that the judgment that brought the Minister of Transportation to office in 2007 was no longer a good law. This position was reached by the five-man panel of the apex court in suit No. SC.90/2019 between Abdulrauf Abdulkadir Modibbo Vs Mustapha Usman and 2 Others on July 30, 2019. It held that only a person, who has participated in all the stages of an election, could be declared a winner.
On October 7, 2018, Modibbo contested the primary election conducted by the All Progressives Congress (APC) seeking nomination as the party’s candidate to contest the general election as a member representing Yola/North-South/Girei Federal Constituency of Adamawa State.
Usman at the trial court did not dispute that he lost the primary election. His grouse, however, was that the information on oath about Modibbo, which APC submitted to the Independent National Electoral Commission (INEC) were forged. He took out the summons apparently pursuant to the provisions of section 31(5) and (6) of the Electoral Act, 2010, as amended, that provide:
(5) “Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a state or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
(6) “If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.” Section 66(1)(i) of the constitution provides that: “No person shall be qualified for election to the Senate or the House of Representatives if he has presented a forged certificate to INEC.” The 1st respondent in paragraph 3 of his affidavit, provided the particulars of the forgery to the effect that the appellant is a graduate of public administration from the Adamawa State University, Mubi and was undergoing compulsory national youth service in Gombe State. He stated that the primary elections were conducted on October 7 while the appellant passed out of National Youth Service Corps (NYSC) on October 18, 2018.
At the high court, the applicant said Modibbo did not qualify to be nominated as a candidate for the APC, because he was yet to complete his NYSC and was still a serving NYSC member. He also provided documents indicating that Modibbo falsified some information submitted to INEC ahead of his election.
In its judgment, the high court presided by Justice Abdulaziz Anka ruled that the applicants proved beyond reasonable doubt that Modibbo should not have been fielded as a valid candidate for the party. It decided that the candidate with the next highest number during the main election should be made the winner.
The PDP candidate, Jafar Suleiman, who had emerged second in the election with 48,476 votes while Modibbo polled 80,48,476 votes was consequently declared the winner.
Dissatisfied with the division, Usman who emerged runner-up at the APC primary appealed the High Court decision at the Appeal Court, which ordered Usman to replace Modibbo.
Aggrieved by the Appeal Court decision, Modibbo took the matter to the Supreme Court, which quashed the decision, and upheld an earlier decision of a Federal High Court, which handed victory to the candidate of the PDP. It faulted the decision by the Court of Appeal, which ceded the office to another candidate of the APC, Mustapha Usman. A five-member panel of the court led by Justice Ejembi Eko directed INEC to issue certificate of return to the declared winner.
“The person other than these two, who scored the highest votes should be declared the winner,” the Supreme Court ruled.
Before resolving the third issue, the apex court first resolved the sole issue in the 1st respondent’s cross appeal, that is, the illegality of the appellant participating in partisan politics during his compulsory NYSC, whether he was qualified to contest for election into the House of Representatives in North/Yola South/Girei Federal Constituency? The court agreed with the trial court that the appellant contravened paragraph 9 of section 4 of the NYSC Act.
It disagreed with the Court of Appeal and held that continuous service for one year is compulsory and default is a crime by dint of section 13 of the NYSC Act and such default goes beyond mere indiscipline of engaging in partisan politics which under the 2011 revised bye-law makes the offending NYSC member liable to three months without pay.
The court disagreed with the appellant that a candidate could not be disqualified from contesting a general election to an office under the constitution, under any other law except by the constitution. It therefore resolved the issue in favour of the cross appellant.
Lastly, the court considered the third issue which is basically on the legality or otherwise of declaring the 1st respondent as the appellant’s replacement having not participated in all the stages of the election. The appellant referred to the provisions of section 285(13) of the constitution, which provides as follows: “An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of the election.” He argued that the 1st respondent, just like Amaechi, did not participate in all the stages of the election, because his name was not on the ballot for the general election.
The court agreed with him and added that Section 285(13) of the Constitution is in pari materia Section 141 of the Electoral Act. It held that the Amaechi vs INEC case is no longer a good authority to cite in court as same has been set aside by the aforementioned section of the Electoral Act.
The court held: “My lords, when section 285(13) of the Constitution is read together with Section 31(1),(5),(6)&(8) of the Electoral Act, it becomes very obvious the order, that the appellant, standing disqualified be replaced by the 1st respondent as the candidate of the 2nd respondent of the already concluded election, was made per incuriam. The order was a nullity; the courts below have made the order ultra vires” Issues one and two of the matters for determination were resolved in favour of the respondents but the third issue in favour of the appellant. The cross appeal also succeeded.
“Having found and held that the 2nd respondent (APC) had no candidate, in law, at the general election conducted on February 23, 2019 to elect the member in the House of Representatives to represent Yola North/Yola South/Girei Federal Constituency of Adamawa State; the 3rd respondent (INEC) is hereby ordered to declare and return as elected the candidate (other than the APC candidate) who polled the majority of lawful votes cast in the said election.”
