Summary of Facts:
The 1st respondent, the Independent National Electoral Commission (INEC), conducted governorship election for Ogun State on 9th March 2019. The 1st appellant was the candidate of the 2nd appellant while the 2nd respondent was the candidate of the 3rd respondent. After the election, the 1st respondent returned the 2nd respondent as the duly elected Governor of Ogun State.
The petition of the appellants at the Ogun State Governorship Election Petition Tribunal challenging the return of the 2nd respondent was dismissed. The appellants were aggrieved and they appealed to the Court of Appeal. The Court of Appeal found no merit in the appeal, and dismissed it. Still aggrieved, the appellants appealed to the Supreme Court on 18 grounds of appeal.
At the hearing of the appeal, the 2 respondent challenged, on a motion on notice, the competence of grounds 14 and 18 of the grounds of appeal. Ground 14, the 2nd respondent opined, was a replication of ground 10 and that the appellants were precluded from canvassing two identical grounds of appeal. Against ground 18 of the grounds of appeal, the contention of the 2nd respondent was that it was “not directed against a decision/ratio decidendi the judgment of the Court of Appeal.
HELD: Unanimously dismissing the appeal.
The following issues were raised and determined by the Supreme Court:
On Effect where a lawyer acts as witness for his client in contentious matter-
Paragraph 20(4) of the Rules of Professional Conduct for Legal Practitioners, 2007 forbids a lawyer from being a witness for his client in a matter that is contentious. The point is so basic and fundamental that the total disregard or lack of it by a lawyer cannot be condoned. Any conduct that is a direct affront or infringement of the express Rules of Professional Conduct can only be regarded as a conduct unbecoming. In the instant case, the 2nd respondent’s motion was contentious. The appellants, through one Mubarak Imam who described himself as a Legal Practitioner in the Law Firm of Ahmed Raji & Co., counsel to the appellants” filed a counter-affidavit wherein they supposedly joined issues with the 2nd respondent on his objection to grounds 14 and 18. The counter- affidavit offended paragraph 20(4) Rules of Professional Conduct for Legal Practitioners, 2007 that forbids a lawyer from being a witness for his client in a matter that is contentious. The appellants’ counter-affidavit being so brazenly offensive was accordingly discountenanced.
On whether there is distinction between ‘aspirant and candidate’-
The words ‘aspirant and ‘candidate mean the same thing. Aspirant means or is a candidate; and the candidate means or is an aspirant. Both words are mutually synonymous. ln the instant case, the resort to the semantic distinction between a candidate as used in section 138(1) (e) of the Electoral Act and aspirant as used in section 285 (14) of the Constitution clearly was unnecessary.
On whether allegation of false statement by candidate in Form CF00I a pre-election issue-
By virtue of section 31(1) (2), (4), (5) and (6) of the Electoral Act the issue of alleged false statement in a candidate’s affidavit containing his particulars and personal information, Form CF001, is a pre-election issue. The National Assembly had by that provision provided for the determination or resolution of the issue. In the instant case, the appellants made an issue, in their petition, of the 2nd respondent’s affidavit, Form CF001, allegedly containing false statement of his qualification to contest the election to the office of the Governor of Ogun State. The tribunal and the Court of Appeal were right to have held that by virtue of section 31(1) (2), (4), (5) and (6) of the Electoral Act read together with 285(9) and (14) of the 1999 Constitution (as amended) it was a pre-election issue to be disposed of under section 31 of the Electoral Act (as amended), and was therefore statute- barred.
On Time within which to file pre-election matter-
By virtue of section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 as amended not withstanding anything to the contrary in the Constitution, every pre-election matter is to be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
Per EKO, J.S.C.:
“The complaint of the appellants that by dint of section 138(1)(e) of the Electoral Act, as amended in 2015, and the false information the 2nd respondent gave of himself in his form CF001 submitted to INEC in accordance with section 31(1) of the Electoral Act INEC 1st respondent had wrongly placed on the ballot the 2nd respondent whose alleged false information contained in his form CFO01 disqualified him from contesting the election.
Two events or actions respectively of the 3rd respondent that sponsored the 2nd respondent as its candidate, the 2nd respondent himself who made the affidavit, Form CFO01, and INEC that placed the 2nd respondent on the ballot notwithstanding the alleged falsity of the information in the said Form CFO01 are facts in issue. These events or actions are no doubt events or actions that preceded the election.
The wrongful act of INEC was that it placed the 2nd respondent on the ballot notwithstanding the falsity of the information and personal particulars he allegedly deposed to or averred in his Form CF001. On the part of the 2nd respondent the wrongful act was the submission to INEC the false information in his Form CF001 on which INEC put him on the ballot.
On onus on party alleging non-compliance as basis for challenging result of election-
A party asserting non-compliance as a basis for a court to declare invalid an election has the duty to prove substantial non-compliance. In the instant case, the appellants made non-compliance as a basis for the court to declare invalid the instant election.
However, the appellants failed to discharge the burden of proving the allegation of non-compliance/irregularities in their petition. They also failed to establish the substantiality of the alleged non- compliance.
About the Author
Moruff O. Balogun Esq. Is a prolific legal writer and researcher, he writes from
IJEBU ODE, OGUN STATE.