By: Valentine Adese (JP),
Hon. Peter Best Mallo has won the first leg of the legal battle against Hon. Joseph Guluwa, at the Court of Appeal, Jos Division, as the Court rules that his suit No: PLD/J/327CV/2021, challenging the candidature of Hon. Joseph Guluwa in the Plateau State Local Government election for Bokkos Local Government Council was not a Pre-election matter.
You would recall that, REALITY had reported that, Plateau State High Court (PSHC) presided over by, Hon. Justice Geoffrey Kamyal, had declined entertaining suit N0: PLD/J/327CV/2021, filed by Hon. Peter Mallo, challenging the candidature of, Hon. Joseph Guluwa, as the All Progressives Congress (APC) candidate in the last Local Government (LG) elections conducted by the Plateau State Independent Electoral Commission (PLASIEC), on 09/10/2021, because, the suit was already statute barred.
The Court, which upheld the Preliminary Objection (PO) filed by, Hon. Joseph Guluwa’s Counsel, Garba Pwul (SAN), said the cause of action was on the 23rd of June, 2021, when the primaries for the election was held in Bokkos Local Government Area (LGA) of Plateau State and not on the 10th of August, as perceived by the Plaintiff in his Affidavit.
However, at the hearing of, Hon. Peter Best’s Appeal, No: CA/J/245/2021, challenging the ruling of the Plateau State High Court, the panel chaired by Hon. Justice M. N. Oniyangi (JCA) with Hon. Justice B. M. Ugo (JCA), and Hon. Justice O. O. Goodluck (JCA) as members, agreed with the submission of M. B. Abullahi (Esq) for the Appellant/Applicant, Hon. Peter Best that, the suit was not a Pre-election matter.
B. Abullahi (Esq) had argued that, “The issue for determination at the Lower Court were, whether S. 87(2) of the Electoral Act, 2010 (as amended) Article 7(viii) and 20 (iii) 4 (a) and 5 of the All Progressives Congress’ Constitution (as amended) were duly followed in the nomination of a candidate in Primary Election.
“The second question was, whether S. 36(1) of the 1999 Constitution was adhered to in resolving the complaint of the Appellant, who was Plaintiff at the Lower Court.
“We therefore raised the issue, whether S. 87(a) of the Electoral Act 2010 was applicable to the Appellant’s case at the Lower Court.
“Lastly, the PLASIEC (2nd Respondent) at Paragraph 9, lays down guide lines for primaries. Having set out these guidelines, which border on non-adherence to the Electoral Act and the Constitution, this court has jurisdiction to entertain the case Refers specifically to S. 14 (a) of S. 285 of the Constitution 1999 (as amended) to say that Appellant’s complaint before the Lower Court falls within Pre-Election matter.
However, in opposing the submissions of M. B. Abdullahi (Esq), Nantok Dashuwar (Esq) with Pandak Bawa (Esq) for the 2nd and 3rd Respondents/Cross Appellants (PLASIEC, Hon. Guluwa) said, “Having more closely and critically examined the provision of S. 285(14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), we concede that the suit of the Appellant having complained of any irregularity from Pre-election to be conducted by INEC or any other Act of the National Assembly, this suit is not a pre-election matter as the relevant provision of the Constitution for the determination of a pre-election by S. 285 (14)(a) and (c) Constitution for election conducted by INEC or regulated by the Electoral Act or any other Act of the National Assembly.
“The election in this suit is regulated by Law of the Plateau State House of Assembly and an election to be conducted by the 2nd Respondent.
“Therefore, we urge that the appeal be deemed a regular Appeal so that, parties can canvases other issues in the Appeal, as well as, Cross-Appeal or better still, strike out the Appeal as both the appeal and the suit at the Lower Court are academic for the following reasons:
“The election in issue held n 09/10/2021. It does not serve any purpose even if the suit succeeds and the 1st Respondent is ordered to conduct another primary, the relief sought will not affect the main election.
“The relief of the suit is for APC to conduct fresh primaries. There is no relief affecting the general election which has been conducted”.
Taking a second bite on the argument, M. B. Abdullahi (Esq) told the Court that, “Parties must be consistent in presenting their case. At the Lower Court, 2nd and 3rd Respondents argued that S. 285(14) of the Constitution applied and it was on that basis our suit was struck out.
“Having benefited they cannot argue otherwise in this Court.”
In its ruling, the Court of Appeal stated that, “We have carefully read through the provisions of Section 285 focusing more particularly on subsection 14(a) of the section relied on by the Appellant for his argument that this appeal is a pre-election matter.
“It is imported that the parent S. 285 (1) of the Constitution (as amended) deals exclusively with elections conducted by the Federal Independent National Electoral Commission (INEC), namely: National Assembly and Governorship election all of which gives the pointer that the provision are all related to INEC conducted elections.
“Coming now to S. 285(14)(a) of the 1999 constitution as amended relied on by the Appellant, it is stated thus:
“S. 285(14)(a): “For the purpose of this section “pre-election” means any suit by an Aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guideline of s political party for conduct of party primaries has not been complied with by a political party in respect of selection or nomination of candidates for and election.”
“In interpreting this provision we must not forget that subsection 14 of 285 opens with the words “For the purpose of this section.” It does not simply say that a pre-election matter means.”
“That means subsection (14) is tied to the parent section 285 of the Constitution which deals exclusively with INEC conducted elections as earlier explained. That definitely excludes a Local Government election conducted primarily by Plateau State Independent Electoral Commission and under a Plateau State Law.
“Even going further and concentrating on subsection 14(a) of S.285 of the constitution as amended it is only an Aspirant who complains that any of the provision of the Electoral Act of the National Assembly regulating the conduct of primaries of political parties comes within the meaning of “pre-election matter.”
“A Local Government election in plateau state, I still emphasize is not one regulated by Electoral Act 2010 or any National Assembly Act only one conducted by INEC.
“In the circumstance, it is our decision that this Appeal though a pre-election matter, is not a pre-election matter within the meaning of S. 285(14) of the 1999 constitution and so, not caught by it.
“S. 285(12) provides that such appeal shall be disposed off within 60 days from the date of filing of the appeal in the light of the above, parties are advised to file their briefs of arguments in compliance with Court of Appeal Rules.
“Leave be and is hereby granted to Cross-Appellant to reply on the Record transmitted on 17/11/2021 and the 09/12/2021 supplementary Record of Appeal already compiled and transmitted by Appellant to this Court.
“The said two Records are hereby deemed as the Records of Appeal in this Appeal.
“The Appeal is adjourned to the 227th day of January, 2022 for hearing.”
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