By: Valentine Adese (JP),
READ THE COURT OF APPEAL’S POSITION ON THE PDP CANDIDATE’S QUALIFICATION BELOW:-
Referring to the submissions of the appellant’s counsel that Exhibits P9B and P9C were not mentioned nor pleaded facts in relation to them in ground one of the petition, Learned Senior Counsel submitted that the Appellants’ counsel submissions is baseless because the Exhibits were pleaded in paragraphs 16 and 17 of the petition at pages 7 and 8 of the Record of Appeal.
Learned Senior Counsel submitted further that even if the 3rd Respondent was not a party to Exhibit P9B and P9C, it does not remove its binding effect on the 1st Appellant to obey the orders therein to the latter. That assuming without conceding it was the National Working Committee that sponsored the 2nd Appellant in the bye election under scrutiny, this was not pleaded or averred by the Appellants before the Tribunal and it still would not obliterate the illegality that all the delegates that voted to nominate the 2nd Appellant were not legitimate delegates and could not have validly nominated the 2ndAppellant and which also means the 1st Appellant would equally lack the vires or capacity to sponsor the 2nd Appellant for the bye election. That the 2nd Appellant was not sponsored by the 1st Appellant who at the time of the election had no capacity to sponsor a candidate which goes to the root of the validity of the 2nd Appellant’s candidature. The court is urged to so find and uphold the finding of the tribunal in this regard. He relied on this submission on the case of APC Vs Marafa (2020)6 NWLR (Pt. 1721) 383 at 43 para E.
With regard to the submission of the Appellant’s counsel that the 1st and 2nd Respondents sought for interpretation of Exhibit P9 series, Learned Senior Counsel submitted that the Appellants’ counsel was misconceived as none of the reliefs sought by the 1st and 2nd Respondents prayed for the interpretation of Exhibit P9 series. His heavy reliance on the case of Mbina Vs INEC (supra) is irrelevant.
That the 1stand 2nd Respondents rather prayed the Honourable Tribunal to give effects to orders of court, which is that the 1st Appellant had no structure to, and indeed did not sponsor the 2nd Appellant to contest the bye election, and 1st Appellant rendered him unqualified and in breach of Section 65 (2) (b)of the Constitution of Nigeria 1999 (as amended) and Section 101(e) of the Electoral Act, and against which the Electoral Act under Section 134(1)(a) has given the 1st and 2nd Respondents the audacity to approach the Tribunal for redress. The case of APC Vs Marafa (supra) at page 43 para D-E and Nwosu Vs APC (2020)16 NWLR (Pt. 1749) 20 (SC) were referred to.
It is finally submitted on the issue that the Tribunal was right when it relied on Exhibit P9 series particularly P9B and P9C to hold that the 1st and 2nd Respondents were not seeking interpretation of Exhibits P9 series and the 2nd Appellant was at the time of the bye election not qualified to contest the election as the 1st Appellant had no legal structure upon which capacity to sponsor the 2nd Appellant would have stood.
We are urged to resolve the issue in favour of the 1st and 2nd Respondents.
The essence of reply brief is to respond to new issues that must have arisen from the Respondent’s Brief which does not arise in this case. Reply brief is not an avenue to re-argue or embellish what has been canvassed in the main brief which is what the Appellants did in this case. The reply is therefore discountenanced.
The complaint of the 1st and 2nd Respondents in ground one of their petition is that the 2nd Appellant was not qualified to have contested the bye election of 26th February, 2022 into the office of Member, Federal House of Representatives of the Federal Republic of Nigeria for Bassa/Jos North Federal Constituency, Plateau State.
The 1st and 2nd Appellants in their reply to the petition averred in paragraph 7 that at the time of the election, the 2nd Appellant was duly qualified to contest the election having satisfied all the requirements of the relevant law and having been duly screened and cleared to contest the election. In paragraph 8 of the reply to give the petition it is disposed that all the Judgements (Ruling of the High Court of Plateau State referred to in paragraph 17 of the petition have no bearing on the qualification of the 2nd Appellant to contest the bye election. It is deposed in paragraph 16 that the 2nd Appellant was validly nominated and sponsored by the 1st Appellant after a duly conducted congress recognized by the 3rd Respondent.
It is important to point out at this stage that the appellants have a misconception of this issue. The issue is not whether the 2nd Appellant was screened and cleared to contest the election to have satisfied all the requirements of the law. The issue in controversy with regard to the non-qualification of the 2nd Appellant to contest the bye election of 26th February, 2022 relates to an order of court of competent jurisdiction, the High Court of Plateau State directing the 1st Appellant to conduct election for the PDP Executive Committee members for Plateau State. Exhibit “P9C” is the Judgment of the High Court of Plateau State in Suit No. PLD/J304/2020 delivered on the 26th day of November, 2020. It will not be out of place to produce the order of the court which reads:
“An order directing the 1st defendant. (1st Appellant) to take all steps, actions to conduct election for the PDP Executive Committee Members of Plateau State in accordance with the combined provisions of Section 223(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 85(3) of the Electoral Act (2010) (as amended), Article 49(1) of the Constitution of the People’s Democratic Party and paragraphs 5.2-5.5 of the Guidelines for the conduct of Ward, L.G.A, State, Zonal Congresses and the National Convention of the People’s Democratic Party”.
I have painstakingly gone through the averments of the Appellants in their reply to the petition at pages 93-101 of the record dated the 2nd day of April, 2022, there is nothing to show that the 1st Appellant complied with the order of the court before it sponsored the 2nd Appellant to contest the bye election of the 26th February, 2022 for Bassa/Jos North Federal Constituency, Plateau State.
The Appellant’s counsel has a misconception when he argued that the matter is a pre-election matter which the 1st and 2nd Respondents ought to have sought for redress before the election Tribunal. Learned counsel for the Appellants also argued that the 1st and 2nd Respondents did not plead any fact in relation to the Judgments of the
Plateau State High Court in Suit No. PLD/J/304/2020, as basis for non-qualification of the Appellants. This is incorrect. At page 7 of the Record of Appeal paragraph 16(a)(b)(c) and (d) the judgments of the Plateau State High Court to be relied upon by the 1st and 2nd Respondents were specifically pleaded in paragraph 16(c). Arguing further learned counsel for the Appellant submitted that Exhibits “P9B” and P9C” have no link with nomination and sponsorship of the 2nd Appellant and cannot be used to determine whether the 1st Appellant validly sponsored the 2nd Appellant for the bye election.
Learned Senior Counsel for the 1st and 2nd Respondents argued that by virtue of Section 65(2)(b) of the Constitution, the person vying for office of the House of Representatives must be a member of the political party and sponsored by that party which by implication must have a structure that sponsors a candidate for the election.
In the instant case, the structure of the 1st Appellant was nullified by a court of competent jurisdiction as reproduced earlier in this judgment. It follows therefore the 1st Appellant has no structure in existence to sponsor the 2nd Appellant for the bye election of 26th February, 2022 for House of Representatives, Bassa/Jos North Federal Constituency for failure to comply with order of Plateau State High Court in Suit No. PLD/J304/2020, Exhibit P9C.
An issue of qualification of a candidate to contest an election under the Electoral Act 2010 (as amended) is both a pre-election and election matter. See Fayemi Vs Oni (2020)8 NWLR (Pt. 1726) 222 at 229. The purported screening, clearance and sponsorship of the 2nd Appellant by the 1st Appellant being a nullity and emerging therefrom, he could not be regarded as a candidate of the 1st Appellant within the meaning and context of Section 106(d) of the constitution of Nigeria 1999 (as amended). No political party by virtue of section 106(d) of the constitution can be declared winner of any election if it had no candidate qualified to contest the election. See Aghedo Vs Adenomo (2018)13 NWLR (pt. 1636) 264.
In the instant case, the 1st Appellant did not comply with the order of the court of competent jurisdiction directing it to take steps to conduct election for the PDP Executive Committee Members for Plateau State, when it purportedly sponsored the 2nd Appellant to contest the bye election of 26th February, 2022 for Bassa/Jos North Federal Constituency in the House of Representatives. Now the question to be asked is whether the sponsorship of the 2nd Appellant by the 1st Appellant could be said to be valid as argued by the Appellants’ counsel? The answer is in the negative. This is because the 1st Appellant who is a party in both Exhibits P9B and P9C is bound to obey and comply with the order of the court as contained in Exhibit P9C, Suit No. PLD/J304/2020. But in total flagrant disobedience of the court order, the 1st Appellant went ahead to sponsor the 2nd Appellant to contest the bye election to the House of Representatives for Bassa/Jos North Federal Constituency Plateau State. A Judgment of Court of competent jurisdiction which has not been set aside on appeal is subsisting and binding on the parties affected by the said Judgment. The 1st Appellant is duty bound to respect and comply with the order of the court. This the 1st Appellant has failed to do in this case. The act of the 1st Appellant in sponsoring the 2nd Appellant for the bye election is void which has no legal effect. A party may not derive an advantage from its own unlawful acts, and this is captured in the latin expression nulluscommodumcaperepotest, exsua injuria, which means no man can take advantage of his own wrong. See Nwosu Vs Ape (2020)16 NWLR (Pt. 1749) 28 at 35 &Oyeneyin Vs Akinkugbe (2020)4 NWLR (Pt. 1184) 265.
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