The Court of Appeal in Abuja has dismissed the appeal by the People’s Democratic Party (PDP) and its candidate in the last governorship election in Benue State, Titus Uba.
The PDP and Uba, had by the appealed, challenged the September 23 judgment of the Benue State Governorship Election Petition Tribunal, which dismissed their petition against the return of Hyacinth Alia of the All Progressives Congress (APC) as the winner of the governorship election held on March 18.
On Monday, a three-member panel of the court, in a unanimous judgment, resolved the three issues, distilled for determination, against the appellants and held that the appeal was without merit.
The court affirmed the judgment of the tribunal on the grounds that, not only were issues raised in the petition pre-election matters, the PDP and its candidate failed to prove their claim of forgery raised against the APC’s deputy governorship candidate in the election – Samuel Ode – beyond reasonable doubt as required.
Justice Onyekachi Aja-Otisi, who presided and read the lead judgment, held, in relation to the first issue, that the trial tribunal was in order in holding that it lacked jurisdiction to hear the petition, having found the it was based on pre-election issues.
On the second issue which was about the legitimacy of the nomination and sponsorship by the APC of its governorship and deputy governorship candidates, Justice Aja-Otisi held that both Alia and Ode were duly nominated and sponsored by their party.
As against the contention by the appellants that the APC submitted the names of its candidates for the election less than the 180 days allowed by the Electoral Act (EA), Justice Aja-Otisi noted that the delay was occasioned by an order of the Court of Appeal, which ordered the APC to conduct return governorship primary in 11 out of the state’s 12 Local Government Areas after it had earlier conducted one.
She said: “The order of the Court of Appeal for rerun of the governorship primary election in 11 LGAs was made on January 23, 2023, giving INEC 14 days to comply with the order.
“The APC complied with the order by conducting rerun primary on February 1 and 2 and submitted the names of Alia and Ode (as governorship and deputy governorship candidates) to INEC on February 3.”
She agreed with the appellants that the period between February 1, 2 and 3 to March 18 (when the governorship election was held) was less than 180 days as required under the EA, but however noted that there is a difference between the primary held pursuant to the EA and the primary conducted pursuant to court order.
Justice Aja-Otisi said: “Where a court-ordered-rerun is conducted as ordered, the timeline the timeline set out by the Electoral Act (EA) collapses. The timeline prescribed in the Electoral Act will not be applicable to court-ordered primary.
“The order of this court was made on January 23 that there should be a rerun primary election conducted in 11 Local Government Areas of Benue State within 14 days of the order. The rerun was conducted as ordered. The 1st respondent (INEC) was notified and it was present during the exercise, notwithstanding the period of notice prescribed by Section 82 (1) of the EA. The list of the nominated and sponsored candidates for the election – the second and their respondents (Alia and Ode) was subsequently submitted to the first respondent (INEC) in line with Section 29(1) of the EA.
“In line with the position of the law, and as was evident from the evidence before the trial tribunal, the nomination and sponsorship of candidates for the offices of governorship and deputy governorship candidates are settled before the actual election.”
Justice Aja-Otisi held that the issue raised by the appellants (as petitioners before the tribunal) ought to be taken before the Federal High Court and not election tribunal, because they were about incidents that occurred before the actual conduct of the election.
“Any complaints over the sponsorship or otherwise of the 2nd respondent (Alia) and or 3rd respondent (Ode) are issues that fall under 285(14) of the 1999 Constitution and are not issues that fall within the jurisdiction of the trial tribunal,” the judge said.
She added that it is only the Federal High Court that has exclusive jurisdiction over disputes that are related to or connected with the election, but which occurred before the actual conduct of the election.
“It makes no difference whether the process of nomination of the candidate, which is the primary election was a court-ordered-primary rerun. Once a dispute arises before the actual conduct of the election, it is a pre-election matter that can only be ventilated before the Federal High Court and not before an election petition tribunal,” she said.
She, however, noted that issues surrounding the qualification of a candidate can be both pre and post-election matter,
The judge noted that it will be pre-election if the issue falls within the purview of Section 285(14) of the Constitution, such as issue regarding qualification, disqualification, nomination and sponsorship of a candidate.
She said, on the other hand, it will be post-election if by Section 134(1)(a) of the EA, the issue falls within the purview of sections 177 and 182 of the Constitution.
She held that there was no evidence to support the appellants’ claim that the deputy governorship candidate forged his certificate or the Form EC9, relating his personal particulars.
Justice Aja-Otisi held that the appellants ought to have approached the Federal High Court within 14 days if they were sure that Ode provided false information or forged his attestation accompanying his Form EC9 submitted to INEC.
On the issue of forgery, she held that there was no evidence that forgery was proved against Ode, noting that the appellants (who were petitioners at the tribunal) failed to tender the Form EC9 which they claimed the APC deputy governorship candidate submitted to INEC
“The appellants failed to demonstrate elements of forgery beyond reasonable doubt as required. All three issues, having been resolved against the appellants, have become lifeless. It is accordingly dismissed. The judgment of the tribunal delivered on September 23, 2023 wherein the petition was dismissed, is affirmed,” she said.
