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Kubor v. Dickson

  1. DR. IMORO KUBOR
  2. CHANGE ADVOCACY PARTY

V

  1. HON. SERIAKE HENRY DICKSON
  2. PEOPLES’ DEMOCRATIC PARTY
  3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

SUPREME COURT OF NIGERIA

W. S. N. ONNOGHEN JSC ( Presided and Read the Lead Judgment )

CHRISTOPHER MITCHELL CHUKWUMA-ENEH JSC

BODE RHODES-VIVOUR JSC

MUSA DATTIJO MUHAMMAD JSC

CLARA BATA OGUNBIYI JSC

SC.369/2012

THURSDAY, 25 OCTOBER 2012

APPEAL - Academic questions - Court - Attitude of thereto

APPEAL - Concurrent findings of lower - Supreme Court - Attitude of thereto

APPEAL - Subsisting judgment - Validity and enforceability of

APPEAL - Preliminary objection - Findings on by a lower court Respondent who intends to challenge - Proper step for

ELECTION PETITION - Court - Interim order of - Act done in pursuant to (restoration of name of candidate to list of candidates for election) - Whether void on grounds that the action in which was made was struck out

ELECTION PETITION - Electoral candidates - Valid nomination and sponsorship of - Whether publication of names a condition precedent to

EVIDENCE - Admissibility of - Determinant of - Inadmissible evidence -  Onus on counsel to object to - Where admitted - Court - Proper approach thereto - Public document - Secondary evidence Nature of that is admissible

INJUNCTION - Definition of

INJUNCTION - Interim order of court - Act done pursuant to ( restoration of name of candidate to list of candidates for election in the instant case) - Whether void on grounds that the action in which was made was struck out

JUDGMENTS AND ORDERS - Decision - Meaning of - Constitution of the Federal Republic of Nigeria, 1999, section 318(1) considered

JUDGMENTS AND ORDERS - Judgment - Subsisting judgment - Validity and enforceability of

JUDGMENTS AND ORDERS - Interim order of court - Act done in pursuant to (restoration of name of candidate to list of candidates for election in the instant case) - Whether void on grounds that the action in which was made was struck out

JUDGMENTS AND ORDERS - Order of court - Nature of - Form of application of - Whether can be determined therefrom

PLEADINGS - Purport of - Issues for trial - Joinder of therein - Court and parties - Bindingness of thereby - Facts not pleaded Irrelevance of - Party - Where sets up a case different from one pleaded - Impropriety of

STATUTE - Constitution of the Federal Republic of Nigeria, 1999, section 318(1) - Decision - Meaning of

WORDS AND PHRASES - Injunction - Meaning of

WORDS AND PHRASES - ‘Restoration’ - Meaning of

Issues:

  1. Whether the lower court rightly affirmed the decision of the trial tribunal which countenanced exhibit “N” as proof that 1st respondent was validly sponsored and thus qualified to contest the Bayelsa State Gubernatorial Election, when the said Exhibit was an interim order made in a pre-election suit No. FHC/ ABJ/3/2012 filed by 1st respondent, but discontinued by him after the interim order was obtained.
  2. Whether the lower court rightly affirmed the decision of the trial tribunal which rejected exhibit “D” and “L” tendered from the bar and admitted in evidence by the appellants’ counsel.

Facts:

The petitioner being aggrieved with the declaration of 1st respondent as the winner of the gubernatorial election in Bayelsa State, filed a petition in the Governorship Election Tribunal sitting in Bayelsa State, based on grounds that he was not qualified to contest the election and did not score majority of lawful votes cast. He prayed for a declaratory reliefs to that effect, the 1st petitioner being the qualified candidate who scored majority of lawful votes cast is entitled to and should be returned as the governor. In the alternative, an order nullifying the election and directing conduct of fresh elections. The tribunal dismissed the petition and being aggrieved, the petitioner appealed to the Court of Appeal which court dismissed the appeal. He further appealed to the Supreme Court. The 1st respondent raised a preliminary objection to the appeal.

In determination of the appeal, the Supreme Court considered the following statute;

Constitution of the Federal Republic of Nigeria, 1999, section 177:

“A person shall be qualified for election to the office of

Governorship of a state if

  1. He is a citizen of Nigeria by birth;
  2. He has attained the age of thirty-five (35) years;
  3. He is a member of a political party and is sponsored by that political party, and;
  4. He has been educated up to at least School Certificate

Level or its equivalent.”

Constitution of the Federal Republic of Nigeria, 1999, section 182(1):

182(1)  “No person shall be qualified for election to the office of Governor of a State if...

  1. subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
  2. he has been elected to such office at any two previous elections; or
  3. under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
  4. he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
  5. within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or
  6. he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
  7. being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or
  8. he is a member of any secret society; or
  9. he has presented a forged certificate to the Independent

National Electoral Commission.” Electoral Act, 2010 (as amended), section 31:

  1. “Every political party shall, not later than sixty (60) days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.
  2. The list of information submitted by each candidate shall be accompanied by affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.”