The Court of Appeal in an unanimous decision/
judgment handed down on Thursday the 31st day of
December,2015 dismissed in toto the petition of
Senator Aisha Alhassan of All Progressive Congress
(APC) and upheld the election and return of Gov.
Darius Dickson Ishaku of Peoples Democratic Party
(PDP) as the duly elected Governor of Taraba State.
In a lead judgment delivered by Abdu Aboki, PJCA,
the court held inter-alia I am of the firm view that
from all the arguments of all the parties to this
Appeal and the spectrum of the statutory and legal
authorities relied upon, all the legal controversy
concerning the qualification or otherwise of Mr
Darius Ishaku to contest the gubernatorial election
for Taraba state in the election conducted by INEC on
11th and 25th April,2015 can be resolved by a close
examination of Sections 177(C) and 182(1)
constitution of the Federal Republic of Nigeria
1999 (as amended) which provides.
177 – A person shall be qualified for election to
the office of governor of a state if he is a member
of a political party and is sponsored by that
political party.
The Supreme Court in a number of cases has
examined and pronounced on the meaning and
implication of Section 177(C) and 182(1) of the 1999
constitution.
In PDP Vs. INEC (2014)17 NWLR (pt 1437) 525 at
559-560 per Okoro JSC said;
“As I mentioned earlier, a person who wishes to
challenge the election on the basis that the
winner was not qualified to contest the election
has umbrage in Section 138(1) (a) of the Electoral
Act. That is to say, where a person failed to take
the advantage of Section 31(5) and (6) supra in
the High Court he can still approach the Election
Tribunal under Section 138(1) (a) thereof. Section
177 of the constitution of Nigeria sets out
conditions a person must meet to be qualified to
be a governor of the state.
A person shall be qualified for election to the
office of Governor of a state if:-
) He is a citizen of Nigeria by birth.
) He has attained the age of 35 years.
) He is a member of a political party and is
sponsored by that political party.
) He has been educated up to at least school
certificate level or its equivalent.
Again, Section 182 of the said constitution provides
for disqualification of a candidate seeking the office
of Governor. It is my view that where it is alleged that
a person is or was not qualified to contest election to
the office of Governor as envisaged by Section 138
(1) (a) of the Electoral Act, it is Sections 177 and
182 of the constitution of Nigeria that are being
contemplated.
There is no dispute whatsoever in this case that Aisha
Jumai Alhassan and APC are not saying that Mr.
Darius Ishaku is not a member of a political party. By
the pleadings of the parties to this Appeal, Mr. Darius
Ishaku is a member of PDP.
The Court of Appeal also faulted Aisha Alhassan and
APC for challenging the PDP primaries on the basis of
Section 85 of the Electoral Act when INEC for
whose benefit Section 85 of the Electoral Act was
enacted never complained about the PDP candidate,
the court of Appeal could not see any reason why
Aisha Alhassan and APC would be complaining loudly
when INEC decided to fold its arms.
If there is any breach or failure to give INEC the
required 21 days, that will not be headache or
problem of Aisha Alhassan and APC because their
civil rights and obligation cannot be said to have
been affected thereby . They have no locus standi
in the matter.
The Court of Appeal held further that by the clear
provision of Section 87 (1) (9) of the Electoral Act,
the only person who can complain of improper or
misconduct of party primaries of a political party is
INEC and the aspirant who participated in the
Gubernatorial primary election in PDP at which Mr
Darius Ishaku emerged as a candidate of PDP for the
April 11th 2015 Governorship election in Taraba
State.
Aisha Alhassan and APC are not right or correct to
contend that Mr Darius Ishaku was not duly
sponsored by his political party as required by
Section 177(C) of the 1999 constitution.
The court held further that whether the primary
election of a party was done right or otherwise
cannot be subject of an election petition based on
the Supreme Court decision in Njideka Ezekiwe
Vs. Nwawulu á¾² ors (2010)7SCM 56 at 77 per
Onnoghen JSC.
The Court of Appeal further stated that all evidence
before the tribunal pointed to the fact that Mr Darius
Ishaku was duly sponsored by PDP and INEC received
and acted on Mr Darius Ishaku’s nomination and
sponsorship from PDP. INEC did not at any time raise
any issue or query to PDP with regard to the
nomination and sponsorship of Mr Darius Ishaku.
The Court of Appeal further stated that PW2 an INEC
staff who testified as a witness for Aisha Alhassan
and APC, under cross examination from Kanu Agabi
SAN, the said PW2 stated that the facts stated in
paragraphs 3 and 4 of Aisha’s petition were true
and correct . The said paragraphs are reproduced
below:
Paragraph 3- Mr Darius Ishaku is a member of the
People’s Democratic Party and was its candidate in
the Taraba State Gubernatorial held on the 11th and
25th of April, 2015.
Paragraph 4– The PDP is a duly registered political
party and sponsor of Mr. Darius Ishaku.
This fatal admission by Aisha Alhassan and APC that
Mr Darius Ishaku actually satisfied the provisions of
Section 177 (C) of the 1999 constitution and the
above paragraphs 3 and 4 of the petition constitute
admission against interest pursuant to Sections 20
and 21 of the Evidence Act.
The oral and documentary evidence before the trial
Tribunal positively established that Mr. Darius Ishaku
is a member of PDP and was duly nominated and
sponsored by PDP.
The Court of Appeal stated that the cases relied upon
by Aisha and APC which are Abubakar Wambai Vs.
Kizzaya Donatus and also Dangana Vs. Usman
(2013) 6 NWLR (PT 1349) 50 are not relevant in the
instant case because in Abubakar Wambai Vs.
Kizzaya Donatus the dispute of party primaries
was between members of the same party each
claiming to be nominated and sponsored by the
party (CPC) . Also, the facts of Dangana Vs. Usman
are not in all fours with Aisha’s petition.
The Court of Appeal stated that Aisha Alhassan and
APC have no right to challenge the primary election
which produced Mr. Darius Ishaku as PDP flag-
bearer since none of them is a member of PDP.
The Supreme Court in Hope Uzodinma Vs. Osita
Izunao á¾² ors (2011) 17 NWLR (PT. 1275) at 60
Rhodes-Vivor JSC stated:
“The nomination of a candidate to contest an
election is the sole responsibility of the political
party concerned. The Courts do not have
jurisdiction to decide who should be sponsored
by any political party as its candidate in the
election”.
Also the Supreme Court in Gwede Vs INEC á¾² ors
(2014) 18NWLR (pt 1438) 56 at 93 Onnogen JSC
said:
“However the law is settled that the issue of
nomination or sponsorship of an election
candidate remains within the domestic affairs of
the political party and the courts have no
jurisdiction to nominate a candidate for any
political party.”
Also, Galadima JSC in the same case said:
“It has been quite settled that the nomination or
sponsorship of a candidate is within the domestic
affair of a political party, and the courts do not
interfere readily.”
The Court of Appeal then stated, I have no doubt in
my mind that Mr. Darius Ishaku from the facts before
the trial tribunal was at the time of the election duly
qualified to contest for the Office of Governor of
Taraba state having been sponsored by PDP and
thereby satisfied the Provisions of Section 177(C) of
the 1999 Constitution.
A party must be consistent in proving its case. The
pleading and evidence led by Aisha Alhassan and APC
admitted that Mr. Darius Ishaku was duly nominated
and sponsored to contest for the Office of the
Governor of Taraba state.
Issues 4, 6, and 7 are thus resolved in favor of Mr.
Darius Ishaku .
Issue 5 was also settled for Mr. Darius Ishaku
because the Tribunal failed to evaluate or review
the evidence of the 51 witnesses that Mr. Darius
Ishaku called and this amounts to a denial of fair
hearing which is very fundamental.
The Court of Appeal also resolved issues 9 and 10 in
favor of Mr. Darius Ishaku. The Court of Appeal held
that based on Section 140 (2) of the Electoral Act,
the Tribunal was wrong to have declared Aisha
Alhassan the winner of the election. The case of
Aisha Alhassan is wrong because, under Section 140
of the Electoral Act, she did not ask for fresh
election across the state assuming without conceding
that if her ground of seeking to disqualify Mr. Darius
Ishaku had succeeded, the court would have nullified
the election and ordered for a fresh election across
the state.
Having not asked for a relief of fresh election across
the state, the court cannot give her what she never
asked for as decided by the Supreme Court in Agbaje
Vs INEC á¾² ors (2015) LPELR-25 651.
The Court of Appeal on the whole, set aside the
judgment of the Tribunal in its entirety and made the
following important orders:-
The election and return of Mr. Darius Ishaku as
the Governor of Taraba state in the elections of
11th and 25th April 2015 is at this moment upheld
and sustained.
The certificate of return issued to Mr. Darius
Ishaku by INEC remains valid.
The petition of Aisha Alhassan and APC is hereby
dismissed in toto.
There will be no order as to costs.
Going through this it can be clearly seen that all the
citations that Aisha and the APC are holding unto
varies from their reference of argument. Governor
Darius Dickson Ishaku was duly elected according to
both the Electoral Act and the Nigerian constitution.
Proof this wrong if you still think that Aisha has a
case to appeal to the Supreme Court.