SUBSTITUTION OF A CANDIDATE BY A POLITICAL PARTY IN A RE-RUN ELECTION ORDERED BY THE COURT.
THE FACTS OF THE CASE
Independent National Electoral Commission (INEC) conducted a Senatorial election in Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”) on the 23rd April, 2019. After the successfully conduct of the election, CHRISTOPHER STEPHEN EKPENYONG of the Peoples Democratic Party (PDP) was declared the winner of the election. SENATOR GODSWILL OBOT AKPABIO, candidate of the All Progressive Congress (APC) challenged the return of the CHRISTOPHER STEPHEN EKPENYONG of the PDP in the National and State Houses of Assembly Tribunal.
The petition was dismissed for lack of merit. He further appeal to the Court of Appeal, Calabar. In the judgment of the Court of Appeal dated 9th November, 2019, the Court of Appeal ordered for a fresh a election in Essien Udim Local Government Area of Akwa Ibom State. Meanwhile, there are Ten Local Government Areas that made up the Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”). The election was only nullified in one out of the ten Local Government Areas.
The Independent National Electoral Commission (INEC) has fixed 25th January, 2019 for the re-run election. SENATOR GODSWILL OBOT AKPABIO, candidate of the All Progressive Congress (APC) has withdrawn from the race or the re-run election in line with Section 35 of the Electoral Act 2010(as amended).
THE POSITION OF THE LAW.
WHETHER OR NOT POLITICAL PARTIES CAN BE ALLOWED TO SUBSTITUTE A CANDIDATE IN RE-RUN ELECTION ORDERED BY THE COURT AFTER THE NULLIFICATION OF AN ELECTION?
This legal opinion is on the vex issue of whether political parties can substitute candidates after an election is nullified and a re-run ordered or fresh election ordered by the court.
The Court of Appeal, Calabar Division on the 9th November, 2019 in Appeal No.: CA/C/NAEA/SEN/416/2019 – SENATOR GODSWILL OBOT AKPABIO & ANOR V CHRISTOPHER STEPHEN EKPENYONG & ORS made a specific order thus:
“An order is made and directed on the 3rd Respondent herein to hold or conduct a fresh election in the whole of Essien Udim Local Government Area of Akwa Ibom State within 90 days from today for the seat of the Senator representing Akwa Ibom North West Senatorial District”
The question is can Peoples Democratic Party (PDP) substitute Christopher Stephen Ekpenyong or All Progressive Congress (APC) substitute Godswill Obot Akpabio in the re-run election scheduled for January, 2020 after any of them has withdrawn from the race.
We wish to emphatically state that in a nullified election, only the persons who were candidates in the said election can have a re-run. This is to say that where there is a nullification of an election and a re-run is ordered, only candidates who were lawfully nominated to contest in the nullified election can contest the re-run election since the date and period of calling for nominations, and screening of candidate had elapse. This position of law was espoused in the case of the LABOUR PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2008) 13 NWLR (PT. 1103) 73 at 102 – 103 paras F - B where Okoro JCA (as he then was) held succinctly thus:
“From the definition of the two terms, it is clear that a general election involves an election regular intervals to fill all the seats available in the entire constituency whereas a bye-election refers to an election to fill a particular vacant seat or position created either by death, resignation or impeachment. Where a general election has been held and there is a false start, for example, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal and a re-run or re-start is ordered. It is my humble that the re-run or re-start refers to that general election council or nullified, and not a bye-election. The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free contest.
It does not admit of any other candidate since as it were, the period for nomination and screening of candidates would have elapse. It is just restoring the parties to the status quo ante belum. See Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors. CA/K/EP/SHA30/20C (unreported) delivered on 6th November, 2003.
Let me demonstrate this with a common place example. We are familiar with athletes who participate in, say, 100 metre race for example. They are ordered to the starting point of the race by the umpire. But before the gun is hoot or the whistle is blown, there could be a false start maybe due to the mistake of one or more of the runners. The race is cancelled. They are ordered back to the starting line to repeat that same race with all the competitors who took part during the false start. At that stage no new competitor is allowed to take part. Only those who had been screened and had taken part in what usually called “the heat” and are certified fit for the final race that are allowed in the repeat race”.
Also at page 104 paras G - H, Okoro JCA (as he then was further stated,
“For a nullified general election, only the persons who were candidates in the said election can have a re-run as I had earlier expounded while considering question No. 2 except the court sees any reason to order otherwise in order to meet the justice of the case. See Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors”.
In the concurring judgment of the Augie JCA (as he then was) at page 109 para C held thus:
“The applicant may have a right to nominate and sponsor candidates but it cannot exercise that right when a election is nullified and a fresh election is ordered because the date and period for calling for nomination has elapsed” (emphasis mine).
The Labour Party not satisfied with the decision of the Court of Appeal in the above case, appealed to the Supreme Court. The Supreme Court dismissed the appeal. The decision of the Supreme Court is reported as Labour Party v INEC (2009) 37 NSCQR 73 at page 97 where Ogbuagu JSC held,
“I also so hold. The said nullification of the election was because of the “unlawful exclusion” of the Action Congress and its candidate by INEC. Since the said election, was void. Commonsensically and in fact and in law, it is the same candidates that will “run” in the aborted/nullified election that must go back to run in the fresh election as ordered by the trial Tribunal which was affirmed by the Court of Appeal.
Perhaps, if I may, the appellant, on its admission that the court below, admirably, rightly and correctly answered the 1st Question – i.e. that the Appellant, is entitled to submit or nominate and sponsor a candidate or candidates. Respectfully hold that the Appellant cannot in the circumstance, exercise that right n an election that was/is nullified and a fresh election ordered. This because, as rightly and correctly contained in the said order, the date and period for calling for nomination, had elapsed”.
Based on the decision of the Court of Appeal and the Supreme Court, we can emphatically state that no Political Party can be allowed to substitute a candidate in a re-run election. This case is even worse as the election was nullified in one of the ten Local Government Areas of Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”).
Finally, we state that it is the same candidates that “run” in the nullified election that must go back to run in the fresh election as ordered by the Court of Appeal.
EKOM NWOKO
Head of Legal Research
NWOKO & Co.
Minds and Brains Chambers
Uyo
Akwa Ibom State.
THE FACTS OF THE CASE
Independent National Electoral Commission (INEC) conducted a Senatorial election in Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”) on the 23rd April, 2019. After the successfully conduct of the election, CHRISTOPHER STEPHEN EKPENYONG of the Peoples Democratic Party (PDP) was declared the winner of the election. SENATOR GODSWILL OBOT AKPABIO, candidate of the All Progressive Congress (APC) challenged the return of the CHRISTOPHER STEPHEN EKPENYONG of the PDP in the National and State Houses of Assembly Tribunal.
The petition was dismissed for lack of merit. He further appeal to the Court of Appeal, Calabar. In the judgment of the Court of Appeal dated 9th November, 2019, the Court of Appeal ordered for a fresh a election in Essien Udim Local Government Area of Akwa Ibom State. Meanwhile, there are Ten Local Government Areas that made up the Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”). The election was only nullified in one out of the ten Local Government Areas.
The Independent National Electoral Commission (INEC) has fixed 25th January, 2019 for the re-run election. SENATOR GODSWILL OBOT AKPABIO, candidate of the All Progressive Congress (APC) has withdrawn from the race or the re-run election in line with Section 35 of the Electoral Act 2010(as amended).
THE POSITION OF THE LAW.
WHETHER OR NOT POLITICAL PARTIES CAN BE ALLOWED TO SUBSTITUTE A CANDIDATE IN RE-RUN ELECTION ORDERED BY THE COURT AFTER THE NULLIFICATION OF AN ELECTION?
This legal opinion is on the vex issue of whether political parties can substitute candidates after an election is nullified and a re-run ordered or fresh election ordered by the court.
The Court of Appeal, Calabar Division on the 9th November, 2019 in Appeal No.: CA/C/NAEA/SEN/416/2019 – SENATOR GODSWILL OBOT AKPABIO & ANOR V CHRISTOPHER STEPHEN EKPENYONG & ORS made a specific order thus:
“An order is made and directed on the 3rd Respondent herein to hold or conduct a fresh election in the whole of Essien Udim Local Government Area of Akwa Ibom State within 90 days from today for the seat of the Senator representing Akwa Ibom North West Senatorial District”
The question is can Peoples Democratic Party (PDP) substitute Christopher Stephen Ekpenyong or All Progressive Congress (APC) substitute Godswill Obot Akpabio in the re-run election scheduled for January, 2020 after any of them has withdrawn from the race.
We wish to emphatically state that in a nullified election, only the persons who were candidates in the said election can have a re-run. This is to say that where there is a nullification of an election and a re-run is ordered, only candidates who were lawfully nominated to contest in the nullified election can contest the re-run election since the date and period of calling for nominations, and screening of candidate had elapse. This position of law was espoused in the case of the LABOUR PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2008) 13 NWLR (PT. 1103) 73 at 102 – 103 paras F - B where Okoro JCA (as he then was) held succinctly thus:
“From the definition of the two terms, it is clear that a general election involves an election regular intervals to fill all the seats available in the entire constituency whereas a bye-election refers to an election to fill a particular vacant seat or position created either by death, resignation or impeachment. Where a general election has been held and there is a false start, for example, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal and a re-run or re-start is ordered. It is my humble that the re-run or re-start refers to that general election council or nullified, and not a bye-election. The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free contest.
It does not admit of any other candidate since as it were, the period for nomination and screening of candidates would have elapse. It is just restoring the parties to the status quo ante belum. See Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors. CA/K/EP/SHA30/20C (unreported) delivered on 6th November, 2003.
Let me demonstrate this with a common place example. We are familiar with athletes who participate in, say, 100 metre race for example. They are ordered to the starting point of the race by the umpire. But before the gun is hoot or the whistle is blown, there could be a false start maybe due to the mistake of one or more of the runners. The race is cancelled. They are ordered back to the starting line to repeat that same race with all the competitors who took part during the false start. At that stage no new competitor is allowed to take part. Only those who had been screened and had taken part in what usually called “the heat” and are certified fit for the final race that are allowed in the repeat race”.
Also at page 104 paras G - H, Okoro JCA (as he then was further stated,
“For a nullified general election, only the persons who were candidates in the said election can have a re-run as I had earlier expounded while considering question No. 2 except the court sees any reason to order otherwise in order to meet the justice of the case. See Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors”.
In the concurring judgment of the Augie JCA (as he then was) at page 109 para C held thus:
“The applicant may have a right to nominate and sponsor candidates but it cannot exercise that right when a election is nullified and a fresh election is ordered because the date and period for calling for nomination has elapsed” (emphasis mine).
The Labour Party not satisfied with the decision of the Court of Appeal in the above case, appealed to the Supreme Court. The Supreme Court dismissed the appeal. The decision of the Supreme Court is reported as Labour Party v INEC (2009) 37 NSCQR 73 at page 97 where Ogbuagu JSC held,
“I also so hold. The said nullification of the election was because of the “unlawful exclusion” of the Action Congress and its candidate by INEC. Since the said election, was void. Commonsensically and in fact and in law, it is the same candidates that will “run” in the aborted/nullified election that must go back to run in the fresh election as ordered by the trial Tribunal which was affirmed by the Court of Appeal.
Perhaps, if I may, the appellant, on its admission that the court below, admirably, rightly and correctly answered the 1st Question – i.e. that the Appellant, is entitled to submit or nominate and sponsor a candidate or candidates. Respectfully hold that the Appellant cannot in the circumstance, exercise that right n an election that was/is nullified and a fresh election ordered. This because, as rightly and correctly contained in the said order, the date and period for calling for nomination, had elapsed”.
Based on the decision of the Court of Appeal and the Supreme Court, we can emphatically state that no Political Party can be allowed to substitute a candidate in a re-run election. This case is even worse as the election was nullified in one of the ten Local Government Areas of Akwa Ibom North West Senatorial District (also known as “Ikot Ekpene Senatorial District”).
Finally, we state that it is the same candidates that “run” in the nullified election that must go back to run in the fresh election as ordered by the Court of Appeal.
EKOM NWOKO
Head of Legal Research
NWOKO & Co.
Minds and Brains Chambers
Uyo
Akwa Ibom State.
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