No conflict in the decisions of the Court of Appeal in Peter Obi & Labour Party against INEC, President Tinubu and two Others; and Kabir Yusuf & NNPP against APC:
The Court of Appeal Abuja on 17 November 2023 delivered judgment in the appeal filed by the Governor of Kano State, Engr. Kabir Yusuf against the Judgment of the Kano Governorship Election Petition Tribunal dated 25 September 2023 that had nullified his election as Governor of Kano State.
The Court of Appeal affirmed the Judgment of the Tribunal and ordered that Governor Kabir Yusuf vacant his gubernatorial seat for the APC candidate, Gamuwa to take over.
One aspect of the judgment of the Court of Appeal that has attracted the attention of pundits is the part where the Court of Appeal, held that Governor Kabir Yusuf was not properly sponsored by his party-NNPP.
Expectedly pundits have wondered why this should be so, given that the judgment of the Presidential Election Petition Tribunal(PEPT) in the consolidated petitions of Peter Obi & Labour Party against INEC, President Bola Ahmed Tinubu; Senator Kashim Shettima, and APC, had held that it had no jurisdiction to adjudicate on membership of a political party raised by President Tinubu against Peter Obi.
It goes without saying if that is the position; why would the Court of Appeal in Kabir Yusuf NNPP against APC decide otherwise?
The position of the law is that where a superior court has decided on a matter; the court on the lower rung of the judicial hierarchy is bound to apply that principle enunciated by the superior court, where the facts of the previous case are similar to the facts and circumstances of the instance case.
This doctrine is known as judicial precedent and, is one of the hallmarks of the common law tradition which holds sway in the Nigerian legal system.
However, for judicial precedent to apply the facts of a previous case must be similar to the facts of the new case.
The pertinent question therefore is:are the facts in Peter Obi & Labour Party against INEC, President Tinubu, Senator Shettima & APC on one hand ;
and APC vs, INEC, Kabir Yusuf & NNPP on the other hand, are similar?
The answer is No.
In the case of Peter Obi& Labour Party and INEC, President Tinubu; Senator Shettima, and APC (the Respondents), took a preliminary objection on the locus standi of Peter Obi to bring his Petition on the ground that he contravened section 77(3) of the Electoral Act.
Section 77 (3) of the Electoral Act mandates a political party to submit the membership register of its members 30 days before the Party primaries.
The INEC, President Tinubu, Senator Shettima, and APC
had argued that Peter Obi was not a member of the Labour Party but PDP.
They contended further that Peter Obi had resigned from his membership of the PDP only on 25 May 2022 to join the Labour Party on 27 May 2022.
On the other hand, in Kabir Yusuf & NNPP against APC; the Petitioner (APC) had filed a petition against Kabir Yusuf seeking a determination that the 3rd Respondent(NNPP) failed to sponsor a candidate who satisfied the requirements of sections 177 and 182 of the Constitution, Electoral Act 2022, and other Electoral Laws, for the election of the Governor of Kano State.
Therefore, the facts, of the cases of the Respondents (INEC, President Tinubu; Senator Shettima, and APC) and Peter Obi are fundamentally different from the facts and circumstances in Kabir Yusuf & NNPP against APC.
In Peter Obi’s case, the Respondents challenged the locus standi of the petitioners to bring the petitioner on the ground that Peter Obi violated section 77 (3) of the Electoral Act,2022 but they were overruled. The PEPT held it did not have jurisdiction because membership of a political party is a political question that cannot be determined by a court.
On the other hand, in Kabir Yusuf & NNPP against APC; the Petitioner(APC) sought a determination that the 3rd Respondent(NNPP) failed to sponsor any candidate who satisfied the requirements of sections 177 and 182 of the Constitution, Electoral Act 2022, and other Electoral Laws, for the election of the Governor of Kano State.
The facts of the two cases are therefore different and the precedent enunciated in the judgment in Peter Obi’s case is not Kabir Yusuf & NNPP against APC.
The facts and circumstances of these two cases (Peter Obi against INEC, President Tinubu, Senator Shettima & APC), and Kabir Yusuf & NNPP and APC are distinguishable.
It is worth noting that in the case of INEC; President Tinubu; Senator Shettima and APC did not appeal against the dismissal of their objection on the competence of Peter Obi’s Petition by the PEPT to the Supreme Court.
Therefore since there was no appeal against that decision by the PEPT, it stands in law.
However, it is instructive that the PEPT is also a panel of the Court of Appeal, Abuja.
The judgment in Kabir Yusuf & NNPP was also delivered by another panel of the Court of Appeal Abuja.
Is there any conflict between the judgment of the PEPT on one hand; and the judgment of the Court of Appeal in Kabir Yusuf & NNPP against APC?
I do not think so.
The judgment of the PEPT in Peter Obi & Labour Party against INEC, President Tinubu, Senator Shettima, and APC was premised on the interpretation of section 77 (3) of the Electoral Act,2022.
The import of section 77 (3) of the Electoral Act on the main is that a political party must transmit to INEC the register of its membership 30 days before holding its convention or congress to nominate its candidates for the general election.
Conversely, the judgment of the Court of Appeal in Kabir Yusuf & NNPP against APC is anchored on the interpretation of sections 177 and 182 of the Constitution,1999 (as amended) which provides that a candidate for governorship election must be a member of a political party that sponsors his elections.
