In nominating its candidate for the Cross River State Governorship election of April 11, 2015, the Peoples Democratic Party (PDP) in accordance with statutory demands, held its party primaries on December 8, 2014, leading to the emergence of the Professor Benedict B. Ayade as the winner of the said primaries over and above other contestants including the appellant (Joe Odey Agi, SAN). After the primaries, the appellant initiated an action at the Abuja Judicial Division of the Federal High Court, Nigeria vide an Originating Summons filed January 29, 2015, which was amended on March 2, 2015, alleging in the main that the 3rd respondent falsified his age in the affidavit submitted to the Independent National Electoral Commission (INEC) vis-à-vis other documents annexed thereto and that he is not a legitimate member of the party having failed to meet up with stipulated financial obligations to the PDP. Underscoring the allegation of falsity, appellant alleged that while the 3rd respondent stated in his Nomination Form that he was born on March 2, 1969; his brother, Frank Ayade, deposed in an age declaration, that he (3rd respondent) was born on March 2, 1968. Contrariwise, 3rd respondent insisted that his correct date of birth is Match 2, 1968. This was part of the issues the Supreme Court of Nigeria was called upon to determine in a keenly contested litigation that had travelled through all the strata of courts in Nigeria.
In arguing the appeal, appellant formulated three issues, which in essence challenged the decision of the Court of Appeal on the criminal nature of allegation of falsity of age, the necessity of aligning the provisions of the PDP Guidelines on falsity of information with section 177 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution) and the non-justiciability of the challenge to the membership status of the 3rd respondent. Placing ample reliance on section 87(9) of the Electoral Act, 2010 (as amended) (Electoral Act), appellant argued that the PDP contravened its own Constitution and Guidelines, particularly Articles 14(b) and 15(2) of the Guidelines (relating to the minimum age qualification to contest as Governor and payment of dues), in allowing the 3rd respondent to participate in the primaries, whereat he emerged winner. Appellant further argued, relying on the Supreme Court decision of Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134, that having failed to tender any independent proof of payment of party dues, appellant is disqualified from participating in PDP’s primaries. On the flip, 3rd respondent (Governor Ben Ayade whose legal team was led by the firm of Wole Olanipekun & Co.) argued that the allegation of falsification mainly borders on criminality which must be proved beyond reasonable doubt, and that such standard of proof was not, and could not have been attained vide an originating summons which is only determined on affidavit evidence. Further, it was argued on behalf of the 3rd respondent that, Article 15(2) of the PDP Guidelines must be read together with section 177(b) of the Constitution, which stipulates the minimum age for a gubernatorial candidate as 35. As at when the 3rd respondent was sponsored as candidate, he was 46 years old, eleven years above the constitutional age threshold of 35 years, and that if computed from the other date of birth supplied/alleged by the appellant (1969), he would have been 45 years old. Hence, the alleged falsity cannot be said to have been intended to circumvent the age stipulation in the Constitution. On the issue of payment of party dues, respondent argued that he duly paid, and same was indicated on his membership card, which was duly ticked and stamped ‘cleared’. Further, relying on the authority of Musa v. PRP (1981) 2 NCLR 763 at 769, it was argued that the issue of membership of a political party is strictly and solely an exclusive affair of a political party, and no court can jurisdiction thereon.
Endorsing the arguments proffered by counsel to the 3rd respondent, the Supreme Court per Clara Bata Ogunbiyi JSC, held that the allegation of falsity is inherently criminal in nature and since same must be proved beyond reasonable doubt, the matter ‘having been instituted under an originating summons procedure which is triable on affidavit evidence, cannot serve as a means of proving criminal allegations beyond reasonable doubt.’ The Court further pronounced on the scope of the application of section 87 of the Electoral Act, stating that same can only be activated when any of the provision of the said section has been breached. Fundamentally, the court agreed with the 3rd respondent in dismissing the appeal thus: ‘As rightly submitted on behalf of the 3rd respondent, this again brings us to the provisions of section 177(b) of the 1999 Constitution where mens rea in falsification of age for eligibility to contest as Governor must, of necessity, relate to circumventing the age prescription of 35 years to contest election.’ Finally, the court re-affirmed its position that membership of a political party is a purely internal affair of the party, which will not be encroached upon by any court of law: this is in line with the principled policy position of the court to maintain a stance completely detached and independent from politics and political questions.
The uniqueness of this instant case is that it is the Supreme Court’s locus classicus on the imperativeness of the provision of any instrument, be it, a statutory provision or a political party’s constitution/Guidelines, to cohere with the Constitution, before any person can be penalized for non-compliance in respect of circumstances exhaustively provided for in the Constitution. Again, it is now clear that, given the need to satisfy the dual conditions of mens rea and actus reus in proof of an allegation of crime, same cannot be initiated vide an originating summons.