COURTESY: MORUFF O. BALOGUN, FIMC, CMC, CMS

INTRODUCTION: The celebrated case of MODDIBO V. USMAN is a seasoned locus classicus on the legal issue on whether a candidate who is undergoing the mandatory National Youth Service Corps scheme can participate in partisan politics, and even contest an election.
In legal jurisprudence, having a locus classicus is perceived as a huge blessing to the entire legal world, in that; it settles without more all the perennial controversies relating to the issue of law raised therein.
Modibbo V. Usman has been considered to be the best known or most authoritative and cited judicial decision on the issue raised above.

CITATION: MODIBBO V. USMAN (2020) 3 NWLR PT. 1712 AT 470.

PARTIES IN FULL:
ABDULRAUF ABDULKADIR MODIBBO
V.
1. MUSTAPHA USMAN 2. ALL PROGRESSIVES CONGRESS [APC]
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC).

SUMMARY OF FACTS:
The 1st respondent and the appellant, as aspirants seeking to be nominated as the 2nd respondent’s candidate to contest for election as member of the House of Representatives representing Yola North/Yola South/Girei Federal Constituency of Adamawa State, contested at the primary election conducted by the 2nd respondent.

The 1st respondent, as the plaintiff, did not dispute the fact that he lost at the primary election having polled 124 votes against the appellant’s 293 votes. He admitted that the appellant won the primary election with the majority of the lawful votes cast. His grouse, was that upon the 2nd respondent submitting the name of the appellant to the 3rd respondent, together with his personal particulars contained in INEC Forms CF001 and CF002, which the appellant allegedly verified on oath, the 1st respondent discovered that the appellant had falsified/forged certain information on oath which were submitted to the 3rd respondent on 18th October 2018 by the 2nd respondent.

Upon the 3rd respondent publishing Forms CF001 and CFO02, the sworn information submitted by the appellant as the 2nd respondent’s candidate indicating that he has fulfilled all the constitutional requirements for election into the office of member of House of Representatives, the 1st respondent applied to INEC and he was given the duly certified copies of the appellant’s INEC Forms CF001 and CFO02. The 1st respondent then took out an originating summons and prayed for the disqualification of the appellant, and that he be declared the lawful winner of the 2nd respondent’s primary election in which he participated and scored the second highest number of votes.

In the supporting affidavit, the 1st respondent deposed, inter alia, that at all material time leading to the election, the 1st respondent was a graduate of public administration from Adamawa State University, Mubi, who was undergoing compulsory national youth service in Gombe State. That the 1st respondent was called up for national service vide a letter issued by the National Youth Service Corps headed “A Batch B, 2017 Call-Up Letter” with a reporting day to camp being Tuesday, 27th November 2017. The 1st respondent further alleged that the appellant forged several other documents, including school leaving certificate and declarations of age, submitted to the 3rd respondent.

The parties to the suit, having filed and exchanged affidavits that were irreconcilably hostile and contentious factually were ordered by the trial court to file and exchange pleadings. The suit was therefore heard on the general cause list.

In its final judgment, the trial court declared, inter alia that the appellant by dint of the National Youth Service Corps Act (Bye Law 2011) No. S. 4 of 2011, was not qualified to have been nominated as a candidate of the 2nd respondent to contest in the general election, since at the material time he was under obligation to serve compulsorily for one year in the NYSC scheme. Further, the 1st respondent having, as the runner up, polled the majority of the lawful votes the 2nd and 3rd respondents should replace the
appellant with the 1st respondent as the 2nd respondent’s candidate.

Aggrieved, the appellant appealed the decision to the Court of Appeal, which allowed the appeal in part. Both the appellant and the 1st respondent were aggrieved by the decision of the Court of Appeal and appealed to the Supreme Court, as the appellant and cross-appellant.
In determining the appeal, the Supreme Court considered the provisions of section 66(1)(i) and 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 31(5) & (6) and 141 of the Electoral Act, 2010 (as amended). They provide as follows:

Sections 66(1) (i) and 285(13) of the Constitution of the Federal Republic of Nigeria, 1999-

“66. (1)(i) No person shall be qualified for election to the House of Representatives if he has presented a forged certificate to the Independent National Electoral Commission (INEC).

285(13) An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of the election.

Section 31 (5), (6), 133(2) and 141 of the Electoral Act, 2010,
(as amended)-
“(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a
declaration that the information contained in the affidavit is false.

“(6) If the court determines that any information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.”

141. An election or tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.

Section 2(3) and 13(1) of the National Youth Service Act –
“2(3) A person called upon to serve in the service Corps is under an obligation to serve for a continuous period of one year from the date specified in the call-up letter.

13(1). Any person –
who fails to report for service in the service corps in the manner directed by the Directorate or as the case may be, prescribed pursuant to the provisions of this Act; or
who refuses to make himself available for service in the service corps continuously within the period specified in subsection 2 of this section, is guilty of an offence and liable on conviction to a fine of N2,000 or to imprisonment for a term of twelve years or to both such fine or imprisonment.”

Section 4(9) of the National Youth Service Corps Bye Laws (Revised 2011)
“4. Every member shall –
(9) Not take part in partisan politics. Any member who takes part in partisan politics is liable to extension of service for a period not less than three (3) months without pay.”

Held: Unanimously dismissing the cross-appeal and allowing the
appeal in part.

The Supreme Court raised and considered the following issues:

1. On prohibition of member of the National Youth Service Corps Scheme from participating in partisan politics –
By virtue of section 4(9) of the National Youth Service Corps Bye Laws (Revised 2011), every member shall not take part in partisan politics. Any
member who takes part in partisan politics is liable to extension of service for a period not less than three (3) months without pay.

Per ABBA AJI at pages 535-536, paras. C-F; G-E:
“Partisanship herein is an inclination to favour one group or political party against another. Thus, open membership of a political party in opposition to another political party is what the law even prohibits.
The issue and effect of political thuggery and corruption in this contemporary times cannot be over-emphasized, which is one of the reasons the members of the NYSC Scheme are prohibited from going into partisan politics. How much more when it is the direct contest of a position or seat that the appellant contested for? The issue herein however is that the appellant was a serving corps member when he participated and contested the primary election of 7/10/2018 of the 2nd respondent. This, without mincing words, was clearly partisan politics and even to a greater extent contesting for a seat of the House of Representatives for the Yola South/Yola North/Girei Federal Constituency of Adamawa State….

It is without dispute that the appellant has been a beneficiary of the Federal Government NYSC Allowance or salary as at the time he contested. Partisan political involvement and participation even to the level of occupying a political seat is forbidden and prohibited by the law because every political position is a position of utmost trust and confidence and the sole business and allegiance of a politician is to the people who voted him into power and whom he represents and that does not admit of jack of all trades but master of none. The politician is expected to concentrate fully in
his political activities and functions and in this case, a very crucial function of law making.

It is in this contemplation that many other services to the Federal Government do not admit or allow participation into politics or other engagements during the pendency of that service. To be a Corps member and a law-maker at the same time cannot be allowed. Thus, the Constitution came to give a guideline as follows in section 66 (1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended):
“ No person shall be qualified for election to the Senate or the House of representatives if … he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.”

It is the unchallenged and undisputed fact that the appellant’s political position or office was the House of Representatives for Yola South/Yola North/Girei Federal Constituency of Adamawa State. This office was contested by him when he was in active NYSC service and has not passed out or resigned or withdrawn from it. Being paid by the public fund, he
therefore qualified to be a public office holder if he discharges any duty in the discharge of which the public are interested, more clearly if he is paid out of a fund provided by the public.”

2. On punishment for failure to be available for National Youth Service Corps Scheme and for aiding and abetting same-
By virtue of section 13(1)(3) and (5) of the National Youth Service Corps Act, it is an offence not to make oneself available for the service for a continuous period of one year as prescribed in section 2 of the Act. The section also prescribes punishment for an employer which aids or abets a Corps member to contravene the provisions of the Act.

3. On National Youth Service Corps Act as existing law –
The National Youth Service Corps Act has been validated by section 315(5) of the 1999 Constitution. In the instant case, the appellant could not be
eligible to contest the primary election while still undergoing the compulsory one year service period. The law will not allow the appellant in this appeal to benefit from his wrongful act.

4. On effect of defect in nomination of candidate for election –
Once the process of becoming a candidate or nomination of a candidate as regulated by section 87 of the Electoral Act, is defective; the defect strikes
at the root of the nomination. The person with such fundamentally defective nomination cannot be regarded as a candidate produced upon or by due process of law, and cannot be placed on the ballot, as he is not qualified to be so placed, nor can be said to have been elected subsequently at an election.

Per EKO, JSC at pages 520-521, paras. C-B:

“My Lords, when section 285(13) of the Constitution (as amended), is read together with Section 31(1), (5), (6) & (8) of the Electoral Act, it becomes very obvious the order, that the appellant, standing disqualified be replaced with the 1st respondent as the candidate of the 2nd respondent of the already concluded election, was made per incuriam. The order was a nullity the courts below having made the order ultra vires.

By section 31(1) of the Electoral Act the 2nd respondent (APC), as a political party, must submit the name of its candidates to INEC not later than 60 days before the date appointed for the general election conducted on 23rd February, 2019; and not after the election. The only power vested in the trial court, upon determining that the person whose name the political party purportedly submitted to INEC as its candidate is disqualified to contest the election, is merely to so disqualify him from contesting the election.

Subsection (8) of section 31 of the Electoral Act imposes a fine of N500, 000.00 on the political party for presenting “to the Commission the
name of the candidate who does not meet the qualifications?”. All these provisions are designed not only to stamp out impunity of party executives but also to impose on the political parties the obligation to be more vigilant, thorough and diligent in the screening of candidates they present to INEC.

Having found and held that the 2nd respondent (APC) had no candidate, in law, at the general election conducted on 23rd February, 2019 to elect the member in the House of Representatives to represent Yola North/Yola South/Girei Federal Constituency of Adamawa State; the 3rd respondent (INEC) is hereby ordered to declare and return as elected the candidate (other than the APC “candidate”) who polled the majority of lawful votes cast in said election. The order shall forthwith be served on the Independent National Electoral Commission.”

5. On duty on court to ensure that political parties comply with the electoral law –
The courts are bound to ensure that political parties comply with the law on how each political party fields its candidate in an election. Laws are
made to be obeyed by all concerned including political parties. The law shall take its course where a political party fails, neglects or refuses to comply with the mandatory provisions of the Electoral Act on nomination and submission of the names of its candidate for a general election. Such a political party will be deemed or taken in law to have fielded no candidate in that particular election

6. On effect of non-participation of a political party in an election –
Where the pre-election dispute as to who the party candidate should be was not determined until after the election, the affected political party had in actuality no candidate at the election, and the Independent National Electoral Commission ought to declare and return the runner-up with the
majority of lawful votes from that election.
In the instant case, at the close of the period or window INEC gave the political parties to submit the names of their candidates, and at the close of the time for the formal nomination of candidates, and of course, as at the date of the election, the 2nd respondent (APC) had no candidate at the election. Thus, there was no candidate to substitute or replace since neither the appellant nor the 1st respondent was actually the lawful candidate of the 2nd respondent on the ballot at the general election conducted on 23rd February 2019.

7. On treatment of the National Youth Service Corps Act as an existing law pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (as altered) –
By dint of section 315(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the National Youth Service Corps Act had been
incorporated into the Constitution by reference and its provisions shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of the Constitution.

In the instant case, the provisions of section 315(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), takes care of the appellant’s contention that he could only be disqualified from contesting election to the office of member House of Representatives by the provision of the Constitution.

8. On whether a person who has not fully participated in all stages of election can be declared a winner-
By virtue of section 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.

A person to be declared and returned as a winner of an election by an election tribunal or court must have been a person who had fully participated, as a candidate, in all the stages of the election, starting from his nomination, as a candidate to the actual voting. In the instant case, there was no doubt that the 1st respondent did not, at the time of the trial
court order on 3rd May 2019, participate in all the stages leading to the subject election and indeed the election itself in Yola North/Yola South/ Gerei Federal Constituency on 23rd February 2019. The suit at the trial court, brought pursuant to section 31(5) of the Electoral Act, 2010 (as amended), was a pre-election suit which ordinarily should have been concluded before the general election. Apart from participating in the party primary election, which he lost to the appellant, the 1st respondent did not
participate in all the stages of the general election, including his formal nomination as the candidate by the registered voters in the Constituency, the INEC formally placing him, as the candidate, on the ballot for the election and the election.

9. On whether person may benefit from his own illegality-
No one is permitted to benefit from his own illegality or wrongdoing. Doing an act prohibited by statute in order to benefit therefrom, is an act of illegality. In the instant case, it was clear that the appellant concealed material fact from both the 2nd and 3rd respondents. In his INEC Forms CF001 and CFO02, in order to deceive both the 2nd and 3rd respondents,
and indeed the general public. The appellant had fraudulently stated therein that Senior Secondary Certificate, which of course did not qualify him for call-up to participate in the NYSC scheme, was the highest educational qualification he had obtained. This was also a deliberate falsehood, in view of the fact that he was a graduate, holding B.Sc. (Public
Administration) from Adamawa State University, Mubi.

9. On compulsory nature of National Youth Service Corps Scheme –
By virtue of section 2(3) of the National Youth Service Act, it is compulsory for any person liable to be called upon to serve in the National Youth Service Corps Scheme to serve for a continuous period of one year from the date of his call-up instrument. A person called up to undertake the compulsory continuous one year service, who fails to report for service or
who refuses to make himself available for service in the service corps continuously for the period of one year is, by dint of section 13(1) of the Act guilty of an offence and is liable on conviction to a fine of N2,000.00 or to imprisonment for a term of twelve months or to both such fine and imprisonment. Section 13(3) of the Act also makes it an offence for any person who causes or aids or abets another to contravene the provisions of the Act.

The penalty for causing or aiding or abetting another person to contravene the provisions of the Act is N5,000.00 fine or to imprisonment for a term of three years or to both such fine and imprisonment. Clearly, section 13(3) of the Act has in mind, inter alia, employers or organisations which may lure persons liable to serve in the compulsory NYSC scheme from submitting themselves for the compulsory service.

In the instant case, an act of disobedience to the letters of the NYSC Act is criminal or an illegality that goes beyond mere indiscipline of engaging in partisan politics which under the 2011 Revised Bye-Laws makes the offending NYSC service corps member liable to three months without pay. Thus, the Court of Appeal got it wrong when it opined that the appellant’s act of disobedience to the letter of the NYSC Act and the 2011 Revised Bye-Laws was a mere act of indiscipline. It was not.

10. On presumption that a party means what he says or writes –
Parties are presumed to intend what they have said or set down in a written document. It becomes stronger when such representation in a document is purportedly verified by a solemn declaration on oath that such statement or document is true. In the instant case, the 1st respondent’s presentation of the certificate No. 028737 established beyond reasonable doubt that the appellant’s submission of the certificate No. 010515 to INEC which he verified under oath, was evidence that he lied on oath with intent to deceive or say the contrary.

11. On etymology and meaning of “certificate ”
The noun “certificate” is derived from the verb “certify”. To certify, in its
ordinary natural sense, means to attest, verify, testify, vouch ascertain, determine, or to show. “Certificate” as a noun means any document that attests, testifies, vouches, ascertains, and verifies the facts therein. In other words, a certificate is a document in which a fact is formally attested.

A certificate in the context of sections 66 (1)(i) and section 107(1)(i) of the Constitution has wider connotation than the school certificate in Section 106(c) (and also section 65(2) (a) which is defined in section 318(1) of the same Constitution. In the instant case, since forgery consists of the making
of a false document or writing knowing same to be false with intent that it may be used as a genuine document, the deliberate attestation of the false contents or particulars of the candidate’s INEC Form CF001 amounts to making of false statement with intent or knowledge that it may be used a genuine document. Thus, the presentation of INEC CF001 made by the appellant wherein he verified the same to be true, even though they were false or untrue tantamount his presenting false certificate to INEC in terms section 66(1)(i) of the Constitution (as amended).

12. On when cause of action for the purpose of false information under section 31(5) of the Electoral Act may accrue-
It is only upon the publication of the list of candidate by the Independent National Electoral Commission that the cause of action for the purposes of section 31(5) of the Act ripens or matures. Therefore, any meaningful law suit would follow after the prospective plaintiff would have, pursuant to subsection (4) of section 31 of the Act, obtained from INEC a duly certified copy of the nomination form, affidavit and any other document submitted by the candidate at an election. In the instant case, the fact, undisputed, was that INEC published on 25th October 2018, pursuant to its obligation under section 31(3) of the Electoral Act, the personal particulars of the appellant contained in his nomination papers that he submitted to his party (2nd respondent) which were later forwarded to the 3rd respondent (INEC).

The position of the 1st respondent and the concurrent judgments of the
High Court and the Court of Appeal that the said 25th October 2018, being the date of the statutory publication, was the date the cause of action for the suit under section 31(5) of the Electoral Act, (as amended), accrued to the 1st respondent. From the said date to 5th November 2018, when the suit was filed, being only 11 days from the date of the occurrence of the event, or action complained of the suit filed timeously could not be statute barred by virtue of section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Per SANUSI, J.S.C. at pages 530-531, paras. G-D:
“By the provisions of section 31 (2) and (3) of the Electoral Act 2010 (as amended) an applicant desirous of contesting an election, must submit bio data information along with supporting affidavit sworn to in the High Court
or FCT High Court indicating that he has fulfilled all the constitutions requirement for election in to the office he aspires to contest the election for and submit these information and affidavit to INEC. The INEC in its form shall within seven days of receipt of the candidates personal information/particulars candidate, shall proceed to publish same in the of the constituency where the candidate intends to contest the election.

To my mind it is only when the publication is made that the cause of action
accrues or becomes ripe or mature. It only after that the Commission shall issue a duly certified copy of the nomination form. In this instant case, evidence abounds that INEC’s publication as required by section 31 (3) of the Electoral Act, occurred only on 25th of October 2018. The two lower courts have found rightly in my view, that 25th of October 2018 was the date the publication contemplated by section 31 (5) of Electoral Act 2010 (as amended) arose or inures to the 1st respondent. In the light of that, since the 1st respondent filed his action on 5th November 2018 as commonly agreed by the partied, only eleven days elapsed from the date
event or cause of action complained of arose.

It is therefore not correct to say or argue as passed by the appellant, that the action filed by the 1st respondent was statute barred. The two lower courts have rightly in view, made correct concurrent finding that the action was not filed in contravention of the provisions of section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by the
4th Alteration Act.”

13. On submission and publication of particulars of candidates for election –
By virtue of section 31(2) and’ (3) of the Electoral Act, 2011 (as amended), which the appellant never once alluded to, the list or information submitted
by each candidate shall be accompanied by an 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. The Commission shall within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.

14. On disqualification for election into the National Assembly –
By virtue of section 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), no person shall be qualified for election to the House of Representatives if he has presented a forged certificate to the Independent National Electoral Commission (INEC). In the instant case, the appellant’s counsel contended that a candidate could not be disqualified from contesting a general election to an office under the Constitution, under any other law except by the Constitution.

The learned counsel failed to allude to section 66(1)(i) of the Constitution that provides that no person shall be qualified for election to the House of
Representatives if he presented a forged certificate to INEC. Section 31(5) of the Electoral Act read with section 66(1)(i) of the Constitution clearly makes it indubitable that the reprehensible conduct of the appellant, that the 1st respondent/cross-appellant complained of, was one worthy of disqualifying him from contesting the 2019 election.

15. On right of action against candidate for false information under the Electoral Act –
By virtue of the provisions of section 31(5) and (6) of the Electoral Act, 2010, (as amended), any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State, or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false. If the court determines that any information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.

COURTESY:
MORUFF O. BALOGUN, FIMC, CMC, CMS
VICE CHAIRMAN, NBA IJEBU ODE BRANCH,
IJEBU ODE, OGUN STATE.
08052871414
09121207712 [WHATSAPP]