MARCATHY V. TOPE (2011)

Background

This appeal arose from the election conducted on 26 April 2011 for the Ojomu/Balogun Constituency of the Kwara State House of Assembly, Offa Local Government Area. Mrs. Wosilat Tinuke Marcathy, the candidate of the Peoples’ Democratic Party, contested the election against Olayonu Olarinoye Tope, who was sponsored by the Action Congress of Nigeria. Tope was declared the winner and returned by the electoral authorities. Dissatisfied with the result, Marcathy and her party filed an election petition before the National and State House of Assembly Election Petition Tribunal in Kwara State.

The principal complaint was that Tope had not paid his personal income tax for the three years preceding the election as and when due. The petitioners contended that section 85 of the Personal Income Tax Act, 1993, read together with sections 24(f), 106, 107, 315 and 318 of the Constitution of the Federal Republic of Nigeria, 1999, made the production of a three-year tax clearance certificate a condition precedent to eligibility for election. They sought declarations that Tope was not qualified, that his return was void, an order restraining him from presenting himself as the winner, and an order directing INEC to conduct a fresh election.

The tribunal dismissed the petition. It held that a tax certificate, tax assessment certificate, income tax clearance certificate or tax receipt was not constitutionally required for a candidate seeking election to a State House of Assembly. The petitioners appealed to the Court of Appeal.

Issues

1. Whether Tope was legally disqualified from contesting the election because he allegedly failed to pay income tax for three years preceding the year of the election.
2. Whether the election tribunal properly considered and evaluated the pleadings, evidence, arguments and legal issues before dismissing the petition.
3. Whether the appellants’ issues for determination were competent, having regard to the requirement that appellate issues must arise from and relate to specific grounds of appeal.

Ratio Decidendi

The Court of Appeal dismissed the appeal and affirmed the tribunal’s decision. First, the court emphasized that issues for determination must be properly distilled from the grounds of appeal. Ordinarily, more than one issue should not be distilled from a single ground, although several grounds may support one issue. Any issue that does not flow from a ground of appeal is incompetent and the arguments based on it must be ignored. Counsel have the duty to identify the relationship between each issue and the relevant ground; the court is not required to undertake that exercise for them.

The court nevertheless considered the substantive question in order to finally resolve the controversy. Section 106 of the Constitution sets out the qualifications for election to a State House of Assembly: the candidate must be a Nigerian citizen, must have attained the age of thirty years, must have been educated to at least school-certificate level or its equivalent, and must be a member of, and sponsored by, a political party. Section 107 specifies the disqualifying circumstances. Neither provision includes failure to pay personal income tax as and when due.

The court rejected the argument that section 85 of the Personal Income Tax Act could be used to enlarge the constitutional grounds of disqualification. Although section 85 concerns the demand for tax clearance certificates in connection with certain transactions, including appointment or election into public office, it does not make timely payment of personal income tax a constitutional qualification for contesting a State House of Assembly election. The court also held that section 24(f) of the Constitution, which encourages citizens to declare their income and pay tax promptly, is a civic obligation within the fundamental objectives and directive principles of state policy. It does not create an enforceable electoral disqualification.

Further, any legislation inconsistent with the Constitution is void to the extent of the inconsistency. The clear and unambiguous words of sections 106 and 107 had to be given their ordinary and grammatical meaning. The court could not add tax compliance to the constitutional requirements merely because such a policy might encourage responsible citizenship.

Court Findings

The evidence showed that Tope paid assessed taxes for 2008, 2009 and 2010 together on 11 January 2011 and received tax clearance documentation. However, whether that payment was timely did not determine his constitutional eligibility, because tax payment was not a legally recognized ground for invalidating his candidacy or election under the Constitution or the Electoral Act 2010.

The court also found that the tribunal had properly evaluated the evidence. Evaluation requires the trial court to summarize and weigh the competing versions of the facts on an imaginary scale, determine which is supported by the preponderance of credible evidence, and then apply the relevant law. The tribunal had considered the tax documents, the testimony of the relevant tax official, the parties’ submissions and the statutory provisions relied upon by the appellants. Its conclusion that tax documentation was not a constitutional requirement was therefore not a failure to evaluate the case.

As a procedural matter, the court struck out the Action Congress of Nigeria from subsequent appellate processes because its name had been omitted from the notice of appeal and later inserted without a formal application for joinder or correction. The parties to an appeal must be determined from the notice and grounds of appeal, which initiate the appeal. Ground nine, directed at the incorrectly described party, was treated as abandoned.

Conclusion

The appeal was dismissed for want of merit. The judgment of the Kwara State National and State House of Assembly Election Petition Tribunal, which dismissed the petition, was affirmed. The appellants were ordered to pay costs of N50,000 to the respondents.

Significance

The decision confirms that, under the constitutional regime governing the 2011 elections, non-payment or late payment of personal income tax was not a qualification or disqualification for election to a State House of Assembly. Tax obligations could be enforced through the mechanisms provided by tax legislation, but they could not be transformed by judicial interpretation into an additional electoral requirement. The case also reinforces important appellate practice principles concerning the proper formulation of issues, the identification of parties from the notice of appeal, constitutional supremacy and the duty of a trial tribunal to evaluate evidence before reaching its decision.