Nasiru Mohammed & Anor V. Kingsley O.C. Oriaku (2008)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
The two appellants Nasiru Mohammed and Independent National Electoral Commission filed an appeal against the judgment of the National Assembly Election Petition Tribunal Holden at the Federal Capital Territory Abuja delivered on Saturday 29th September 2007. As a prelude to this appeal, the 1st Respondent Kingsley Owen Chijioke Oriaku, as petitioner before the Tribunal filed his petition on the 30th of April 2007 claiming against the appellants as Respondents the following reliefs:-
(a) That it may be determined that the election conducted on 21st of April 2007 for AMAC/Bwari Federal Constituency Federal Capital Territory which excluded him from participation, even though duly nominated by his party APGA to contest in the said election is null and void.
(b) An order that a fresh election be conducted by 2nd Appellant into the office of member Federal House of Representatives for AMAC/Bwari Constituency FCT Abuja.
(c) An order that the name of his party APGA and the Logo of his party, the “Cock” be included in the ballot papers to be used for the fresh election.
At the hearing before the Tribunal the petitioner/respondent predicated his petition on his valid nomination by his party and his unlawful exclusion from the election held on the 21st April 2007 for the seat in the Federal House of Representatives for AMAC/Bwari Federal Constituency in the Federal Capital Territory Abuja. The Respondent in his testimony alleged that he was excluded from contesting in that the ballot papers used in the election omitted his party’s name and logo, which were – All Progressive Grand Alliance (APGA) and a cock. The 1st appellant responded that the petitioner/Respondent participated at the election and that the absence of the name and logo of All Progressive Grand Alliance (APGA) did not disenfranchise any voter as the polling officer at his polling station announced that any voter who wanted to vote APGA should do so by writing the name APGA on the ballot paper and thumbprint it. The Tribunal admitted nine Exhibits.
In a considered judgment of the Tribunal delivered on the 29th of September 2007 – it held as follows:-
“In the result and for all reasons we have advanced or given in this judgment, the petition of the petitioner succeeds and the election conducted by INEC, the 1st Respondent, to the House of Representatives for AMAC/Bwari Federal Constituency on 21st April 2007 is invalid.
The said election is hereby declared null and void.
Consequently the election and/or return of the 2nd Respondent – Nasiru Mohammed is hereby declared null and void and accordingly set aside.
In view of our findings and conclusions in Issues one and two in this judgment, the Independent national Electoral Commission is hereby ordered to conduct a fresh/bye election to the office of Member, Federal House of Representatives for AMAC/Bwari Federal Constituency, Federal Capital Territory Abuja within three months from today.
It is further ordered that the name of the petitioners Party – All Progressive Grand Alliance (APGA) and the logo (or symbol) of his party, the cock, shall be included in the ballot papers to be used for the said bye-election.”
Being dissatisfied with the foregoing decision, the Respondent/1st Appellant appealed-to this court. In the Notice filed on 19/10/07 the 1st appellant filed fifteen grounds of appeal.
At the hearing of the appeal on 29/1/08 the learned senior counsel for the 1st appellant Mr. D.D. Dodo SAN adopted and relied on the appellants brief filed on 30/10/07. The 1st appellant distilled five issues for determination from the grounds of appeal as follows:-
(1) Whether the Respondent has the locus standi to present an election petition on the ground of omission of a political party’s logo/name in the Ballot papers.
(2) Whether the omission of a party’s logo is a ground for challenging an election within the contemplation of Section 145(1)(d) of the Electoral Act and having regard to the Decision of this Honourable court in Dr. Olapade Agoro V Alhaji Musa Yar’adua in Appeal No.A/A/EP/1/2007
(3) Whether it was established that the Respondent was excluded from the election of 21st April 2007 for the seat in the Federal House of Representatives in Respect of the AMAC/Bwari Federal constituency
(4) Whether the Tribunal was right to expunge Exhibits 8 and 9 series.
(5) Whether on the evidence before the Tribunal the election of 21st April 2007 was conducted in substantial compliance with the provisions of the Electoral Act 2006 and therefore not liable to be set aside.
Mrs. Taju appearing for the 2nd appellant Independent National Electoral Commission adopted and relied on the brief of the 1st appellant, and associated herself with the submission of the 1st appellant’s counsel.
Chief Karina Tunyan counsel for the 1st Respondent adopted the Respondents brief filed on 12/11/07 and relied on the two issues formulated for determination in this appeal as follows:-
(i) Whether the Respondent a validly nominated candidate who was unlawfully excluded from the
election because of omission of his political party’s logo/name in the ballot papers has locus standi to present an election petition.
(ii) Whether the Tribunal erred in law by failing to apply and/or follow the decision of the Court of Appeal in Dr. Olapade V Alhaji Musa Yar’adua (unreported) judgment of the court of Appeal, delivered on 20th July 2007, with the facts of the instant case are on all fours and the same.
Learned counsel to the Respondent however observed that the appellant filed fifteen grounds of appeal (vide pages 399-410) of the record of appeal, but only five issues were formulated by the appellants from them for determination in this appeal. These five issues related only to grounds 1, 2, 4, 5, 7 and 9, while no issue or issues were formulated from grounds 3,6,8,10,11,12,13,14, and 15 respectively. This court is urged to deem these grounds as abandoned and they should consequently be struck out.
I have looked through the appellants brief and also referred to the fifteen grounds of appeal filed at pages 398-413 of the Record of appeal. The appellants raised five issues for determination as follows:-
Issues one from ground 2, Issue two from ground one, Issue three from grounds 4,5,7 and 9, issue four from ground five. The appellants brief is however silent on grounds 3, 6, 8, 10-15. It is however trite that an issue for determination in an appeal must be formulated in concrete terms and must relate and arise from the ground or grounds of appeal filed and should be of such a nature that a decision on it one way or the other must affect the result of the appeal.
Where no issue is formulated from a ground of appeal, that ground of appeal must be considered abandoned.
A.G Kwara State V Olawale (1993) 1 NWLR (pt.272) Pg 645; Atunrase V Phillips (1996) 1 NWLR (pt.427) Pg637; Diele V Iwuno (1996) 4 NWLR (pt.445) pg 622; Effiong V State (1998) 8 NWLR (pt.562) pg362; Ojonye V Ibrahim (2002) 1 NWLR (pt.747) Pg166.
I intend to be guided by the issues formulated by the appellants in the determination of this appeal.
NUMBER ONE & TWO
Whether the Respondent has the locus standi to present an election petition on the ground of omission of a political party’s logo/name in the Ballot papers.
Whether the omission of a party’s logo is a ground for challenging an election within the contemplation of Section 145(1) (d) of the Electoral Act.
The learned senior counsel Mr. D.D. Dodo (SAN) submitted for the appellants that Sections 140(1) and 145 (1) (d)of the Electoral Act 2006 are the relevant provisions of the law dealing with the Issues raised in this appeal.
These Sections are pari materia with Sections 133(1) and 134(1) (d) of the Electoral Act 2002. The latter provisions of the Electoral Act came up for interpretation in the case Okon V Bob (2004) 1 NWLR (pt.854) pg 378 at pg 400-401 where the court held that a petitioner who was excluded from the election cannot obviously be a candidate at the election, he lacks the locus standi to bring this action and the only person that can bring an action and complain in an election petition of valid nomination and unlawful exclusion is a political party by virtue of the provisions of Section 134(1)(d) of the Electoral Act 2002 under Section 134(1)(d) the word its must necessarily refer to or be limited to a political party and no more,” Under the electoral Act 2002 the provisions of Sections 133 and 134 are not one and the same but are distinctively expressing two different situations, The learned senior counsel explained the situation with reference to the case of Okonkwo V INEC (2004) 1 NWLR (pt.854) pg 242 at pg 248. The learned senior counsel also cited the case Dr. Olapade Agora V Alhaji Musa Yar’adua (unreported) judgment of the Court of Appeal, delivered on 20th July 2007 in Appeal No. CA/A/EP/1/2007 to express that an election petition can only be valid if it complies with the statute conferring jurisdiction on the court empowered to hear the matter. The case of Justice Party V INEC (2006) All FWLR (pt.339) pg 907 at pg 941 restated that only the party whose complaint in the election petition is that of valid nomination but unlawful exclusion is a political party by the combined effect of sections 133(1) and 134(1) (d) of the Electoral Act 2002. The appellants concluded in issue one that the tribunal was in error when it held that the Respondent/petitioner had locus standi to file the petition.
On issue Number two the petitioner relied again on the case of Dr. Olapade Agoro V Alhaji Umar Musa Yar’adua & 1 or (Supra) where it was held that a comparison of the ground as contained in the petitioners petition with the grounds for questioning election as provided for in the electoral Act 2006 shows clearly that the petition is completely outside the grounds provided for in the Electoral Act. The petitioner cannot bring an action on the grounds not founded on Section 145 of the Electoral Act 2006. The tribunal found the petition as incurably defective not only in form but also in content and liable to be struck out. The petition was struck out because it stated that the logo of his political party National Action Congress (NAC) was not reflected on the ballot papers which does not constitute any of the grounds known or recognized under the Electoral Act 2006.
This court is urged to be bound by its own decision and resolve this ground in favour of the appellant.
The respondents counsel Chief Karina Tunyan submitted that the tribunal resolved this issue of jurisdiction and locus standi in the preliminary objection argued by the parties in the ruling delivered by the lower Tribunal on the 9th of July 2007. The 1st appellant raised the same issue of jurisdiction and locus standi during his final address by relying on the case of Olapade Agoro V Alhaji Umar Musa Yar’adua & 1 or (Supra). The Lower Tribunal considered the petition and finally concluded that it has jurisdiction to entertain the Respondents petition and that the Respondent posses the requisite locus standi to bring the petition, that the 1st Appellant is challenging in his arguments canvassed in support of issues number one and two. The learned counsel stated that nothing on the face of the provisions of Section 144(1) (a) makes it conjunctive with 145(1) (b) of the Electoral Act 2006. The use of the word or in this provision means that it is disjunctive in which case either the party or the person unlawfully excluded can legitimately file an election petition.
The Tribunal also held that the petitioner fulfilled the conditions stipulated in Sections 32-35 of the Electoral Act 2006. He was a candidate for the April 21st 2007 House of Representatives election for AMAC/Bwari Federal Constituency. The 1st appellant did not appeal against this findings of the tribunal that the Respondent was a candidate at the election. The tribunal rightly distinguished the case of Okon V Bob (2004) 1 NWLR (pt.854) pg 378 at pgs 400-401
In short the fact that the respondent was a candidate at the aforesaid election and disallowed to contest the election, gave him has the requisite locus standi to file a petition.
On issue two, the Respondent submitted that Olapade Agoro’s case is not on all fours with the instant case – the tribunal clearly distinguished the two cases at page 361 of the Record of appeal. He further submitted that the decision in Olapade Agoro’s case was on the failure of the petitioner to bring his petition within the known four legal grounds for bringing a petition under Section 145(1) a-d of the Electoral Act 2006 and nothing more. The Respondent quoted from the Ruling of the Presidential-Election-Tribunal to hold that the ground of the petition as couched by the petitioner in Agoro’s case was incurably defective not only in form but also in content and is liable to be struck out. The ground was completely outside the grounds provided for in Section 145 of the Electoral Act 2006. Dr. Agoro’s petition was not struck out because it was not complaining against undue election or undue return of a successful candidate at the election as opined by the 1st Appellant in his brief. This court is urged to resolve this issue in favour of the Respondent.
ISSUE NUMBER THREE
Whether it was established that the Respondent was excluded from the election of 21st April 2007 for the seat in the Federal House of Representatives in Respect of the AMAC/Bwari Federal constituency
The learned senior counsel for the appellants submitted that in order to determine this issue it is essential to observe that the Respondent in seeking to establish exclusion relied exclusively and entirely on the omission of the name and logo of APGA from the ballot papers used in the election and no other fact. Where a candidate complains of exclusion from an election it is mandatory that the following is established:-
(i) that he was validly nominated
(ii) that the election was conducted and concluded
(iii) that a winner was declared and
(Iv) That his name was not included in the list of the contestants.
The petitioner must not only state all the above requirements in his petition he must specifically prove them all at the trial. The learned senior counsel cited the cases of Effiong V Ikpeme (1999) 6 NWLR (pt.606) pg 275; Ezeobi V Nzeka (1989) 1 NWLR (pt.90) pg 437
According to learned senior counsel – the Respondent established that his name was on the list of contestants, and went further to complain of the absence of the name and logo of APGA on the ballot papers which is beyond the purview of exclusion as recognized by the Electoral Act 2006. On the day of the election the Respondent deployed his agents to their various polling stations He could only have done so because the 2nd appellant INEC recognized him as a contestant. The Respondent is estopped from denying his status as a contestant. By virtue of the Electoral Act 2006 a contestant complaint must relate to the conduct of an election.
Also a list of contestants published by the 2nd Appellant Exh 2 in the case corroborated the fact that the Respondent was a contestant.
The sum total of the complaint of the Respondent is that an election was conducted without the name and logo of his party APGA notwithstanding that he was a contestant at that election. Exclusion amounts to a rejection by INEC which is sine qua non for the invocation of the provisions of Section 145(1)(d) because it is when this happens that the candidates name will not be on the list of contestant published in furtherance of INEC’s duty to publish as provided for in Section 35 of the electoral Act 2006. The Respondent was obviously a contestant, who had never been excluded by anyone before omission of his name and logo became apparent.
As he attended the election as a contestant it is not open to him to convert the omission to exclusion. The omission cannot be a deliberate design by anyone to exclude him. The name has not been deleted from the list of contestants at the election; neither is there any letter deleting his name. The learned senior counsel submitted that there is a legal distinction between a candidate and a contestant.
A candidate is one even though validly nominated cannot be in any legal position to be entitled to votes because a condition precedent still exists that his name must first be published amongst the list of contestants. As a contestant this complaint should be about the conduct of the election itself. The Respondent Failed to lead evidence needed to establish the legal ingredients for exclusion. The only evidence he led was that of a contestant’s complaint about the conduct of the election. The unchallenged evidence on record and the pleadings of the 1st appellant as found on pages 20, 23 and 285 of the record is to the effect that no voter who signified his intention to vote was disenfranchised at the election.
The learned counsel to the Respondent replied by agreeing with the appellants about the four ingredients required to establish exclusion from an election as laid down in the case of Effiong v Ikpeme (1999) 6 NWLR (pt.606)pg 275. He submitted that the Respondent had proved the four with concrete evidence. On the issue that he was validly nominated by his party, he tendered Exh 3 form CF 001, affidavit in support of his personal particulars deposed to by petitioner, Exh 2, INEC nominated candidate list, the election conducted and concluded and a representative for AMAC/Bwari Federal Constituency that a winner was declared. That his name was not included in the list of the contestants. A person will become a contestant if his name appeared in the final declaration result form as in Exhibit 1 for the House of Representative for AMAC/Bwari Federal constituency.
The name of APGA and respondent did not appear in Exh 1 and Exh 2 the list of three nominated candidate for election to the House of Representative 2007. The learned counsel stated that to become a contestant the person and his name must appear with scores accredited to the political party that sponsored him on the final declaration of result form Exh 1 and 10 in this case. There was enough evidence to hold that the 2nd appellant deliberately excluded the Respondent from the election Exh B ballot papers were printed without the name logo of Respondent political party Exh 1 and 10 INEC electoral result sheets does not contain the name of the respondent, his political party APGA and the scores on it, which are positive acts of exclusion. This court is urged to answer issue 3 in the positive.
Issue IV and V
Whether the Tribunal was Right to Expunge Exhibits 8 and 9 series.
Whether on the evidence before the Tribunal the election of 21st of April 2007 was conducted In substantial compliance with the provision of the Electoral Act 2006 and therefore not liable to be set aside.
The learned senior counsel for the respondent confirms the argument and submission in issue one above that the claim of the appellant is not one of exclusion. The Respondent failed to make his case as they stand under any other ground discernable on the face of the petition which would have given the tribunal the jurisdiction to entertain complaints relating to the conduct of the election itself. The grounds involved in a petition must be supported by particulars which must be consistent with or directly flow from the ground or grounds or cannot be deemed to have complied with paragraph 4 of the 1st schedule to the Election Act. The learned senior counsel concluded that there is a complete want of reasonable cause of action in this petition.
He cited cases:-
Kalu V Uzor (2007) 12 NWLR (pt 880) pg 1 at pg 44; Nnamani V Nnaji (1999) 7 NWLR (pt 610) at pg 319; Ojukwu V Yar’adua & Ors unreported petition No CA/A/EP/8/07 of the Court of Appeal.
Kauari V Dalori (1999) 7 NWLR (pt.556) pg 149 at pg 153,154.
The ground did into fall within section 145 (1) of the Electoral Act 2005. A ground as recognized by law is the legal foundation that confers the validity on a Tribunal to adjudicate on the particulars or fact contained in any petition. The Respondent must show that the omission of the name and logo affected the outcome of the election of 21st April 2007 for the seat in the Federal House of Representatives in respect of AMAC/Bwari Federal Constituency. That without additional evidence all that the omission of the name and logo of APGA establishes is a case for compliance with Section 45 (1) of the Electoral Act 2006. That section of the Electoral Act requires that opportunity be given to a voter to express his choice amongst the contestants on the ballot paper. There is no requirement to identify any of the contestants on the ballot paper because INEC would have published the list of candidates contesting the election pursuant to section 35. The expectation is that the voters are to arrive the polling station already prepared to vote from the list of contestants earlier published before Election Day. Notwithstanding the absence of the name and logo of a party if a voter marks the ballot papers in a way that conveniently identifies a voter’s preferred choice amongst the contestants the principle behind Section 45 (1) of the Electoral Act would have been substantially complied with. The Learned Senior Counsel submitted that Exhibit 8 series were ballot papers showing that some APGA supporters cast their votes at a polling station, while Exhibit 9 series were result sheets showing the entry of the votes scored by APGA at a particular polling station, while RW 1 introduced himself as the Returning Officer for the election in question.
The exhibits having been admitted on the grounds of their reliance, the Tribunal was in error to have expunged them on grounds that they had been wrongfully admitted simply because they had not been specifically pleaded by the appellants. No voter who signified his intention to vote at the election was disenfranchised. The Respondent who had asserted in his pleadings that his supporters could not vote Failed to call even a single voter to testify or establish this fact. The Respondents allegations that his supporters was denied the right to vote was unproved and speculative as he failed to plead the voting strength in the constituency by way of stating the number of registered voters which by virtue of the provisions of section 20 of the Electoral Act is
displayed before the elections. This court is urged to determine that there has been substantial compliance pursuant to Section 146 of the Electoral Act 2006 in view of the testimony of RW2 on pages 22, 23, 285 and 286 of the Record of Appeal.
The appellant cited the case of Buhari V Obasanjo (2005) 2 NWLR (pt.910) pg 241; Yusuf v. Obasanjo (2005) 18 NWLR (pt.956) pg 96 Adebiyi V Babalola (1993) 1 NWLR (pt.267) pg 1.
The appellant urged this court to allow the appeal and grant all the reliefs contained in the 1st Appellants Notice of Appeal.
The learned counsel for the Respondent submitted in respect of the two issues that contrary to the submission of the 1st appellant in paragraphs 7.1 of page 2 the nature of the complaint of the Respondent is his petition is clearly that of unlawful exclusion and not about the conduct of the election held on 21st of April 2007.
There is no burden on him to prove that non compliance substantially affected the result of the election. The sole issue before the court was whether the 2nd appellant was right in excluding the Respondent from contesting the election of 21st of April 2007, aforesaid after being validly nominated by his political party APGA.
The issue of substantial non-compliance that affected the result of the election had been established through the pleadings and conduct of 2nd Appellant. The Tribunal described the breaches of the Electoral Act committed by the 2nd appellant as fundamental breaches which amount to substantial non-compliance that rendered the whole election null and void.
The respondent held that Exhibits 8 and 9 were properly expunged by the Tribunal.
The facts pleaded in paragraphs 4 and 11 of the 1st appellants reply as produced above cannot justify the admission of Exhibits 8 and 9 which were tendered to proof material facts in the petition, that is cruxial issue of whether or not the petitioner participated in the election and that his supporters voted by writing the name of APGA at the back of the ballot papers and thumb printed on same. The law requires that such vital documents must be specifically pleaded most especially in election petition.
Hashidu V Goje (2003) 15 NWLR (pt.843) pg 353
The learned counsel further submitted that all ballot papers used at the election were pleaded by the appellant in paragraph 13 of the petition to establish that the ballot papers omitted the name/logo of APGA the Political Party that sponsored the Respondent. That the election was not conducted in substantial compliance with the Electoral Act 2006, and therefore shall be liable to be set aside as null and void.
I have given painstaking consideration to the argument and submission of learned senior counsel to the appellants and learned counsel to the Respondent.
In considering the issues for determination the appellant argued issues one and two together. Issue No. one is to determine whether the Respondent has the locus standi to present an election petition on the ground of omission of a political party’s logo/Name on the Ballot Paper and issue No. two is whether the omission of a Party’s logo is a ground for challenging an election within the contemplation of Section 145(1) (d) of the electoral Act and having regard to the decision of this honourable court in Dr. Olapade Agoro V Alhaji Musa Yar’adua in Appeal No.CA/A/EP/1/2007.
The appellants rightly submitted that the relevant provisions of the law for consideration for the purposes of determining the locus standi of the Respondent are Sections 144(1) and 145(1) (d) of the Electoral Act 2006.
The two Sections are in pari materia with the provisions of Section 133(1) and 134(1) (d) of the Electoral Act 2002.
I shall recapitulate the above cited provisions of the law –
Section 133(1) of the Electoral Act states that an election may be presented by one or more of the following:-
(a) a candidate at an election
(b) A political party which participated at the election.
section 134 (1) (d) of the Act states that a political party or its candidate was validly nominated but was unlawfully excluded from the election.
Section 144(1)
“An election petition may be presented by one or more of the following persons:-
(a) a candidate in an election
(b) A political party which participated in the election.
Section 145(1) (d)
“An election may be questioned on any of the following grounds:-
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded.
The appellants relied on the case of Okon V Bob (2004) 1 NWLR (pt.854) pg 378 at pg 400-401 to hold that-
“If the petitioner has been excluded from the election as he pleaded obviously he was not a candidate. If he was excluded from the election, he was not a candidate at the election, he lacks the locus standi to bring this action and the only person that can bring an action and complain in an election petition of valid nomination but unlawful exclusion is a political party by virtue of the provisions of Section 133(1) and under Section 134(1) (d) – the word must necessarily refer to or be limited to a political party and no more.”
The appellant also referred to the case of Okonkwo V INEC (2004) 1 NWLR (pt.854) Pg 242 at Pg 248 to conclude that it is the party permitted to file election petition under Section 133 that can proceed upon Section 134 to sue for the grounds upon which the election is questioned, the appellant has no locus standi to file a petition suing for himself and on behalf of his party.
The appellant also in the case of Justice Party V INEC (2006) 1 All FWLR (pt.339) Pg 907 at Pg 941 where the court of Appeal held that
“The only person that can bring an action in the circumstance and complain in the election petition of valid nomination but unlawful exclusion is a political party. This is by combined effect of Sections 133(1) and 134(1) (d) of the Electoral Act 2002.”
From the foregoing the appellants submitted that the lower tribunal was in error when it held that the Respondent/petitioner had locus standi to file the election petition.
I cannot but reply briefly that this contention of the Appellant was good law based on the Electoral Act 2002.
The appellant failed to consider the same situation under the 2006 Electoral Act. Sections 144(1) and 145(1)(d) of the electoral Act 2006 must be read and construed together to arrive at the justice of this case and by so doing the various parts of the statutes shall not be brought in conflict with their natural meaning. In order to properly interprete statutes it is necessary to consider
(a) How the law stood when the statute to be interpreted as passed.
(b) What the mischief was for which the old law did not provide and
(e) The remedy provided by the statute to cure that mischief.
The golden rule of interpretation is to determine and reflect the intention of the law maker. When the intention is clear, resort cannot be had to a liberal interpretation to incorporate words not expressly put in the statute.
The intention of the legislature is to be derived from the precise words used in the enactment. The court has to endeavour to discover the intention of the law makers from the words used in their ordinary and natural sense without reference to previous cases in the first instance.
A court of law has no power to import into the statute something which it does not say.
Effiong V Ikpeme (1999) 6 NWLR (pt.606) pg 260; Kolawole V Alberto (1989) 1 NWLR (pt.98) pg 382; INEC V Musa (2003) 3 NWLR (pt.806) pg 72; Ibrahim V JSC (1998) 14 NWLR (pt.584) Pg.1; Miscellaneous Offences Tribunal V Okoroafor (2001) 18 NWLR (pt.745) Pg295; Omoiiahe V Umoru (1999) 8 NWLR (pt.614) Pg178; Bronik Motor Ltd V Wema Bank Ltd (1983) 1 SCNLR 298.
Locus standi basically is the right of appearance in a court of justice or before a legislative body on a given question. It is the right to be heard in litigation before a court of law or tribunal without any hindrance, obstruction or inhibition from any person or body.
Guda V Kitta (1999) 12 NWLR (pt.629) Pg21; Elendu V Ekwoaba (1995) 3 NWLR.(pt.386) Pg.704; Ukegbu V N.D.C. (2007) 14 NWLR (pt.1055) Pg551; In an election petition, which is sui generis, in other words, being in a unique and in a peculiar class of its own, the right of access to court is as provided by the law guiding the conduct of election. In the institution of an election petition a party must have capacity or locus standi to institute such an action. Therefore anybody seeking a relief under such a law must bring himself strictly within the provision of the law.
Under Section 144 (1) of the Electoral Act a petition may be presented by a candidate in the election or a political party in the election.
The petitioner or its candidate obviously means a party or its candidate there is no atom of ambiguity in that. A candidate of a party is as defined by Section 32(1) of the electoral Act which reads:-
“Every political party shall not later than 120 days before the date appointed for a general election under the provision of this act, submit to the commission in the prescribed form list of the candidates the party proposes at the elections.
candidates refer to those sponsored by the party at the election.
Section 145(1) (d)reads:-
“That the petitioner or its candidate was validly nominated but was unlawfully excluded from the
election.”
Section 33(2) states that;-
“No person shall nominate more than one person for an election to the same office which means that nomination amounts to earmarking a candidate for election for a particular office/position.”
The combined effect of Sections 144(1) and 145(1) (d) of the Electoral Act 2006 is that either a political party or its candidate can present a petition for wrongful exclusion.
By virtue of Section 80 of the Electoral Act 2006, every political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
Participation in an election simply means talking part in an election though not in any special way. This may include participation by the political party itself or through its authorised agent a sponsored candidate.
The word election in the con in which it is used in Section 137 (1) (b) of the 1999 Constitution, means the process of choosing by popular votes a candidate for a political office in a democratic system of government.
The word election is not restricted to the activities at the polling station on the day of an election.
Buhari V Obasanjo (2005) 2 NWLR (pt.910) pg 241
The process in an election starts from the voting by party members to choose candidates to represent the party at ward level and the primaries up to the polling day when these party candidates are presented by the party to the electorate. An election covers all the activities in part IV of the Electoral Act 2006.
The appellants further queried whether the omission of a party’s logo is a ground for challenging an election within the contemplation of section 145(1) (d) of the Electoral Act having regard to the decision of the Court of Appeal in Dr. Olapade Agoro V Alhaji Musa Yar’adua in appeal No. CA/A/EP/1/07.
In that case referred to by the appellants the petitioners ground for the petition complains of the Respondents failure to use the right logo on the ballot paper with the result that millions of Nigerians who would have voted for him were confused went back home disappointed and disillusioned.
He therefore sought the nullification of the election. The Court of Appeal held –
“A comparison of the ground for the petition contained petitioners petition with the grounds for questioning election provided for in the Electoral Act 2006 shows clearly that the petitioner cannot bring a petition on grounds not founded on Section 145 of the Electoral Act 2006 see the case of Felix Nwobodu V Wokocha Gift & Anor (1998) 12 NWLR (pt.579 Pg 522. It is therefore my view that the petitioners purported petition is incurably defective not only in form but also in content and liable to be struck out.”
Agora’s petition was struck out because it did not conform with any of the grounds on which election maybe questioned as stated in Section 145(1)(a)-(d) of the Electoral Act 2006, and not because it was not complaining against undue election or undue return of a successful candidate at the election.
A candidate within the meaning of Section 144(1) of the Electoral Act 2006, is a person who has been nominated by his party to the Independent national electoral Commission and whose eligibility the commission has ostensibly or prima facie cleared or confirmed. The requirement of having actually contested on the day of polls is not stated in the electoral Act. The word contestant which the appellant went on a voyage of discovery to analyse is not operative or embodied in either Section 144(1) or 145(1) (d) of the Electoral Act 2006.
The averments of the petitioner in the pleadings distinguished the petition from Agora’s case. furthermore in Agora’s case the sole complaint is failure of INEC to use the right logo of his party NAC, whereas in this petition before the lower Tribunal the petitioner is complaining that the name of his party and its logo were not printed on the ballot papers used in the election.
The petitioner based on Section 145(1)(d) of the Electoral Act 2006 considered the omission of the party’s names and logo on the ballot papers as unlawful exclusion of himself as petitioner by INEC from participating in the election. The lower tribunal held:-
“We are of the view that the case of Agoro is with profound respect, inapplicable to the facts of this case. In the light of the above, we hold that we have jurisdiction to entertain this petition. We are also of the view that from the pleaded facts already quoted in this judgment the petitioner has brought himself within the province of sections 144(1) (a) and 145 of the Electoral Act 2006.
The petitioner has also fulfilled the conditions stipulated in Section 32 to 35 of the electoral Act 2006.
He was a candidate for the April 21st 2007 House of Representatives Election for AMAC/Bwari Federal constituency. The facts and issues raised in the petition and the reliefs sought therein by the petitioner are all within the competence of this tribunal to determine. They disclosed reasonable cause of action to present the petition herein, to challenge the conduct of the said election and the return of the 2nd respondent. The ground upon which the petition is founded is available to the petitioner. ”
I agree with foregoing conclusion of the lower Tribunal and resolve issues one and two in favour of the respondent.
ISSUE NUMBER 3
Whether it was established that the Respondent was excluded from the election of 21st April 2007 for the seat in the Federal House of Representatives In Respect of the AMAC/Bwari Federal constituency I agree with the submission of the parties that where a candidate complains of exclusion from an election, it is mandatory that the following is established –
(a) That he was validly nominated
(b) That the election was conducted and concluded
(c) That a winner was declared and
(d) That his name was not included in the list of the contestants.
The petitioner must not only state all the above requirements in his petition he must specifically prove them at the trial Effiong V Ikpeme (1999) 6 NWLR (pt.606) Pg.275 Ezeobi V Nzeka (1989) 1 NWLR (pt.90) Pg437
The appellant contended that the Respondent had an up hill task of converting the omission to exclusion – he must prove a positive act of exclusion from the election by the 2nd respondent.
The respondent submitted that there were enough evidence before the Tribunal to show that the 2nd appellant deliberately excluded the Respondent from the election. Exhibit 7, ballot papers were printed without the name/logo of respondents political party, Exhibit 1 and 10 the INEC declaration of result form does not contain the name of respondent, his political party APGA and the scores of the APGA on it.
These to all intents and purposes amount to positive acts of exclusion.
The 2nd appellant admitted before the Tribunal that the name and logo of APGA were not contained on the Ballot papers, and also that the name of APGA was not on the final declaration of result form and further that fourteen political parties were listed in Exhibit 10 and the name of APGA was not contained therein. There is a clear indication from the pieces of evidence that the respondent was validly nominated but was unlawfully excluded by the appellant from contesting in the election into the House of Representatives AMAC/Bwari Federal constituency on 21st April 2007.
These acts of the appellant brought the case of the respondent within Section 145(1) (d) of the Electoral Act 2006 and that the same rendered the election of the 1st appellant null and void. By virtue of Section 45(1) of the electoral Act 2006 it is statutorily mandatory for INEC to include the symbol adopted by a political party on the ballot papers for any valid, free and fair election and failure by INEC to do that cannot be cured by radio or television announcements purportedly made by the appellant on the day of the election. Provisions of Sections 45-83 of the Electoral Act are designed to give to every political party and its candidate and the electorate, the right to take part in the election and vote through the instrumentality of ballot papers to pick or elect or choose the right candidate as a winner and representative of a particular constituency or office and in this case, member of the House of representatives of the National Assembly.
The directive to voters through radio or any announcement at the polling booths to write APGA name on ballot papers and thumb-print same is not practicable in view of the provision of Section 45 of the Electoral Act which reads:-
Section 45(1) – the commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the political party of the candidate and such other information as it may require.
45(2) – that ballots papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested.
It is not possible for supporters of APGA to vote with ballots papers belonging to other parties in view of the foregoing paragraphs of the Electoral Act 2006.
This case is a glaring example of uncertainty-as to whether APGA was afforded a full opportunity to exercise their right of franchise on the day of the election due to the omission of INEC to comply with Section on 45 of the Electoral Act.
The word shall also appears in the Sections of the Electoral Act relating to design, use and purpose of ballot papers and symbol (logo) of a political party. INEC must compulsorily ensure that the political party of each candidate validly nominated and verified for an election has the logo and name of the candidate’s political party on the ballot papers. The provisions are not directory but must be mandatory complied with.
This issue is resolved in favour of the Respondent.
Issue four and five were argued together
ISSUE NUMBER FOUR
Whether the Tribunal was right to expunge Exhibit 8 and 9 series.
ISSUE NUMBER FIVE
Whether on the evidence before the Tribunal the election of 21st April 2007 was conducted in substantial compliance with the provisions of the Electoral Act 2006 and therefore not liable to be set aside.
Exh.8 series were ballot papers showing that some APGA supporters cast their votes at a polling station, while Exh.9 series were result sheets showing the entry of the votes scored by APGA at a particular polling station which the Tribunal was entitled to have resort to and was clearly in error to have expunged the vital piece of evidence.
RW.1 – the returning officer should have been allowed to testify. The respondent pleaded in paragraph 13 of the petition to establish that the ballot papers omitted the name/logo of APGA the political party that sponsored the Respondent. INEC accepted all the breaches complained about by the Respondent when the learned counsel to appellant agreed that:-
“I also urge my lords to bear in mind that ballot papers were not printed in Nigeria. The 1st Respondent did what was the only option available by going on air and announcing that supporters of APGA should cast their votes by writing names and thumb printing on it and which their supporters complied with, what is important here is substantial compliance with the electoral Act 2006.
Obviously the contents of Exhs 8 and 9 should have been averred in the pleadings of the parties being an important aspect particularly of the defence of the appellants before the lower tribunal. Rejecting them or expunging them from records will have no adverse effect to the case of the parties. The defence of the 2nd appellant is an admission that the name and logo of APGA was omitted on the ballot papers and the 2nd appellant has a duty to rebut this only by showing that ballot papers with logo and name of APGA was printed and made available to voters on the 21st of April 2007.
The tribunal in its judgment at pg 376 of the Record held that:-
“The main purpose of holding an election in a democratic set up is to determine the wishes of the people as to whom should represent them in their legislative and executives set up, it is therefore necessary to ensure that any election conducted is done in a way that would substantially ensure that main objective is substantially met.”
In order to determine whether or not an election was conducted substantially in accordance with the Constitution and the Electoral Act 2006, the court will look at the circumstance of the case including the state of pleadings especially the credibility of the petitioners case, the nature and substance of the complaint of the petitioner, the attitude of functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner even if proved actually affected the conduct of the election. The reason being peddled by the 2nd appellant – INEC in Its favour to save this election in dispute from being invalidated by this tribunal are tenuous and inconsistent with any sense of justice and fair play in the election.
INEC had more than sufficient time to plan, organize and conduct free and fair election and impartial election right from 2003 to April 2007. the lower tribunal finally concluded that the petitioner had proved and established before us that he was validly nominated by his party APGA to contest the House of Representatives election in question on 21st of April 2007, but was unlawfully excluded from the election due to failure of the 1st respondent to Include the name and logo of his party APGA on the ballot papers used in the conduct of the said election.”
I agree with the foregoing and I have no reason to interfere with this conclusion. I also hold that the appeal lacks merit and it is missed.
Election to the House of Representatives for AMAC/Bwari Federal Constituency on the 21st April 2007 is invalid. The said election is declared null and void,
The election and/or return of the 2nd respondent Nasiru Mohammed is hereby declared null and void and accordingly set aside.
The Independent National Electoral Commission is hereby ordered to conduct a fresh bye election to the office of member, Federal House of Representatives for AMAC/Bwari Federal constituency, FCT Abuja as ordered by the Tribunal.
It is further ordered that the name of the petition’s party All Progressive Grand Alliance (APGA)and the logo/or symbol of the party, shall be included in the ballot papers to be used for the said bye-election.
Other Citations: (2008)LCN/2688(CA)
