Hon. P.C. Okeke V. Mrs. Uche Ekwunife & Ors (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A

This is an appeal by the Petitioner in the Tribunal below. The Tribunal sat in Awka in Petition NO. EPT/AN/NA/HR/28/2007 for the house of representative election. The 1st respondent had raised preliminary objection to the petition of the appellant at the pre trial session on the ground inter alia that the appellant lacked the requisite standing to institute petition specifically that the appellant failed to join in the petition PDP, which party the petitioner claimed sponsored him for the election.

In furtherance of the objection made by the complainant now the 1st respondent, the petitioner aver that appellant filed his petition before the Tribunal and maintained therein in that the petitioner was a candidate for the Federal House of Representative election for Njikoka/Anocha/Dunukofia Federal Constituency which held on Saturday April 21st 2007. In the petitioner the Appellant averred that the 1st respondent Uche Ekwunife was not a candidate at the said election and was unduly returned by the 2nd respondent at the said election.

(2) That the 1st respondent was not duly elected by majority of lawful votes cast at the election. The process which commenced the proceeding in which the Petitioner put in issue for determination are the two motions filed by the 1st Respondent Uche Ekwunife in which she sought “an order of the Tribunal pursuance to paragraph 144(1), 143(3) of the Electoral Act 2006 par 4(1) (c) 49(5) of the 1st schedule to the Electoral 2006 to strike out the petition for incompetence and failure to comply with the provision of paragraph 144 (1) of the Electoral Act par 4(1) of the 1st schedule.” The 2-7th Respondent also took a action before the Tribunal and urged the Tribunal to strike out the petition on the ground that the scores of the candidate as declared and published by INEC was not stated in the petition.

(2) The candidate (name) who was returned at the election was also not stated.

(3) The Petitioner who is complaining of unlawful exclusion cannot validly present a petition.”

The issues which provoked the motion of the 1-7 Respondents to seek the order for striking out of the petition as contained in the petition was the averment in the petition that he participated in the election held on 21st April 2007 as the candidate of the PDP. He said he was the person duly nominated by the PDP to contest the election and that his name was published. He claimed that notwithstanding the above the 7th Respondent for INEC illegally substituted his name on the candidate but less than 60 days to the election. That because of his belief that his purported substitution was wrongful illegal and not in accordance with the provisions of the electoral Act 2006, he filed an action in the Federal High Court Enugu to challenge the substation and at the same time intensified his campaign before the election.

In their reply, in the Tribunal the 1st 2-7th Respondent severally and jointly filed the following documents, (a) declaration of the result of election form EC8 E (ii) certified true copies of the nomination documents for the said election to establish that the 1st Respondent was duly nominated candidate for PDP. After hearing the applications and the replies and the petition of the Petitioner and the replies of Respondents the Tribunal ruled on 17th September, 2007 as follow:

“That the petitioner was not a candidate at the election which holds on 21st April, 2007 and struck out the petition.”

The Petitioner was dissatisfied with the decision of the Tribunal he has filed his appeal to this court. In his brief the appellant, formulated the following issues for determination (1) whether the absence of his petitioner political party as a party in the election petition deprives the petitioner a standing to sure where his claim is that he won the election and should be returned as the winner, (2) Does the petitioners case a cause of action consist of one solitary averment a the totality of his pleadings and which the needs to plead his evidence. In the argument in his brief, this petition appellant referred and relies on the provisions of Section 144(1) Electoral Act which provides that an election may be presented by party or more of the following provisions. (a) Candidate in an election. (b) Political party which participated in this election submitted that by which of Section 144(1) Electoral Act, he was not precluded from filing his petition after the election of 21st April, 2007, his non joinder of the political party does not detar him. The petitioner said, he was a registered member of the PDP and was a candidate under the party for the Federal House of Representative for Njikoka Anaocha Dunukofia Federal Constituency held on 21st April, 2007. He averred in his brief that he was duly elected as winner. He pleaded the party membership card and his expression of interest with his party nomination form. The Petitioner pleaded he was the person nominated verified cleared and his name published for Njikoka/Anaocha/Dunukofia Federal Constituency held on 31st April, 2007.

He urged the Court of Appeal to hold and rule that the 1st respondent was not validly elected. (11) That the 1st respondent did not contest the election as a candidate of PDP. That the court should declare the Petitioner (himself) who scored majority of the lawful votes cast at the election and set aside the wrongful, return of the 1st respondent; and declare him the rightful winner of his Federal House of Representative election for Njikoka Anaocha Dunukofia Federal Constituency held on Sunday April 21, 2007. The Petitioner submit and urged this court to held that the totality of the claim is for his court to determine which of the two candidates at the election of 21st April, 2007 is duly elected and such determination calls for presentation of evidence.

The 2nd issue on which the appeal seeks an order of Court of Appeal petition at that stage in the Tribunal below he needs to plead evidence and submits that the tribunal is misconceived when it relied on the narrow part of the petitioners’ pleadings out of con of her pleadings and required the petitioner to plead evidence. The appellants filed also a replied brief in which as the petitioner he responded and elaborated on the appellants brief.

I have recorded above that the 1-7th Respondents particularly the 1st respondent filed two motions seeking an order of the Tribunal to strike out the petition for incompetence, and for failure to comply with the provision of Section 144(1) of the Electoral Act par 41(c) of the 1st schedule of the Act.

The application was supported by an affidavit, and submissions of the two parties the 1st respondent and the 2nd to 7th Respondents. In it the two parties showed that the appellant in the Tribunal failed to state the scores of each of the candidates as declared and published by INEC (11) The name of the candidate returned at the election was not stated.

That the petitioner cannot lawfully present a petition, and his complaint of exclusion cannot be lawfully sustained. In further support of their application by motion on notice; the respondents showed and exhibited (1) Certified declaration of Result of the election in form EC & E (11). (2) Certified true copies of the nomination document of 21st April, 2007 establish that the 1st respondent was the duly nominated candidate of PDP.

In the further reply filed by the 1st respondent she annexed deposition on oath by witness in proof of her case. Furthermore, the processes on Suit NO. FHC/EN/CS/124/2007 in which the appellant read INEC, which document showed that the 1st respondent was duly nominated.

From the foregoing, and the ruling of the Tribunal two issues arise for determination as formulated by the appellant whether the tribunal was correct when it held that the appellant lacked the necessary locus standi to prevail the petition, and whether at the stage of the motion, the petitioner now appellant was obliged to present evidence in proof of the averments in the petition. The 1st respondent and the 2nd to 7th Respondents have concretized the two issues as follows. “Whether the Tribunal was right when it held that the appellant lacked the locus standi to present the petition and whether on a dispassionate consideration of the petition the Tribunal was right when it struck out the appellant’s petition.”

In my view the real issue to be determined is which of this two parties referred to herein, the Appellant and the 1st Respondent was sponsored by the political party the PDP; and whether it is necessary for candidate in an election to be sponsored by political party to contest the election which took place on 21st April, 2007. Before the above however is the issue of the venue of the decision, where the decision was made by the Tribunal, whether at the pre trial conference, the Tribunal can summarily dismiss or strike out a petition.

In the exercise of its powers conferred by the provisions of Section 285(3) of 1999 Federal Republic of Nigeria Constitution paragraph 50; first schedule to the Electoral Act, 2006, the President of the Court of Appeal constituted a pleading known as pre trial conference or hearing. The purpose of the pre trial hearing is “to allow the Court to review the status of this case note and consider any scheduling problems or preferences confirm that the direction of this order have been complied with and that the court is in possession of resisted documents.

The rules do not state what order to be made at the pre trial conference of those rules are not complied with; specifically whether the petition can be terminated at that stage as done in this case; for lack of locus standi to file the petition. Does the Tribunal have discretion at that stage to so order? In Section 50 of the Electoral Act, 2006 it is provided thus. “Subject to the expressed provisions of this Act, the practice and procedure of the Tribunal on the court in relation to an election petition shall be as nearly as possible similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the Civil Procedure rules shall apply with such modification as may be necessary to render them applicable having regard to the provisions of this Act (Electoral Act) as if the Petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.” In an ordinary civil action, a court is entitled to take a motion on notice to consider whether or not the case of the plaintiff disclose any cause of action; even at the preliminary state. Similarly, following the procedure in the given appeal the Tribunal is entitled to take the motion and acting on the documentary evidence before it may take appropriate decision.

In the instant appeal, I wish to commence the response with issue NO.2 of the appellant; whether this petitioners cause of action consist of our solitary averment or the totality of this pleading he needs to plead evidence at that stage. To determine this it is necessary to consider and lead the ruling of the Tribunal. It reads in material part thus. “There is nothing on the face of his petition to show that the Federal High Court reversed the substitution,” (which the Tribunal wrote the petitioner had knowledge of) “Having been substituted the petitions in our view was not a candidate at the election. In the circumstances he cannot present a petition under Section 144(1) c of the Electoral Act 2006. As his party, the PDP is not made a party the petition is not clothed with the standing to sue. Consequently the petition is incompetent and should be struck out. It is accordingly truck out.” In continuing with the above on the power of the Tribunal to determine the petition at the state of pre trial reassure on a motion files by both 1st Respondent and 2-7th Respondents and the petition having put into consideration his petition the Tribunal is competent to strike out his petition when the Tribunal finds that the Petitioner failed to satisfy the conditions precedent to having a participate in the election and the petition is incompetent.

Issue one in the petition is whether the absence in the petition of a political party as a party in the election deprives the petitioner a standing to sue whether his claim is that he won the election and should be declared as the winner.” The 1-7th Respondents have asked whether the Tribunal was correct when it held that the appellant lacked necessary locus standi to present the petitioner.” The answer to the issue of the 1st respondent is contained in the treatment above of the appellants issue and I have treated part of issue one in the 1st respondents brief with the issue 2 of the Appellant; above. On issue one in the appellants brief which reads “whether in the absence of the petitioner’s political party as a party in the election petition deprives the petitioner the standing to sue where his claim is that he won the election and should be returned as the winner.”

The appellant has submitted that claim in the petition filed by him where he did not cite as a party the political party which sponsored him is not affected by the absence of the political party in the petition. He cited Section 144(1) of the Electoral Act to subside as follows:

An Election petition may be presented by one or more of the following person.

(a) Candidate in an election petition a political party which participated in the election”, and submitted that his petition cannot be struck out as determined by the Tribunal for failure to cite the political party. It is the submission of the 2-7th Respondent that with the substitution of the petitioner to his knowledge, the petitioner did not contest the election as a candidate of the Peoples Democratic Party. That the petition is defective for failure to state the scores he made at the election and those of the appellant as required under the electoral law. The 1st respondent submitted that as the appellant had been excluded from taking part in the election, by reason of substitution of his candidacy which issue he challenged in the Federal High Court to no avail, the only part of the Electoral Act on which his petition can rely is Section 145 of the said Act. The Section refers to right of action to a party who was excluded from in the election. In my view the response of the 1st respondent misses the point though not incorrect. The appellant in the Tribunal has stated clearly the provisions of the Electoral Act under which he filed his action the issue to be determined is not what he should have done to comply with the provision of the Electoral law under the rule he cited is whether he was right to so file under Section 144(1)(c) of the Electoral Act.

In filing the petition under Section 144(1) of the Electoral Act to claim that he the 1st Respondent should have been declared this (a) winner (11) the candidate of PDP who contested the election on 21st April, 2007 he needed in order to be properly before the court to cite the PDP as the party which sponsored him. That Section 144 (1) of the Electoral Act enables one or two of the named parties to present a petition. In a claim as to the right person who was duly nominated in the election by the same party as he 1st respondent, the must necessarily cite the political party which sponsored him this issue is distinctly different from which of the two parties was sponsored by the political party. This may also be inclusive however the last issue is entirely within the domain of the political party before the election took place in the primaries See Onuoha v. Okeafor, Ohachukwu v. Emeaewa 1999 5 NWLR pt. 602. The right of a political party to substitute or whether a candidate for an election will be lost once the Electoral Commission has scored and denied a candidate who contested this election, see Woke v. Ichsonwo 1999, 4 NWLR pt. 600, at p. 626 par E – H. In the instant case, in which the appellant claims that he is the duly elected candidate at the election of 21st April, 2007 in the absence of the political party which sponsored him the appellant loses his locus standi. This is because the notes in the election belong not to him, but to the political party which sponsored him. In Section 221 of the 1999 Constitution it is subscribed thus “No association other than a political party shall have a right to canvas for votes etc.” Consequently any individual who canvases for votes or declared himself the winner is acting in vain. The cases are many when the Court declared that it is the nomination made by the Political party that is upheld by the Court. The Court has no part to play in selection of candidate for election for the political party. See Eka v. Agbo 1999 8 NWLR pt. 613 p. 135, and the issue of nomination by the party once it is made within time is not justiciable. See Anazodo v. Anelu 1999 4 NWLR pt. 600 530 at 545 par 7 (1) Balonwu v. Chinyelu 1991, 2 SCNLR, p. 244, at 25 5. In the instant appeal, the preliminary issue is whether the appellant was a candidate at all. The election of the 21st April, 2007 the Tribunal has ruled that he was not. I agree with the ruling of the Tribunal and the appeal fail on the two issues. The appeal is dismissed.

There will be cost to the 1st respondent of N10,000(Ten thousand Naira). No cost is awarded to the 2 – 7th Respondents who are statutory parties in this appeal.

Other Citations: (2008)LCN/2951(CA)