Awoyemi Rafiu V. INEC & Ors (2008)

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ISTIFANUS THOMAS, J. C. A.

This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal sitting at Abeokuta, Ogun State delivered on the 27th day of October, 2007 in which appellant’s petition was struck out on the ground that the petitioner/appellant failed to specify his right or disclose his locus standi to present the petition as required by paragraph 4(1) (b) of the First Schedule to the Electoral Act 2006.

Dissatisfied with the ruling, the appellant filed a notice of appeal on 14-11-2007 containing three grounds of appeal from which he distilled and formulated three issues for determination and they read thus:-

“(i) Whether the 1st, 2nd, 4th-9th respondent’s objection dated 25-9-07, is competent and ought to have been heard and determined by the Tribunal in the way it did (grounds 2 & 3).

(ii) Whether in the circumstances of the appellant’s petition, the Tribunal was right to have held that the petition is incompetent on the ground of lack of “locus standi” on the part of Petitioner (grounds 1 & 5).

(iii) Whether the Tribunal, in the circumstance of the petition, was right to have struck out the petition on the ground of “bad joinder” (ground 4).”

On the part of the 3rd and 10th respondents’ brief of argument which was filed on 18-4-2008 but deemed filed on 17-9-2008, they have distilled a single issue for determination and it reads as follows:-

“Whether or not the petition was competent before the Tribunal having regard to the issues of petitioner’s locus standi and compliance or non-compliance with section 1 & 4 of the Electoral Act 2006”

When the appeal came up for hearing, appellant relied and adopted his appellant’s brief along with appellant’s reply which was duly filed on 6-5-08 although deemed filed on 17-9-08. The 3rd and 10th respondents also relied and adopted their brief and urged this court to dismiss the appeal. It is noted however, that 1st, 2nd, 4th_9th respondents who actively participated at the lower Tribunal, and in fact, they filed a notice of objection to the competence of petition dated 25-9-07, which was opposed by the appellant and the Tribunal sustained the objection, hence this appeal, 1st, 2nd, 4th_9th respondents have failed to file respondents’ brief of argument. It appears, INEC is standing on the fence. The appeal is therefore between the appellant and the 3rd and 10th respondents.

I am of the considered view that the 3rd and 10th respondents’ issue for determination is locus standi, i.e. the relevant issue that can determine the outcome of this appeal. In other words, respondents’ issue has encompassed all the appellant’s issues and this is what I will consider.

The appellant’s contention is that the Tribunal was wrong when it held that, paragraph 4(1) of the First Schedule must be read along with section 144(1) of the same Electoral Act 2006 before it could decide jurisdictional issue of locus standi, and then submitted that provisions of section 106 of the 1999 Constitution of Nigeria should not be considered in issue of locus standi because the same Electoral

Act did not specifically require it, and that it is not permissible to, import constitutional provisions in election petitions and relied on the Supreme Court case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144, 222. Appellant has further contended that there is a mile of difference between section 106 of the Constitution and paragraph 4(1) of the First Schedule of the Electoral Act 2006, meaning that s.106 of the Constitution are in respect of “qualification for elections”, whereas paragraph 4(1) of First Schedule are in respect of petitioner’s specification of “right to present the election petition”; and referred to the case of Adebusuyi v. Oduyoye (2004) 1 1 NWLR ,(Pt. 854} 406, 428. Appellant’s counsel has further submitted that this honourable court has consistently and firmly held that once a person has pleaded in his petition that he was a candidate at an election, or that he has a right to contest, such a person has the requisite locus standi to present an election petition and referred to and relied on the cases of Uba v. Ukachukwu (2004) 10 NWLR (Pt. 881) 224, 255; Waziri v. Danboyi (1999) 4 NELR (Pt. 598) 239; Rimi v. INEC (2004) All FWLR ( Pt. 210) 1312; Asiya v. INEC (2004) 16 NWLR (Pt. 950) 157.

Learned counsel for the appellant has further submitted that, the present respondents, along with the 1st, 2nd , 4th-9th respondents, had admitted that the appellant was a candidate who contested the election held on 14-4-2007, and therefore is binding on the authority of the Supreme Court decision in Egolum vs. Obasanjo (1999) 7 NWLR (Pt.611) 355, 396-397 (H-A) which has stated that a petitioner who actually contested at an election need not satisfy the provisions of section 106 of the Constitution. Appellant has urged this court to resolve that the appellant had satisfied his locus standi as per his paragraphs 1 and 2 of this petition which was clearly admitted by the respondents.

On the part of 3rd and 10th respondents, their learned counsel at the outset, has contended, that the petition had failed to comply with the mandatory provisions of the Electoral Act 2006, and therefore incompetent. Counsel referred to paragraphs 4(1) (b) and 4(6) of First Schedule to the Electoral Act. Counsel submitted that the word “may” used in paragraph 4(6) shall be interpreted as “shall” because the petitioner is no longer in a position to regularize the defect in failing to state his right or locus standi to present the petition. Counsel relied on the decisions in Ezechigbo v. Gov. Anambra State (1999) 9 NWLR (Pt. 619) 386; Ebongo v. Uwemedimo (1995) 8 NWLR (Pt. 411) 22 and Douglas v. Shell Pet. Dev. Co. Ltd. (1999) 2 NWLR (Pt. 591) where it is stated that it is the statement of claim or petition that must be gleaned to find out whether or not locus standi to sue has been shown. Counsel further submitted that in order to determine compliance with the said paragraphs 4(1) (b), reference must be had to s.106 of the Constitution which states the qualification for election as a member of the House of Assembly; and then contended that in the instant appeal, appellant was silent on his sponsoring political party, his citizenship, age and educational qualification which are basic requirement of valid petition. Counsel referred to Egolum v. Obasanjo (supra); Effiong v. Ikpene (1999) NWLR (Pt. 606) 271.

Learned counsel urged this court to resolve the sale issue in favour of the respondents and dismiss the appeal.

It is settled law that to establish the right or locus standi in relation to civil suits as well as election petition, the first point of call, is the statement of claim or in the election petition, it is the petition itself, see Ezechigbo v. Gov. Anambra State (supra); Ebongo v. Uwemedimo (supra) and Douglas v. Shell Petro Dev. Coy. Ltd. (supra). Moreover in election petition, the right to be heard is statutorily stated in the Electoral Act, namely, section 144(1) of the Act, 2006 where it is stated that:-

“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.”

By the above s. 144(1) (a) of the Act, a petitioner who was a candidate in the election, is empowered to present his complain if he is not satisfied with the outcome of the election in which he was a candidate. In the same manner, a political party on its own has the statutory right to present a petition being a political party that participated in the election. The intendment of section 144(1) (a) and (b) is that it is either a candidate on its own or a political party or, both jointly can present a petition in an election. In the case of

Okonkwo v. Ngige (2006) NWLR (Pt. 981) 99, at 136, this court held that for persons who may present a petition, it is either one or both of (a) a candidate at an election, (b) a political party which participated at the election. It is to be noted that the findings in Okonkwo v. Ngige (supra) was in reference to section 133(1) of the Electoral Act 2002 which is now identical to the present section 144(1) of the Electoral Act 2006.

Now since the lower Tribunal in the instant appeal was confronted with the issue of the person who presented the petition by the right of his locus standi, the Tribunal should have been guided by the doctrine of stare decisis in Okwonko v. Ngige (supra); Uba v. Uka Chukwu (2004) 10 NWLR (Pt. 881) 224; Waziri v. Danboyi (1999) NWLR (Pt. 598) 239; Rimi v. INEC (2000) All FWLR (pt 210) 1312 where the appellate courts have maintained that, once a petitioner has pleaded that he was a candidate at the election, it is sufficient proof of locus standi to challenge the election and result of the outcome of the same by way of filing petition.

In the instant appeal, it is important to look at the appellant’s petition to ascertain whether the appellant had disclosed his statutory right to present the petition. At page 12 of the record, appellant’s petition has clearly stated in paragraph 1 as follows:-

“1. Your Petitioner Awoyemi Rafiu is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election.”

(Underlined is for emphasis).

From the above facts pleaded in paragraph 1 of the petition, it is now no more in dispute that the appellant had pleaded his locus standi by stating that he was a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the election held on 14-04-07.

I am further of the view that the respondents were not left in doubt, as to the right of the appellant to present his complain by way of filing the petition. The 3rd and 10th respondents’ reply in paragraph 2 at page 36 of the record, have clearly admitted that, Awoyemi Rafiu i.e. appellant and Abiodun O. Moses, namely 3rd respondent, were candidates at the election held on 14-04-2007. It is therefore not in dispute that the respondents per their reply have admitted that the petitioner/appellant was a candidate and was credited with votes. I am therefore of the considered view that appellant had stated his locus standi by his petition which same issue was admitted by the 3rd and 10lh respondents by their pleadings in paragraph 2 of their reply to the petition.

From the binding decisions of this court in the plethora of decided authorities cited above, and the recent decisions of this Court in appeal No. CA/I/EPT/GOV/10/2007 Senator Ibikunle Amosun v. Alao Akala & ors, delivered on 13-03-2008; appeal No. CA/I/EPT/NASEN/5/2008 Olanrewaju Adeyemi Tejuosho v. INEC & ors, delivered on 27-10-2008, and the provisions of section 144(1) of the Electoral Act, 2006, coupled with the appellant’s plea of right of locus standi by being a candidate at the election which was expressly admitted by the 3rd & 10th respondents, it was patently wrong for the lower Tribunal who shut the appellant from arguing his petition on merit.

I hold that the issue on locus standi is resolved in favour of the appellant. This appeal has merit. It ought to be allowed, and is hereby allowed. I make an order that the ruling of the Tribunal delivered on 27-10-2007 dismissing appellant’s petition is hereby set aside, In its place, I am of the view that the petition be sent back to the Tribunal to hear the appeal on merit with the urgency it requires.

Costs of N30,000 in favour of the appellant and against the 3rd and 10th respondents and the 1st, 2nd, 4th to 9th respondents who are parties the appeal but have refused to file their brief of argument.

Other Citations: (2008)LCN/2981(CA)