All Nigeria Peoples Party & Anor V. Godwin Ojo Osiyi & Ors (2008)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J. C. A.
This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal sitting in Lokoja, Kogi State delivered on the 9th day of October, 2007.
The facts of this case briefly are that on 28/4/07, the Independent National Electoral Commission (INEC) the 2nd Respondent conducted a general election into the House of Assembly of Kogi State.
At the end of the voting exercise and after the results were compiled, Godwin Ojo Osiyi candidate of the Peoples Democratic party (PDP) was declared as the winner and returned as the Member of the House of Assembly representing the Ogari / Magongo Constituency, Kogi State.
The 2nd Appellant Engineer Cornelius Elegbe – Soje alleged that he was the candidate validly nominated by the All Nigeria Peoples Party (ANPP) 1st Appellant but that he was unlawfully excluded from participating in that regard by INEC the 2nd Respondent. Aggrieved by this, the Appellants filed a petition before the trial Tribunal on 15/5/07 praying in summation for the following reliefs:
(a) that the 1st: Respondent’s purported election and return as the member of the House of Assembly, Kogi State representing the Ogori / Magongo Constituency was void;
(b) an order directing the 2nd – 4th – Respondent Its to conduct a Bye- Election into the office of member, House of Assembly, Kogi State for Ogori / Magongo Constituency and
(c) an order directing the 2nd Respondent to include the name of the 2nd Appellant as the candidate of the 1st Appellant in the list of candidates who are to participate in the Bye – Election.
In proof of their claim, the Appellants called two witnesses and tendered Exhibits A & B in evidence. In denial of the Appellants’ claim, the Respondents called two witnesses and tendered in evidence Exhibits C, R1, R2 and R3. In accordance with the provisions of paragraphs 5(11) (12), (13) and (14) of the Practice Directions, 2007, parties exchanged their written addresses and adopted them appropriately”
At the conclusion of evidence, the trial Tribunal in its judgment which was delivered on 9/10/2007 held that the 2nd Appellant not having been validly nominated by the 1st Appellant, he was not unlawfully excluded from the said election. The petition of the Appellants was consequently dismissed.
Being aggrieved by the said judgment, the Appellants filed their Notice and Grounds of Appeal on 30/10/07. The Notice and Grounds of appeal containing four grounds of appeal are at pages 225 to 230 of the record of appeal. The learned counsel for the Appellants in the brief of argument filed for the Appellants on 23/11/07 formulated four issues from the four grounds of appeal for the determination of this appeal. These issues read:
- Whether the learned trial Tribunal properly directed itself when it rejected the list of nominated candidates of the 1st Appellant which included the r Appellant’s name?
2, Whether the trial Tribunal made a correct assessment of the evidence led by the parties especially Exhibit B?
- Whether the trial Tribunal properly directed itself as to the burden of proof, having regard to the nature of the issues placed before it in particular Exhibit B?
- Whether the 2nd Appellant had the locus standi to jointly with the 1st Appellant present the petition?
On the other part, the 1st Respondent’s learned counsel in the brief of argument filed for the 1st Respondent on 23/1/08 raised two issues for the resolution of this appeal. The issues are:
(i) Whether the trial Tribunal was right in holding that the 2nd Appellant was not competent under the Electoral Act 2006 to present the petition?
(ii) Whether the Tribunal was right in dismissing the petition, having held that the Appellants did not establish the sole ground of their petition, to wit: that the 3rd Appellant was validly nominated but unlawfully excluded from the election?
At the hearing of this appeal on 8/4/08, learned counsel for the Appellants, Prince Orji Nwafor – Orizu adopted the Appellants’ brief of argument and urged this Court to allow this appeal. While, the learned counsel for the 1st Respondent Mr. A. Y. Mohammed adopted the 1st Respondent’s brief of argument and urged this Court to dismiss this appeal.
Mr. V. N. Okoronkwo who represented the 2nd – 4th Respondents did not file any brief for the 2nd – 4th Respondents but adopted and relied on the submissions contained in the 1st Respondent’s brief of argument. He urged this Court to dismiss this appeal.
The 5th Respondent was represented by Mr. P. D. Abalaka. However, no brief of argument was filed for the 5th Respondent.
Unhesitatingly, I am of the firm view that the plank upon which this appeal is anchored is the competence of the 1st and 2nd Appellants to file the petition in dispute at the trial Tribunal. The arguments put forward by the counsel for parties are all geared towards this direction. I shall therefore collapse the four issues identified by the Appellants into one head. I believe that this will sufficiently address and resolve the complaint of this appeal.
Whether the 2nd Appellant was validly nominated but was un/awfully excluded from the general election into the House of Assembly of Kogi State held on the 28th of April, 2007?
The learned counsel for the Appellants submitted that the trial Tribunal erred when it rejected in evidence the document containing the names of the candidates including the 2nd Appellant nominated by the 1st Appellant What is more, although a ”subpoena ad testificandum” was issued on the 2nd Respondent INEC, they refused to produce the original of the said document, list of candidates nominated by ANPP the 1st Appellant, to contest in the House of Assembly election in Kogi State.
By Section 98 of the Evidence Act, once a notice to produce the original of a certain document has been served on the party who is in possession of it, the 2nd Respondent in this case, secondary evidence of the document may be given if the original of the document is not produced. On this legal position, reliance was placed on the cases of:
(1) Buhari v. Obasanjo (2003) 13 NWLR (Pt. 941) p. 1 at p.262;
(2) Union Bank of Nigeria & Anor v. Alh Muhammed Idrisu (1999) 7 NWLR (Pt. 609) p. 105 and
(3) Gbadamosi v. Kobo Travels Ltd (2000) 8 NWLR (Pt. 668) /2. 234 at p. 273.”
It was contended for the Appellants that the trial Tribunal wrongly rejected the secondary evidence of the document tendered by the Appellants based on the ground that it was not certified. This is because, it was in evidence that the 2nd Respondent refused to certify the said document despite the demands of the Appellants.
It was contended for the Appellants that the trial Tribunal did not consider the totality of the evidence placed before it in determining the petition. Hence, it came to wrong findings. The trial Tribunal wrongly held that the 2nd Appellant was not validly nominated based on the oral evidence of the RW2 even though he testified that he was neither a member of the verification panel nor ANPP. RW2’s testimony was contradictory to Exhibit B, a documentary evidence showing that the 2nd Appellant was validly nominated, verified by INEC and adjudged qualified to contest the general election under consideration. Exhibit B is admissible pursuant to the provisions of Section 132(1) of the Evidence Act and no oral or further evidence can be admitted to contradict it. He relied on the case of: Fortune Bank v. Pegasus Trading (2004) 17 NSCQR p. 668 at p. 679.
In the opinion of learned counsel for the Appellants, the trial Tribunal did not make a correct approach to the evidence led by the parties and the documents tendered especially Exhibit B, the result of the screening and verification of candidates by INEC before holding that the 2nd Appellant was not properly nominated. The functions of INEC in respect of candidates nominated by a party to contest an election is not to determine whether such candidate was properly nominated but to adhere to the nominations made by political parties. The 1st Appellant testified that the 2nd Appellant was their candidate nominated for Ogori / Magongo House of Assembly Constituency at the April, 2007 general election. The evidence was not contradicted.
It was canvassed for the Appellants that by Section 32(1) of the Electoral Act, 200G, the nomination of candidates who can contest an election is the exclusive preserve of political parties. The exercise therefore precedes election. The Tribunal failed to grasp this point, hence it came to a wrong conclusion. The Tribunal did not properly direct itself regarding the burden of proof. It should not have accepted the oral evidence of RW2 to contradict Exhibit B contrary to Section 132(1) of the Evidence Act. INEC conducted verification of candidates forwarded to it and adjudged that the 2nd Appellant was qualified to contest the April 2007 general election. INEC subsequently published the name of the 2nd Appellant in that regard.
On the position taken by the Appellants’ learned counsel, he relied on the cases of:
(1) Adebusuyi v. Odwoye (2004) 1 NWLR (Pt- 854) p. 406 at Pgs. 427 – 428 and
(2) Odejide v. Registered Trustees, Gospel Light Ministry (2005) All FWLR (Pt. 264) p 962 at p. 974.
The Appellants’ learned counsel contended that locus standi is the capacity to institute an action in a court of law. By Sections 144(1) (a) & (b) and 145(1) (d) of the Electoral Act, 2006, the right to file an election petition is vested in a candidate at the election or a political party. On this legal position, he referred to the case of: Adebusuyi v. Oduyoye supra. Section 145(1) (d) clearly confers “locus” on the 2nd Appellant singularly or jointly with the political party to file a petition wherein the ground of unlawful exclusion can then be raised. The only situation where a petition would be rejected is where the candidate alone presents the petition without the sponsoring political party. The use of the word “may” in Section 144(1) indicates that the class of persons which can present an election petition is not closed. Read conjunctively or holistically with Section 145(1) (d), it shows that the 2nd Appellant can join the 1st Appellant challenge the unlawful exclusion of the 2nd Appellant from the election in dispute. Section 145(1) (d) has by implication conferred the Appellants with the “locus”. Sections 133 and 134(1) (d) of the Electoral Act, 2002, interpreted in the case of: Adebusuyi v. Oduyoye supra, are in “inpari materia” with Sections 144 and 145 of the Election Act, 2006.
Therefore a person who was validly nominated, screened and cleared to contest an election but unlawfully excluded from the election is entitled to present a petition against INEC for his unlawful exclusion. On this legal position reference was made to the cases of:
(1) Obasanvo v. Babafemi (2000) 15 NWLR (Pt. 689) p. 1 at pgs. 15 -16;
(2) Remi v. INEC (2004) All FWLR (Pt. 210) p. 13 at p. 12 and
(3) Effiong v. Ikpeme (1999) 6 NWLR (Pt, 606) p. 260 at p. 277
Replying, the learned counsel for the 1st Respondent submitted that the trial Tribunal rightly held that the 2nd Appellant had no locus standi not competent to present the petition and accordingly struck out his name as a party to the petition, having regard to the clear provisions of Section 144(1) of the Electoral Act, 2006.
The crucial question before the trial Tribunal was, inter alia, whether the 2nd Appellant had locus standi or legal right or capacity to present the petition in conjunction with the 1st Appellant in view of the express provisions of Section 144(1). By the Appellants’ pleading vide the petition, the 21)(1 Appellant was not a candidate in the said election, contrary to the clear intendment of Section 144(1). It was argued for the Respondents that the fact of exclusion, if proved, involves an admission that the person complaining of exclusion was not a candidate at the election, the subject matter of the complaint. If that be the case, then, the 2nd Appellant cannot be said to come within the ambit of the provisions of section 144(1). On this position, reference was made to the cases of:
(1) Buhari v. Yusuf & Anor. (2003) 14 NWLR (Pt. 841) p. 446;
(2) Ogbunyiya v. Okudo (1976) 6-7 SC p. 32 and
(3) Udoh v. Orthopedics Hospital Management Board (1993) 7 NWLR (Pt. 304) p. 139
In continuation of his submissions, the 1st Respondent’s learned counsel stated that Section 145 of the Act spells out the grounds upon which an election may be questioned, and actually makes the fact of valid nomination and unlawful exclusion from an election one of such grounds. However, under Section 144(1) a person who was validly nominated but unlawfully excluded from an election is not so empowered. He relied on the case of: Buhari Vs. Yusuf & Anor, Supra, where it was held that the expression, “an election petition may be presented by one or more of the following persons”, is exhaustive of the intention of the legislature as to the categories of persons who may present an election petition under the Act. The expression does not admit of any constructional modification by way of extension to include persons such the Appellants who are clearly not included in the category. Consequently, the trial Tribunal was right in striking out the name of the 2nd Appellant from the petition.
The 1st Respondent’s learned counsel submitted that to succeed in proving their sole ground of valid nomination and unlawful exclusion from the election, the Appellants were obliged to lead credible evidence to establish that the 2nd Appellant was validly nominated to contest the election by his political party the 1st Appellant, in accordance with the provisions of the Electoral Act, 2006. It must also be established that the election was conducted and concluded; a winner declared and the 1st Appellant’s name was unlawfully excluded from the list of the contestants at the election. He relied in this regard on the case of: Effiong v. Ikpeme (Supra) at pgs. 273 – 275.
It was contended for the 1st Respondent that the evidence offered by the Appellants in relation to the alleged nomination of the 2nd Appellant as a candidate for the election was contained in paragraph 4 of the written depositions of PW1 and PW2. Apart from these, no other evidence was presented before the trial Tribunal in proof of the 2nd Appellant’s alleged nomination by the 1st Appellant as a candidate for the election.
The fact or act of nomination of a candidate for election is a documentary fact, this is evident from the clear provisions of Sections 32 and 33 of the Electoral Act, 2006. Hence, to establish that the 2nd Appellant was validly nominated, it must be shown by documentary evidence that he was nominated in accordance with the provisions of Section 32(1) and (2) of the Electoral Act, 2006. Accordingly, the Appellants should have placed before the trial Tribunal the nomination papers of the 2nd Appellant, comprising of the following set of documents:
(a) the list of the candidates the 1st Appellant had proposed to sponsor at the elections, which list must feature the name of the 2nd Appellant and be in the prescribed forms; and
(b) an Affidavit of personal particulars sworn to by the 2nd Appellant.
However, at the hearing, the Appellants failed woefully to tender any of these documents, which alone constitute the proof of the fact of the valid nomination of a candidate. Consequently, the trial Tribunal was right to have held that the Appellants did not prove the fact of the valid nomination of the 2nd Appellant as a candidate at the election.
Furthermore, the learned counsel for the 1st Respondent contended that the Appellants had a duty to establish by evidence that the nomination papers of the 2nd Appellant were duly transmitted to INEC the 2nd Respondent. The only evidence offered by the Appellants in this regard is the deposition of PW1, in which it was merely stated that the 2nd Appellant’s name was sent to INEC. PW1 who claimed to be the State Secretary of the 1st Appellant in Kogi State stated that no acknowledgement of the receipt was issued by INEC to the Appellants in respect of the alleged submission of the 2nd Appellant’s nomination papers. For an example, Exhibit R1 was the acknowledgement of the receipt of the 2nd Respondent’s nomination papers by INEC. The inevitable inference is that no nomination papers in respect of the 2nd Appellant were in fact delivered to INEC as alleged by the Appellants. What is more, the trial Tribunal found that the evidence adduced by the Appellants left a lot in doubt, for the sponsoring political party failed to snow in writing that It forwarded a list of its candidates to the 2nd Respondent. It was found that there must be an affidavit sworn to by each of the candidates. The letter, Exhibit A, written by the 1st Appellant to the 3rd Respondent merely introduced the 2nd Appellant. It stated that the 2nd Appellant was not available at the screening of candidates carried out earlier on 17/01/2007. The 1st Respondent’s learned counsel noted that these conclusive findings of the trial Tribunal were not specifically appealed against by the Appellants. The findings therefore remain valid and unassailable.
The learned counsel for the 1st Respondent canvassed that Exhibit A which was authored by the 1st Appellant and tendered at ‘the trial Tribunal clearly showed that the 2nd Appellant did not take part in the screening exercise of 17/01/2007. The document clearly and unequivocally confirmed that the 2nd Appellant did not attend the screening exercise conducted by INEC in respect of candidates for election to the Kogi State House of Assembly.
The separate screening or verification alleged by the Appellants was not proved. For Exhibit B to serve as proof of the alleged fact of screening and verification by INEC, the document itself must say so. However, Exhibit B contained no such information. Though certified by INEC, Exhibit B was neither signed nor dated by any of its purported authors. Therefore, it carried no weight and lacked probative value. The heading of Exhibit B showed that it was concerned with election to the National Assembly. Hence, the document was not relevant to the proceedings before the trial Tribunal, which had to do with the election to the Kogi State House of Assembly. The trial Tribunal was right to have discountenanced Exhibits A and B; they did not establish the fact that the 2nd Appellant was duly nominated, screened and verified by INEC or that his nomination papers were submitted to the latter.
The 1st Respondent’s learned counsel argued that the Appellants were also obliged to prove at the trial Tribunal not merely that they were excluded from the election, but that their alleged exclusion was unlawful. In the absence of proof of the valid nomination of the 2nd Appellant as a candidate for the election the alleged submission of nomination papers to INEC and his screening, it follows logically that his alleged unlawful exclusion from the election can also not be said to have been proved. The proof of nomination, verification and screening is a “sine qua non’; an indispensable precondition on which unlawful exclusion necessarily depends.
Contrary to the Appellants’ claim, the authentic list of nominated candidates which INEC had in its possession was tendered and admitted in evidence. The sworn written statement of INEC the 3rd Respondent not having been previously attached to the petition, INEC could not have been properly subpoenaed to testify before the trial Tribunal, as that would have been contrary to the Practice Directions. In any case, the document the Appellants wanted INEC to produce had already been tendered in evidence as Exhibit C. That is, the authentic list of nominated candidates which INEC had in their possession, Exhibit C was duly in evidence.
I have carefully considered the submissions of counsel for the parties in support of and against the issues formulated for the determination of this appeal. As earlier on stated by me in this judgment, the question that calls for resolution in this appeal is that of the validity of the alleged nomination and unlawful exclusion of the 2nd Appellant and consequently the competence or the “locus standi” of the Appellants to present the petition as they did at the trial Tribunal.
“Locus Standi” is an issue which goes to jurisdiction. In the case of: Hon. Justice Ovie- Whyskie & Ors v. Chief Olawayin & Ors. (1985) 6 NCL.R. p. 156, ”Locus Standi” was defined as the right of a party to appear and be heard on a question before any court or tribunal.
In determining ”Locus Standi’; the court’s judicial powers are being invoked and the matters in which judicial powers can be exercised are as contained in the provisions of Section 6(6) (b) of the 1999 Constitution of the Federal Republic of Nigeria.
to show that his civil rights and obligations have been or are in danger of being infringed. The fact that a person may
The rule of “locus standi” in civil cases was laid down in the case of: Senator Adesanya v. The President of Nigeria (1981) 5 SC p. 112- Failure of a plaintiff to disclose his ”Locus standi”was settled by the court in the case of: Olawoyin v. A. – G., Northern Region (1961) 1 All NLR p. 269.
Indeed the rule about ‘locus standi” evolved primarily to protect the courts from being used as a playing ground by professional litigants, meddlers, interlopers, prank-players and other cranks who have no real stake or interest in the subject-matter of the litigation they profess to be interested in. I shall now proceed to consider some of the explanations of “locus standi given by our courts over time.
(i) On the meaning of “Locus Standi”:-
“Locus Standi” or standing to sue is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction, let or hindrance from any person or body whatsoever. In other words, “locus standi” is the right of appearance in a court of justice or before a legislative body on a given question. See the cases of:
(1) Ogbuechi v. Gov. of Imo State (1995) 9 NWLR (Pt 417) p. 53;
(2) Boni Guda & Ors v. Jumbo Kitto (1999) 12 NWLR (Pt. 629) p. 21 and
(3) Lawrence Elende & Ors v. F. Ekwoaba & Ors. (1995) 3 NWLR (Pt. 386) p. 704.
(ii) On what a litigant must show to establish “locus standi”:-
For a person to have “locus standi” in an action, he must be able not succeed in an action does not have anything to do with whether or not he has a standing to sue in this regard.
(iii) On the test for determining “locus standi”:-
There are two tests used in determining the “locus standi” of a person. They are:
(a) The action must be justifiable; and
(b) There must be a dispute between the parties.
(iv) On how to maintain “Locus Standi”:-
” . To maintain “Locus Standi”, there must be proper and necessary parties before the court.
(v) On what a party must show to invoke judicial power:-
To entitle a person to invoke judicial power, he must show that either his personal interest will immediately or imminently be or has been adversely affected by the action of another person or body or that he has sustained or likely -to sustain an injury to himself, which interest or injury is over and above that of the general public.
(vi) On the condition precedent to right of action:-
A plaintiff must have sufficient legal interest in seeking redress in court. Without such sufficient legal interest a party cannot completely seek redress in a Court of law.
(vii) On the determination of sufficient interest:-
The term “sufficient interest” could be determined in the light of the peculiar facts and circumstances of each case.
However, it is pertinent to state that in interpreting any statute relating to “locus standi”, it should not be unduly restrictive. In that where a plaintiff lacks “Locus Standi’; the trial court or tribunal as the case may be will lack the competence and jurisdiction to adjudicate on the plaintiff’s action before it. See the cases of:
(1) Ogunmokun v. Military Administrator Osun State (1999) 3 NWLR (Pt. 594) p. 361:
(2) Klifio v. Holfmann (1993) 3 NWLR (Pt. 436) p. 276;
(3) Ovie- Whyskie v. Olawoyin supra;
(4) Guda v. Kitta supra;
(5) Elendu v. Ekwoaba (995) 3 NWLR (Pt. 386) p. 704 and
(6) Ukegbu v.NBC (2007) 14 NWLR (Pt. 1055) p. 551.
In view of the fact that “Locus Standi” to institute an action is an essential factor in the competence of the court to entertain the action, the courts have always expressed the view that the onus is on the plaintiff to assert in his statement of claim his competence or legal standing to sue.
The overriding objective of the above stated rule of “locus standi” in summary as it relates to the instant case is that, all the Appellants need to do is to show that they have the legal capacity of instituting, initiating or commencement of the petition in the trial Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provisions of all existing relevant laws on election.
On the determination of ”Locus Standi” in an election petition, one must not overlook the fact that election petitions are “sui generis”. As such election petitions are distinct from ordinary proceedings. The procedure is largely governed by the laws specially made to regulate the proceedings. The proceedings are special for which special provisions are made under the Constitution and the Electoral Act. The issue of “locus standi” in an election petition transcends a common law concept so that parties are bound by the statute creating it. In the institution of an election petition, a party must have the capacity or “locus standi” to institute such an action. The law affecting the “locus standi” of the petitioner in an election petition is in the Electoral Act itself.
By Section 144(1) of the Electoral Act, 2006 an election petition may be presented by one or more of the following persons:-
(a) A person in an election.
(b) A political party which participated in the election.
By virtue of Section 145 of the Electoral Act, 2006, an election may be questioned on any of the following grounds:-
(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act.
(c) that the Respondent was not duly elected by a majority of lawful votes cast at the election or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
In determining the ”locus standi” of a petitioner, the court is bound by the averments in an election petition and must limit itself to them in determining whether a petitioner has “locus standi” to bring the petition. See the case of Disu v. Ajilowura (2000) 14 NWLR (Pt, 1000) p, 783.
In the interpretation of Section 144(1) of the Electoral Act, 2006, 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.
Courts are to interpret words in a statute only in accordance with the legislative intendment and not in any way alien to the purpose intended for the enactment. When the intention of the law maker is clear and unambiguous resort can not be had to incorporate words not expressly stated in the statute. In other words there should be no divergence but a strict confinement within the ordinary meaning of the words used in the statute unless such ordinary meaning will be at variance with the intention of the legislature to be gathered from the statute itself or lead to an apparent absurdity. See the cases of:
(1) INEC v. Musa (2003)3 NWLR (Pt. 806) p. 72;
(2) Fawehinmi v. IGP (2000) 7 NWLR (Pt. 665) p. 481;
(3) Awolowo v. Shagari (1979) 12 NSCC p. 87 at p. 123;
(4) A.-G., Bendel State v. A. – G., Federation (1982) 3 NCLR p. 1 and
(5) Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt 91) P. 622.
On perusal of the provisions of Section 144(1) of the Electoral Act, 2006 I believe that the words used are clear, simple, unambiguous and they bear their ordinary meaning and hence, effect shall be given to them as such.
A petition may be presented by a candidate in the election, a political party in the election or more of such persons jointly.
Section 145(1) (d) reads:
“That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The petitioner or its candidate therein obviously means a political party or its candidate. On who is a candidate of a political party, Section 32(1) of the Electoral Act offers a straight forward “answer.
Section 32(1) reads:
“Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms list of the candidates the party proposes to sponsor at the elections. ”
Candidates refer to those to be sponsored by the political party at the election. Valid nomination refers to candidate. Nomination and sponsorship are simultaneous steps and I am of the opinion that Sections 33(1) and 33(2) of the Electoral Act are clear on this.
Section 33(1) states that a candidate shall be nominated in writing, by such number of persons prescribed by the commission whose names appear in the register of voters in the constituency.
Section 33(2) provides that no political party 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 definition of nominate in the case of: P.P.A. v. Saraki (2007) 11 NWLR (Pt. 1044) p. 453 aptly conveys the meaning of the word in all ramifications, it reads:
“Nominate means to propose formally that somebody should be chosen for a position office or a task. To propose a person for election or appointment.”
The logical interpretation of Section 145(1) (d) of the Electoral Act, 2006 is that either a political party or its candidate can present a petition for wrongful exclusion. This is in line with Section 144(1) of the Electoral Act, 2006. By Section, 80 of the Electoral Act, every political party registered under the Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
By the combined effect of Sections 133(1) and 134(1) (d) of the Electoral Act, 2002, the only person that can bring an action in the circumstance and question the election of valid nomination and unlawful exclusion is a political party which participated at the election.
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 an election may be questioned on the ground that a political party or its candidate was validly nominated but was unlawfully excluded from the election.
The apparent difference between Section 133(1) of the Electoral Act, 2002 and Section 144(1) of the Electoral Act, 2006 is in the wordings of the two Sections.
While Section 133(1) of the Electoral Act, 2002 makes a candidate and a political party individually or jointly a candidate at an election, Section 144(1) of Electoral Act, 2006 refers to a candidate in an election, Whereas Section 133(1) of the Electoral Act, 2002 refers to a candidate or political party who participated at an election Section 144(1) of the Electoral Act, 2006 refers to a candidate or a political party in an election.
Participation in an election simply means taking part. This may include participation by the political party itself or through its authorized agent. I have to explain however that a political party and its members are not one and the same. The law gives them independent recognition and rights but if the candidate is sponsored by a political party, they can file a petition together in their individual capacities and the law does not make them one and the same for that purpose. See the case of: Royal Petroleum Co. Ltd v. FRN Ltd. (1997) 6 NWLR (Pt. 510) p. 584.
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 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. See the case of: Buhari v. Obasanjo (2005)2 NWLR (Pt. 910) p. 241.
The process in an election starts from the voting by political party members to choose candidates to represent the political party at the ward level and the primaries up to the polling day when these political party candidates are presented by the political party to the electorate. An election covers all the activities in Part IV of the Electoral Act, 2006 from Sections 26 to 77.
It is trite that civil cases of which election cases are specie are decided on the preponderance of evidence and balance of probabilities. By Section 135 of the Evidence Act, the plaintiff who is usually the party asserting has the primary burden of proving his claim with cogent and credible evidence. His claim is liable to be dismissed where he fails to discharge the burden. See the cases of:
(1) Mogaji v.Odofin (1978) 4 SC p. 91:
(2) Onwuchekwa v. Ezeogu (2002) 18 NWLR (Pt. 799) p. 333 and
(3) Amadi v. Orisakwe (2005) 7NWLR (Pt. 924) p.385.
Where however, the plaintiff discharges the primary burden of proof placed on him, the burden shifts to the adversary to rebut the plaintiff’s claim. See the case of: Doha v. Abdullahi (2005) 7 NWLR (Pt. 923) p. 181. Furthermore, by the combined effect of the provisions of Sections 136 and 137(1) (2) of the Evidence Act, the burden of proof of a fact in issue lies on the person who will fail if no further evidence is given by either side, regard being had to any presumption that may arise from the pleadings. See the cases of: (1) Kodilinye v. Odu (1935) 2 WACA p. 336; (2) Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) p. 639;
(3) Ayogu v. Nnamani (2006) 8 NWLR (Pt. 981) p. 160 and (4) C.C.C.T.S. Ltd v. Eke. (2008) 6 NWLR (pt.1083) P.362
Hence, the plaintiff or appellant must rely on the strength of his case and not on the weakness of the defence.
I have meticulously perused the record of appeal especially the Exhibits tendered in evidence by both parties. The Appellants relied heavily on Exhibits A and B tendered in evidence by them to establish that the 2nd Appellant was validly nominated by the 1st Appellant. It is rather unfortunate that none of these two documents is in favour of their claim.
It is my considered view and I hold that the trial Tribunal properly evaluated the evidence put forward by the parties in support of the respective claims. The trial Tribunal held that:
“RW2, and INEC officer said that the parties that participated in the said election were AC, MRDD and PDP. He said the Petitioners were not excluded as they were not candidate (sic) in the first place. When it is recalled that by Exhibit A, the 2nd Petitioner wanted to be screened the RW2 said there was no other screening apart from that of 17/01/07 in respect of the House of Assembly candidates and no other list was published except Exhibit C He further stated that every candidate who submitted a form was given an acknowledgment Form CF 001 as in Exhibit RI
It must be noted that on 17/01/2007 the 2nd Petitioner was not at the venue where all House of Assembly candidates were being screened and there is no endorsement that his Plea in Exhibit A was acceded to. Also it is clear that in Exhibit C his name was not in the list of nominated published candidates.”
See lines 26 to 27 at page 222 and lines 1 to 11 at page 223 of the record of appeal.
It was apparent from the evidence adduced by both parties that the 2nd Appellant may have been nominated by the 1st Appellant, it can not be said that the nomination was valid. The 2nd Appellant was not screened and cleared by INEC to contest the election in dispute. The name of the 2nd Appellant was not published as one of the validly nominated candidates for the said election. His name did not appear in the list of INEC Exhibit C as one of the candidates who were to participate in the election in dispute. I agree absolutely with the findings of the trial Tribunal in this regard.
I am also at one with the trial Tribunal that from the totality of the pleadings and evidence before the Tribunal, the Appellants failed to prove that the 2nd Appellant was validly nominated by the 1st Appellant. Consequently, his exclusion from the election in dispute can not be declared as unlawful. From the foregoing process of deduction, all issues are resolved against the Appellants.
The petition flied by the Appellants was rightly dismissed by the trial Tribunal.
In the light of the above, the appeal of the Appellants suffers the fate of failure. It is hereby dismissed accordingly. The judgment of the trial Tribunal delivered on the 9th day of October, 2007 is affirmed.
I make no order as to costs.
Other Citations: (2008)LCN/2763(CA)
