Boma Goodhead V. Mr. Otelemaba Amachree & Ors (2003)
LawGlobal-Hub Lead Judgment Report
DAVID ADEDOYIN ADENIJI, J.C.A.
In this case, the petitioner/appellant was dissatisfied with the ruling of the lower tribunal sitting in Port Harcourt handed down on 26th June, 2003 striking out the appellant’s petition on the ground that she has no locus standi to challenge the results of the election to the Governorship and Legislative Houses Election of 3rd May, 2003.
The 1st respondent was returned as elected in the election to the Rivers State House of Assembly. Sequel to the ruling, the appellant filed two grounds of appeal as per page 55 of the record of appeal.
The facts of the case are that the appellant and others contested the election of 3rd May, 2003 to the Rivers State House of Assembly.
She was nominated to contest the election by her party, the ANPP, while the 1st respondent contested the election on the platform of the PDP. At a stage, the ANPP issued a press release urging its members to contest the election but at another stage, the party withdrew from the contest. The election however, went on and the 1st respondent was returned elected with a total votes of 19,627.
The appellant was said to have scored only 559 votes in all. That prompted her into filing a petition at the lower tribunal for some reliefs.
The 1st respondent however, filed an objection on the ground that the appellant has no locus standi to present the election petition, her party, (ANPP) having withdrawn from the race. The appellant insisted that she had the locus standi to file the petition. The lower tribunal upheld the 1st respondent’s objection and struck out the appellant’s petition on the ground that she could not present such a petition, as she did not fit into any of the categories of persons who could present such a petition under section 133 of the Electoral Act, 2002.
The appellant formulated two issues for determination to wit:
(c) Within the meaning and con of the provisions of the Electoral Act, 2002 in respect of nomination and withdrawal of a candidate for an election, can exhibit A disentitle the petitioner from presenting a petition under the Electoral Act, 2002 having regard to the contents of her petition filed on the 2nd day of June, 2003?.
(d) Whether the tribunal was not obliged by law to look at the petition presented by the petitioner to determine whether or not the petitioner has locus standi to present the petition?.
On his own part, the 1st respondent formulated 3 issues for determination to wit:
(i) Whether the ANPP in Rivers State actually withdrew from the State House of Assembly elections held on 3rd May, 2003?.
(ii) Whether a candidate nominated for sponsorship by a political party for purposes of an election can as a matter of right stand for the election independently irrespective of the political party’s (i.e. the sponsor’s) withdrawal from the election?.
(iii) Whether an aspirant (or a former candidate), no longer sponsored by a political party in an election can maintain any right/locus standi to challenge the validity or otherwise of the election?.
Issues having been joined, the counsel for the appellant and the 1st respondent adopted their briefs; with counsel for the appellant urging this court to allow the appeal while counsel for the 1st respondent urged the court to dismiss same. Counsel for the 2nd – 17th respondents appeared to have merely rested his clients’ case on the brief filed by the counsel for the 1st respondent.
In the main, the counsel for the appellant submitted on issue one that the tribunal failed to give effect to the provisions of the Electoral Act, 2002 dealing with nomination and participation of a candidate in an election. Counsel then went through the provisions of sections 21, 22 and 23 of the Electoral Act.
He also referred to sections 26, 27, 28, 29, 30, 31 and 32 of the Act dealing with nomination, withdrawal of nomination, death of nominated candidate etc. Counsel believed that an election petition being in a class of its own needed to be so treated by a court. He referred in that connection to the case of Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171 at 197. He went on to say that the interpretation of provisions of the Act ought to be strictly construed to ensure that the purpose of the enactment is not defeated. He relied for this on Ike v. Ofokaja (1992) 9 NWLR (Pt. 263) 42 at 64.
Counsel also referred to the press release of 1/5/03 issued by the ANPP and pointed out that it was not addressed to the appellant but to the National Chairman, ANPP, the Resident Electoral Commissioner, Rivers State Commissioner of Police, and the Director, SSS Rivers State. The appellant’s name or her constituency was not mentioned in the release.
Counsel said he needed at that stage, to know if such piece of document could disentitle a nominated candidate from contesting an election and if the INEC could in the circumstances, validly act on such document to the detriment of a candidate for an election. According to the appellant’s counsel, the entire provisions of the Act ought to be read together to discover the intendment of the lawmakers. In that regard he referred to Mobil Oil (Nig.) Plc. v. IAL. 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 168.
He went on to submit that where a statute creates an obligation as to the performance of a public duty together with the method of performance of the duty, only that method prescribed must be followed. He cited Cooperative and Commerce Bank (Nig.) Plc. v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at 661.
Counsel maintained that where a person has been validly nominated to contest an election, any decision to the contrary must be with his/her knowledge. He added that once a political party has nominated a candidate and has sent the candidate’s name to INEC, the party could no longer take any unilateral decision affecting the candidate. He relied for this, on the case of Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618 at 626.
He then urged this court to have recourse to the mischief rule of interpretation and hold that the mischief to be cured by the provisions of the Act is to avoid a situation where an announcement or publication can be made midstream in an election, to the detriment of a candidate who never had notice of plans to make such announcement. He finally urged the court on that point to adopt the decision in Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317 at 337 and hold that exhibit A could not disentitle the appellant from presenting a petition to the tribunal.
On issue No.2, counsel submitted that the tribunal was wrong in holding that the appellant had no locus standi to present a petitioner under section 133(1) of the Electoral Act, 2002. Counsel made reference to the provisions of that section and emphasised that in issues of jurisdiction, what is paramount is the case, as made by the plaintiff in the case is resolving issues of jurisdiction. Counsel relied on Anason Ibeto Int. Ltd. v. Vimex Imports-Exports (2001) 10 NWLR (Pt. 720) 224 at 231.
Counsel further said that where the issue of locus standi was raised, it was the statement of claim that has to be perused to see if the plaintiff has the requisite legal standing to sue.
Counsel in that connection referred to the cases of Okoye v. Lagos State Government (1990) 3 NWLR (Pt. 136) 115 at 124; Ezechigbo v. Governor of Anambra State (1999) 9 NWLR (Pt. 619) 386 at 388-399;
Akinbi v. Military Governor of Ondo State (1990) 3 NWLR (Pt. 140) 525 at 531-532.
Learned counsel then submitted that the petitioner complied, if not fully, substantially with the Electoral Act, 2002 in presenting her petition. The objection, counsel pointed out, was hinged on exhibit A without considering whether the facts disclosed in the petition, to know if it could be entertained. He noted that by section 133(1) of the Act, a candidate can present a petition and the appellant was a candidate hence whatever grievances she had could only be properly addressed at the hearing of the case. By its conduct, counsel concluded, the tribunal merely pushed the appellant away from the seat of judgment in a hurry thus denying the appellant the right to fair hearing. He urged the court to allow the appeal with an order remitting the petition for determination by another panel.
It is to be noted that the appellant in fact filed a reply brief on 2/10/2003 as to the preliminary objection raised by the 2nd – 17th respondents to the effect that:
(1) The ground of appeal was incompetent, as it did not relate to the ratio decidendi of the ruling appealed against.
(2) The issue for determination in a brief of argument must of necessity be limited to the grounds of appeal filed.
Counsel tried to counter the points touched in the objection, but it will be noted that those points were at last not canvassed at the hearing of the appeal, hence, the reply as of now goes to no issue.
The first respondent as earlier indicated, formulated 3 issues for determination which would appear regular but on close scrutiny, the issues were found to be mere subdivisions of the main theme, that is, whether or not it was proper for the tribunal to find that the appellant’s party having withdrawn from the election, the appellant had no locus standi to present the petition.
Counsel for the respondent first cleared the issue of the withdrawal of the appellant’s political party from the election and concluded that it so withdrew in fact, having regard to exhibit 1 attached to the 1st respondent’s further and better affidavit. That fact, counsel pointed out, was never denied by the appellant, hence, her silence amounted to an admission. He cited Alhaji Hamza & Ors. v. Alhaji Gambo Lawan & Ors. (1998) 10 NWLR (Pt. 571) 676 at 658 paragraphs E-F. He also said that exhibit A, attached to the appellant’s counter-affidavit was a mere appeal by the ANPP to its members not to boycott the election but the party changed its mind a week later and withdrew from the election. That letter of withdrawal is the one marked exhibit 1, attached to the further and better affidavit. It rendered the letter of appeal, exhibit A hollow.
The further and better counter-affidavit, counsel pointed out, was defective, since paragraph 2(b) and (c) of same ran counter to sections 93, 94, 132 & 149(d) of the Evidence Act, Cap. 112 of LFN, 1990. They should therefore be struck out.
Counsel also observed that the appellant never challenged her party for its withdrawal from the contest and the ANPP had the right to so withdraw, that step being an internal matter of the party. Counsel referred to Onuoha v. Okafor (1983) 2 SCNLR 244 at 265. The court, he said could also not rely on paragraph 3 of the petition since the declaration of result attached thereto was a public document and therefore caught by sections 93, 94, 95, 132 and 149(d) of the Evidence Act. Counsel concluded that the ANPP actually withdrew from the election.
On the second issue as to whether the appellant could still contest the election, her sponsorship having been withdrawn, counsel answered this in the negative. He referred to section 106 of the Constitution of the Federal Republic of Nigeria, 1999 which stipulated that a candidate must be nominated and sponsored by a political party. The appellant, counsel recalled, did not deny that her party had withdrawn from the election but insisted that she was never informed of that step taken. Counsel agreed that prior to the withdrawal of the party from the contest, the appellant was the sponsored candidate of the party but that status changed as soon as the party withdrew from the election, as no party canvassed for votes for her. In other words, counsel went on, the appellant did not participate in the election.
To seek redress, counsel said an aggrieved party needed to come within the law. He relied on Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 404. According to counsel, once a party has withdrawn, its candidate’s sponsorship has ceased. He cited Macfoy v. U.A.C. (1962) AC 152.
Counsel next turned to Black’s Law Dictionary for the meaning of the word ‘sponsor’ which means ‘surety’ or ‘security’ and once that is withdrawn, the candidate no longer has any plank on which to participate in an election. Counsel also referred to section 90 of the Electoral Act, 2002, showing that where a party ceases to exist, a person elected on the platform of the party could not stand for election in the name of the party. He referred to the case of Wike v. Icheonwo (supra) and said that the case did not represent the law in the present dispensation. Counsel was emphatic that nomination or sponsorship of a candidate is the exclusive preserve of the political party.
On issue 3, counsel adopted his submissions on issue 2 supra and added that it did not lie in the mouth of the appellant to say that having participated in the election, she remained a candidate and could therefore, file a petition, she not having been a candidate in the election could not present a petition. He referred to Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80 at 91. Counsel then urged this court to dismiss the appeal.
I believe that with the scenario, as it is, the main issue to resolve is the issue of the candidacy of the appellant and if it was intact as at the date of election. A look at some of the provisions of the law is therefore necessary.
Section 106 of the Constitution of the Federal Republic of Nigeria, 1999 provides for candidature in an election.
It provides:
“106. Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if-
(a) he is a citizen of Nigeria;
(b) he has attained the age of thirty years;
(c) he has been educated up to at least the School Certificate level or its equivalent; and
(d) he is a member of a political party and is sponsored by that party.”
It is by the above provision, certain that a candidate must be a member of a political party and must be sponsored by the party. In this case, the petitioner/appellant was nominated and sponsored by the ANPP. The twist however, came when the party decided to withdraw from the election. The complaint of the appellant is that she was never informed of the move to withdraw from the election; neither did she participate in the decision that led to the withdrawal of the party. She therefore insisted that she was all the while in the race as a candidate and consequently had the locus to file a petition as she did. The 1st respondent’s counsel holds a contrary view, maintaining that her candidature ceased the moment her party withdrew from the contest. The stand of the 2nd – 17th respondents is the same. There is therefore, the need to have a close look at the sections of the Electoral Act dealing with nomination of a candidate or otherwise.
Section 21(a) enables a political party to prepare a list of the candidates it intends to sponsor and send same to the Commission.
Section 22 prohibits double nomination for one elective office, while section 23 enables a political party to change its sponsored candidate, 30 days to the date of election.
Section 23 of the Act reads:
“23. Any political party which wishes to change any of its candidates for any election under the Act may signify its intention in writing to the Commission not later than 30 days to the date of election.”
In the same way, a candidate who wishes to withdraw his candidature can do so under section 25 of the Act by notice in writing to his political party who in turn notifies the Commission of such withdrawal, not later than 14 days to the election. The party may then be allowed to nominate another candidate.
It will be noted that there is no specific provision for the situation now on hand and the lower tribunal so found at page 51, last paragraph and page 52 first paragraph of the tribunal’s findings. It reads:
“The issue here relates to the case of a political party and by extension, its candidate. in this case the ANPP and by extension the petition/respondent having fulfilled all the condition (sic) precedent for the election of 3rd May, 2003 decided not to participate by voting and being voted for. The tribunal had had a cursory look at the provisions of the Electoral Act, 2002 and there is none that covers this novel situation, probably because it was never within the contemplation of the craftsmen of the said Act.”
It therefore, came to the conclusion that this situation was not envisaged by the Electoral Act, 2002. That exactly is the crux of the matter. Is a bona fide candidate whose candidature or sponsorship was not specifically withdrawn by her party and has fulfilled the conditions prescribed by the Act supposed to suffer the detriment caused by the fatal gap, correctly noted by the tribunal without anything to show that she knew about the reasons and need for the withdrawal by the party?
The Act has prescribed that in case of withdrawal from an election, the candidate must notify the party, so it would not be caught unawares, and by the same token, a party wishing to withdraw needs to inform a validly sponsored candidate of its intention to withdraw. In a proper situation, that gap (lacuna) discovered ought to be resolved at a full trial to enable the appellant prove that she has been validly nominated and sponsored and her candidature could not be unilaterally withdrawn. The fact that the point is novel is the more reason why the case should have been heard in full to enable the tribunal make judicial pronouncement on the development. Instead, the lower tribunal decided to use the lacuna discovered to silence her.
I agree with counsel for the appellant as he put it, that the appellant was hurriedly driven from the judgment seat. That is not proper in law. See the case of Jim Nwobodo v. Onoh (1984) 1 SCNLR 1, where Uwais, J.S.C. (as he then was, had this to say on page 195:
“Election petitions are by their nature peculiar from other proceedings and are very important from point of view of public policy. It is the duty of courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction. In the instant case, the appellant’s petition was competent, the tribunal was wrong to have struck it out prematurely without allowing him to prove the grounds relied upon.
Before concluding this judgment, I would like to refer to the wise observation of Lord Fletcher Moulton, C.J. in Dyson v. Attorney (1911) 11 KB 410 at 419. To my mind, it is evidence that our judicial system would not permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard excepting in cases where the cause of action was obviouly and almost incontestably bad.”
One other point to note is that the appellant actually participated in the election as evidenced by the scores referred to in her petition in paragraph 3 thereof. The table showed the scores of two other candidates as well as that of the appellant put at 559 votes. Though she alleged that the votes were arbitrarily allocated to the candidates, that fact is yet to be established and it can only be so established at a full trial. Same with that vital issue of candidature of the appellant, whether regular or irregular, in the face of the withdrawal of her party from the election.
To allow the situation to be driven underground together with the scandalous allegation made is to allow mere technicality to override the need for substantial justice, a situation never encouraged by the courts. See the case of Egolum v. Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 413 where Achike, J.S.C. (of blessed memory) said:
“The heydays of technicalities are now over because the weight of judicial authorities have shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case.”
I believe that that says it all.
There is also the case of E. N. Wike v. S. R. Icheonwo & Anor. (supra) where the court held at page 626 that once a person is properly sponsored, the sponsorship cannot be unilaterally withdrawn. That is the provision of paragraph 7(2) of the 4th Schedule to Decree No. 36 of 1998. I agree that we do not have a similar provision in the current Electoral Act of 2002 but the deductions made by appellant’s counsel from the case are salient. That is another angle to the matter, which the lower tribunal had the opportunity of looking into but which it unfortunately failed to do.
So much was said about the press release made by the ANPP encouraging its members to go out and vote or be voted for and the letter by which it later withdrew from the contest. Suffice it to say that the weight of the two documents are best determined at full trial. The latter letter, I need say was not sufficient to abort the hearing of the appellant’s petition at a full trial. The weight could in fact be better assessed at such full trial and a decision made on the same one way or the other. The tribunal was therefore obliged to hear the petition as presented.
In effect, I answer the issues as framed by the appellant in her favour. The appeal is therefore, allowed. The ruling of the lower tribunal given on 26th June, 2003 is hereby set aside. The case is remitted to the lower tribunal to be heard and determined by another panel. No order as to costs.
Other Citations: (2003)LCN/1484(CA)
