Chief Wellington Ilori Akingbulu & Anor. V. Hon. Olusegun Ogunbanjo & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A, JP+
The 1st and 2nd Appellants had filed a joint petition before the National Assembly/Governorship and legislative Houses Election Petition Tribunal holden at Lagos State. The 1st – 4th Respondents were the Respondents in the said joint petition.
In the joint petition which was filed on the 21st day of May 2007, the Appellants complained of having been unlawfully excluded from the election for the House of Representatives seat for the Ajeromi/Ifelodun Federal Constituency.
The said election was held on the 21st day of April, 2007 after which the 1st Respondent was declared and returned as the person who won. The 2nd and 3rd Respondents are officials of the 4th Respondent. The 1st Appellant alleges that the 3rd Respondent had screened and cleared him as a nominated candidate of his political party, the 2nd Appellant.
Paragraph 12 of the Petition filed bears the relief sought of the election Tribunal and they are in these terms:
“12. Wherefore the 1st and 2nd Petitioners pray:-
(a) That it may be determined that the Federal House of Representatives Election held on the 21st day of April, 2007 for the Ajeromi/Ifelodun Constituency where the 1st Respondent Hon. Olusegun Ogunbanjo was returned is invalid, null and void.
(b) That it may be determined that having used the wrong ballot papers which excluded the 1st and 2nd Petitioners a winner should not have been declared.
(c) That the return of the 1st Respondent be set aside.
(d) That the Tribunal shall nullify the said election and order that a fresh one be conducted for the House of Representatives, Ajeromi/Ifelodun Constituency to enable the Petitioners participate in the contest and thereby ensure equality, fairness and natural justice in accordance with the law”. (Refer pages 6-7 of the records for this appeal).
All the respondents filed their replies to the Petition denying the allegations of the Appellants.
However, on the 17th day of July 2007, the 1st Respondent filed a preliminary objection to the Petition in which the jurisdiction of the Election Tribunal was challenged. The grounds for the objection are as follows:-
(a) The Petitioners lack locus standi to present the Petition,
(b) The Petitioners did not meet all the conditions precedent to the filling of the Petition,
(c) The entire Petition as presently constituted is incompetent.
(d) The Tribunal lacks Jurisdiction to entertain the Petition.
The quo waranto of the objection was cited as (Paragraph 49 of the 1st schedule to the Electoral Act 2006,and Order 3 Rule 2 (2) of the Federal High Court Civil procedure) Rules of 2000. Also invoked is the inherent powers of the Tribunal.
Upon consideration of the arguments of the learned Counsel of the respective parties, the learned members of the Tribunal invited the learned Counsel of the parties to address them on the import of the provisions of Section 144(1) of the Electoral Act to the Appellants’ Petition. The learned Counsel each obliged.
After an indebt consideration of the submissions made before them, the learned members of the Tribunal upheld the preliminary objection and struck out the Petition in limine in these terms.
“…We hold that the Petitioners have no locus stand; to present this Petition. Consequently, the petition is incompetent and the Tribunal lacks jurisdiction to entertain same. The Petition is hereby struck out.”
The Appellants felt aggrieved and have come to this Court seeking a reversal of the decision of the Tribunal and an order for the determination of their Petition on the merit.
The Appellants formulated three issues for determination. The issues are:-
“1. Whether the Tribunal was right in holding that the 1st and 2nd Appellants were not candidate and a political party who participated in the election respectively and thereby lacked locus standi to file their Petition when the 4th Respondent whose statutory responsibility it was to prescribe the format of the ballot papers and conduct a free and fair election unilaterally and unlawfully excluded, the 1st and 2nd Appellants (the 1st Appellant having been validly nominated by the 2nd Appellant) after 1st Appellant had been screened and cleared by the 4th Respondent to contest. (Grounds 1, 2, 5 and 11).”
“2. Whether the interpretation given by the Tribunal to the provisions of Section 144(1) and 145 (1) (d) was right in view of the facts and circumstances of the Appellants’ case. (Grounds 3 & 4).”
“3. Whether or not the facts and circumstances in this case revealed a sufficient interest in the Appellants, as to accord them a locus standi in presenting their Petition before the Honourable Tribunal. (Grounds 6, 7, 8, 9 and 10).”-
The 1st and 2nd – 4th Respondents each formulated a sole issue for determination as follows respectively:-
1st Respondent
“Upon a critical review of Section 144(1) and 145 of the Electoral Act, whether the Honourable Tribunal was right in holding that the Petitioners did not have locus standi to challenge the results of the election.”
2nd – 4th Respondent
“…The sole Issue for determination stems from the interpretation of section 144(1) and 145 of the Electoral Act 2006 on whether the Honourable tribunal was right in concluding that the Petitioners did not have locus standi to challenge the results of the Election which Is now being appealed against.”
I agree with the Respondents that the sole issue for determination is that of the locus standi of the Appellants as Petitioners before the Election Tribunal.
The Appellant made it its 3rd issue, there is thus, a consensus among all the parties as to the relevance of this issue. The Appellants formulated it from grounds 6, 7, 8, 9 and 10 of the Notice of Appeal.
In my humble opinion, a determination of the status of the Appellants as Petitioners before the Election Tribunal is the essence of this appeal. Accordingly, the appeal shall be determined on the sole issue formulated by the Respondents, which is also the 3rd issue of the Appellants. The 1st two issues of the Appellants shall be discountenanced as irrelevant at this preliminary stage. The Petition is yet to be heard and if at all, it shall be heard by the trial Tribunal not by this Court.
The Issue (as formulated by the Appellant)
“Whether or not the facts and circumstances in the instant case revealed a sufficient interest in the Appellants as to accord them a locus standi in presenting their petition before the Honourable Tribunal (Grounds 6, 9 and 10).
It is the submission of the learned Counsel for the Appellants that section 140 (1) of the Act accommodates the Appellants. The learned Counsel maintains that the facts and circumstances stated in the grounds and the claim in the petition cloth the Appellants with the locus standi and the Tribunal with the Jurisdiction to hear the petition. The Appellants, maintains the learned counsel, have nowhere else to go for reddress. The fact of a valid nomination of the 1st Appellant by the 2nd Appellant and the clearance given by the 4th Respondent are sufficient to give capacity to the Appellants to approach the Tribunal with an election Petition. So contends the learned Counsel for the Appellants.
The learned Counsel next drew a line of distinction between the 2002 and 2006 Electoral Acts in that unlike the provisions of Section 133 (1) (d) of the repealed Act of 2002, the 2006 Act made no definition of the terms “candidate, participating, election “in” and “at”. The Tribunal should have therefore adopted the golden rule of interpretation, maintains the Counsel.
Section 285 (1) (a) 1999 Constitution states that the Election Tribunal to the exclusion of any Court or tribunal has original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly … (Refer Per Oguntade JSC in Peter Obi V Independent National Electoral Commission (INEC) and Ors, (2007) 45 WRN P1 at 105). This provision confers a right, the scope of which exercise is determined and delineated by the provisions of the Electoral Act 2006. (See Per Ogundare JSC of blessed memory, in Chief Chuba Egolum V General Olusegun Obasanjo and 59 Drs (1999) 7 NWLR Pt 611 P. 355 at 385).
The relevant provisions relating to the challenge of an election are Sections 144 (1) and 145 (2) of the Electoral Act of 2006 herein after referred to simply as the Act of 2006 or 2002 mutandi mutandis.
These provisions state the persons who may present a petition and the grounds upon which such petitions could be presented. Thus a petitioner who does not fall within the stated categories has no locus standi to present an election petition. Thus, as is part of the submission of the learned Counsel to the 1st Respondent, if the Appellant has no locus standi, the question of the grounds for the petition would not arise. The learned members were right by inviting submissions of the learned Counsel on the provisions of section 144(1) of the Electoral Act of 2006; that is the core of the Appellants’ petition.
The cardinal question in this appeal is thus whether the Appellants have the locus standi to file the petition?
The term locus standi refers to the legal capacity of a person to institute a valid proceeding in a Court of law. It also means the right of a person to appear and be heard on the question before any Court or Tribunal (Refer Per Fabiyi JCA in Sikiru Olaide Okuleye V Alh. Rasheed Adeoye Adesanya and Anr. (2007) 32 WRN P31 at 48). In the case of Chief Chuba Egolum V General Obasanjo (supra), the Apex Court held, that:-
“The fundamental aspect of locus stand; is that it focuses on the party asking to get his complaint before the… Court not on the issues he wishes to have adjudicated.”
It is the case of the Appellants and the submission of their learned Counsel that the fact of;
(a) A valid nomination of the 1st Petitioner/Appellant by the 2nd Petitioner/Appellant
(b) The clearance of the 2nd Petitioner/Appellant by the 4th Respondent and
(c) The unlawful exclusion of the both Appellants from the election;
give the Appellants the capacity to approach the Election Tribunal.
The learned Counsel for the Respondents do not agree with the Appellant Counsel.
It is the submission of the learned Counsel for the 1st Respondent that the provisions of 144(1) of the 2006 Electoral Act and that of Section 133 (1) of the 2002 Act are in pari material, therefore, cases decided under the 2002 Act are applicable to cases decided under the 2006 Act. Accordingly, the learned Counsel cites the cases of Alliance for Democracy v. Peter Fajose (2004) 1 EPR85 at 97 – 98 and Okonkwo V INEC (2004) 1 NWLR Pt. 854 P. 242 as defining who qualifies as a candidate for the purposes of presenting an election petition. Following these authorities, Counsel submits that by the provision of Section 144 (1) (c) of the 2006 Electoral Act, only a candidate in an election can challenge the conduct of the election. The Appellants were not candidates at the election of 21st April 2007 posits the learned Counsel.
The learned Counsel also cites the cases of Egolum Vs Obasanjo (1999) 7 NWLR Pt. 611 Pg. 355 and Effiong Vs Ikpeme (1999) 6 NWLR (Pt 606) P. 260 each of which was decided under the provisions of Section 50 (1) (a) of Decree No.6 of 1999. Both decisions, contends the learned Counsel, which hold that a candidate who had been screened and cleared to contest an election but was unlawfully excluded can present a petition is no longer the law. Such situation no longer confers a locus standi under the provisions of Section 144 (1) (a) of the Electoral Act of 2006. The learned Counsel maintains that the current position under the 2006 Electoral Act is that “only a candidate in an election can challenge the conduct of the election. Thus, argues the learned Counsel, as the 1st Petitioner was not a candidate at the election under review, he has no locus standi to present a petition.
It is further the submission of the learned Counsel that it is only a person who has locus standi to present an election under Section 144 (1) that can rely on the provisions of Section 145 (1) (d). The learned Counsel urges us to uphold the decision of the Tribunal to the effect that a person nominated by a political party must have contested the election before he can be qualified to present a petition. It is the opinion of the learned members of the tribunal that to hold otherwise would be to say that Section 144 (1) of the Act is at large and would mean any person who participated in election campaign etc is a potential candidate with a right to present an election.
The learned Counsel for the 2nd – 4th Respondents also purports that the provision of Section 144 (1) of the Electoral Act 2006 is in Pari material with that of Section 133 (1) of the repealed Electoral. Act of 2002. Counsel therefore relies entirely on the decisions made under the said repealed Act in support of his contention against the locus standi of the Appellants.
The learned Counsel maintains that an election petition can only be filed by the candidate (who lost the election) or by any political party which participated at the election. The learned counsel cites the case of Buhari Vs Obasanjo (2003) FWLR Pt.180 Pg.709 – 747 as the authority to say that for a political party to qualify as a Petitioner “…It only needs to participate at the election and no more and participation simply means “taking part” in an election.
By paragraphs 7 and 8 of their joint Petition, argues Counsel, the Appellants averred that they did not participate in the election.
Heavy reliance is placed on the following cases:
- Buhari V Obasanjo (2003) 17 NWLR Pt. 848-850 Pg. 423, (2003) FWLR Pt.186 Pg.709 – 747.
- Justice Party V INEC (2006) FWLR Pt.339 Pg.915
- Patrick Jany V INEC and Ors. (2004) 12 NWLR pt.886 Pg.46
- Sowemimo V Awobajo (1999) 7 NWLR Pt.610 Pg.335.
The decision of the Supreme Court pet Kalgo JSC who pronounced the lead Judgment in the case of Obasanjo V Buhari, (2003) 17 NWLR Pt. 848- 850 Pg.423 has, in my humble opinion, been fragmented, misconstrued and misapplied.
With utmost respect, I dare say that it amounts to scratching the cover of a gulf (a big hole) to say that Kalgo JSC, interpreted “participation” to mean “taking part” in the election, therefore, since the Appellants were not voted for at the election, they lack the locus standi to challenge the said election. The reason for their want of locus? THEY DID NOT PARTICIPATE IN THE ELECTION. That would be totally misconstruing the pronouncement made by that honoured Jurist. His lordship, JSC was infact drawing an essential distinction between participating in an election as a party/candidate, who canvassed for votes before the election, voted and was voted for at the election, as against an official who directed -“conducted” the election. His lordship was addressing the issue of roles as in official function, management, as against candidates/contestants at the election.
A look at the facts may accentuate a better understanding of the issue. It was actually the Appellant’s 1st of the four issues formulated which generated the “participation” and “conduct” “in/at” the election argument. The 1st issue was coughed in these terms:-
“(1) Whether or not P.D.P., the victorious political party which sponsored, funded and campaigned for its candidate is a statutory party in a petition challenging the election and alleging unlawful returns; and if not, whether PDP is not a necessary party having regard to the numerous allegations of misconduct made against PDP being a participating political party.
(2) Whether a candidate in an election and the party that sponsored him can be deemed to be one and same person for the purpose of a petition.
(3) Whether or not the failure to consider the alternative prayers of the appellant at all does not constitute breach of appellants’ right to fair hearing and thereby occasioning miscarriage of justice.
(4) Whether allegations made against persons who were not made parties to the petition are competent and fit for trial in the petition and whether those incompetent pleadings ought not to be struck out?”
The 1st – 3rd Respondents formulated a similar issue also as their 1st as follows: –
“Whether Section 133(2) of the Electoral Act, 2002 accommodates the joinder of political parties as respondents in an election petition under the Act.”
In considering the issue, Kalgo JSC, stated as follows:
” ……I am of the respectful view that the answer to issue one lies in the interpretation of Section 133(2) of the Act and no more”, Section 133 (2) of the Act provides as follows:-
“The person whose election is complained of is in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
His lordship Ogundare JSC identified three classes of Respondents by the provision of Section 133 (2) of the Act.
“The third class of Respondents declared his lordship, are only Identifiable on the interpretation and meaning of the expression “any other person who took part in the conduct of an election” (Pg.561) It is my view that the category of persons envisaged under this class must be those who took part in the conduct and management of the election itself not being INEC staff or officials (Pg.561).
“….It is my view that the operative word in this phrase is “conduct”. It is not enough to show that a person merely participated at the election to come within the provisions of Section 133 (2) of the Act; he must be shown to have taken part in the conduct (management) of the election. The word “conduct” as a noun is defined …. as a persons behavior, manner of directing and managing things, business, war, etc; and as verb, “to lead, guide, behave, direct or manage,” In Section 132 (2) the word “conduct” is used there as a noun, and it must therefore mean the manner of directing or managing the election.””……In my view those who are primarily charged with the conduct of the election are INEC officials who have no interest other than ensuring that the election is carried out peacefully and in accordance with tile of the Act. (Pg.562).”
Thus, “Participation,” means taking part not in any specified way.
Surely, a political party which has not only “participated in any specific way”, but has infact sponsored a candidate to contest at the election has participated at the election to deserve a hearing?
It was the case of Chief Chuba Egolum V General Olusegun Obasanjo and 59 Ors. (1999) 7 NWLR Pt. 611 P.355, which actually addressed the question of locus standi at an election. This case was decided under the provisions of Section 50 of Decree No, 6 of 1999.
The venerable Ogundare JSC (of blessed memory) prepared the lead Judgment in this landmark decision of the Apex Court.
Briefly, in what the apex Court declared a “confused state in which the Petitioner has put his locus standi..” the Petitioner had claimed in paragraph one of the petition that he was ” ….a person who had a right to contest at the election”. He also claimed in paragraph 2.1 that he scored 11,627,789 lawful votes at the election and prayed that the Tribunal declares him as having been dully elected and ought to have been returned.”
This Court which was the Court of trial, held that the Petitioner had not stated sufficient facts in paragraph I to establish his locus standi and that the Petitioner should have gone further to state how he acquired that right. The Supreme Court agreed. The Apex Court held that:-
“…It is unclear whether he was petitioning as a person who had had a right to contest (in which case he would have had to show that he is a member of a political party and he is sponsored by that political party as stipulated in Section 2 of the Decree, but was disallowed from contesting) or as a candidate. It becomes necessary, therefore, for him to state clearly in his petition the basis of which he was claiming to have a right to present the petition. Paragraphs 21 and 24(a) taken together are clearly in conflict with paragraph 1 on the locus standi of the Petitioner before allowing him to proceed the trial of his petition”. (pg.385)
The relevance of the decision in Egolum (supra) to the instant appeal is that the Appellants claim to be a candidate and the party which nominated and presented the candidate but were excluded from the contest. (Refer paragraphs 1, 2, 7 and 8 of the Petition Pg 2 of the records). It is for these reasons that the Appellants approached the Tribunal with their grievance of having been excluded from the election.
The twin pillars for “sustaining” an election petition are as stated in Section 144 (2) of the Electoral Act – the 2nd Appellant is a political party which participated in the election by complying with all requisite electoral processes leading up to the nomination of a candidate for the election.
The 1st Appellant was a candidate nominated by his political party, the 2nd Appellant, but was not allowed to contest in the casting of votes to determine the final outcome of the election.
Did they participate in the election? Yes they did except at the casting of votes, Why? They claim they were excluded by the 2nd – 4th Respondent. Why did the 2nd – 4th Respondents exclude them? These are questions the answers to which can only be deciphered through a judicial process. A preliminary objection does not allow for a thorough judicial process which will require the testing of avowed facts (pleadings) under the scrutiny of the Court. If there is no manifest nor apparent defect in the petition of the Appellants, it cannot therefore be determined in limine without inflicting some injury to the democratic process. In the case of People’s Progressive Alliance and Miss Oyinkansola Aminat Saraki Vs Dr. Bukola Saraki and 3 Ors (2007) 17 NWLR pt.1064 P.453 at 517, per Muntaka – Coomassie JCA counselled judicial officers in these words:-
If we are really serious about the rule of law in this country, parties who can show that they have some legal rights and interest should not be loosely and carelessly denied access to our law Courts or tribunals especially where it affects these all important matters of election petitions.
We must make haste slowly in order to lay a proper and lasting foundation in the developing political process in our great Nation. No doubt, it is an onerous, exerting and stressful job most times, but that is the duty judicial officers have committed to; we must do it fully!
The Hon. President of the Court of Appeal, Umaru Abdullahi CON set the standard for us in the case of Alh. Atiku Abubakar (Vice President FRN) v. Attorney – General of the Federation and 5 Ors. (2007) 3 NWLR Pt.1022 P.601 at 635. Characteristically my lord first cautioned himself;
”I am about to embark on the interpretation of the provisions of the Constitution in an area which I respectfully hold to be Novel in the sense that never in the annual of this country had a Court been invited to examine and determine that the second highest office in the realm is vacant. It behoves me to take the assignment with the highest sense of responsibility and caution in the interest of the country and posterity. I will therefore, be guided by the principle of interpretation of the Constitution enunciated in the case Nafiu Rabiu Vs State (1981) 2 NCLR 293. It seems to me to be locus classicus on construing our Constitution. It discountenanced frivolity and requires Court, in construing the Constitution to do so with liberalism and should avoid constructing it in a manner that one section would defeat the intent or purpose of another. ”
In like manner, all judicial officers currently engaged in the resolution of electoral matters; Petitions and appeal, are embarking on the development of the Nigerian Judicial Electoral common law and must discountenance technicality. With microscopic lens, we must search the details of “substantial” complaints filed in protest of electoral results declared.
Does “participating in the election” only refer to the actual voting at the election? The learned Counsel to the Appellant says it is much more while the Respondents say it is just the voting. This controversy led to the consideration of who is a candidate in the election? The decisions of this Court in the cases of Alliance for Democracy Vs Peter Fayose (2004) 1 EPR 85 at 97-98, Okonkwo Vs INEC (supra) and (2006) 2 EPR 94 at 146 and Tsoho Vs Yahaya (1999) 4 NWLR Pt.600 Pg.657 are cited as authority to say that only persons who took part in the election can be referred to as candidates at fin the election. The other class of cases which hold the contrary view are those of Effiong Vs Ikpeme (1999) 6 NWLR Pt. 606 Pg.260 and Egolum Vs Obasanjo (1999) 7 NWLR Pt. 611 Pg. 355.
To my mind, this seeming conflict can be adequately resolved by a consideration of the relevant electoral law at the time of the decision. The Apex Court has also made some pronouncements on this issue. The decision of the apex Court is the authority which is binding on all Courts.
In Egolum Vs. Obasanjo (supra) the Supreme Court held that to disclose sufficient interest to contest an election is to show that the party is the member of a political party, he is sponsored by that political party but was disallowed from contesting. The Apex Court explained further that:-
“The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the Court not on the issues he wishes to have adjudicated”. (Refer Per Obaseki JSC in Adesanya Vs. President of Nigeria and Anr. (1981) 2 NCLR P.358, also in (1981) 12 NSCC 146 P. 173).
My learned brother Fabiyi JCA was more expressive when his lordship declared that:
“Standing to sue is not dependent on the successor merit of a case; it is a condition precedent to a determination on the merits. It literally means that the Plaintiff has shown sufficient interest in the matter and is entitled to be heard. The presence of locus standi does not mean the successor failure of the action. The Plaintiff stiff has to establish his case by a preponderance of evidence”. (Refer Per Fabiyi JCA in Okuleye Vs Adesanya supra, relying on Ajagungbade III Vs Laniyi (1999) 13 NWLR (Pt. 633) Pg. 92 at 112. see also Per Ogundare JSC, of blessed memory in Owodunni Vs Registered Trustees of CCC (2000) 10 NWLR (Pt.675) P.315 at 338, see also Ukegbu vs NBC (2007) 14 NWLR (pt.1055) P551 at 571).
The principle of front loading before the Election Tribunal does not take away the right of the litigant to adduce evidence in substantiation and the espousal of the proof of evidence filed (Refer Election Tribunal and Court Practice Directions, 2007, as amended, Section 1 (1) – (c) and Section 5 (1) – (6).) What it does certainly is foreclose a party from dreaming up irrelevant witnesses mid way through the trial in an attempt to mend fences and held to be defective and therefore incompetent. What is important, said his lordship is whether the petition he presented satisfies one of the capacities in which he offered to present the petition. I agree with his lordship on this point. It has not been denied that the Appellants are a political party and a registered member of the party who was nominated and put forward for the election. They were not allowed to participate in the election. Are they not entitled to complain?
I am unable to comprehend the distinction drawn between the provisions of Section 50 (1) (a) of Decree No.6 of 1999, Section 133 (1) (a) and 133 (1) (b) of the Electoral Act of 2002 and Section 144 (1) (a) of the 2006 Electoral Act.
Section 50 (1) (a) refers to “a person claiming to have had a right to contest or be returned at an election”. Is such a person not a candidate who was excluded from the election?
Section 133 (1) (a) refers to “a candidate at an election” is a candidate at an election not “a person claiming to have had a right to contest or be returned at an election”. What do these two persons have in common? They have a grievance which is that although they had a right to contest at the election, they were (unlawfully) excluded. Section 144 (1) (a) of the 2006 Act conveys a similar situation. The case of Effiong Vs Ikpeme (supra) expounded the spirit and principle of the electoral provision while the Apex Court drew the boundaries in the case of Egolum Vs Obsanjo (supra) I will expatiate anon.
In the case of Effiong Vs Ikpeme, this Court held that “by virtue of sections: 50 (1) (a) of Decree No.6.
” On whether a person claiming to have been unlawfully excluded from an election can present a petition against INEC under Decree No.36 of 1998. By virtue of Section 84 (1) (d) and (2), 99 (1) and paragraph 1 (2) to Schedule 4 of Decree No.36 of 1998, when read together, a person who was validly nominated, screened and cleared to contest an election but unlawfully excluded from the grievance which is that although they had a right to contest at the election, they were (unlawfully) excluded. Section 144 (1) (a) of the 2006 Act conveys a similar situation. The case of Effiong Vs Ikpeme (supra) expounded the spirit and principle of the electoral provision while the Apex Court drew the boundaries in the case of Egolum Vs Obsanjo (supra) I will expatiate anon. In the case of Effiong Vs Ikpeme, this Court held that “by virtue of sections: 50 (1) (a) of Decree No.6.
“On whether a person claiming to have been unlawfully excluded from an election can present a petition against INEC under Decree No.36 of 1998. By virtue of Section 84 (1) (d) and (2), 99 (1) and paragraph 1 (2) to Schedule 4 of Decree No.36 of 1998, when read together, 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 the independent National Electoral Commission for his unlawful exclusion” (P.277, paras. G-H).
Section 84 (1) (d) of the Decree No.6 provides the grounds upon which an election may be questioned under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. By virtue of section 84 (1) (d) of Decree 36 of 1998, an election may be questioned on the ground that the petitioner was validly nominated but unlawfully excluded from the election. (P.277, Paras. A-B)
This Court per Obadina JCA outlined the issues to be established in a petition which alleges a valid nomination and unlawful exclusion. These are: (a) (b) (c) (d):-
(a) That he was validly nominated by this party;
(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.
It was further the decision of the Court that by virtue of Section 84 (1) (d) and (2), 99 (1) and paras, 7(2) of schedule 4 of Decree No. 36 of 1998, a person who was validly nominated and claiming to have been unlawfully excluded from an election can present a petition against I.N.E.C under Decree No, 36 of 1998.
In Egolum Vs Obasanjo (supra) the Apex Court per Ogundare JSC (of blessed memory) held that by the provision of Section 50(1) of the Decree No, 6, that the Petitioner must be:-
“either a person claiming to have had a right to contest or be returned at the election or he was a candidate at the election..”
Only a person falling within the provisions of Section 50 (1) has the locus standi to present a petition under the Decree.
The Apex Court did not leave the provision of Section 50 (1) of the Decree at large. The eminent Jurists set the barrier; their Lordships held that only a registered member of a political party with a valid nomination can present an election. I respectfully maintain that the said position still holds sway under the 2006 Electoral Act. The focus should be on whether the Appellants are who they claim to be; a registered political party which dully nominated and presented a registered “card holding” member of the said party.
If they are, then the Appellants have a locus standi to approach the Election Tribunal with their grievance.
None of the Respondents has raised any question as to the acclaimed identity of the two Appellants. All other details would be issues to be traversed at a full hearing of the Petition.
I have refrained from considering the question of who is a candidate because as Olagunju JCA stated in Okonkwo Vs INEC (supra) it is academic; a realm beyond the scope of this appeal. The ratio decedendi in Okonkwo Vs INEC (supra) was that the election petition filed was:-
“…incompetent having been filed in violation of sub-paragraph 4 (1) (a) of the prescribed procedure, …therefore, the question of whether he could bring the petition 85 a candidate is (sic) no avail to the intrinsic incompetence of the petition..”
What mischief do the 2002 and 2006 Electoral Acts seek to correct? Within the scope of this appeal, what props up is the thorny issue of locus standi in the previous electoral laws. Decree No.6, Section 50, is a special culprit. It was indeed wide and wild. This fact is captured in the decision of Oguntade JCA as he then was. In the case of Egolum Vs Obasanjo (supra), the noble jurist held as follows:
“There is no doubt that Section 50 of Decree No.6 of 1999 is a clear departure from the common/law practice as to locus standi and to the law on the point in Nigeria. Under Section 50 of Decree No.6 of 1999, a person who was not a candidate at the election could come to Court to challenge the conduct of the election. It is in my view a welcome change. I believe that the enthronement of democracy in Nigeria is sufficiently important to all Nigerians to enable anyone who feels aggrieved to approach the Court of redress.”
The Supreme Court promptly came to the rescue when it held that it was not an all comers field. A Petitioner must be a registered member of a Political Party and must have been validly nominated, to qualify to bring an election. This decision to my mind, laid to rest the issue of locus standi in an election petition.
Section 50 (1) of Decree No. 6 was modified from which emerged sections 133 and 144 respectively of the 2002 and 2006 Electoral Acts. (Refer Effiong Vs Ikpeme Pg. 260)? Kolawole Vs Alberto (1989) 1 NWLR (Pt.98) P.382 at 511. My considered view, with utmost respect, is that what has changed is the scope of the persons who can present an Election Petition.
On whether election is an event or a process. Election matters being matters of pubic and national interest, this Court is bound to take judicial notice of some essential features of the electoral process. By that token, I am aware that there are guidelines and regulations both for the political parties on one hand and the officials of INEC on the other. The guidelines for the officials, is headed” MANUAL FOR ELECTION OFFICIALS 2007″, an official document of the INEC. The table of contents has the following sub-titles:
(1) Forward;
(2) Introduction;
(3) Election Calendar;
Item 3 which is Election Calendar clearly shows that election is not a one day affair. A person or a political party cannot wake up on the morning of the election day, declare himself a candidate and then expect to be voted for without the prior sponsorship of a political party. Thus, the election process starts from the registration of eligible voters, the Registration of political parties, membership of the political parties, submission of list of nominated candidates by political parties etc. (Refer generally to Sections 31-46 of the Electoral Act 2006). A political party which does not ”participate” in the processes cannot field a candidate for election. It will be like reaping where one has not sown.
Indeed, such a political party will be like a fish out of water, a total stranger to the process, a real meddlesome interloper!
It would most certainly be absurd to hold that any person who participated in election campaign or go through the primaries of ‘his political party may be a potential candidate with a right to present an election petition as submitted to by the learned Counsel to the 1st Respondent. This proposition is trivializing the whole issue and it is not feasible. The Supreme Court has draw border line in Egolum Vs Obasanjo (supra).
There is nothing like a potential candidate jumping from the campaign podium into an Election Petition Tribunal. There is nothing at large about the provisions of Section 144 (1) of the 2006 Electoral Act. The provision is clear and direct. All political aspirants first and foremost must be members of one political party or the other. At the election, contestants are put forward by their respective Political Parties each of which desire their candidate to win at the election. What will be at large is the conduct of a political party who opens its gates wide to all aspirants to jump from the campaign grounds into the ballot boxes at the general election; that would be self-destruction. No responsible party would present more than one candidate for a particular elective office. If there were such a party, the 1st Appellant is not such. It nominated a candidate and is standing by the said candidate and that is cool and sensible. They are determined and are entitled to exercise their rights.
Who is a candidate? Is it the candidacy or the fact of election that confers locus standi on a person? In Egolum Vs Obasanjo (supra) the Petitioner, Egolum was a total stranger, a classical example of a meddlesome interloper, a busy body or a sympathizer at a funeral crying louder than the beveared! That situation is not same in the instant appeal. Egolum (supra) did not state his standing. Perhaps he was an independent candidate, but he failed to so disclose.
One would think that a meddlesome interloper will be one who for instance, is neither a party member or in any way an active participant. I use the word “active” because all Nigerians are stricto senso, participants in the electoral process. A person who not only joins a party but takes step to and indeed puts himself up for an internal contest within his party (the nueclues), is nominated, whether validly or not, and is put forward as the candidate of his party, has indicated a substantial interest to be reckoned with. If in furtherance of his active interest, he steps out with the mandate of the party to the national body (INEC) which is conferred with the jurisdiction to conduct election among competing parties in the Federation Republic of Nigeria; the said body screened him as a candidate, never communicated to him nor his party that for any reason he was disqualified from contesting, then if he does not cry out fowl I do not know who else will do so for him!
The Appellants are fully clothed with the competence to challenge their alleged exclusion from the election, whether it was a lawful or unlawful exclusion is a matter of fact to be determined by the adduction of credible evidence before the tribunal. To this extent, I am of the opinion that the Appellants have the locus standi to bring an Election Petition. They could not be voted for, which is the ultimate end of the electioneering processes because they were shut out.
In my limited understanding of the electoral process it appears reasonable to expect that once a person has been nominated by his party, presented and screened by INEC officials the only hurdle left in the process of election is the casting of votes. The outcome of the votes (polls) caps the election processes.
Thus, such a person is a candidate and his locus standi is incontestable. He has crossed the threshold of campaign to the pedestal of a nominated candidate. He has been armed with the authority to represent his party and its supporters at the battle. The gate way into the battlefield was however allegedly shut on him by the “arbiter (INEC)”, He has a right to complain. The tribunal has a duty to listen to him.
It is my candid opinion that by the provisions of Section 144 (1) of the Electoral Act of 2006, both the Appellants are eminently qualified to present an election petition and they both rightly presented a joint petition. Each of the Appellants were a candidate and a political party which participated in the election up to the point they were allegedly excluded from the final aspect of the election which was the casting of votes by themselves and their supporters!
Accordingly, I agree with the learned Counsel for the Appellants that election is not an event but a process. The process which starts with the formation of the political parties, ends with the election which is the casting of votes, the collation and counting of the votes cast and the declaration and return of the person who wins in accordance with the law and the spirit and principle of the electoral process.
I am of the firm view that once a candidate has been nominated by a dully registered political party and is screened and cleared by the INEC, the only place to go with a grievance about the election is the Election Tribunal.
This appeal is allowed. The decision of the Tribunal is hereby set aside and quashed. Consequentially, the petition of the Appellants shall be heard and determined on the merit by the Election Petition Tribunal. (Refer in Mr. Peter Obi Vs INEC and 6 Ors (2007) 11 NWLR (Pt.1046) P.565 at 633-645, per Aderemi).
A cost of N30,000 is awarded to the Appellant against each of the set of Respondents.
Other Citations: (2008)LCN/2660(CA)
