Dorcas Abosede Oyegbile V. Independence National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo delivered on the 1st of December, 2007.
Briefly on the 14th of April 2007, election was held in respect of Ejigbo Local Government Constituency of the Osun State House of Assembly. The 4th Respondent was declared as the winner of the Election by the 1st, 2nd and 3rd Respondents.
The Appellant/Petitioner who was a candidate at the election on the platform of the Progressive Peoples Alliance (PPA) presented an election petition. The ground of the petition was that the Petitioner was validly nominated but was unlawfully excluded from the election.
The 4th Respondent who was the candidate of the Action Congress and who was returned as elected filed a notice of preliminary objection dated the 26th of November, 2007 praying the Tribunal to strike out the petition on the following grounds.
(1) That the petition is incompetent
(2) That the Petitioner has no locus standi to present the petition.
By a ruling delivered on the 1st day of December, 2007 the Lower Tribunal upheld the objection and struck out the petition. Dissatisfied with the ruling, the Appellant/Petitioner appealed to this Court. Appellant filed her notice of appeal on the 6th of December, 2007 and filed her brief of argument before this Court on the 13th of March, 2008. 4th Respondents brief of argument was filed on the 20th of March, 2008 while the 6th & 7th Respondents brief of argument was filed on the 3rd of April, 2008. Appellant formulated a sole issue for the determination of the appeal thus:
“Whether by virtue of the Provisions of Section 144 (1) (a) and 145 (1) of the Electoral Act 2006, the Appellant/Petitioner has locus standi to bring the petition (Grounds 1, 2, 3, 5 and 6). This issue was adopting by the 4th Respondent and 6th & 7th Respondents in their respective briefs.
At the hearing of the appeal learned Counsel for the parties adopted their respective briefs. Appellants/Petitioners Counsel submits that it is the petition that should be looked into in determining the locus standi of the Petitioner and not just a fraction of the petition. He cited the case of PEOPLES VOICE COMMUNICATION LTD. V. LAWAL (2005) ALL F.W.L.R (PT. 246) PAGE 1207 AT 1223. He referred to paragraphs 1, 5, 6, 7, 8, 11, 13, 16, 17 and 22 of the Amended Petition to be able to deduce the locus standi of the Petitioner. At the conclusion of the said election, the 1st, 2nd and 3rd respondents declared the following result.
(1) Najeem Salami – AC 14,467
(2) Saka Salami – NDP 1,049
(3) Alabi George Ibitayo – PDP 1,049
(4) NIL – DPA001
Learned Senior Counsel submits that the Appellant/Petitioner predicated her petition on section 145 (i) (d) of the Electoral Act, 2006 which says:-
“145(1) An election may be questioned on any of the following grounds
(d) that the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election” By virtue of this provision, learned Counsel submits that the Appellant was not only nominated to contest the election. To limit the term “candidate” as the person who actually contested the election as the Lower Tribunal did would do violence to the intention of the plain language of Section 144 (1) and Section 145 (1) (d) of the Electoral Act. He urges the Court to allow the Appeal.
Learned Counsel to the 4th Respondent in his brief of argument adopted the view held in Tsoho V. Yahaya (1999)4 N.W.L.R. (Pt.600) page 657 at 671-672 which is to the effect that only a person who actually stood for an election can present an election petition or that a person must pass the test of Section 144 (1) (a) before being qualified to present an election petition on any of the grounds in Section 145 of the Electoral Act 2006. He submits further that it will amount to an infraction of the law to attempt to combine Section 144(1) with Section 145 of the Electoral Act. He urges the Court to uphold the ruling of the tribunal and hold that the Petitioner/Appellant was not a candidate in the election under consideration and therefore lacks the locus standi to present an election petition in this regard. He cited the case of OKONKWO V. INEC (2004) 1 N.W.L.R. PART (854) PAGE 242 AT 294-295 where it was held that candidate can be none other than that which contemplates only a person who contested an election.
The 6th and 7th Respondents Counsel aligned himself with the submission of the Appellant/Petitioner’s Counsel in his brief. He submits that the combined effect of section 144 (1) and 145(1) (d) of the Electoral Act clothed the present Appellant/Petitioner standing to bring this petition. He finally urges the Court to overrule the tribunal and order a freshly constituted panel to hear the petition.
Having gone through the record of the proceedings and the various briefs filed by the parties, it is worthy to note that
it is a well established fact that election petitions are sui generis therefore principles or rules that apply in ordinary civil proceedings may not apply to proceedings in election petition matters. It is this fact that necessitates the need to ascertain who has the locus standi to file an election petition.
It is settled law that in election petitions, the persons or bodies that are vested with the right to question election returns by way of petitions are statutorily defined. In the case of WAZIRI V. DAMBOYI (1999) 4 N.W.L.R. (PART 509) AT PAGE 239 it was decided that the standing of a party to sue in an election petition would be determined by the statute creating the cause of action i.e. the Electoral Act.
Section 144 sub-section 1 of the Electoral Act 2006 provides that an election petition may be presented by one or more of the following persons:-
(a) a candidate at an election
(b) a Political Party which participated in the election.
Going by the clear and unambiguous language of the statutes under consideration, it is apparent that the category of persons who have the locus standi to present a petition to question an election are as statutorily set out and anyone outside of these categories may be deemed as a meddlesome interloper. This position has been affirmed as unassailable and consistent with the authorities. Indeed as the authorities on the subject show in the decided cases of NGIGE V. OBI (2006) 14 N.W.L.R. (PART 999) AT PAGE 1 AND OKONKWO V. NGIGE (2006) 8 N.W.L.R. (PART 981) AT 119, the courts whilst determining the question of who has the locus standi to present a petition simply reproduced the words of the statute without any addition whatsoever. It is therefore pertinent that in the interpretation of any statute relating to locus standi, it should not be unduly restrictive in that where a Plaintiff lacks locus standi, the trial court will lack the competence and jurisdiction to adjudicate in the complaint of the appellant before it. See OVIE-WHYSKIE V. OLAWOYIN (1985) 6 N.W.L.R. AT PAGE 156, OGUNMOKUN V. MILITARY ADMINISTRATOR OSUN STATE (1999) 3 N.W.L.R. PART 594 AT 361 AND UKEGBU V. NBC (2007) 14 N.W.L.R. PART 1055 AT 551.
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.
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Applying the above principles to the appeal before this court, the entire Petition must be looked into to determine the locus standi of a Petitioner. Petitioner averred as follows in the amended Petition thus Para. 1 – Your Petitioner – Dorcas Abosede Oyegbile was the candidate of the Progressive People’s Alliance in the Ejigbo Local Government Constituency election held on the 14th of April, 2007.
Para 5 – at the conclusion of the said election, the 1st, 2nd and 3rd Respondents arbitrarily declared the following results
(i) NAJEEM SALAMI – AC – 14,467
(ii) SAKA SALAMI – NDP – 1,049
(iii) ALABI GOERGE IBITAYO – PDP- 13,091
(iv) NIL – DPA – 001
Para 6 – The Petitioner says that the ground for this petition is that the Petitioner was validly nominated but was unlawfully excluded from the election.
Para 7 – The Petitioner says that she was nominated by the Progressive Peoples Alliance to stand as a candidate at the election. The Petitioner pleads all relevant nomination papers and other documents.
Para 8 – The Petitioner says that she was screened by the 1st, 2nd and 3rd Respondents who found him eligible to contest the election.
Para 11 – The Petitioner also says that she campaigned vigorously and addressed numerous political rallies to sell her candidacy to the electorate within Ejigbo Local Government Area Constituency.
Para 13 – The Petitioner says that the 1st, 2nd and 3rd Respondents in acknowledgement of her eligibility and qualification to stand as a candidate at the said election published her name as a candidate of the Progressive People Alliance in its website and on its notice boards all over Osun State.
Para 16 – The Petitioner says that she was shocked when she went to the polling booths on the 14th of April, 2007 to cast her vote, she was to discover that her party’s symbol as emblem or logo was conspicuously missing on the ballot paper. The Petitioner pleads all relevant ballot papers.
Para 17 – The Petitioner says that many of her supporters also reported to her that they could not find the Petitioner’s party symbol or logo or emblem on the ballot paper and as such could not vote for the Petitioner.
Para 22 – The Petitioner shall at the trial rely on all relevant documents howsoever called, including all result sheets, returns, ballot papers and other documents. NOTICE is hereby given to the Respondent to PRODUCE the original at the trial.
I begin to wonder having gone through these cogent averments that who else will have -locus – standi in the petition if not the Appellant/Petitioner before the court in this appeal. The Petitioner gave particulars of the circumstance of her unlawful exclusion from the election in her pleadings or averments. The list of ways and means of establishing exclusion from participation in an electoral process is in exhaustive as it varies from one petition to the other. The wording of sections 144 subsection 1, and 145 (1) (d) are clear, simple and unambiguous and they bear their ordinary meaning and effect shall be given to them as such.
Section 145(1) (d) says “that the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election” The definition of nominate in the case of P.P.A. V. SARAKI (2007) 17 N.W.L.R. PART 1044 AT PAGE 453 aptly conveys the meaning of the word in all ramification. 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 Petitioner having been nominated by her political party, screened by INEC i.e. 1st Respondent and certified as qualified, the Petitioner has become a candidate for the election so far as she has not withdrawn. If the law maker referred to a ‘candidate,’ which candidate can bring a petition under section 145 (1) (d) on ground of exclusion if the petitioner in this appeal cannot qualify as a candidate unless she contested. We cannot continue to construe section 144 (1) (a) to include the words “who contested” as this would be an absurd interpretation of the provisions of section 144 (1) (a) and render ineffectual section 145 (1) (d) of the 2006 Electoral Act.
The issue of election respectively goes beyond merely casting votes. The provisions of section 32, 33, 34, 36, 37, 38, 39 and 40 of the Electoral Act 2006 which applied the word “candidate” deal with acts preparatory to the election. Those sections in their various subsections employ or use the word candidate ever before there was a contest.
The Court of appeal in CA/EPT/20/27/279/107 IN USMAN JIBRIN WOWO AND ANR. V. ISA ALIYU NDAKO &. 2 ORS, delivered on the 5th of February 2008 a case on all fours with the present appeal where Adekeye J.C.A. said as regards the correlation in between section 144(1) (a) and section 145(1)(d) of the Electoral Act thus “the logical interpretation to 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.” To further buttress this view, Ogunwumiju J.C.A in the case of PPA & ANR. V. DR. BUKOLA SARAKI & ORS (2007) 17 N.W.L.R. PT 1064 AT 453 particularly at page 510 had this to say –
If we persist in imputing words specifically and in my view deliberately leave out the true intendment of the legislature, how do we give effect to the true intendment of the legislature? If we say it is only a candidate who contested who has locus standi, how can we help as the last hope of the common man tackle the vexed issue of reckless and unlawful substitution of candidates?” I will say in the same vein how we tackle the arbitrary exclusion of candidates at an election.
A serious disease surely deserves a serious cure and the only way to cure this is to give effect to the true intendment of the legislature.
Apart from the need to read statutes to be interpreted as a whole, there is needed to ensure that the rights bestowed on a citizen are protected. The maxim is “Ubi jus ubi remedium.” The legislature gave a right against unlawful exclusion, there is bound to be a remedy for the breach of the right. See the case of INEC & ORS. V. AC & ORS. APPEAL NO. CA/J/EP/GOV/419/2007 delivered on the 26th of February, 2008 where Salami JCA, had this to say-
“The legislature gave a right against unlawful exclusion; there is bond to be a remedy for the breach of the right which is encapsulated in the Latin phrase of Ubi jus Ubi remedium. That remedy is provided for by way of election petition under section 144 (1) of the Electoral Act, 2006 avoidance of this remedy will result in injustice.”
It is noteworthy that the Tribunal has finally given effect to the decisions of the Court of Appeal, earlier cited before it and overruled itself in the case of FATAI A. RABIU V. INEC AND 6 ORS in petition HA/EPT/OS/01/2007 delivered on 26th February, 2008 where it held “We in the circumstance have found it expedient in the light of considered case law cited to depart from our earlier decision. We place reliance on the case of BAKARE V. N.R.C. (2007) 17 N.W.L.R. pt 1064 at page 606. The Tribunal was right in its stance.
In the light of the above, I hold that the Petitioner has locus standi to present a petition. The appeal is meritorious and it is hereby allowed. I hereby order that the petition be heard by the Lower Tribunal in Oshogbo. The 1st Respondent shall pay N10,000 costs to the Appellant.
Other Citations: (2008)LCN/2819(CA)
