Hon. (Barr.) Diewortio Wilson Wuku V. Youpele Kallango & Anor (2003)
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MICHAEL EYARUOMA AKPIROROH, J.C.A.
This is an appeal against the rulings of the National Assembly/Gubernatorial Election Tribunal sitting at Yenagoa, delivered on 2nd and 4th June, 2003.
The appellant was a candidate in the House of Representative election Southern Ijaw Federal constituency held on 12th April, 2003. At the end of election the 1st respondent was declared the winner. Dissatisfied with the declaration of the 1st respondent as the winner, the appellant filed his petition in the Tribunal against the declaration of the 1st respondent as the winner of the election. Counsel entered conditional appearances for the Respondents including the Attorney General Bayelsa State who entered appearance for the 2nd – 22nd Respondents.
The Attorney-General also filed a preliminary objection whereupon counsel for the appellant took objection to appearance of the Attorney General but it was ruled that the Attorney General could appear for the 2nd – 22nd respondent by virtue of paragraph 73(3) of the First Schedule to the Electoral Act 2002.
The preliminary objection filed by the respondents were thereafter consolidated and argued together. The Tribunal gave its ruling on 4th June, 2003 and struck out the petition.
Dissatisfied with the ruling, the appellant has appealed to Court and formulated the following issues for determination:
(i) “Whether the petitioner has locus standi to bring the petition.
(ii) Whether from the facts disclosed in the petition, the Tribunal could exercise jurisdiction to entertain same.
(iii) Whether the petition conforms with the provisions of the Electoral Act particularly paragraph 4(1) of the 1st Schedule.”
The 1st respondent framed 3 issues for determination as follows:
“Whether the petitioner possessed no requisite legal capacity to present the election petition.
Was the Honourable Tribunal right in declining jurisdiction to entertain and adjudicate on the election petition on the ground that;
(a) The issue or cause of action raised in the election petition was not reasonable, and/or a domestic issue and therefore not justiciable; and
(b) The election petition was not properly constituted in that a proper party was not joined.
3. was the election petition incompetent and invalidly presented?”
The 2nd respondent also formulated the following issues for determination:
” Whether there is a valid appeal before this Hon. Court.
Whether the determination of a candidate of a political party at an election is a matter within the jurisdiction of the National Assembly Governorship and Legislative Houses Election Tribunal.
Whether an action to determine the candidate of a political party at an election can be maintained when the political party is not a party to the action or petition.
Who can bring a petition before the Election Petition Tribunal under the Election Act 2002.
Whether the petitioner/appellant was a competent party or had locus standi to bring a petition to the Tribunal.
Whether an action can be maintained before a court or tribunal by party who has no locus standi.
Whether the petitioner/Appellant complied with the mandatory requirement of the Electoral Act 2002.
Whether non-compliance with the mandatory requirements or any of the mandatory requirements of a statute will not render an action brought under that statute incompetent.
Whether the Tribunal was right in striking out the petition.”
Although the 2nd respondent distilled nine issues for determination, the appellant distilled only three issues for determination. Be that as it may, I think this appeal can be resolved on the three issues formulated by the 1st and the 2nd respondents.
On the first issue, learned counsel for the appellant submitted that since the petition is the only document before the tribunal, its contents has to be examined at this stage whether the appellant has locus standi or not bring the petition and relied on paragraphs 1, 2 and 4 of the petition to show that the appellant was screened and cleared by the 2nd respondent but unlawfully prevented from contesting the election and that the 1st respondent who had earlier been disqualified contested and declared the winner. He also relied on the case of EFFIONG v. IKPEME (1999) 6 NWLR (pt.606) 260 at 277. He further argued that the finding of the tribunal is perverse because it failed to apply the facts placed before it judiciously and judicially.
Learned counsel for the 1st respondent predicated his argument on Section 13(1)(a) and (b) of the Electoral Act 2002 and submitted that by the provisions of the Act a petitioner in an election petition must either be a candidate at the election or a political party who participated in the election. He further submitted that if Sub-section (1) of Section 131 is read together with the provisions in Subsection (d) of Section 134 of the Act, another species or class of petitioners who was validly nominated but was unlawfully excluded from the election has been created. It was also his contention that the appellant failed woefully to aver to facts that could bring him within the category of persons with the necessary locus standi.
He then referred to paragraphs 1-5 of the petition to show that the appellant was not the candidate for PDP at the election held on 9/4/2003 and PDP was not the petitioner in this petition and as such the appellant has no locus standi to bring this petition and the Tribunal was quite right in holding that it lacked jurisdiction to hear the petition.
On this issue, learned counsel for the 2nd respondent submitted that since the appellant was not a candidate at the election or a political party which participated in the election, he has no locus standi to present a petition and relied on Section 133(1)(a) & (b) of the Electoral Act 2002.
At this stage, I consider it pertinent to reproduce Section 133 (1)(a) & (b) of the Electoral Act 2002. It provides as follows:
“133(1) 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 at the election.The 1st respondent’s counsel correctly summarized the appellant’s case in the petition as follows:
The appellant and 1st Respondent were members of the Peoples Democratic Party (PDP).
A Primary election was conducted and the only two contestants in the exercise were the Appellant and the 1st Respondent.
The 1st Respondent won the primaries.
On or before three days before the election the Independent National Electoral Commission (INEC) disqualified the 1st Respondent on the recommendation of the party.
And in spite of the disqualification, the 1st Respondent was still fielded and took part in the election as candidate of PDP with candidates from other political parties and the 1st Respondent as candidate for PDP won the election.”
It is quite clear from the above facts that the appellant was not the candidate fielded by the PDP at the election because according to him, in spite of the disqualification of the 1st Respondent, he was still fielded and took part in the election as candidate of PDP. Thus the appellant in the case was not a candidate at the election by the clear and unequivocal provision of Section 133(1)(a) – (b) of the Election Act 2002 and by the averments in his petition.
Accordingly, the appellant having not fallen within the two categories with locus standi to present a petition under the Act, to wit not being a political party who participated in the election or a person who was a candidate of the election concerned, in this suit had no locus standi to present an election petition under the Electoral Act 2002.
On the issue as to whether the appellant brought himself within the position of a petitioner who claims to have been unlawfully excluded from the election the Tribunal held at pages 44 – 45 of the records as follows:
“The petitioner in his petition is not unequivocal or consistent in his assertion that he was nominated as a candidate by his party between him and the said first Respondent. He stated in his petition that the success of the 1st Respondent was later subjected to investigation by his party and the 2nd Respondent and was later disqualified. If this fact was true then he must aver further a material fact that he was then validly nominated by his party and substituted and presented to INEC who equally cleared him to contest the election. He failed to do this.
He did not state how he became the lawful candidate of his party and substituted and presented to INEC who equally cleared him to contest the election. He failed to do this.
He did not state how he became the lawful candidate of his party. He should proceed further to state as condition precedent to the validity of his nomination compliance of his party to Section 21(1) that his party has nominated him after he has been substituted and his name was submitted to the second Respondent in the prescribed form as a sponsored candidate at the election by his party. He must also plead that he had sworn to an affidavit at the High Court as a candidate having fulfilled all the constitutional requirements for an election to that office, he must also, state in his petition that his name was published in the constituency where he intends to contest. All these are material facts which the petitioner could avail himself or found his right of action as a person nominated but excluded from an election.”
A petitioner who is not a candidate at the election must specify his right and reveal all material facts on which he founded his legal capacity. See EGOLUM v. OBASANJO 7 NWLR (Pt.611) 355 at 296.
In this appeal the appellant never specified his qualification or right to contest the election. Therefore the petition is fundamentally defective as the qualification giving rise to the purported right of the appellant was not stated.
This Tribunal was therefore correct when it held at page 45 of the records:
“Not being a candidate at the election and having failed to avail himself of the use of Section 134 (1)(d), we further hold that the petitioner herein has no locus to contest the return in the election of the 1st Respondent.”
The issue is resolved in favour of the respondents against the appellant.
On issue two learned counsel for the appellant submitted that it is the claim before the court in this case the petition of the appellant that the court will examine to ascertain whether the petition comes within the jurisdiction of the Tribunal and cited in support MUSTAPHER v GOVERNOR OF LAGOS STATE (1987) 2 N.W.L.R (Pt.58) at 587.
He referred to paragraph 2 of the petition to show that the 1st respondent who was PDP candidate for the constituency was disqualified on or about 9th of April 2003 for(sic) raised in the petition would show that the Tribunal erroneously declined jurisdiction to hear the petition on merits.
In reply to these submissions, learned counsel for the 1st respondent submitted that there was no averment in the petition that after the 1st respondent had been disqualified the PDP presented and sponsored the petitioner as a candidate at the election.
He further argued that failure of the appellant to join the PDP as a party in the petition as a necessary party, rendered it incompetent and the Tribunal was quite right in declining Jurisdiction to hear it.
In reply, the learned counsel to the 2nd respondent submitted that the petition is incompetent for non-joinder of the PDP, a necessary party and therefore robbed the Tribunal the jurisdiction to hear it. He cited in support NEC v. IZUOGU (1993) 2 NWLR (pt.275) at 279.
At this stage, I would like to reproduce paragraphs 4(a) – (g), 5 (a) – (e) of the petition:
(a) Your petitioner was screened and cleared by the 2nd respondent for the election.
(b) The 1st respondent and your petitioner were the only two contestants at the PDP primaries of the election where the 1st respondent won the primaries.
(c) The circumstances surrounding the success of the 1st Respondent at the said primaries were later subjected to investigations both by the party (PDP) and the 2nd Respondent.
(d) As a result of the detailed investigations, the 1st respondent was, on or about 9/4/03 disqualified by the 2nd Respondent on the recommendation of the party for acts of thuggery and uncivilized conducts whereupon your petitioner became the only candidate for the party.
(e) For safety reasons, your petitioner could not campaign openly at the constituency but his popularity saw him through.
(f) That the votes cast for PDP at the election were for whoever was the lawful candidate for PDP not necessarily for the 1st respondent who remained disqualified as at 12/4/03 which was the date of election.
(g) Your petitioner is justified to claim the success of the election to himself in the circumstance.
Wherefore your petitioner prays that it may be determined as follows:
(a) “That the 1st Respondent having been disqualified on or about the 9/4/03 was not the lawful candidate for the Peoples Democratic Party that won the election.
(a) That your petitioner to whom the PDP ticket was eventually given was the lawful candidate for the party as at 12/4/03.
(b) That the 2nd Respondent be ordered to declare your petitioner Hon. Dieworio Wilson Wuku as the winner in the said election to the National Assembly for Brass/Nembe Federal Constituency which was held on 12th April, 2003.”
In the first place, there was no averment that after the 1st respondent had been disqualified, the Peoples Democratic Party presented and sponsored the appellant as its candidate at the election. Secondly, the Peoples Democratic Party was not joined as a party to the election petition in which it is to be determined and declared that the 1st Respondent was not the lawful candidate of the PDP but the appellant. From the state of the pleadings, the Tribunal was quite correct in holding that the cause of action as presented in the petition is not justiciable. In any event the petition cannot be effectually and completely be determined in the absence of the Peoples Democratic Party, a necessary party who ought to have been joined. The law is consistent that issue as to who should be a candidate of political party at an election is an internal affairs of that political party and are matters not justiciable in court. See KOMOLAFE OMOLE (1993) 3 NWLR (Pt. 268) 213 at 217. OSSOM v OSSOM (1993) 8 NWLR (Pt 314) 678 at 696 and ONUOHA v OKAFOR (1983) NSCC 494 at 507.
In the instant appeal, any decision or pronouncement of the Tribunal on the issue, whether it was the appellant or the 1st respondent who was sponsored by the PDP as its candidate at the election will directly affect the interest or right of PDP without affording it the opportunity to be heard as to its candidate and its non-joinder by the appellant as I said above is fatal to the petition and robbed the Tribunal jurisdiction to entertain the petition. This issue is resolved in favour of the respondents against the appellant.
On issue 3, learned counsel for the appellant conceded that the scores of the candidates were not stated in the petition but argued that the main issue to be determined is who is the lawful candidate of the PDP who won the election and as such failure to state the scores of the candidate is not fatal to the petition and relied on the case of OWURU v INEC (1999) 10 NWLR (pt 622) 201.
In reply, learned counsel for the 1st respondent referred to paragraph 5(c) of the petition in which the appellant invited the Tribunal to Find and hold that the appellant polled the highest number of lawful votes cast at the election in addition to holding that the appellant was the candidate sponsored by PDP. He further contended that failure to state the votes is a breach of Paragraph 4(1) (c) of the First Schedule of Electoral Act 2002.
The substance of the reply of learned counsel for the 2nd respondent is that failure by the appellant to comply with the mandatory provisions of paragraph 4(1) of the 1st Schedule to the Electoral Act 2002 rendered the petition incompetent.
In paragraph 5(c) of the petition, the petitioner pleaded as follows:
(c) “That the 2nd Respondent be ordered to declare your petitioner Hon. Deiworio Wilson Wuku as the winner in the said election to the National Assembly for Brass/Nembe Federal Constituency which was held on 12th April, 2003.”
By the above paragraph, the appellant is inviting the Tribunal to find and hold that he polled the highest number of lawful votes cast at the election. It is therefore imperative for him to state his scores and the candidates who contested with him in accordance with the provisions of Paragraph 4(1) (c) of the First Schedule to the Electoral Act 2002. The Appellant was wrong in submitting that the votes scored by the candidates were not in issue and as such the case of OWURU v INEC (supra) which he relied on is not applicable to the facts of this case.
As the Tribunal put it at page 47 of the record:
“By this averment the petitioner has put in issue for determination the scores of the candidate and that of PDP’s as an issue in order to arrive at a decision that PDP votes was the majority and to enable us declare him the winner. He must therefore as a material fact state the scores of not only the votes of PDP but the scores of such candidate that contested the election…”
Suffice therefore to say that this issue is also resolved in favour of the respondent against the appellant.
In the end result, the appeal lacks merit and it is hereby dismissed and the judgment of the tribunal is affirmed.
The appellant is to pay the 1st respondent N5,000.00 costs.
Other Citations: (2003)LCN/1483(CA)
