John L. Ojedokun V. Fatokun S. Adebayo & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an election petition appeal, against the Lower Tribunal, in which it nullified the election of the present appellant. The decision appealed was delivered on 03-10-07.

The brief facts of the petition is that the present appellant but 1st Respondent at the Lower Tribunal was a candidate of Action Congress(AC) and was elected into the Oyo State House of Assembly to represent Iwajowa Constituency in the general election conducted on 14-04-2007.

The 1st and 2nd petitioners who are now the 1st and 2nd respondents, filed on 11-05-2007,their petition challenging the election of the now appellant who was declared by the present 3rd respondent, INEC, that appellant was the winner.

The sole ground canvassed at the Lower Tribunal, was that, the 1st Petitioner 1st respondent, was validly nominated but was unlawfully excluded from the election. His further position was that he was dully sponsored by his party – (Labour Party) 2nd petitioner now 2nd respondent for the election but was also unlawfully excluded by the 3rd respondent, namely INEC. In proof of his valid nomination, the 1st petitioner/1st respondent produced and tendered at the Lower Tribunal, INEC FORM C F001 which were dully admitted and marked Exhibit PE 3, FORM ECB 4 (iii) admitted as Exhibit PE4 and INEC list of candidates for Iwajowa Constituency admitted as Exhibit PE6.

At the Lower Tribunal, the main defence of the 1st respondent now appellant, was that, the 1st petitioner was not validly nominated by his party (Labour) to contest the House of Assembly election and that therefore he could not complain of unlawful election. In calling oral evidence to support their respective positions the 1st petitioner/1st respondent testified as PW1, while the 1st respondent/appellant testified and called (3) three other witnesses in his defence. The 3rd respondent INEC, called one (1) witness. (underlined are mine for emphasis).

As earlier pointed out, in its considered judgment, the Lower Tribunal delivered its decision nullifying the election of the present appellant and made an order that the INEC should conduct a fresh election into Iwajowa House of Assembly Election.

Dissatisfied with the trial Tribunal, the appellant filed his Notice of Appeal on 24-10-2007 containing 12 grounds of appeal. Distilled from the numerous grounds of appeal, learned counsel for the appellant, has formulated three (3) issues for determination. When the appeal was heard on 24-04-08, all learned counsel adopted and relied on their respective briefs which were all dully filed and served within time.

Appellant’s issues for determination are as follows:

i. Whether the Honourable Tribunal has jurisdiction to grant the reliefs contained in the petition in view of the lack of Locus Standi of the 1st petitioner/respondent to institute an election petition under section 145 (i) (d) of the Electoral Act, 2006.

ii Whether in view of the evidence and pleadings in this case, the 2nd petitioner/respondent discharged the burden of proof that the 1st petitioner/respondents was validly nominated but was unlawfully excluded from the 14th day of April, 2007 election into the House of Assembly for Iwajowa Constituency of Oyo State.

iii Whether the Honourable Tribunal was right in its holding that the defence of the 1st respondent/appellant that the nomination of the 1st petitioner/respondent was not validly nominated to justify a complaint of unlawful exclusion are pre-electoral matters which can not be a subject of litigation before the tribunal.

In their brief of argument, 1st and 2nd respondents have raised two issues for determination and read as follows:

1. Whether the petitioners possess the requisite Locus Standi to present this petition?
2. Whether the Tribunal was right in holding that the 1st petitioner(the 1st respondent herein) was validly nominated but was unlawfully excluded from the election in view of the pleading and evidence of the petitioner and that of the 2nd respondent (now 3rd respondent) and whether the complaints of the appellant was justifiable?

The 3rd respondent (INEC) has formulated two (2) issues for determination of this appeal, and read as follows:-

1. Whether the Honourable Tribunal, from the evidence before it, was wrong to have granted the reliefs sought by the Petitioners/Respondents.
2. Whether the Honourable Tribunal was wrong in holding that the Appellant had not discharged the burden of proving the allegation of collusion and fraud levied against the Petitioners/Respondents and the 2nd/3rd respondent.

Before I determine the relevant issues raised by the parties, I have to state the connections of the respondent’s issues to the issues raised by the appellant. Appellants Issue No 1 which is in an issue of the Locus Standi of the 1st petitioner/1st respondent, is similar to issue No 1 raised by 1st and 2nd respondents. The same applies to the issue No 1 raised by the 3rd respondent. In other words, appellant’s issue No 1, 1st and 2nd respondents’ issue No 1 and 3rd respondent’s issue No 1 are identical, and they are all on the altar of “Locus Standi”.

Appellant’s issues No 2 and 3 are similar in nature and both are grounded on 1st petitioner/1st respondent that he was validly nominated but was unlawfully excluded from the election. Appellant’s Issues 2 and 3 are identical and similar with 1st and 2nd respondents issue No 2 as well as 3rd respondent’s issue No 2.

From the above findings and position of the parties, I am of the considered view that parties have joined issues on (a) locus standi and, 2 on valid nomination and unlawful exclusion on the 1st petitioner/respondent.

On appellant’s issue 1, his learned counsel has referred to Section 145 (i) (d) of the Electoral Act, 2006 where it is stated that:-

145 “That an election may be questioned on any of the following grounds.

(a) —

(b) —

(c) —

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

Appellant’s counsel has contended that by the clear and unambiguous provision of S.145 (i) (d) of the Act, the right to complain of unlawful exclusion of a candidate at an election as a ground for an election petition is only vested in the political party that sponsored the candidate and not the candidate himself. Counsel referred to and relied on the case of OKON VS. BOB (2005) ALL FWLR (Pt 243) 674, 692. Appellant further contended that the pleadings in the petition as well as the evidence made in support, would leave no one in doubt that they all centered on the complaints of the 1st petitioner respondent only, without even the slightest reference to the rights of the 2nd petitioner/respondent namely Labour Party; that no case was made out about the complaint and or interest of the Labour Party with respect of the alleged exclusion of the 1st petitioner/respondent, that the entire complaint is that of the 1st petitioner alone; and that the locus to sue for relief based on section 145 (i) (d) of the Act, is that of a political party and that in the instant appeal, there was no pleading showing any cause of action by Labour Party.

Appellant’s counsel by his paragraph 3.7 of the brief, has submitted that, by the combined effect of ss. 144 (i) and 145 (i) (d) of Electoral Act, 2006, only political party that sponsored the candidate, has the locus standi to file petition, and not the candidate – counsel relied on the case of ASINIYA VS. INEC (2005) ALL FWLR (Pt 247) 1495, 1510.

Counsel further submitted, that in the absence of pleading and evidence specifically from the 2nd petitioner/respondent (Labour Party), about its party interest, and violation by the alleged exclusion, the relief’s granted by the Lower Tribunal, was of no moment as there was no jurisdiction on which it heard the petition. Counsel referred to OLORIODE V. OYEBI (1984) 1 SCNLR 390. In his conclusion on issue 1, appellant has ended that the Labour Party (2nd respondent) did not complain, nor led evidence at the trial Tribunal on exclusion from the election, and that therefore, the Tribunal was wrong in granting the reliefs in contravention of the provision of section 145 (i) (d) of the Electoral Act,2006 which reserves the Locus Standi exclusively for political party. Counsel urged this court to resolve this issue in favour of the appellant.

In response to the issue on Locus Standi, learned counsel for the 1st and 2nd respondents, has argued from their paragraphs 2.03 – 3.08 of their brief, that, appellant, has misconceived in law and in fact, the reality that the 1st and 2nd petitioners now respondents, jointly presented their petition and prosecuted it to the end. Counsel referred to the pleadings of the petitioners in their paragraphs 3 and 4, where they had stated at page 2 of the record as follows:

“3. The parties interested in this petition are:

(i) …

(ii) …

(iii) Fatokun Saliu Adebayo, the 1st Petitioner.

(iv) Labour Party, 2nd Petitioner

4. The right of the Petitioners to present this petition is that the 1st petitioner was a candidate at the election while the 2nd petitioner was the political party that sponsored the 1st petitioner …”

Counsel for the 1st and 2nd respondents then submitted that, the 1st petitioners’ statement on oath was never cross-examined by the appellant; nor did the appellant oppose or deny or cross-examine Labour Party’s letter of protest which was admitted by the Lower Tribunal. To buttress their point that 1st petitioner/respondent had the requisite locus standi to institute the petition, they referred to the authority of the cases in DR. MRS. BUKOLA IDAYAT ADEBUSUYI V. HON. BABATUNDE ODUYOYE (2004) 1 NWLR (Pt 854) 406. 427; NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 135) 688; ATTORNEY GENERAL LAGOS STATE V. EKO HOTELS LTD (2006) 18 NWLR (Pt 1011) 378, 450 and submitted that the petitioners met the requirement for locus standi in this case and that the Lower Tribunal also had the jurisdiction before he argued same because the issue was never raised at the Lower Tribunal. Counsel urged this court to resolve issue 1 in favour of 1st and 2nd respondents. In response to the issue of locus Standi learned counsel for the 3rd respondent (INEC), has argued as per paragraph 4.8 to 8.2 of the brief that the Lower Tribunal has jurisdiction to entertain the petition, moreso, when the 1st petitioner/respondent’s political party, is a party to the petition. That the 1st petitioner had said in his statement on oath at page 135-136 of the record of appeal, that he has the consent and authority of the 2nd petitioner/respondent to depose to the said statements on oath. That the appellant never challenged the averments during cross-examination. Learned counsel further contended that it is trite law that where an adversary or a witness called by him, testifies on a material fact in controversy in a case like the one at hand, the other party should, if he does not accept the witnesse’s testimony as true, cross-examination on that fact or ought to show that he does not accept the evidence as true, failing which, the court could take his silence as acceptance or admission. Counsel relied to MANTEC WATER TREATMENT NIG LTD V. PETIDECEM (SPECIAL) TRUST FUND (2007) 15 NWLR (PT 1058) 451 AT 480. Learned counsel for the 3rd respondent has urged that issue 1 should be resolved in favour of the respondents and against the appellant.

Now, I have carefully considered the parties’ arguments on the issue of Locus Standi which the appellant has consistently maintained that, 1st respondent has no Locus Standi to present the petition. That it is only the political party that sponsored the candidate that has the Locus Standi. In my considered views, learned counsel for the appellant has, completely misconceived the clear and unambiguous provisions of section 144 (1) of the Electoral Act, 2006, where persons entitled to present Election petitions, are provided. It states:

“144 (1) An election petition may be presented by one or more of the following persons:

(a) a candidate in an election;

(b) a political party which participated in the election”

In the case of OKONKWO V. NGIGE (2006) 8 NWLR (pt 981) 199, this court, per (Adekeye, JCA) has aptly stated that:

“for persons who may present a petition, it is either one or both of (a) a candidate at an election; (b) a political party, which participated at the election.”

In the case of UBA VS. UKACHUKWU (2004) 10 NWLR (Pt 881) 224, it is also stated that when ever a petitioner in his petition has shown that he was a candidate in the election, this fact alone, has granted him the locus Standi to present his petition, and therefore the election petition Tribunal has been clothed with the requisite jurisdiction to entertain same and hear it on merit. There is no doubt that the findings in OKOWKWO V. NGIGE (SUPRA) AND USA V. UKACHUKWU (supra) were in reference to section 133 (i) of the Electoral Act, 2002. It is to be noted that the current section 144 (1) of the Electoral Act, 2006 is in pari materia with the earlier S. 133 (1) of Electoral Act 2002. It is therefore, well settled that, once a candidate has been sponsored by his political party as in the instant appeal before this court, the candidate alone or along with his sponsor, can lawfully file his petition to the Tribunal, see also in GENERAL MUHAMMAD. DUHARI V. INEC &. 5 ORS IN CA/EPT/2/07 which has not been reported yet, but has considered the Locus Standi of the petitioner i.e. GENERAL MUHAMMAD DUHARI whose party sponsor, and his running mate, CHIEF UME EZEOKE, abandoned the petition, leaving the petitioner alone. This Court’s panel that heard and determined the petition, had the requisite jurisdiction to hear the petitioner on the basis that he alone as per s. 144 (1) of the Electoral Act, 2006 had, the Locus Standi to present the petition. See page 23-24 (paragraph 4) of the judgment. In the instant appeal, the 1st appellant/respondent, not only filed the petition, but did so along with its sponsor, namely the Labour Party. In his paragraphs 1, 5, 6, 7, 3 (ii) (iv) and 4 of the petition, at pages 1 and 2 of the record, are very important and clear. They read thus:-

“Your Petitioner FATOKUN SALIU ADEBAYO was a candidate at the above election on the platform of Labour Party.

5. The Petitioner was dully nominated by his party and was issued FORMS C.F. 001 and E.C. 4B (iii) by the 2nd Respondents which he dully completed and returned after fulfilling all other conditions.
6. The petitioner was dully screened and cleared for the election.
7. On the election day, the petitioner was surprised that his party’s logo was not on the Ballot Paper therefore he and his supporters could not vote.
8. The parties interested in this petition are:

(i)

(li)

(iii) Fatokun Saliu Adebayo, the 1st Petitioner.

(iv) Labour Party, 2nd Petitioner.

4. The right to the Petitioners to present this petition is that the 1st petitioner was a candidate at the election while the 2nd petitioner was the political party that sponsored the 1st petitioner for the said election of 14th April, 2007.”

From the above solid facts on nomination processes, screening, clearance and sponsorship pleadings filed by the petitioners in their petition, the appellant has not established any good defence. In the recent decision of this court which is yet to be reported in a law report, SENATOR IBIKUNLE AMOSUN V. INEC & 259 ORS.

CA/I/EPT/GOV/10/2007, DELIVERED ON 13-03-08, similar issue of Locus Standi was determined which is to the effect that any body that comes under the ambit of Section 144 (1) of the Electoral Act, 2006, can present the petition. In this appeal, the 1st respondent had properly laid in his petition the basis on which he had the right or Locus Standi to present his petition which was grounded on exclusion from the election held on 14-04-2007.

I resolve issue No. 1 in favour of all the two sets of respondents, and, against the appellant.

ISSUES 2

Whether 1st petitioner/respondent was validly nominated but unlawfully excluded:

The appellant’s argument is forcibly hinged on his contention that the 1st petitioner/respondent was not validly nominated. The entire argument on validity of nomination of a candidate is not justifiable except by a political party. By section 106 (d) of the Constitution of Nigeria, 1999 it is stated that for a candidate into the State House of Assembly, “A person shall be qualified for election as a member of a House of Assembly if he is a member of a political party and is sponsored by that party.”

(underlining is mine)

In order to establish this Locus Standi, that the 1st petitioner/respondent was validly nominated by his party i.e., Labour Party, and unlawfully excluded from the election, the 1st petitioner/respondent proved by his statement on oath and in his oral evidence, that:-

(a) he was validly nominated by his party -(2nd respondent)

(b) the election of 14-04-07 was conducted and concluded

(c) a winner was declared by INEC – 3rd respondent.

(d) his name was not indicated in the list of contestants

(e) his party logo was not put on the ballot paper.

To consolidate his valid nomination and unlawful exclusion, the 1st petitioner/respondent tendered 7 exhibits and were admitted without any objection by the appellant. The exhibits are contained in the Lower Tribunal judgment at page 203 of the record as follows:-

1. The Petitioner’s Labour Party membership card -Exhibit PE 1
2. Oyo State Assembly Election, 2007 Iwajowa Ballot Paper, Exhibit PE2.
3. Form C F 001 – Exhibit PE3.
4. Form E C 4B (iii) – Exhibit PE 4
5. Letter of Protest – Exhibit PE 5
6. INEC list of candidates, Exhibit PE 6
7. Certified Copy of Ballot Paper – Exhibit PE 7.

The admission of these 7 exhibits was enough for the Tribunal to accept that the 1st petitioner/respondent was properly nominated and more so, INEC, being the 2nd respondent at the trial Tribunal, had accepted and thus, corroborated petitioner’s pleadings and evidence that he was lawfully nominated by his party, and that the exclusion was an omission on the part of INEC. To seal up the nomination, INEC’S witness 2 RW 1 OFUNDU HARUNA CHINEDU, head of Department Public Affairs and Legal Services and Political Parties liaison, clearly stated that he was a member of the screening Committee that screened and cleared 1st petitioner/respondent. Based on the above findings at the Lower Tribunal, I affirm that the acceptance of the nomination of the 1st petitioner/respondent, by INEC, had put to rest issue on nomination and sponsorship from which the Lower Tribunal and this appellate Court are precluded from adjudicating.

As earlier stated above, issue of contest on nomination and sponsorship of a candidate, is not justiciable as is stated by the Supreme Court in DAIHATU VS. TURAKI (2003) 15 NWLR (Pt 843) 310, 318 which says that, a Court of Law, has no jurisdiction to adjudicate on the issue of which candidate, a political party should nominate or sponsor. The exercise of this right is exclusively the domestic affair of the party in accordance with its constitution.

Furthermore, in the Supreme Court case of UGWU VS. ARARUME (2007) 12 NWLR (Pt 1048) 365, AT 499-500 paragraphs F E held that:-

“There is no doubt the primary role of nomination and sponsorship of a candidate to contest any election in the present democratic dispensation is that of a political party to which the candidate belongs. However with the new provisions of s. 34 of the Electoral Act, 2006, the whole procedure of nomination and sponsorship of a candidate by a political party has been put directly under the supervision of the /electoral Body (INEC) charged with the conduct of the election affairs”

Finally, in the case of IBRAHIM VS. INEC, (1999) 8 NWLR, (pt 614), this Court has consistently held that a decision of INEC on screening and clearance of a candidate to contest on election is final, and a Tribunal as in the instant appeal can not adjudicate on issue of nomination as the appellant would want this Court to do.

It is of no use to consider issue NO.2 as fiercely argued by the appellant. It will amount to waste of time and energy and unacceptable academic exercise. It is therefore not open for the appellant to question the nomination and unlawful exclusion of the 1st petitioner/respondent who jointly petitioned along with his political party, Labour Party.

In the instant appeal, the first petitioner/respondent, not only specified the parties interested in the election petition, but he went further, and stated his right to present the petition, namely his Locus Standi since he was a candidate at the election on 14-04-2007.

It is unfortunate, that the 1st respondent/appellant, made heavy weather on the allegation that, the 1st petitioner/respondent, did not comply with the Electoral Act on nomination forms as tendered by the 1st petitioner/respondent. In his argument at paragraphs 4.1 – 4.35 of his brief, appellant attacked exhibits PE 3, PE4, PE5, PE6 and PE7, which were tendered by the 1st petitioner/respondent. The attack is based on the appellant’s contention that the petitioner did not sign the statutory requirement in signing of nomination forms. Appellant, still maintained that, the 1st petitioner/respondent’s persons who nominated him, had denied ever knowing him, let alone to nominate for him. Still not satisfied, the appellant accused the petitioner/appellant of collusion in nomination processes. This allegation of collusion, is criminal and it ought to be proved beyond reasonable doubt, which the appellant woefully failed to prove. See section 138 of Evidence Act, and the case of HARUNA V. MODIBO (2004) 16 NWLR (Pt 900) 487, 542; NWOBODO V. ONOH (1984) SCNLR 1; OGUNDERY VS. ADEBAVO(1999) 6 NWLR (Pt 608) 684. 699; EDED V. EVO (1999) 6 NWLR (Pt 605) 18. 29. I therefore find that, the allegation of collusion between the 1st petitioner/respondent with 3rd respondent (INEC), have not been established beyond reasonable doubt as argued by the appellant at the Lower Tribunal and this Court.

Issue NO.2 is resolved in favour of the two sets of respondents. Having resolved the issues for determination the appeal is unmeritorious and is dismissed. I affirm the decision of lower Tribunal nullifying the election of appellant delivered on 3rd October, 2007. I further affirm that the two consequential orders made by the Lower Tribunal is still valid and the 3rd respondent, INEC is to conduct a bye election for the entire Iwajowa Constituency to Oyo State House of Assembly in accordance with Section 147 (1) and (2) of the Electoral Act, 2006, and r so order.

Costs of N30, 000 in favour of the 1st and 2nd respondents.

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Other Citations: (2008)LCN/2760(CA)