Mr. Adewale Segun Sunday & Anor V. Independent National Electoral Commission (Inec) & Ors (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
By an election petition dated 10th May, 2007 and filed on 11th May, 2007 the appellants beseeched the Governorship and Legislative Houses Election Tribunal Lagos State (hereinafter referred to as ‘the Tribunal’) to nullify the election held on 14th April 2007 and subsequent return of the 4th respondent on the platform of the 5th respondent as the winner of the election for the Lagos State House of Assembly in the Alimosho 1 constituency. The petition was brought pursuant to section 145 (1) (d) of the Electoral Act 2006 claiming that the 1st petitioner/appellant was validly nominated to contest the said election on the platform of the 2nd petitioner/appellant, but was unlawfully excluded wherefrom by the 1st respondent.
The respondents filed their respective replies to the petition raising objections to the competence of the petition. A motion dated 15th June, 2007 and filed on 27th June, 2007 by the 4th and 5th respondents challenged the competence of the petitioners/appellants petition. The said motion was argued on the 31st July, 2007, and the tribunal on the 7th August, 2007 delivered its ruling dismissing the objection, and suo motu raised the issue of locus standi of the petitioners/appellants to bring the petition under section 144 (1) of the Electoral Act 2006. Counsel were ordered to file and exchange written addresses by 14th August, 2007, which they did. The tribunal delivered its ruling on the 17th August, 2007 holding that since the petitioners did not contest the election, having not participated in the balloting process by reason of their exclusion from the election by the act or omission of the 1st respondent, they both lacked locus standi to present the petition under section 144 (1) of the Electoral Act 2006.
Being dissatisfied, the appellants lodged an appeal against that ruling by filing a notice to that effect on the grounds reproduced hereunder without their particulars:
“1. The learned Justices of the Election Petition Tribunal Lagos State erred in law when they held that the petitioners do not possess the requisite locus standi to present this petition.
- The learned Justices of Election Petition Tribunal erred in law when they adopted a strained interpretation of provision of S. 144 (1) Electoral Act 2006 thereby leading to absurdity.
- The learned Justices of the Election Petition Tribunal denied the petitioners fair hearing when they neglected and or refused to consider and rule on the substantial portion of the petitioners counsel’s written submission dated 9th August, 2007 and thereby occasioning miscarriage of justice.
- The learned Justices of the Election Petition Tribunal Lagos State misdirected themselves when in determining the locus standi of the petitioners to present their petition, failed to appreciate, see and consider the several paragraphs of the petition dated 10th May, 2007 as one whole petition.
- The learned Justices of the Election Petition Tribunal Lagos wrongly applied the decision of the Supreme Court in EGOLUM v. OBASANJO (1999) 7 NWLR (pt 611) 355 when the said the case is totally different and distinguishable from the facts and circumstances of this present petition.
- The learned Justices of the Election Petition Tribunal Lagos State erred in law when in determining who a candidate or a political party that participated in an election is, the only criteria evolved by their Lordships is the inclusion or non-inclusion of the party logo, sign and symbol on the ballot paper used, and nothing more.”
The petition is rooted in the election for the Lagos State House of Assembly for Alimosho I Constituency held on the 14th April, 2007. The petitioners alleged that the 1st petitioner was duly nominated by the 2nd petitioner and duly published by the 1st and 2nd respondents as the candidate of the 2nd petitioner in the said election (paragraphs 3 and 8 of the petition at page 2 of the Record). However on the polling day, while polling was in progress, it was discovered that the 2nd petitioner’s logo, emblem and/or acronym were omitted from the ballot paper used for the polling exercise (Para. 11 of the petition at page 3 of the Record).
The petitioners immediately wrote through their counsel, a letter to the 1st, 2nd and 3rd respondents complaining about their exclusion from the polling process, and urging the respondents to cancel and reschedule the election. Although the respondents acknowledged the receipt of the said protest letter, they nonetheless proceeded to hold the election and declared the 4th respondent, who contested the election as the 12th respondent’s candidate, as the winner of the election (paras. 10 and 11 of the petition at page 3 of the Record).
It was however, further alleged in the petition that the result of the election shows that the petitioners scored 21 votes at the polls. This issue will however be considered only for the purpose of determining the appellants’ locus standi. Its impact on the merit of the petition is a not an issue in this appeal.
Three issues were raised for determination by the appellants counsel as follows: –
- “Whether the learned Justices of the Election Petition Tribunal were right in interpreting S.144 (1) Electoral Act 2006 to mean that the Petitioners who were alleged to have scored 21 votes at the election were not a candidate and a party that participated in the said election ALTERNATIVELY
Whether the interpretation ascribed to the provisions of S.144 (1) Electoral Act 2006 was not strained and absurd.
- Whether the appellants were not denied fair hearing when the learned judges of the Tribunal refused and or neglected to consider and pronounced on the submission of appellants’ counsel touching on the 21 votes polled by the appellants as establishing their locus standi
- Whether their Lordships were right when they determined the locus standi of the appellants on paragraph 13 of the petition only, and refused and or neglected to consider the other several averments in the several paragraphs of the petition.”
The first issue is related to grounds 1, 2 and 6 while the 2nd and 3rd issues were distilled from the 3rd and 4th grounds of appeal. No issue was raised from the 5th ground of appeal, which consequentially renders that ground as abandoned. A ground of appeal is deemed abandoned where no issue has been raised from it. The abandoned ground five is accordingly hereby discountenanced.
The three issues raised by the appellants, however, revolve around the central core issue raised by the counsel for each of the two sets of respondents, i.e.
Whether in view of the provisions of sections 144 (1) and 145 (1) (d) of the Electoral Act 2006, the Tribunal was right in holding that the petitioners did not have the locus standi to present the petition.
This singular issue raised by both respondents’ counsel covers the scope of the appellants’ three issues and shall be adopted for the determination of this appeal.
The appellants’ counsel Mr. Kayode Oyelade argued that by virtue of the 1st appellant’s nomination by the 2nd appellant and duly acknowledged and published by the 1st respondent INEC, the 1st and 2nd petitioners/appellants were a candidate and a political party that participated in the election respectively as envisaged by the provision of section 144 (1) of the Electoral Act 2006. The provision 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.”
The appellants’ counsel submitted that the tribunal failed to consider some of the issues raised by counsel before it which it was bound to consider. He cited the Supreme Court decision in ONWE v. NWAOGBUINYA 5 NSCQR 93 at 110-111; UPKAI v. OKORO (1983) 2 SCNLR 380; NWUDE VS CHAIRMAN EFCC (2005) All FWLR (pt.276) 740 at 764 paras E-F. He contended that the appellants’ score of 21 votes provided sufficient evidence of the appellants’ participation in the election. This line of argument, however, takes a different course from the argument made pursuant to the provision of section 144 (1) of the Electoral Act 2006. While the allegation of scoring votes at the election relates to participation at the polls, the allegation of unlawful exclusion at the polls is quite the opposite. It will, however, be considered only for the purpose of determining the appellants’ locus standi as mentioned earlier above.
The learned counsel for the appellants submitted that the petition as a whole has disclosed locus standi on the part of the appellants to present the petition. See PEOPLES VOICE COMMUNICATION LTD v. LAWAL (2005) All FWLR (pt 246) 1207 at 1223 paras A-B; CHRISTIAN OUTREACH MINISTRIES INT v. COBHAM (2006) All FWLR (pt.310) 1673 at 1696; V.B.A. PLC v. BTL INDUSTRIES LTD (2007) All FWLR(pt. 352) 1615 at 1680.
The appellants’ counsel submitted that the tribunal’s interpretation of sections 144 (1) and 145 of the Electoral Act 2006 is absurd, and further more the failure to consider the petition in its entirety has occasioned a miscarriage of justice to the appellants. He urged the court to hold that the appellants have the requisite locus standi to present the petition and set aside the tribunals ruling of 17th August 2007.
In his response the learned counsel for the 1st to 3rd respondents Mr. A. O. Owodele submitted that the provision of section 144 (1) of the Electoral Act 2006 is in pari materia with section 133 (1) of the Electoral Act 2002 and same interpretation should be ascribed to both provisions. He submitted that under section 144 (1) of the Electoral Act 2006 only a candidate in an election or a political party that participated in an election or both jointly may present an election petition. See BUHARI VS OBASANJO (2005) 2 N.W.L.R (Pt 910) 241. He further submitted that the petitioners/appellants having averred in paragraph 13 of the petition that they did not contest the said election because their party logo and symbol were not reflected on the ballot paper used by the 1st to 3rd respondents to conduct the election held on the 14 April, 2007, they could not properly present a petition pursuant to section 144 (1) of the Electoral Act 2006. The learned counsel reproduced verbatim the said Para. 13 of the petition as follows:
“13 The petitioners state that the facts consisting the above grounds are as follows:
a. That the ballot papers issued by the 1st respondent for the conduct of the said elections did not reflect the name, Sign, acronym, symbol and the logo of the petitioners.
b. That 1st respondent’s negligently and or willfully refused to provide the appropriate space for the supporters of the petitioners to cast their votes on the ballot papers used for the election.
c. That the supporters of the petitioners were precluded from casting their votes for the petitioners.
d. That in consequence of (a), (b) and (c) hereof the petitioners were totally excluded from the electoral contest for the Alimosho 1 constituency seat of the Lagos State House of Assembly.
e. The format and content of the ballot papers for the conduct of election is statutorily provided under the Electoral Act 2006.
f. That the ballot papers used for the elections did not comply with the provisions of the Electoral Act 2006.
g. That in view of the foregoing facts the declaration of the 4th respondent as the winner of the election was not justified.
h. That for the reason aforesaid there was no electoral contest between the petitioners and the 4th to 23rd respondents.”
It is therefore clear, he added, that the appellants did not contest the election. The 1st to 3rd respondents’ counsel further submitted that the appellants couldn’t claim to have participated at that election. He referred to the Supreme Court case of AJIDE v. KELANI (1985) 3 NWLR (pt. 12) 248 at 269. The 1st to 3rd respondents’ counsel further said, the appellants have not stated in the petition that they were candidates at the election, and therefore have not shown any right to present the petition. He submitted further that only a candidate who contested the election and a political party that participated in the election are eligible to present a petition under section 144 (1) of the Electoral Act 2006. See PATRICK JANG v. INEC AND ORS (2004) 12 NWLR (pt.886) 46 at 71-72; NWOBODO v. ONOH AND ORS (1984) 1 S.C.N.L.R. 1. Thus the appellants who did not participate at the election could not turn round to say that the 1st appellant was a candidate or that the 2nd appellant partook in the said election. The 1st – 3rd respondents; counsel further submitted that “election” includes the following processes:
a. Accreditation of voters
b. Conduct of polls
c. Counting of votes
d. Collation of results
c. Signing of results forms, and
f. Publication of results.
He said since the appellants have not undergone through these processes it couldn’t be said that they participated in the election as contended by the appellants. It was further submitted that the appellants have not participated in the election within the purview of section 144 (1) and cannot therefore present any petition pursuant to section 145 (1) (a)-(d) of the Electoral Act 2006. In other words the 1st to 3rd respondents’ counsel is of the view that a petitioner must first satisfy the condition under section 144 (1) before presenting any petition under section 145 (1) of the Electoral Act 2006. See OKONKWO VS INEC (2006) 8 NWLR (pt 981) 11 at p. 136, He urged the court to hold that the appellants have no locus standi to present the petition at the tribunal and to affirm the ruling delivered on the 17th August 2007 and dismiss the appeal.
The learned counsel for the 4th and 5th respondents Mr. Olufemi Omoniyi like the 1st – 3rd respondents’ counsel similarly submitted that the 1st and 2nd appellants have no locus under the Electoral Act 2006 10 present the petition. He said the locus standi of a petitioner is not at large but is clearly defined by the Electoral Act 2006. See ADESANYA v. PRESIDENT OF NIGERIA (1981) 2 NCLR 358; EGOLOM v. OBASANJO (1999) 7 NWLR (pt 611) 355 at 410 paras E-F where the Supreme Court per Achike, JSC observed that the issue of plaintiffs locus standi is crucial touching on the jurisdiction of the trial court, and could be raised at any time as a preliminary issue and even for the first time on appeal.
The 4th and 5th respondents’ counsel further argued that the petitioners/appellants must establish their right or their interest in the election petition pursuant to paragraph 4 (I) (b) of the first schedule to the Electoral Act 2006 so as to show their locus standi under sections 144 and 145 of the Electoral Act 2006 to present the petition at the Tribunal. The 4th and 5th respondents’ counsel was of the view that the appellants have not fitted within the class of persons who may present all election petition under section 144 (1) of the Electoral Act 2006 which limits such right to only (1) a candidate in an election and (2) a political party which participated in the election. See THOMAS v. OLOFOSOYE (1985) I NWLR (pt 18) 169. He contended that the petitioners/appellants who did not participate in the said election are mere busy bodies who filed the petition only to waste the precious time of the court knowing fully well that they lacked locus standi to present the petition.
The 4th and 5th respondents’ counsel further submitted that the polling of 21 votes by the petitioners/respondents does not conclusively show that they participated in the said election as .to confer on them a legal right to present the petition. He added that even the acronym “LP” does not necessarily refer to the 2nd appellant. He cited OKAFOR v. ONEDIBE (2003) 9 NWLR (pt.825) 399 at 441 paras A-D; AGBALLAH v. NNAMANI (2003) All FWLR (pt 245) 1052.
The 4th and 5th respondents’ counsel contended that the averments in the appellants’ petition were mere bundle of contradictions and bound to fail. See NGIGE v. OBI (2006) 14 NWLR (pt 999) 1 at 197 paras B-D. It was also further submitted for the 4th and 5th respondents that the provision of section 144 (1) of the Electoral Act 2006 is on all fours with the similar provision of section 133 (1) of the Electoral Act 2002 and both provisions should bear the same interpretation. Like the 1st to 3rd respondents’ counsel he urged the court to dismiss the’ appeal for lack of locus standi on the part of the appellants. See OKONKWO VS INEC (supra); ADEFULU VS OYESILE (1986) 1 NWLR (pt 18) 669 at 685. The petitioners/appellants, he added, have failed to show that they contested the said election and therefore have not brought themselves within the purview of section 144 (1) of the Electoral Act 2006 as a candidate in the election and a political party that participated in the election. See EGOLUM VS OBASANJO (supra) 399-400. It was submitted further that the provision of section 145 (1) (d) of the Electoral Act 2006 which provides that an election may be questioned on the ground that, the’ petitioner was validly nominated but unlawfully excluded, does not confer any right on a petitioner who was not a candidate in the election as in the instant case, but merely found his claim on unlawful exclusion as held in EFFIONG v. IKPEME (1999) 6 NWLR (pt 606) 260. See also ASINYA v. INEC (2005) All FWLR (pt.247) 1495 at 1509 and 1512; TSOHO v. IBRAHIM (1999) 4 NWLR (pt 600) 657. He, like the 1st to 3rd respondents’ counsel, urged the court to affirm the ruling of the tribunal delivered on the 17th August, 2007 and dismiss the appeal.
The term locus standi has been interpreted in a plethora of cases including LADEJOBI VS OGUNTAYO (2004) 7 S.C. (pt.1) 159 at 170 per D. Musdapher, JSC as follows.
“The term ‘locus standi’ denotes the legal capacity to institute proceedings in a court of law and is used interchangeably with terms like ‘standing’ or ‘title to sue’. It is the right or competence to initiate proceedings in a court of law for redress or assertion of a right enforceable at law” (See ATTORNEY GENERAL KADUNA STATE v. HASSAN (1985) 9 NWLR (pt.453) 496).
There doesn’t seem to be any hide and seek regarding persons entitled to present election petitions. The provision of section 144 (1) of the Electoral Act 2006 has clearly spelt out that a candidate in an election and a political party that participated in the election are eligible to present an election petition, if any or both of them are not satisfied with the result thereof. It is pertinent that when the competence of a petition is challenged on ground of lack of locus standi, the court or tribunal must critically examine the petition and subject the averments therein to serious and merciless scrutiny to avoid any possibility of short circuiting the right of any party by determining the case from the on-set without getting into the nifty gritty of the matter and peremptorily striking out the petition on the altar of lack of locus standi.
Pats-Acholonu, JSC of blessed memory has aptly captured this core issue in LADEJOBI v. OGUNTAYO (supra) at page 172 where the learned Jurist, observed thus:
” For a court to normally strike out an action or the names of the prominent members of a class that institute an action on the ground that there is no locus standi is a grave matter that requires utmost judicial careful appraisal and understanding and reflection of the empirical facts placed before it.
To strike out the action or the names of the principal members who institute the action without a thorough assessment of the claim and ,subjecting the contents of the pleading to merciless scrutiny is a very serious matter which on the surface of it seems to show that there is an element of using a short circuit method to determine a case without at least the court getting into the nifty gritty of the matter, and rather to peremptorily dismiss or strike out a case on the altar of lack of locus standi.”
By the averments in paragraphs 2, 3, 8, 12 and 13 of the petition the appellants have disclosed their journey so far in the election process from nomination to publication of candidates for the election by INEC but, at the long run, excluded at the balloting process, which forms the bedrock of the petition. The relevant question is whether a person who may present an election petition under section 144 (1) of the Electoral Act 2006 includes or excludes a person saddled with such a major set-back in the electoral process as the appellants found themselves. In other words whether the 1st and 2nd appellants do quality as a candidate in an election and a political party, which participated in the election respectively. The scope of that provision is not left at large by the lawmakers. The next immediate provision defines the scope of section 144 (1). The provision of section 145 (1) of the Electoral Act 2006 states:
“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 this act;
c. That the respondent was not duly elected by majority of lawful votes cast at the election; or
d. That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
One is left with no iota of doubt that a person who has a legal ground and therefore a right ex debito justitie to question an election has no other means of exercising such right than by way of a petition before an appropriate election tribunal. One can therefore say, with mathematical exactitude that a candidate who was duly nominated to contest an election but unlawfully excluded from the conduct of the polls is properly within the scope of section 144 (1) of the Electoral Act 2006. Although “a candidate in an election” includes candidates who contested at the polling exercise but it will tantamount to turning the law head-down to restrict the scope of that phrase to only candidates who participated in polling process. Such restrictive and narrow scoped interpretation only renders the provision of section 145 (1) of the Electoral Act 2006 a complete nonsense. None of the authorities cited by the respondents’ counsel has limited the scope of the provision of section 144 (1) of the Electoral Act 2006 to only candidates who participated in the polling process, but rather to candidates “at the election” or “in the election” as provided by sections 133 (1) and 144 (1) of the Electoral Act 2002 and 2006 respectively. “a candidate in an election” or “a political party that participated in an election” simply means a candidate or a political party that participated in the process of election respectively, and cannot ironically be restricted to only candidates who participated in the ‘polling exercise who, of course, cannot complain of exclusion.
The words “at” an election and “in” an election used in the Electoral Acts 2002 and 2006 though similar are different in scope and meaning. The preposition “at” is used to say, “when something happens.” While “in” means “forming the whole or part of something” Thus while candidate at an election is a term of considerable elasticity and not quite definite “a candidate in an election” or “a political party which participated in the election” is an encompassing phenomenon with respect to candidates or political parties that partake in the process of election of which the balloting is only one of the components of such process. In P.P.A. v. SARAKI (2007) 17 NWLR (Pt. 1064) 453 at pp. 519-521 paras G-D my learned brother Sankey, JCA, observed thus:
“The ‘candidate in an election’ referred to’ both in sections 144 (1) and 145 (1) (d) is a person who has competed with others in the process of selecting a person to occupy a public office. In the interpretation of this statute I have called in aid the golden rule of interpretation, which seeks to ascribe to the words in a statute their ordinary and literal meaning.
It is my firm view that election, being a process cannot be strait-jacketed into confining its meaning to only the ‘polls’ which is the actual casting of votes for the candidates. It necessarily includes such preliminary matter as sponsoring or nominating candidates for, the election which processes precede the day of the poll. The importance of these preliminary matters to the process of election is not farfetched. For instance, by section 39 of the Electoral Act; in the event that there are no valid nominations at the close of the period laid down for nominations, the Electoral Commission shall extend the time for nomination and fix a new date for the election. What this therefore means is that there can be no election without nominations. By the same token therefore, a political party, which participated in the nomination of candidates, has, by so doing, also participated in the process of selecting persons to occupy elective offices, which is the actual definition of an election.
An election cannot be limited to mean the poll. ‘Poll’ in black’s Law Dictionary (6th Edition at p.1159) is defined to mean.
‘The act or process of voting at an election; the result of the counting of votes.’ Therefore, an election includes but is not limited to polls.
I am of the view that election as a process cannot be divorced from the preliminary matters of sponsorship and nomination, -just as polls, declaration of results and the issuance of certificates are an integral part of the process. They are all part of a whole. Therefore, a candidate who was validly, nominated by his party is clothed with the standing to complain or to sue under section 145 (1) (d) where he is subsequently unlawfully excluded from contesting in the election.” See also BADEBUSUYI v. ODUYOYE (2004) 1 NWLR (pt. 854) 406 at 428.
Locus standi in election petitions is statutorily defined and leaves no room for hide and seek. Election petitions are sui generis distinctively different from other civil proceedings. The right to present a petition under that unique procedure is stricto sensa as provided by the relevant statutes. A petitioner’s locus standi is established by averments in the petition showing prima facie evidence that the petitioner falls within the class of persons entitled to present an election petition. A court or tribunal is therefore, bound by the averments in the election petition as the sole source and only avenue for determining the petitioner’s locus standi. In P.P.A. v. SARAKI (supra) at p. 493 para G the Court held:-
“A court is bound by the averments in an election petition and must limit itself to them in determining whether a petitioner has locus standi to bring the petition.” See DISU v. AJILU WURA (2000) 14 NWLR (pt. 1000) 783.
In the struggle to find and determine the proper meaning of the phrases ‘a candidate in an election’ and ‘a political party which participated in the election’ as used in section 144 (1) of the Electoral Act 2006, the law must be interpreted in its ordinary and natural meaning. Moreover, provisions of the same statute dealing with the same subject matter must be read harmoniously in order to understand the scope and necessary intendment of the law. It will be out of place to divorce the provisions of sections 144 (1) and 145 (1) of the same Electoral Act in an attempt to understand the meaning and scope of the phrases “a candidate in an election” and “a political party which participated in the election.” Nothing could be more devastating than to exclude a person duly nominated by a political party and accepted by INEC as a candidate in an election but unlawfully excluded from the polls by the omission of the party’s name, logo and/or acronym, from presenting a petition when the law under section 145 (1) clearly makes such a situation a ground for presenting an election petition.
Moreover, section 140 (I) recognizes presentation of an election petition as the only manner or means by which an election or return may be questioned. In P.P.A. v. SARAKI (supra) the Court aptly held at pp 503 paras D-H; 517 paras E-F and 520 paras D-G thus:
“By virtue of section 145 (1) (d) of the Electoral Act, 2006 one of the grounds of presenting election petition is that the petitioner or its candidate was nominated but was unlawfully excluded from the election. The operative word in the provision is “nomination.” Thus, the fact of nomination is a major step in the election process. All the petitioner has to do is to first prove valid nomination, which is a major step in the process of election. Therefore, the issue of nomination cannot be minor or negligible in the scheme of things if it can be used to challenge the competence of an election as the Electoral Act 2006 has provided. In this case, therefore, the 2nd appellant’ having been validly nominated and screened by the Independent National Electoral Commission, falls within the category of persons entitled to present an election petition under sections 144 (1) and 145 of the Electoral Act 2006.”
One is puzzled to ask whether the same law that gives a petitioner ground for presenting a petition on the one hand could at the same time deny him locus standi to present a petition on the other? In my humble view the law could not have intended the absurdity of such a situation. – Equally condemning that ridiculous situation, my learned brother Sankey, JCA in P.P.A. v. SARAKI (supra at p. 521 further observed:
“145 (1) (d) of the Electoral Act 2006, the lower tribunal was in error to have presumed to close the door on them forever from making their voices heard by striking out the petition. The Latin maxim ubi jus ibi remedium will apply here to restore the appellants to the status conferred upon them by statute, for it is not envisaged that the law will confer a right on a party without the means of giving them a remedy where such a right is violated. If, for one moment, one were to buy the argument that the appellants’ legal standing or right to sue is not conferred by section 145 (1) (d), then pray tell, who will take the benefit of the said provision? Could it possibly be the so-called ‘candidates’ who contested in the polls and who would therefore have no reason to complain on this ground of having been excluded? Of course, this would make nonsense of the law and lead to nothing but an absurdity. The only class of persons it could meaningfully refer to are such persons as the present appellants who participated in the process of election by nomination and sponsorship, to screening and clearance, but who where then excluded from the polls, purportedly unlawfully.”
Similarly my learned brother Dongban-Mensem, JCA in the lead judgment in AKINGBULU v. OGUNBANJO (unreported appeal No CA/L/EPT/LAS/NA/001/2007) has strongly deprecated that senseless situation in the following terms;
“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 aid the spirit and principle of the electoral process.”
Also in the same judgment my learned brother Galinje, JCA observed that:
“Section 145 (1) (d) which has made unlawful exclusion justiciable is not in conflict with S. 144 (a) and (b) of the Electoral Act 2006. It instead helps to explain who a candidate in an election is. While section 144 (1) (a) provides for ‘a candidate in an election, section 145 (1) (d) provides that an election may be questioned by a candidate who was validly nominated but was unlawfully excluded from the election. It follows therefore that when a person is validly nominated by his political party, he becomes a candidate in the election to the office in which he is sponsored …… The appellants in their joint petition claimed that the 1st appellant was validly nominated by the 2nd appellant, and that they were excluded from the election of 21st April, 2007 in Ajeromi/Ifelodun Federal Constituency of Lagos State. Surely the legislature cannot approbate and reprobate by asking persons who are validly nominated, but excluded from election to question such election at the Tribunal, and then turn round to deny them access to court on the ground that they did not vole or were not voted for. Exclusion means denial. Once a person is excluded from election, there is no way he can participate or vote and be voted for in that election.”
The court further observed in the same judgment thus:
“With the guidance and harmonious interpretation of the two provisions in section 144 (1) and 145 (1) (d) of the Electoral Act 2006 one has no difficulty in finding that a candidate duly sponsored by a political party and whose nomination has been duly accepted by INEC is, without doubt a candidate and his political party is a party that participated in the election though unlawfully excluded at the balloting process. An unlawful exclusion, usually by INEC does not reduce the status of a candidate of a political party from their locus standi as envisaged by section 144 (1). There is nothing in fact or in the’ law to suggest that a candidate or political ‘party must participate at the balloting process on the Election Day to qualify as a candidate in an election. It will otherwise make the provision of section 145 (1) (d) a complete nonsense. That cannot be the intendment of the legislature.”
Thus the Tribunal was in grave error in holding that the appellants had no locus standi to present the petition and thereby denied them the right to ventilate their grievance by presenting their petition being the only legally recognizable avenue for questioning the validity of the election in which they were unlawfully excluded, It does not matter whether petition is likely to succeed or is hopeless, The right of the appellants to present their petition under the law is unfettered. From the foregoing analysis one is left with no iota of doubt that the 1st and 2nd appellants have locus standi to present the petition at the tribunal being a candidate in the election and a political party which participated in the election respectively. The sole issue for determination is accordingly resolved in favour of the appellants. The appellants’ petition was properly brought before the tribunal. The ruling delivered by the tribunal on the 17th August, 2007 striking out the appellants’ petition on ground of lack of locus standi is hereby set aside, and in its stead, it is hereby ordered that the petition be heard and determined on its merits.
The appeal succeeds perforce and is hereby allowed. Cost is awarded to the appellants against the respondents assessed at N=30,000.00.
Other Citations: (2008)LCN/2767(CA)
