Mr. Danladi Baido V. Independent National Electoral Commission & Ors (2008)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

This is a notice of motion filed on the 24th day of January, 2008 praying for the following orders:

1. AN ORDER granting leave to the Applicant to appeal to this Honourable Court as an interested party against the judgment of the Taraba State National Assembly/Governorship and Legislative Houses Election Tribunal in Petitions Nos. EPT/TR/G/05/2007 & EPT/TR/G/12/2007 (sic) delivered on 9th day of January, 2008.
2. AN ORDER deeming the annexed proposed notice and grounds of appeal attached hereto as exhibit MM6 as properly filed and served.
3. AND for such orders or such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The application is supported by an 18-paragraph affidavit deposed to by Danladi Baido (the applicant herein). Germane to this application are paragraphs 3 to 17 of the affidavit which are hereunder reproduced:

“3. That I contested the 2nd respondent’s gubernatorial primaries for Taraba State alongside 7 other candidates on 9-12-2006.

4. That I was successful in the primaries wherein I scored 2445 votes out of a total of 4325 votes. Attached herewith is a copy of the statement of Result and the Electoral Committee’s Report attached and marked ‘exhibits MMI and MM2’ respectively.
5. That after the primaries our party, the People’s Democratic Party (2nd respondent) wrote to INEC headquarters (1st respondent) a letter wherein it forwarded a list of all its gubernatorial candidates for the 36 States of the Federation. The said letter is annexed herewith and marked ‘exhibit MM3’.
6. That sometimes in February 2007, the 2nd respondent wrote to the 1st respondent a letter in which it sought to substitute my name as the gubernatorial candidate of the party with the name of the 3rd respondent. Attached herewith is a copy of the letter annexed and marked ‘exhibit MM4’.
7. That I have been informed by my counsel M. M. Nuruddeen, Esq., in his chambers on 17th January, 2008 at about 6pm and I verily believe him as follows:

(a) That S. 34 of the Electoral Act, 2006 requires the party to give ‘cogent and verifiable reason’ for the substitution of candidates earlier submitted to the 1st respondent.

(b) That no reason other than ‘lack of enough information’ was assigned for substituting me in ‘Exhibit MM4’ by the 2nd respondent.

(c) That the letter of substitution is clearly in violation of the Electoral Act, 2006 having not disclosed cogent and verifiable reasons.

(d) That accordingly I was the gubernatorial candidate of PDP in Taraba State when Governorship election was held on 14-4-2007.

8. That in the said Governorship election I scored 515016 votes and ought to have been declared the winner and not the 3rd respondent who was not a candidate at the election.
9. That the Taraba State National Assembly/Governorship and Legislative Houses Election Tribunal delivered judgment in Petitions Nos. G/EPT/TR/G/05/2007 & EPT/TR12/2007 (sic) (Consolidated) filed by the 4th and 5th respondents challenging the return of the 3rd respondent as the Elected Governor of Taraba State on 9th January, 2008. Attached herewith is a C.T.C. of the judgment attached and marked ‘exhibit MM5’.
10. That the tribunal dismissed all the grounds of the petitions including the ground alleging that the 3rd respondent who was returned as elected was in fact not a candidate at the election.
11. That the 3rd respondent returned by both the 1st respondent and the Taraba State Electoral Tribunal was not only a candidate at the gubernatorial election, he was not even an aspirant in the PDP gubernatorial primaries.
12. That I have a genuine legal interest in these proceedings since I am the legal candidate of PDP (the 2nd respondent) the party which won the Governorship Election.
13. That I am also the person elected as Governor of Taraba State in the April 14th, 2007 Gubernatorial Election.
14. That I am dissatisfied with the decision of the tribunal and wish to appeal to this Honourable Court as an interested party.
15. That the justice of this case demands that I be allowed to appeal against the judgment of the tribunal so that this Honourable Court can do full and comprehensive justice in this case.
16. That I have accordingly prepared my proposed notice of appeal which is herein attached and marked ‘exhibit MM6’.
17. That I have further been informed by my counsel M. M. Nuruddeen, Esq., and I verily believe him as follows:

(a) That the proposed notice of appeal contains good and arguable grounds of appeal on newly established and settled issues of law.”

Each of the five respondents filed a notice of preliminary objection and a counter-affidavit in opposing the application, except the 5th respondent, each of the parties herein filed a written address/argument.

In the preliminary objections of all the respondents, three issues are identified viz:

(a) The locus standi of the applicant to bring this application;

(b) The competency of the application from which this court will derive jurisdiction; and

(c) Abuse of the process of the court.

On these issues, the submissions of all learned counsel for the respondents can be summarized thus:

that the applicant not being an aggrieved person in relation to the decision of the Taraba State Governorship/Legislative Houses Election Tribunal (now the Tribunal) lacks the locus standi to appeal as an interested person in this case; that the applicant is not complaining against the decision of the tribunal but about his political party which substituted the 3rd respondent for him; the decision of the tribunal did not deprive the applicant of anything; the tribunal did not make any order which prejudicially affects the applicant or his interest; the applicant did not participate in the election; he was neither a party before the tribunal nor did he apply to be joined as a party; applicant could not have been a party before the tribunal by virtue of section 144 of the Electoral Act, 2006; it was not the applicant whose election was complained of before the tribunal; the applicant did not only join the campaign train of the 3rd respondent: he was the director of Campaign and he canvassed for vote for the 3rd respondent throughout Taraba State during the campaign period; applicant has taken his price for all these when he was appointed Chief of Staff to the Governor by the 3rd respondent; that some of the parties before the tribunal have been excluded in this application while some parties who were not parties to the election petition have been brought into this application; that the applicant having no locus to present a petition before the tribunal has no right of appeal as an interested person; the applicant having not challenged his substitution before a High Court lacks the necessary locus to bring this application and Section 243(a) does not confer locus on him to appeal; ex facie, Section 243(a) of the Constitution cannot apply to issues of appeal from an election tribunal; by virtue of sections 144 and 145 of the Electoral Act, 2006, election petition cannot be regulated by the provisions of section 243 of the Constitution, and the issue brought to be canvassed in appeal did not arise from issues presented for adjudgment before the tribunal.

In respect of these submissions, learned counsel for the respondents have cited the following authorities:-

Ifeanyichukwu Okonkwo v. Chris Ngige & Ors. (2006) 8 NWLR (pt. 981) 119, 136; N.U.B. Ltd. v. Samba Pet. Co. Ltd. (2006) 12 NWLR (Pt. 993) 98,107; Ikonne v. C.O.P. & Nnanna Wachukwu (1986) 4 NWLR (Pt. 36) 473; Dalhatu v. Turaki (2003) 15NWLR (Pt. 843) 310; Waziri v. Attorney-General of the Federation (2004) All FWLR (Pt. 205) 252, 263; Opekun v. Sadiq (2003) FWLR (Pt. 166) 621, 632, (2003) 5 NWLR (Pt. 814) 475; Owena Bank (Nig.) Plc V. N.S.E. Ltd. (1997) 8NWLR (Pt. 515) 1, 19; Buhari v. Yusuf (2003) 14NWLR (Pt. 841)446; A-G., Lagos State v. Eko Hotels Ltd. (2006) 18NWLR (Pt. 1011) 378,45; Alahaji Kabiru Turaki, SAN v. Usman Nasamu Usman In Appeal No. CA/K/EP/GOV/37/2007 delivered On 21/1/2008; National Bank of Nigeria Ltd. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 150; Akande v. Nigerian Army (2000) 8NWLR (Pt. 714) 1, 19; Dr. Chris Nwabueze Ngige v. Mr. Peter Obi (2006) 14 NWLR (Pt. 999) 1, 102; Negr. Charles Ugwu & Anor. v. Senator Ifeanyi Ararwne & Anor. (2007) 12 NWLR (Pt. 1048) 365,484; Amaechi v. INEC (2008) 1 MJSC 1, (2007) 18NWLR (Pt. 1065) 42; Madukolu v. Nkemdilim (1962) All NLR Vol. 1 (Pt. 4); (1962) 2 SCNLR 341; Mathias Omeh v. Chief Fidelis Okoro (1999) 8 NWLR (Pt. 615) 356,372; Ashimuyu Oduola v. Chief Ogunjobi (1986) 2 NWLR (Pt. 23) 508; Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 609; Alhaji Balogun v. Panalpina World Transport (Nig.) Ltd. (1999) 1 NWLR (Pt. 585) 66, 79.

In response to the preliminary objections, the applicant submitted that section 243(a) is available to the applicant and that the pronouncements by their Lordships, Mohammed and Chukuma-Eneh, JSC concerning section 243(a) were made obiter and they do not constitute binding authorities. Learned counsel for the applicant then distinguished Okonkwo v. Ngige from the instant application, in seven distinct particulars, namely –

Okonkwo contested an election which he lost: he also lost at both the election tribunal and on appeal to Court of Appeal and an application, two and half years later to be joined as an interested party in Peter Obi v. Ngige was dismissed by the Court of Appeal; the proceedings Okonkwo sought to appeal against were not election proceedings; Okonkwo did not win the Governorship Election in 2003, while the applicant who was nominated by PDP and who won the election, at the time the Court of Appeal and Supreme Court decided Okonkwo, the case of Amaechi v. Omehia had not yet been decided; the decision of Court of Appeal, Enugu in Okonkwo pertaining to section 243(a) is only of persuasive authority; the applicability of Section 243(a) was not really in issue before the Supreme Court in Okonkwo’s case, what was before that Court was the preliminary objection based on Section 246(3) of the Constitution; and that section 243(a) was mentioned duly in passing by Mohammed and Chukwuma-Eneh, U.S.C. at pp. 208 and 218 and their observation were mere obita dicta and not finding on principles or questions of law.

Learned counsel for the applicant then urged the Court to rely on the Supreme Court decision in Societe Generale Bank (Nig.) Ltd. v. Afekor (1999) II NWLR (Pt. 628) 521 pp. 538 – 540 and 542; and Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1. He urged that section 243(a) should be read alongside section 240 of the Constitution and if that is done, it becomes clear that an argument against this application is untenable and ridiculous.

As to the issue that the single ground of appeal does not flow from the judgment of the tribunal, it has been argued for the applicant that the ground of appeal “has more to do with what the tribunal did not do rather than what it did”. It is argued that the tribunal had duty to join suo motu the applicant as a party interested in view of the evidence before it by virtue of Order 12, rule 5 of the Federal High Court Rules. Reference is made to Ogolo v. Fubara (1994) 1NWLR (Pt. 321) 404 and Green v. Green (1987) 3 NWLR (Pt. 61) 480, pp.492 and 497.

On the issues of locus standi and abuse of the process of the court, it is submitted for the applicant that once the applicant’s locus is established, there will be no need addressing the issue of abuse of the process of the court. To answer the challenge to the locus of the applicant in bringing this application, it is the submission of the applicant that the Shakespearean analogy of denying Hamlet a role in the “Prince of Denmark” since the play is not only about Hamlet, but Hamlet is the play and it cannot be played without Prince Hamlet. Six reasons were given pointing to the locus of the applicant in bringing this application and reliance is placed on Green v. Green (supra); Ogolo v. Fubara (supra) and Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; 511 and 519. It is submitted that section 144 of the Electoral Act should be read together with section 145(1) of the Act in order to discover that the applicant who was nominated by PDP but was unlawfully excluded from the election is a necessary and interested party to the elections petition.

As to the abuse of the process of the court, it is submitted that enforcement of a right granted by the Constitution and the Supreme Court cannot constitute an abuse of process especially when no multiple actions were filed, citing The Holy Chapel of Miracles v. Madam Okonlyoha & Anor (2001) WRN Vol. 46, p. 103, 132-133; Great Ogboru v. James Ibori & 27 Ors. (2004) WRN Vol. 44, p. 98, 124, (2004) 7 NWLR (Pt.871) 92; and Ashley Agwasim & Anor v. David Ojichie & Anor. (2004) WRN Vol. 26, p. 1, 11; (2004) 10 NWLR (Pt. 882) 613.

On the issue of waiver, it is submitted, for the applicant, that the right here is conferred by the Constitution, and as a matter of public interest and public policy, it cannot be waived by the applicant whatever benefits he may have derived by not insisting on his right amount to naught since he was ignorant of his right. Reliance is placed on Black’s Law Dictionary, 6th Edition, page 1580; Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1, 51: and Ariori v. Elemo & Ors. (1983) All NLR 1, 12; (1983) 1 SCNLR 1.

As to the fact that the applicant was not a candidate at the election, it is submitted that the applicant was a candidate by virtue of the decision in Amaechi ‘s case to the effect that once the letter of substitution is in deficit of section 34(2) of the Electoral Act, 2006, the original candidate remains the candidate and if the party wins, the original candidate becomes the winner.

In summary, the above represents the applicant’s response to the various preliminary objections raised by all the respondents to the hearing of this application.

The central issue in all the preliminary objections is that of locus standi. In this ruling, if it is found for the applicant that he has the necessary locus to bring this application, the application will be considered on its merits; otherwise the court has no option other than to decline jurisdiction to entertain the application.

To properly appreciate the issues involved in this application and the preliminary objections raised against it, it is necessary to reproduce section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999:

“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics by me).

In this application, certain facts are common to all the parties, such facts are not in dispute. All parties agree that the Peoples Democratic Party (PDP) conducted a primary election to elect a candidate to represent it at the gubernatorial election slated for the 14th day of April, 2007. It is common ground that the applicant emerged victorious at the primary election and that his name was forwarded to the Independent National Electoral Commission (INEC) as the candidate of the PDP. Parties hereto also agreed that PDP substituted the applicant with the 3rd respondent by a letter dated February 5, 2007. It is also common ground that the election of the 14th day of April, 2007 took place and the 3rd respondent was returned and declared the winner. It is agreed that the election petition was filed before the Governorship and Legislative Houses Election Tribunal (hereinafter referred to as “The Tribunal”) sitting in Jalingo, Taraba State. It is also common to all parties herein that the name of the applicant did not feature in the election petition before the tribunal either as a petitioner or a respondent. Most importantly, the tribunal did not decide anything against the applicant and the applicant’s proposed solitary ground of appeal does not complain against any decision of the tribunal.

This application is for leave to appeal as an interested party against the judgment of the tribunal in petition Nos. EPT/TR/G/05/2007 and EPT/TR/G/12/2007.

It is instructive to note that the applicant did not dispute any of the allegations of fact deposed to in the five counter-affidavits opposing this application; instead of controverting any of the depositions in the various counter-affidavit, a further affidavit was deposed to and filed on behalf of the applicant indicating that an action before the Federal High Court, Yola, had been discontinued a day prior to the filing of this application, on the instruction of the applicant.

The issue of locus standi constitutes a condition precedent to the institution of any action before a court of Law. For an action to be maintainable, the person instituting it must have legal capacity, otherwise the court is robbed of necessary jurisdiction to entertain it. Whenever the issue of locus standi is raised, the court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself.

In this application, it is evident that the applicant did not file election petition to challenge the return of the 3rd respondent in respect of the election of the 14th day of April, 2007. It is also very clear that he did not participate in the proceedings of the tribunal either in person or by proxy. The 4th and 5th respondents who presented petitions as aggrieved persons fought their cases as if on behalf of the applicant herein but since the applicant had not mandated them to fight his case, the tribunal did not have difficulty in finding that they lacked locus standi to do so. The applicant could not have presented an election petition, by virtue of the provisions of the Electoral Act, 2006 (now referred to as “The Act”). Does the applicant fall within the category of the persons specified in section 144(1)(a) and (b)? Alternatively, could the applicant be classified as one of the respondents envisaged under subsection (2) of this section?

It is against this background that I have to consider the locus standi of the applicant as an interested person. I have searched in vain and could not find any provisions for a person who was not a candidate at an election, to present a petition challenging the results of such election or the conduct of the election. To compound the problems in this matter, learned counsel for the applicant, submitted that the purpose of the application is not to challenge what the tribunal did but, on the contrary, the proposed appeal is meant to challenge what the tribunal did not do. It goes without saying that the applicant not being a party before the tribunal, no issues personally connected with the applicant or his interest could reasonably have been made the subject of a judicial decision before the tribunal. I have looked through the entire judgment of the tribunal, annexed to this application as “exhibit MM5” but I could not find any decision therein which prejudicially affected any right or obligation of the applicant. The applicant did not assign any reason for his failure to challenge his substitution with the 3rd respondent before a court of competent jurisdiction. It is evident in this case, that after his substitution, the applicant became the Director of Campaign for the 3rd respondent and after the return and declaration of the latter as the elected Governor of Taraba State, the latter appointed the applicant as his Chief of Staff. He enjoyed the perquisite of that office until he was booted out when his attitude changed after the Supreme Court’s decision in Amaechi v. Omehia.

At this stage, it is necessary to determine who an interested party is under section 243(a) of the Constitution. This phrase has been judicially defined in a number of decided cases. In Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119, at pp. 126-127. This Court held inter alia, that –

“Persons who are regarded as parties interested in an election petition are the petitioners and statutory respondents. Therefore, the phrase ‘parties interested’, cannot be used loosely to cover those who did not contest at an election or those not qualified to file a petition. It follows that those who did not participate at an election or those not qualified to present a petition cannot be regarded as parties interested for the purpose of being granted leave to appeal against the decision of an election tribunal, as they do not fall into the category of petitioner or statutory respondent under the Electoral Act, 2002.”

Election petition being proceedings sui generis does not particularly relate to ordinary rights and obligations of the parties concerned. There is no constitutional right or “Supreme court granted right”, as alluded to be the applicant, in an election petition proceedings except right to fair hearing. In Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355, 410, it was held that-

“It will be palpably erroneous for me to subscribe to the view that the appellant has a locus to question an election result by petition by merely stating, as the appellant did, in paragraph 1 of his petition that, ‘he is a person who had a right to contest at the election’. That will leave his locus nebulous and unsatisfactory.”

The applicant has not demonstrated his legal interest in the subject matter of the appeal to which he seeks to be joined as an interested party. On his own admission, no decision has been made against his interest. His complaint concerns the failure of the tribunal to make a decision concerning him or his interest. This is a right not recognisable by our law, in Okonkwo (supra) at page 138, Per Bada, J.C.A., the matter of a party interested was put thus:-

“It must be noted that a party interested in a matter must be a party who has legal interest in the subject matter. Also in an application for leave to appeal as an interested party where the applicant was not a party to the proceedings at the lower court, he has the burden to show that he has an interest in the subject matter in dispute.”

The applicant relies on the decision in Societe General v. Afekoro NWLR (Pt. 628) 521, at 524 where the Supreme Court held that:’

The expression ‘person having interest’ for the purpose of an appeal by an interested party is synonymous with ‘person aggrieved’. It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A ‘person aggrieved’ is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such a person will be granted leave to appeal against a decision given in a proceeding to which he was not a party.”

And:-

‘The interest envisaged under section 222(a) of the 1979 Constitution which would allow an interested party to appeal is a legally recognisable interest in respect of a decision which prejudicially affects such interest.”

In the instant application, the applicant has admitted that no decision was made against him. It then beats one’s imagination, the ground upon which the applicant could be characterised as “an interested party” or as “a person having interest” in the subject matter of the appeal. He has not shown that the decision of the tribunal as pronounced wrongfully deprived him of something; or that the decision wrongfully refused him something; or that the decision wrongfully affected his title to something; or that an order in the decision prejudicially affected his interest, as stated in Societe Generale (supra).

Another aspect of this application is the exclusion, from the application, of certain parties before the tribunal and inclusion of some others who were never parties to the proceedings before the tribunal. The applicant has not addressed this issue as an interested party. It looks as if the applicant is interested in the subject matter of another petition other than Election Petitions Nos. EPT/TR/G/05/2007 and EPT/TR/G/12/2007, because no explanation has been given for the exclusion of certain parties and the inclusion of others.

Mr. E.O.B. Offiong, learned counsel for the 3d respondent has aptly placed the proverbal Hamlet where he rightly belongs in the following terms:

“The petitions was about the qualification of the 3rd respondent and his running mate who were the candidates of PDP that stood at the election with the active support of the applicant and whose return as the winner of the election was being challenged by the 4th and 5th respondents as petitioners in the tribunal sought to introduce a sub plot related to the Prince of Demark (sic) nor its star character Hamlet were relevant in the con of the petition.”

In Appeal No. CA/K/EP/GOV/37/2007, Abubakar Malam Abubakar & Anor. v. Usman Nasamu Usman delivered on the 21st day of January, 2008, this court Per Bulkachuwa, JCA, held that –

“can the combined reading of the above provisions be invoked in the instant application to give the applicant the locus standi to succeed in this application within the facts and circumstances of this case?

In my considered opinion the intendment of the provisions of section 243(a) of the Constitution is limited and restrictive to appeals emanating from the Federal High Court or the High Court of a State. If there is any other intendment to include appeals from other judicial tribunals, the provision would have said so.”

And:-

“To open the door to any person aggrieved by an intra-party decision to be joined as a party in an election petition appeal who was not a party at an election petition will be like opening a flood gate to chaos and anarchy which we can ill afford in this period of our democratic dispensation.”

This statement of law represents my view regarding this application.

The applicant has woefully failed to establish his interest in the petitions before the tribunal or his interest as prejudicially affected by the decision of the tribunal. There is no doubt that he does not fall into the category of the parties before the tribunal either as petitioner or respondent. He would have no locus to file petition against the 3rd respondent before the tribunal and I do not see him as a statutory respondent.

In view of the foregoing, I find no difficulty in coming to the conclusion that the applicant does not possess the necessary locus standi to bring this application. If he has any right to enforce, he can only do so before a State or Federal High Court having jurisdiction to entertain the issue of substitution of candidate by a political party. His action does not lie in an appeal from the decision of an election tribunal.

I find merit in the notice of preliminary objection filed by the respondents and the same is hereby upheld.

I find the application number CA/J/EP/GOV/23M/2008 to be incompetent and the same is hereby struck out.

I make no order as to cost.

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Other Citations: (2008)LCN/2748(CA)