Sunday Adeniyi V. Independent National Electoral Commission & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This appeal arose out of the decision of the Governorship and Legislative Houses Election Tribunal, sitting at Abeokuta, Ogun State (hereafter called the tribunal), delivered on the 25th day of October, 2007.
In its ruling, the Tribunal upheld a motion/preliminary objection filed by the 3rd and 15th Respondents and struck out the petition as incompetent.
Being dissatisfied with the decision, the Petitioner/Appellant filed the appeal before this court against the decision on the 15th of November, 2007. There were nine (9) grounds of appeal.
The background facts are that the Appellant/Petitioner was a candidate at the Governorship and Legislative Houses Election held on 14th April,2007. The 3rd Respondent Mr. Isaac O. Solaja was one of the other candidates at the election.
The Appellant/Petitioner was credited with 4,546 votes while the Respondent was credited with 12,487 votes. The latter was returned as having been duly elected as member, Ogun State House of Assembly representing Ikenne Constituency of Ogun State. The petition filed on 11th May, 2007, challenged the return of the 3rd Respondent as the winner of the Ikenne constituency of the House of Assembly, Ogun State. He also filed a motion for an order allowing him to inspect all the polling documents and ballot papers for wards 1 to 10 of the above constituency.
On the 13th June 2007, the 3rd and 15th Respondents filed their Reply, so also the 1st, 2nd, 4th – 14th Respondents. The 3rd and 15th Respondents’ reply was said to have been signed by TOKUNBO JIBODU & Co.
In a motion dated 29th June 2007, the 3rd and 15th Respondents prayed for an order striking out or dismissing this petition as being incompetent. On 9th July, 2007 the petitioner filed his answers to the pre-hearing sheet, and thereafter filed a counter-affidavit and written address in opposition to the Respondents’ motion. The 3rd and 15th Respondents filed their answers to the Pre-hearing sheet on 21st July, 2007. On 25th July, 2007, the petitioner filed a motion seeking-
“Leave to file and serve all the documents, including photographs, video cassettes and all other documents listed and filed in this petition in accordance with Rules 1(1) (c) and 4(8) of the Election Tribunal and Court Practice Direction 2007 and the Electoral Act 2006.”
The leave sought was granted on 10th August, 2007.
On 14th September the petitioner filed a motion seeking leave and order of the tribunal permitting forensic and hand writing experts to inspect the ballot papers, forms EC8A(i), EC8D(i) and other forms and documents used in the conduct of the House of Assembly election. The application, the supporting affidavit and written address in support were filed on the said 14th September.
The 3rd and 15th Respondents filed their Counter Affidavit and written address in support on 20th September, 2007 in opposition to the petitioner’s motion of 14th September, 2007.
On 24th September, 2007, the petitioner also filed a motion on Notice (dated 22nd September) in which he prayed for an order striking out the Reply of the 3rd and 15th Respondents on the ground that the reply is fundamentally defective in that it did not comply with the Electoral Act and the first schedule of the Act. On 25th September, 2007, the Tribunal granted the petitioner’s motion of 14/9/07. The 3rd and 15th Respondents then filed a motion on Notice dated 25th September, 2007 filed on 26th September, 2007 praying for an order striking out the petition. The Tribunal had earlier adjudged the petition competent when on 10th August, 2007 it ruled that it had jurisdiction to entertain some paragraphs of the petition at the instance of the 3rd and 15th Respondents. The preliminary objection was based on four grounds, which boil down to seeking for the striking out of the petition on the ground of incompetence in that the petitioner did not specify his right to present the petition.
The petitioner opposed the application dated 25/9/07 and filed his counter affidavit and written address dated 2nd October, 2007.
The Petitioner’s application filed on 24th September sought to strike out the 3ro and 15th Respondents’ Reply on the ground of incompetence, contesting that same was filed and signed by a non-legal entity or legal practitioner; but rather by one TOKUNBO JIBODU & Co. The two applications sought to strike out the other party’s pleading on the ground of incompetence but, the Tribunal first took the preliminary objection dated 25th September, 2007, on 2nd October, 2007, while that of the Petitioner’s dated 22/9/07 filed on 24/9/07 was still pending. The four grounds in the preliminary objection of 25/9/07 were:-
“1. The Petitioner did not specify his right to present this election petition.
- The Petitioner failed to comply with S.144(2) of the Electoral Act 2006 by failing to properly join the individual presiding officers and other INEC officers (who are necessary parties to the petition) who took part in the conduct of the election in question in this petition against whom he has made allegations of electoral malpractices.
- The presiding officers indicated as respondents in the petition are badly joined and lumped together making same bad joinder which is not envisaged by S.144 (2) of the Electoral Act 2006.
- The petition is consequently incompetent and Honourable Tribunal therefore lacks jurisdiction to entertain the same. ”
In the Tribunal’s Reserved Ruling delivered on 25th October, 2007, the subject matter of this appeal, it ,was held that:-
“We therefore find there is nothing placed before us to show that the Petitioner has complied with the mandatory provisions and one cannot pick and choose parties for candidates in the position.
From the face of the petition, the petitioner has not specified the particulars of his candidacy as stipulated by S.106 of the 1999 constitution and in compliance with paragraph 4(i)(b) of the 1st schedule to the Electoral Act.
It is for these reasons and fuller reasons and conclusions reached in our previous ruling in EPT/OG/GOV/2/2007 Senator Ibikunle Amosun vs Daniel, we resolved that the Petitioner failed to specify his right or disclose his locus standi to present the petition as required, this has rendered his petition incompetent or incurably defective and is liable to be struck out for failure to comply with paragraph 4(1)(b) of the Electoral Act. Consequently; we hereby order that it be struck out.”
Aggrieved by this decision, the appellant appealed to this court. The Notice of Appeal had nine grounds of appeal. Briefs of argument were filed and exchanged. Six issues were distilled in the appellant’s brief for the determination of this appeal, while in their joint brief the 3rd and 15th Respondents formulated four issues for determination. The 1st, 2nd, 4th – 14th Respondents’ did not file any brief. When this appeal was argued on 11/11/08, learned counsel to the Appellant, A. A. Yesufa with F. O. Akerele, adopted the appellant’s brief of argument dated 14th March, 2008, filed on 17/3/08, and reply brief dated 9/6/08 deemed filed on 11/11/08. The 3rd and 15th Respondents’ joint brief of argument; dated 14th April 2008, deemed filed on 11/11/08 was also adopted by O. O. Olubumehin. The learned counsel to the 1st, 2nd, 4th – 14th Respondents Bolanle Adekoya (legal officer) did not file any brief on their behalf but relied on the brief filed by the 3rd and 15th Respondents which brief will hereafter be referred to as the respondents’ brief.
The learned Appellant’s counsel withdrew his issues 1, 4 and 6 in the Appellant’s brief and same were struck out together with the arguments in their support, leaving his appeal to stand on his issues 2, 3 and 5. Similarly the learned counsel to the 3rd and 15th Respondents withdrew their issue two, and same was struck out together with the argument in its support, thus leaving their issues (i), (iii) and (iv).
Appellant’s issues 2, 3 and 5 read as follows:-
“(2) Whether the learned justices of the Tribunal were right when they permitted the Respondents to move the court to strike out the petition on an alleged lack of pleading of a material fact which the 3rd and 15th Respondents had expressly admitted in paragraph 2 of their joint reply to the petition – to wit – the petitioner’s pleading in paragraphs 1 and 2 of the petition that he was a candidate at the election. (Ground2).
(3) WHETHER in the light of the provisions of section 144 (1)(a) of the Electoral Act 2006 and the facts contained in the petition, admitted in the Replies of Respondents, and petitioner’s front loaded written statement of witnesses, the learned justices of the Tribunal were correct when they held that the 1st Petitioner had not disclosed his locus standi to, present the Petition, (Grounds 5 and (5) WHETHER the learned judges of the Tribunal had jurisdiction to entertain the issue of the qualification of the Petitioner to contest in the Election under section 106 of the constitution of Nigeria, 1999; when Petitioner was not the winner of the election sought to be questioned in the petition. (Ground 4).”
Issues (i), (iii) and (iv) as formulated by the 3rd and 15th Respondents are as follows:-
(i) Whether or not the competence or otherwise of 3rd and 15th Respondents’ Reply filed at the lower court (at pages 36-60 of the Records) is a matter for this Appeal in this Honourable Court; and if it is, how should the samebe resolved?
(iii) Whether or not the question as to which should be taken first between Petitioner’s motion dated 19-09-07 (at pages 131-137 of the Records) and 3rd and 15th Respondents motion dated 25-8-07 (at pages 153-162 of the Records) is a matter for this Appeal in this Honourable Court; and if it is, how should the same be resolved?
(iv) Whether or not the petition was competent before the Tribunal having regard to the issues of petitioner’s locus standi and compliance or noncompliance with section 144 of the Electoral Act 2006. (“the Act”),
In the appellant’s brief of argument, in respect of issue two, it was argued that the objections by the 3rd and 15th respondents were wrongly projected as jurisdictional, that the real complaint was that the petition did not specify:
(1) Age of the petitioner;
(2) Nigerian citizenship;
(3) Fact of sponsorship by his political party.
It was submitted that, the admission by respondents that the petitioner was a candidate at the election totally foreclosed them from complaining about failure to state these particulars in the petition, at the most that the respondents should have asked for further and better particulars of the facts by which the petitioner was a candidate at the election.
It was submitted that the respondents should have challenged the petition on those grounds immediately the petition was served on them; or at least within 21 days of their being served with the petition or should have utilized paragraph 17(1) of the first schedule to the Act, to apply for particulars of the listed facts ” ….. not later than ten days after the filing of the Reply”, It was further argued that the jurisdictional objection was raised as a form of delay tactics which the Apex Court has condemned in strong terms in the case of Okoro v. Egbuoh (2006) 15 NWLR pt.1001 SC. which learned appellant’s counsel relied on. It was argued that entertaining such argument led to a miscarriage of justice by the Tribunal.
It was submitted that by the Respondents’ reply, issues were joined by their admissions therein, therefore that regarding the candidacy of the petitioner at the election, and the competence of the petition, could only be properly resolved at the trial, not as a preliminary objection and relied on the cases of Woherem v. Emereuwa (2004) 13 NWLR pt.S90. P9 39B at 419; Buhari v. Yusuf (2003) 14 NWLR pt.841 SC 446 at 505. We were urged to resolve this issue in favour of the Appellant.
In their joint brief, the 3rd and 15th Respondents In response to the appellant’s second issue submitted that the petitioner did not comply with the mandatory provisions of the Electoral Act 2006 and the provisions of the 1999 Constitution which makes the petition incompetent. It was argued that the Petition lacked the essential ingredients of a valid petition as envisaged by paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2006. It was further argued that it was too late at the time the motion was taken for the Petitioner to regularize the defect by amendment, paragraph 14(2)(a)(i) of the First Schedule to the Electoral Act 2006 was referred to, as well as the case of Kotoye v. CBN (1989) 1 NWLR (pt.98).418.
When the appeal was heard, the 1st, 2nd, 4th-14th Respondents adopted the brief of argument as filed and argued by the 3rd and 15th Respondents. In the Appellant’s reply brief it was argued that S. 106 of the Constitution Is in respect of “qualifications for elections”, whereas the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2006, are in respect of the specification of the Petitioner’s right to present the election petition. It was also argued that had the Tribunal followed the decision of this Court in PPA vs. Saraki (2007) 17 NWLR(Pt. 1064) 453, that a person excluded from an election was a “candidate” under S. 144(1)(a) of the Electoral Act, 2006, talk less of the Appellant who actually contested, he needed not satisfy the provisions of Section 106 of the Constitution, to have ‘locus standi’ to have commenced the petition. Egolum v. Obasanjo (1999) 7 NWLR (pt.611) 355, was distinguished In that the Appellant in that appeal, was not a candidate who contested at the election. Reference was also made to the case of Inakoju v. Adeleke (2007) All FWLR (pt.353) 3,96-97. which defined ‘locus standi’ as simply meaning having interest in the matter. It was stressed that the 3rd and 15th Respondents admitted the averments in the Appellant’s petition to the effect that he contested the election and that the Tribunal was wrong to have struck out the petition on the basis that the Appellant as petitioner, did not specify the particulars of his candidacy as stipulated in s. 106 of the 1999 Constitution and in compliance with paragraph 4(1)(b) of the 1st Schedule to the Electoral Act. The decision of this Court in CA/I/EPT/GOV/10/2007: Senator Ibikunle Amosun VS. INEC & 259 ors of 13/3/08 was highlighted to support the learned counsel’s argument.
For proper resolution of the issues at stake, I would adopt the issues as formulated by the appellant in his brief of argument. In arguing this appeal the learned appellant’s counsel had withdrawn issues 1, 4 and 6 and all arguments in their support and same were struck out, leaving issues 2, 3 and 5 as formulated by the appellant.
In respect of issue two, by the provisions of paragraph 12(1) of the First Schedule to the Electoral Act a Respondent is required to state which of the facts in the petition he admits. This simply means that a Respondent after admitting a fact under paragraph 12(1) cannot request for further particulars of the fact he has admitted. In other words, after such admission, such respondent cannot resort to paragraph 17(1) and (2) of the First Schedule to the Electoral Act, 2006 to avail him, when he alleges lack of pleading of material facts as in this case, age of petitioner, Nigerian citizenship and fact of sponsorship by his political party.
With a look at the printed records (page 37 of the records), in their joint reply to the petition, the 3rd and 15th respondents admitted that the petitioner was a candidate at the election. Paragraph 2 of the Joint Reply to the petition of the 3rd and 15th Respondents reads:
“2. The Respondents admit paragraph 2 and 11 of the Petition.”
While paragraphs 2 of the Petition referred to reads:
“2. Your Petitioner herein states that the election was held on 14th April, 2007 when he, Sunday Adeniyi O. and Isaac O. Solaja together with others were candidates at the said election. Isaac O. Solaja was credited with 12.487 number of votes as against Sunday Adeniyi’s 4.546 with Isaac O, Solaja being returned as having been only elected as Member, Ogun State House of Assembly representing Ikenne Constituency of Ogun State of Nigeria,”
(Underlining for emphasis.)
The above paragraph 2 of the petition clearly states that in the election of 14th April, 2007, the Petitioner and the 3rd Respondent were candidates at the said election in which the 3rd Respondent was returned as having been elected as member, Ogun State house of Assembly representing Ikenne Constituency of Ogun State, the scores of both candidates were stated. By the admission in paragraph 2 of the joint reply of the 3rd and 15th Respondents the issue of the candidature of the petitioner at the election, his age, nationality and political party that sponsored him should not arise as a jurisdictional Issue which the respondents felt they could raise any time, should not arise at all. Paragraph 17(1) of the First Schedule to the Act is clear and unambiguous, there was no need for the respondents to have resorted to it since the facts and particulars of the petitioner was presumed to have been given before he was cleared to be a candidate that actually participated in the election to represent his party. It was rightly argued that having participated in the election, the petitioner’s candidature and the competence of the petition could only be properly resolved in course of trial during evidence and not as a preliminary issue as was done in this case. See Woherem v. Emereuwa (supra).
With respect, I am of the opinion that the learned Tribunal was wrong when it permitted the Respondents to move the Court to strike out the petition and striking out the petition on an alleged lack of pleading of a material fact which the 3rd and 15th Respondents had expressly admitted in paragraph 2 of their joint Reply to the petition adopted by 1st, 2nd, 4th-14th Respondents.
In the said paragraph 2 of the Respondents joint reply the lack of pleading complained about in respect of the Petitioner’s age, Nigerian citizenship and sponsorship by his political party having been clearly admitted by the Respondents, the respondents cannot turn around to complain about these facts under the jurisdictional umbrella, see paragraph 12(1) of the First Schedule to the Electoral Act. The second issue is therefore resolved in favour of the Appellant and I hold that the petition is competent.
In respect of the appellant’s third issue, it was argued that the Tribunal approached the issue of a petitioner’s locus standi from a most restrictive perspective, which has no judicial support and referred to S.144(1) of the Electoral Act which sets out the categories of persons who may present an election petition. Learned counsel referred to the cases of Okonkwo v. Ngige (2006) 8 NWLR Pt. 981 CA, 119. Further that the Petitioner pleaded that he was a candidate at the election and pleaded his score, therefore that the petitioner had the locus standi to present the election petition.
Learned counsel argued that the Tribunal failed to follow previous decisions of this Court interpreting S. 133(1) of the Electoral Act 2002, which is in pari materia with S. 144(1) of the Electoral Act 2006. Relying on several judicial authorities, learned counsel submitted that once a petitioner has pleaded that he was a candidate at an election, he has disclosed sufficient locus standi to present an election petition. The following cases were cited and relied upon, UBA v. Ukachukwu (2004) 10 NWLR Pt, 881. P. 224; Waziri v. Damboyi (1999) NWLR pt. 598 CA, 239; Rimi vs. INEC (2004) ALL FWLR (Pt.210) Pg. 1312, and PPA v. Saraki (2007) 17 NWLR Pt.1064, 453. The learned counsel distinguished the decision in Egolum v. Obasanjo (1999) 7 NWLR (Pt.611), which the Tribunal relied on in that Egolum’s case was before the 1999 Constitution which set out qualification criteria for a contestant to elective offices, but now, see S.106 of the 1999 Constitution. It was urged that we resolve this issue in favour of the appellant.
In response to the Appellant’s third issue, which is more or less the same as the 3rd and 15th Respondents’ issue 4, it was submitted on behalf of the 3rd and 15th Respondents that the Petition failed to comply with the mandatory provisions of the Electoral Act and by extension the 1999 Constitution, and consequently incompetent. It was argued that the petition lacked the essential ingredients of a valid Election petition as envisaged by paragraph 4(1)(b) of the First Schedule to the Electoral Act 2006, which provides that an election petition under this Act shall specify the right of the petitioner to present the election petition. The case of Kotoye v. CBN (1989) 1 NWLR (pt. 98) 419 was relied upon.
In the appellant’s reply it was submitted that the provisions of S.144(1) of the Electoral Act, 2006 must be read together with the provision of S.145(1)(d) to confirm that even a person who was validly nominated by a political party to contest in an election but was unlawfully excluded, is a “candidate” under S.144(1)(a) and has the ‘locus standi’ to present an election petition and relied on the case of P.P.A. v. Saraki (supra). Further that based on the above decision which the Tribunal was bound to follow, the appellant who actually contested, needed not satisfy the provisions of S.106 of the Constitution, to have ‘locus standi’ to have commenced the petition.
S.144(1) of the Electoral Act, 2006 states those who are entitled to present Election petitions and paragraph 4(1) of the First Schedule to the Electoral Act states the contents of an Election Petition. S.144(1) of the Electoral Act provides;-
“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.”
(Underlining for emphasis.)
Paragraph 4(1) of the First Schedule to the Act provides:
“4(1) An election petition under this Act shall;
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
d) state clearly the facts of the election petition and the ground or grounds on which the petition is based -and the relief sought by the petitioner.”
In paragraphs 1 and 2 of the petition, the Appellant made it clear that he was a candidate. Paragraph 1 states:
“1. Your Petitioner Sunday Adeniyi O. is a person who voted, had the right to vote, was a candidate, had the right to be returned or elected at the above election.
(page 13 of the records.)
Paragraph 2 of the petition was earlier reproduced in this judgment while resolving the second issue in which it was shown that the Petitioner was a candidate in the election of 14/4/07 and was credited with votes as against the 3rd Respondent who was returned, which is what he is challenging in his petition. The Respondents argued that since the Appellant did not state the political party which sponsored him for the election, his Nigerian citizenship and age, he did not have the locus standi to have petitioned. Locus standi has been defined to mean having sufficient interest in a matter. can it be rightly said that the Petitioner does not have sufficient interest in this matter, i.e. to challenge the election of 14/4/07? He does.
In resolving the second issue as formulated by the appellant it was shown that in the replies of the respondents and paragraphs 1 and 2 of the petition the appellant was a candidate, and participated in the Election of 14/4/07 and scores were attributed to him. Even though the issue of locus standi can be raised at any time since it goes to the root of the matter and determines one way or the other the power of the Court or Tribunal to entertain the matter, if the party that instituted the matter does not have locus standi to bring the action in the first place, the court cannot assume jurisdiction. See Waziri v. Damboyi (1999) 4 NWLR (Pt. 598) 239; and Senator Abraham Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NClR 358. In the present case, I hold that the Appellant as Petitioner had the locus standi to present the Petition contrary to the holding of the Tribunal.
I am in agreement with the learned appellant’s counsel’s argument supported by the earlier cited authorities that once a Petitioner has pleaded that he was a candidate in an election, he has disclosed sufficient locus standi to present an election petition and the Tribunal has the jurisdiction to hear it. See Uba v. Ukachukwu (supra); Waziri v. Damboyi (supra) and Rimi v. INEC (supra).
The crux of the Petition was that the appellant was a candidate at the 14th April, 2007 election into the Ogun State House of Assembly election, he stated that he was credited with 4,546 votes following the election, which was admitted in the Replies to the petition by the Respondents, while the 3rd Respondent and others were also candidates in the said election. The 3rd Respondent was credited with 12,487 votes and was returned as having been duly elected as member of the Ogun State House of Assembly. The Respondents contended that the Appellant had no locus standi to institute or commence the petition not having disclosed his age, nationality and sponsorship by his part. S.144 (1) of the Electoral Act earlier reproduced in this judgment made it clear as to who could present an election petition i.e. a candidate in an election and or a political party which participated in the election. The Respondents did not make out that the Appellant did not participate in the election. The Appellant’s particulars must have been cleared before his participation in the election, presently, there are no independent participants, he must have been sponsored by a party. It was wrong for the Tribunal to have held that these facts were not given by the Appellant. The 1999 Constitution has set out the qualification criteria for a contestant to elective offices, in this case House of Assembly, in S.106. I agree with the argument of the learned Appellant’s counsel that specific pleading of qualification under the 1999 Constitution cannot be read into S.144(1) of the Electoral Act, 2006. It is the duty of the political party to submit the names of their candidates with supporting affidavit deposed to by the candidate showing that he has met all the Constitutional requirements for election into that office. See S. 32(1) and (2) of the Electoral Act. Egolum v. Obasanjo (supra) is distinguishable and was wrongly relied upon by the Tribunal, in that in Egolum’s case the Petitioner did not plead that he was a candidate at the election, in the present case it was expressly pleaded that he “was a candidate at the election”. The Appellant satisfied the test laid down in Okonkwo’s case and well laid down and reviewed in P.P.A. v. Saraki (supra). In P.P.A. v. Saraki, it was decided that even a nominated candidate who did not participate in the election through unlawful exclusion has the locus standi to present a petition against the election. I will therefore not hesitate to hold that the Petitioner had the locus standi to present the petition; the 2nd issue is resolved in favour of the Appellant.
The fifth issue as formulated by the Appellant is whether the Tribunal had the jurisdiction to entertain the issue of qualification of the petitioner to contest in the Election under S.106 of the Constitution of Nigeria, 1999; when the petitioner was not the winner of the election sought to be questioned. In the appellant’s brief of argument it was submitted that the Tribunal should have looked into the substantive petition rather than the qualification of the petitioner. It was argued that a candidate at an election, who was not returned as winner, cannot be questioned as to his qualification to contest. It is outside the jurisdiction of the Election Tribunal to look into S.32(4) of the Electoral Act, in that, it confers the locus to challenge the qualification of a candidate to contest an election. It entitles the person challenging the information given in the affidavit to file a suit at the High Court; anything outside that should be by a person with locus standi to challenge the election at the Election Tribunal. Therefore if the Petitioner did not qualify in terms of age, citizenship and non-sponsoring by a political party, these ought to have been taken up in the appropriate High Court. Learned counsel in the alternative argued that even if these could be raised in the petition the Respondents should have challenged these in their replies to enable their resolution along with the petition, but instead were admitted by the respondents, as earlier highlighted in this judgment, that the petitioner was a candidate.
The learned counsel for the appellant highlighted the provision in S.106 of the 1999 Constitution and submitted that the Tribunal acted without jurisdiction in pronouncing on the qualification or non-qualification of the Appellant to contest the election.
In response to the fifth issue as formulated by the Appellant, but differently couched in the 3rd and 15th respondents’ fourth issue, it was submitted that the Appellant did not comply with Paragraph 4(1)(b) of the Electoral Act which must be read with S.106 of the 1999 Constitution which states the qualification for election as a member of the House of Assembly. It was argued that the Petition is salient on the Appellant’s sponsoring party, citizenship, age and educational qualification which was argued, are basic requirements for a valid petition. Reliance was placed on the case of Egolum v. Obasanjo (supra). It was argued that the Tribunal had no discretion in the matter than to strike out the petition for non-compliance.
In the Appellant’s reply brief it was argued that the Tribunal was wrong to have held that the Appellant was bound to have stated his qualification to contest election as stated in S.106 of the 1999 Constitution.
In agreeing with the learned appellant’s counsel, I am of the opinion that the question whether a candidate who contested in an election, who was not returned as a winner, is Qualified to contest election or not is outside the jurisdiction of the Tribunal. S. 32(4) clearly states conditions under which qualification could be challenged, earlier considered in this judgment.
S.32(4) of the Electoral Act 2006, provides:
“Any person who has reasonable grounds to believe that any information given by a candidate in the Affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the Affidavit is false.”
In the present case the Respondents acknowledged the fact that the Appellant was a candidate, the petitioner pleaded results of the election. S.106 of the 1999 Constitution gives the qualification for election as member into the house of assembly. The appellant who was a candidate is presumed to have satisfied the requirement in S.106, in other words, it is presumed that the Appellant fulfilled all the requirements of S.32(1) and (2) as he would not have been allowed to contest if he did not qualify. See Obasanjo v. Buhari (supra); P.P.A. v. Saraki (supra). The issue of qualification therefore is to be used as a weapon of offence and not a shield of defence as held in Senator Ibikunle Amosun v. INEC & 259 ors (supra) – It was also held in Amaechi v. INEC & 2ors – that “without a political party, a candidate cannot contest”, The Appellant having contested and admitted by the respondents, it is without doubt that he was sponsored by a political party as well as having met the other criteria before the election as regards age, citizenship and educational qualification.
I hold that the Tribunal was wrong to have gone into considering the qualification of the Petitioner and holding that the petition was incompetent because the Petitioner did not disclose his particulars, the petition was wrongly struck out for non-compliance. I therefore resolve the fifth issue in favour of the Appellant.
In the final analysis, I hold that this appeal succeeds. The Ruling of the Tribunal delivered on 25/10/07 striking out the appellant’s petition is hereby set aside; instead, the petition is remitted back to the Ogun State Governorship and Legislative Houses Election Petition Tribunal for speedy determination on its merits, considering the time lag.
The Appellant is awarded costs of N20,000.00 against the 3rd and 15th Respondents and N20,000.00 against 1st, 2nd, 4th-14th Respondents.
Cumulatively, N40,000.00 for this appeal.
Other Citations: (2008)LCN/3013(CA)
