BANKOLE TAIWO OLANREWAJU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & Ors
(2010)LCN/3736(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of April, 2010
CA/I/EPT/HA/19/08
RATIO
COURT: RECORDS OF COURT; WHETHER THE COURT CAN REFER TO THE RECORD OF APPEAL IN CONSIDERATION OF ANY MATTER BEFORE IT
It is the law that the Court can utilize its records and make use of information gathered therein in considering any issue or matter before it. In my recent decision in CA/I/EPT/NA/NA/91/08, Ajibola Israel Famurewa vs. Olugbenga Onigbogi & 334 Ors. at pages 27-28 (Unreported) delivered in this Court and Division on 16th April, 2010 I held thus:
“The law allows the court to look at the record in its possession and make use of the information.
See WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt.56) 299 AT 306. Similarly in the case of TEXACOO PARAMA INC. v. SPDC LTD. (2002) 5 NWLR (Pt.759) 209 AT 234, the Apex Court per Kalgo J.S.C. held that an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See also FUNDUK ENGINEERING CO. LTD. VS. MC ARTHUR (1995) 4 NWLR (Pt.392) 640. I am therefore empowered by the above Legal authorities to utilize the records of Court” PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: WHAT SHOULD A GROUND OF APPEAL BE RELATED TO
For a ground of appeal to be competent, it must be related to the decision appealed against and should challenge the ratio of the decision. PER CHIDI NWAOMA UWA, J.C.A.
ELECTION PETITION: WHO CAN INSTITUTE AN ELECTION PETITION
In a plethora of legal authorities of the appellate courts even a candidate who was validly nominated or a political party excluded in an election can present a petition. S. 145(1)(d) of the Electoral Act provides:-
“145(1) – An election may be questioned on any of the following grounds,
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
Sections 144(1) and 145(1)(d) of the Electoral Act, 2006 must therefore be read together to the intendment that a validly nominated candidate by a political party to contest in an election but unlawfully excluded, is a candidate under S. 144(1)(a) and has the locus standi to present an election petition. In my earlier judgment in CA/I/EPT/HA/23A&B/08 (supra) I held thus:-
“S. 144(1) must not be read in isolation, but with the provisions of S.145 (1)(d) of the Electoral Act, to the effect that even a validly nominated candidate by a political party to contest in an election but, unlawfully excluded, is a “candidate” under S. 144(1)(a) and has the “locus standi” to present an election petition, talk less the Appellant who by his pleadings in paragraphs 1 and 2 of his petition, admitted by the Respondents in Paragraph 2 of their joint reply that he participated in the election. See PPA. V. SARAKI (supra).” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
BANKOLE TAIWO OLANREWAJU Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE RESIDENT ELECTORAL COMMISSIONER RETURNING OFFICER, OGUN STATE
3. EMMANUEL SOYEMI COKER & 12 ORS. Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun State (hereafter called the Tribunal). The Ruling of the Tribunal was delivered on the 23rd day of October, 2007 whereupon the Tribunal upheld the Preliminary Objection of the 1st, 2nd, 4th to 14th Respondents and that of the 3rd and 15th Respondents, respectively. The Tribunal in its decision, struck out the petition of the Appellant as incompetent.
The background facts are that the Appellant herein contested as a candidate in the Election into the Ogun State House of Assembly seeking to represent the Odeda Constituency at the said Assembly in the Election held on 14th April, 2007. The 3rd Respondent and others were also candidates at the said election. The 3rd Respondent was credited with 13,092 number of votes while the Appellant’s votes were 5,985. The 3rd Respondent was returned as having been duly elected as the member, Ogun State House of Assembly representing Odeda State Constituency of Ogun State.
In the course of pre-trial, the 3rd Respondent moved a Notice of Preliminary Objection praying the court to strike out or dismiss the petition for want of jurisdiction. The Ruling is at pages 240 – 263 of the records. I will come to the grounds later.
Being dissatisfied with the decision, the Petitioner/Appellant lodged this appeal against same on the 13th day of November, 2007.
The Preliminary Objection which the Tribunal sustained to bring the petition to an end was dated and filed by the 3rd Respondent, on the 24th day of September, 2007 brought pursuant to Section 106 of the 1999 Constitution and paragraph 4 of the First Schedule to the Electoral Act, 2006.
The background facts are that the 3rd Respondent sought an order striking out and/or dismissing the petition for want of jurisdiction on the following grounds:-
“(1) The Petitioner did not specify his right to present the petition.
(2) The Petitioner failed to comply with the Provisions of Section 144(2) of the Electoral Act, 2006 by failing to properly join the individual Presiding Officers, Returning Officers and/or all other persons who took part in the conduct of the said election and who allegedly participated in the several electoral malpractices in the various polling units or wards in Odeda State Constituency of Ogun State (as pleaded by the Petitioner in the Petition herein).
(3) The aforementioned persons are necessary parties for the determination of this Petition.
(4) The Presiding Officers sued as parties to this Petition are merged or amalgamated together and not specified or pin – pointed to particular Polling Units).
(5) The provisions of Section 144(2) of the Electoral Act do not envisage joinder of persons whose titles are general in scope, purport and intendment or whose titles are nebulous and at large.
(6) The non-joinder of the said Presiding Officers/Persons strips this Honourable Tribunal of its requisite jurisdiction to entertain this petition.
(7) The Petition is incompetent and the Tribunal lacks jurisdiction.”
The above grounds can be found at pages 182-183 of the printed records. The application was opposed by the Appellant, then Petitioner.
The Notice of Preliminary Objection which was dated and filed on 24th September, 2007 was moved in the Course of pre-trial, the Preliminary Objection was upheld and the Petition struck out for being incompetent in the Ruling of the Tribunal that gave rise to this appeal.
In accordance with our rules of Court, the Electoral Act, 2006 and Court Practice Directions, 2007 the parties filed their respective briefs of argument. The Appellant’s Brief of Argument was dated 18th day of February, 2006 and filed on 19/2/08, but deemed as properly filed and served on 7/10/08 pursuant to a Court order. The 1st, 2nd, 4th -14th Respondents’ Brief of Argument was dated and filed on 8/10/08. The 3rd and 15th Respondents filed their Joint Brief of Argument dated 13th day of October, 2008 on the same day. On behalf of the 3rd and 15th Respondents there is also a Notice of Preliminary Objection dated 2/10/08 and filed on 3/10/08. The argument in respect of the preliminary objection was also embedded in the Brief of Argument filed on 13/10/08.
In response to the 3rd and 15th Respondents’ Brief of Argument in which the Preliminary Objection was once again raised and argued, the Appellant filed a Reply Brief dated 31/10/08 and filed on 3/11/08 in which he responded to the Preliminary Objection and the main appeal.
On 27/1/10 when this appeal came up for hearing, the learned counsel to the 3rd and 15th Respondents drew our attention to their Preliminary Objection, in which an order of this court was sought to strike out grounds 1 and 3 in the Appellant’s Notice of Appeal and issue two, as distilled by the Appellant. It was submitted that the objection was argued in the brief of argument filed by the 3rd and 15th Respondents. The argument at page 3 of the said brief was adopted and relied upon in which we were urged to strike out Grounds 1 and 3 in the Appellant’s Notice of Appeal and issue 2 in the Appellant’s Brief of Argument.
In response, Mr. Yesufa on behalf of the Appellant argued that there is no proper Notice of Preliminary Objection in that the one relied upon did not comply with Order 10 Rule 1 of the Rules of this Court in that the purported objection was filed on 3/10/08 while the Appellant’s Brief of Argument the objection seeks to attack was deemed filed on 7/10/08, four days before the brief was filed, and that there was no brief when the Notice of Preliminary Objection was filed. Mr. Yesufa submitted that he responded to the objection in his reply brief filed on 3/11/08, in paragraphs 29 and 30 of the said brief.
The Appellant has objected to the Preliminary Objection on the basis that it did not comply with Order 10 Rule 1 of the Rules of this Court and secondly that it pre-dates the Appellant’s Brief dated 19/2/08, deemed properly filed on 7/10/08, while the Notice was filed on 3/10/08. It is the law that the Court can utilize its records and make use of information gathered therein in considering any issue or matter before it. In my recent decision in CA/I/EPT/NA/NA/91/08, Ajibola Israel Famurewa vs. Olugbenga Onigbogi & 334 Ors. at pages 27-28 (Unreported) delivered in this Court and Division on 16th April, 2010 I held thus:
“The law allows the court to look at the record in its possession and make use of the information.
See WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt.56) 299 AT 306. Similarly in the case of TEXACOO PARAMA INC. v. SPDC LTD. (2002) 5 NWLR (Pt.759) 209 AT 234, the Apex Court per Kalgo J.S.C. held that an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See also FUNDUK ENGINEERING CO. LTD. VS. MC ARTHUR (1995) 4 NWLR (Pt.392) 640. I am therefore empowered by the above Legal authorities to utilize the records of Court”
I would take it that the records in the Court’s possession include all previously filed processes, which includes those withdrawn and/or struck out. On this note, it is my observation that the Appellant’s Brief on the basis of which this appeal was argued was filed on 19/2/08 to which the 3rd and 15th Respondents responded to by promptly filing their original brief of argument on 29/2/08, in which the preliminary objection was incorporated.
The Appellant in reaction filed his original reply brief on 16/9/08 in which he responded fully to the preliminary objection.
The 3rd and 15th Respondents thereafter filed a formal Notice of Preliminary objection dated 2/10/08, filed on 3/10/08 with the grounds in support of same.
From the court’s records/case file the Appellant’s brief of argument dated 19/2/08 was regularized and deemed as properly filed on 7/10/08, the application was filed same day as the brief of argument, 19/2/08, moved and granted on 7/10/08.
On 27/1/10 when this appeal came up for hearing, 3rd and 15th Respondents withdrew their brief of argument dated 28/2/08 filed on 29/2/08, same was struck out. Similarly the Appellant withdrew his reply brief dated 13/6/08, filed on 16/9/08, same was also struck out.
Now, following the regularization of the Appellant’s brief of argument on 7/10/08, the 1st, 2nd, 4th – 14th Respondents filed their joint brief of argument on 8/10/08 dated same day. In the same vein the 3rd and 15th Respondents filed their joint brief of argument on 13/10/08 dated same day.
Thereafter, the Appellant filed his reply brief on 3/11/08 dated 31/10/08, which is identical to the one withdrawn on the date this appeal was argued, but the 3rd and 15th Respondents did not withdraw their original Notice of Preliminary Objection separately filed on 3/10/08 which now predated the Appellant’s brief of argument regularized on 7/10/08, as rightly argued by the learned counsel to the Appellant. The 3rd and 15th Respondents ought to have re-filed their Notice of Preliminary objection, this, learned counsel over-looked and failed to do. I would term it inadvertence of counsel. This is as a result of many processes being filed and withdrawn and re-filing by both parties. All the same, the Notice of Preliminary Objection and the grounds cannot pre-date the Appellant’s brief of argument. I agree with learned Appellant’s counsel in holding that the said Notice dated 2/10/08, filed on 3/10/08 is incompetent, and same is hereby struck out.
But, the 3rd and 15th Respondents raised the same Preliminary Objection in their joint brief of argument filed on 13/10/08 dated same day at page 3 of the brief and argued fully. I have also observed that the Appellant in his reply brief filed on 3/11/08 dated 31/10/08 fully to the preliminary objection. I would and do hold therefore that the objection incorporated in the Respondent’s brief of argument and adequately responded to and admitted by the learned Appellant’s counsel before the arguments on the objection to the objection the preliminary objection and before the appeal was argued, is proper.
Learned counsel had submitted that he did so in paragraphs 29 and 30 of his reply brief. Learned counsel to the Appellant cannot now rightly complain of the objection not being properly raised.
The Appellant’s objection to the preliminary objection is therefore overruled; I will now look into the merits of the Preliminary Objection proper.
Order 10 Rule 1 of the Court of Appeal Rules, 2007 provides as follows:-
Order 10 Rule 1:
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal, shall give the Appellant three (3) clear days Notice thereof before the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
From the above provision, at least three clear days Notice is required to be given to the other party before the hearing.
The Appellant’s Brief was deemed properly filed on 7/10/08. The 3rd and 15th Respondent’s Brief was filed on 13/10/08 in which the objection was fully argued. The Appellant filed his reply brief on 3/11/08 and responded adequately to the preliminary objection, the learned Appellant’s counsel also made submissions confirming his response when the appeal came up for hearing, with the objection to the preliminary objection, and the preliminary objection proper which were argued before the main appeal.
The essence of Order 10 Rule 1 is to give the other party adequate Notice to respond to the objection, which in my considered view has been given to the Appellant, three weeks, between the filing of the 3rd and 15th Respondent’s Brief of Argument and the filing of the Appellant’s reply brief in which his response was incorporated.
The preliminary objection having been incorporated and argued in the joint brief of the 3rd and 15th Respondents, it is proper and cannot be said to be incompetent. The Appellant has also equally responded to it in his reply brief and was therefore not taken by surprise which is what Order 10 Rule 1 is guarding against.
The filing of a separate Notice of Preliminary Objection is superfluous where same has been incorporated into the Respondent’s brief as in this case and I so hold. See our recent decision in this division in CA/I/EPT/NA/91/08 in Ajibola Israel Famurewa v. Olugbenga Onigbogi & 334 Ors delivered on 16/4/2010 (unreported) where no Notice of Preliminary Objection was filed at all, but incorporated in the Respondent’s brief and was held to be proper, where the objector had adequate Notice to respond and did so. The resultant effect is that the question of the Notice of the Preliminary Objection being filed before the Appellant’s brief was regularized does not now arise, as same has been overtaken by events.
I therefore overrule the objection to the preliminary objection and take it that same has been properly incorporated in the joint brief of the 3rd and 15th Respondents.
With the preliminary objection, it was submitted on behalf of the 3rd and 15th Respondents that in the Ruling of the Tribunal of 29/9/07 on the priority of applications that arose in Course of hearing, the Tribunal held that the Preliminary Objection of the 3rd and 15th Respondents would be heard first and that the decision to hear their Preliminary Objection first was not appealed against.
It was submitted that the appeal in this matter is against the Ruling of the Tribunal on the 3rd and 15th Respondent’s objection argued on 15/10/07 in which Ruling was delivered on 23/10/07, subject of this appeal; reference was made to the Notice of Appeal. It was argued further that Grounds 1 and 3 in the Appellant’s Notice of Appeal are incompetent in that they purport to challenge the decision on priority of applications. It was submitted that not having appealed on the issue of priority, issue two of the Appellant’s brief of argument is incompetent and should be struck out. Also that in the same issue two, the validity or otherwise of the 3rd and 15th Respondent’s reply was challenged, which did not arise since the Tribunal did not take any decision on the issue of competence or otherwise of the Respondent’s reply in the Ruling being appealed against. We were urged to strike out issue two in the Appellant’s brief of argument.
From the printed records of Appeal and the submission of the learned counsel to the 3rd and 15th Respondents the Notice of Appeal (pages 264 – 279 of the Records) dated 11/11/07, filed on 13/11/07 is against the decision of the Tribunal given in its Ruling of 23/10/97 on the 3rd and 15th Respondent’s Preliminary Objection argued on 15/10/07. Meanwhile, as rightly argued by the learned counsel, grounds 1 and 3 of the said Notice of Appeal challenged the Tribunal’s decision on priority of applications which the Tribunal had earlier ruled on, precisely on 29/9/07. From the Notice of Appeal, the decision of 29/9/07 did not form part of the grounds of appeal; therefore making the earlier ruling part of this appeal is improper.
For a ground of appeal to be competent, it must be related to the decision appealed against and should challenge the ratio of the decision.
Learned counsel cannot challenge a different decision that did not form part of the one now on appeal. On this note, I uphold the Preliminary Objection of the 3rd and 15th Respondents. In effect, grounds 1 and 3 of the Notice of Appeal are incompetent, together with the Appellant’s issues 1 and 2 formulated therefrom.
In any case, the learned counsel to the Appellant has in paragraph 30 of his reply brief where he responded to the Preliminary Objection, conceded to the preliminary objection. The learned counsel submitted that if issues 1 and 3 as formulated in the 3rd and 15th Respondents’ brief are resolved in their favour, that their issue 2 and the Appellant’s issues 3, 4, and 5 are enough to sustain his appeal and he should still succeed.
The resultant effect is, I hold that Grounds 1 and 3 of the Notice of Appeal are incompetent and are hereby struck out along with the Appellant’s issues 1 and 2.
On the merit of the main appeal, the learned Appellant’s counsel A. A. Yesufa Esq. adopted and relied upon his Brief of Argument and Reply Brief, details of which were earlier given in this judgment. There were originally eight grounds of appeal from which eight issues were distilled. In upholding the preliminary objection Grounds 1 and 3 of the Notice of appeal were struck out with issues 1 and 2 formulated therefrom, leaving issues 3, 4, 5, 6, 7 and 8 to be determined in this appeal. The issues are reproduced hereunder for ease of reference. They are:-
“(3) 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. (Ground 2)
(4) WHETHER in the light of the provisions of Sections 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. (Ground 6) (5) WHETHER the Tribunal had not denied the Appellant.
The right to fair hearing by striking out the Petition on technical grounds, without allowing the Appellant to prove his case on the merit as enjoined by binding appellate judicial decisions that as far as Possible, the election petitions must be determined on the merit except in cases of fundamentally incurable defects or incompetence.
(6) WHETHER it is a requirement of paragraph 4(1)(a) and (b) of the First Schedule to the Electoral Act, 2006 that a Petitioner must plead his age, nationality, membership and sponsorship of a political party in order to make his petition as a candidate in an election competent, notwithstanding that no request for such further particulars was sought by respondents to the petition. (Ground 4)
(7) WHETHER in the light of the provisions of Section 144(2) of the Electoral Act, 2006 the Justices of the Tribunal were not wrong to have struck out paragraphs 14, 15 and 2S of the Petition and Subsequently striking out the names of the 5th – 14th Respondents on the ground of mis joinder, notwithstanding that the Independent National Electoral Commission is made a party. (Ground 7)
(8) 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 5)”
On the part of the 1st, 2nd, 4th to 14th Respondents, three (3) issues were formulated: They are:-
“(1) Whether the Learned Trial Judges of the Election Tribunal were right to have entertained the Preliminary Objection filed and brought by the 3rd Respondent and in so doing upheld that it was not too late in the day for the 3rd Respondent to have raised same.
(2) Whether the Learned Trial Judges were right in upholding that the Petition brought and filed by the Petitioner was incompetent for failure of the Petitioner to specify his right to present the Petition in accordance with paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2006.
(3) Whether the Learned Trial Judges were right in upholding that by virtue of Section 144(2) of the Electoral Act, 2006 the lumping, merger or joining together of all various presiding officers and returning officers in all the polling units in each of the electoral wards by the Petitioner in his Petition was improper and incompetent and thereby struck out paragraphs 14, 15 and 25 of the Petition and subsequently striking out the names of the 5th – 14th Respondents from the Petition on the ground of mis joinder.”
While the 3rd and 15th Respondents formulated three (3) issues for determination of this appeal. The issues are as follows:-
“(i) Whether (pursuant to paragraph 49(2) of the First Schedule of Electoral Act, 2006) the Respondents’ objection was taken within reasonable time.
(ii) Whether the Petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same?
(iii) Whether the Tribunal properly struck out paragraphs 14, 15 and 25 of the Petition and the names of the 5th – 14th Respondents.”
The learned Appellant’s counsel argued his issues one, two and three together. Having struck out issues one and two, I will therefore decipher the submissions made in respect of issue three only. In respect of the Appellant’s issue three, it was submitted that the complaint of the Respondents in their motion 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 the Respondents that the Petitioner was a candidate at the election 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 admittedly a candidate at the election, reliance was placed on Paragraph 17(1) and (2) of the First Schedule to the Electoral Act, 2006. It was argued further that by the admission of the Respondents in their replies that the Petitioner was a candidate at the election, therefore that the issue of the candidature of the petition at the election, his age, nationality and political party that sponsored him cannot be a jurisdictional issue which respondents could raise at any time. It was contended that Paragraph 17(1) of the First Schedule to the Act should have availed the Respondents, if particulars of the pleaded facts were sought for. It was submitted that the issue of the Petitioner’s candidature and the competence of the Petition should have been resolved at a full trial and not through a preliminary objection; the following cases were cited and relied upon; WOHEREM V. EMEREUWA (2004) 13 NWLR PART 890 PAGE 398 at 419; BUHARI V. YUSUF (2003) 14 NWLR PART 841 SC 446 at 505.
We were urged to resolve issue three in favour of the Appellant.
The Appellant’s issues 4 and 5 were argued together.
It was submitted that Section 144(1) of the Electoral Act, 2006 clearly set out persons who may present an election petition. It was submitted that the Tribunal was bound by earlier decisions of this Court where the equivalent of Section 144(1) and Section 145(1)(d) of the Electoral Act, 2006 was interpreted, that is Section 133(1) and 134(1)(c)(d) of the Electoral Act, 2002. The following cases were relied upon; ACME BUILDERS LTD. V. KADUNA STATE WATER BOARD & ANOR. (1999) 2 NWLR PART 590 SC 288 AT 313 PARAGRAPHS D – E; WILSON V. A.G. BENDEL STATE & ORS. (1985) 1 NWLR (Pt.4) SC 572 at 605 PARAGRAPHS F – G.
It was the contention of learned counsel that a petitioner who has pleaded that he was a candidate at an election has disclosed sufficient locus standi to present an election petition. See UBA V. UKACHUKWU (2003) 10 NWLR. (Pt.881) 224 AT 255. Also the cases of WAZIRI V. DAMBAJI (1999) NWLR (Pt.598) CA, 239 at 246 – 247 RIMI V. INEC (2004) ALL FWLR (Pt.210) PAGE 1312, and more recently PPA V. SARAKI (2007)17 NWLR (Pt.1064) PAGE 453 at 499.
It was submitted that the basis upon which the Tribunal determined that the Petitioner had no locus standi is grossly erroneous, that is, nondisclosure of his age, nationality and sponsoring party. Other cases relied upon are EGOLUM V. OBASANJO (1999) 7 NWLR (Pt.611) 355; A.G. ABIA V. A.G. FEDERATION (2002) 6 NWLR (Pt.763) 264; OBASANJO V. YUSUF (2004) 9 NWLR (Pt.877)144 at 222, and OMOBORIOWO V. AJASIN (1984) NSCC VOL.15 81 AT 101. It was contended that the Appellant was shut out prematurely from proving his case as Petitioner, more so having been a candidate that participated in the election. We were urged to resolve issues 4 and 5 in favour of the Appellant.
Issues 6 and 8 were argued together by the learned counsel to the Appellant. It was argued that the issue of jurisdiction was provided for in Sections 144 and 145 of the Electoral Act, 2006, and also Section 285 of the 1999 Constitution of the Federal Republic of Nigeria. On the other hand that the question whether a candidate at an election, not being the one returned as winner is qualified to contest, is outside the jurisdiction of an Election Tribunal as provided for in Section 32(4) of the Electoral Act. It was further argued that if the Appellant did not qualify as to age, nationality and Political party sponsorship to contest the election, It should have been challenged before the appropriate High Court. It is the contention of the learned counsel to the Appellant that the fact that the Appellant contested in the election in question, is enough for the Tribunal to presume that he has fulfilled all the requirements of Section 32(1) and (2) of the Electoral Act, 2006. See OBASANJO V. BUHARI (2003) 17 NWLR (Pt.850) 510 at 563 paragraphs B – C and at 584 – 585, and BUHARI V. YUSUF (supra) at 505 paragraphs B – F.
We were urged to hold that the Tribunal acted without jurisdiction in pronouncing on the qualification of the 1st Petitioner to contest the election. We were urged to resolve these two issues in favour of the Appellant.
On the 7th issue formulated by the Appellant, it was submitted that the proviso to section 144(2) of the Electoral Act, 2006 is to limit or exclude the operation of the rule that allegations against the conduct of an electoral official who is not joined as respondent is incompetent, where the Independent National Electoral Commission is made a respondent. It was argued that failure to join an electoral official in a petition will not disentitle the Petitioner to prove the allegations; unlike previously, in which OBASANJO v. BUHARI (supra) would have been applicable in respect of 2002, Electoral Act. It was submitted that S.144(2) of the Act incorporated the common law principle that no agent of a disclosed principle need be joined in an action which could be pursued against the principle. See NIGER PROGRESS LTD. V. N.E.L. CORP (1989) 3 NWLR (Pt.107) 68 at 84.
Further that the Tribunal was wrong to have struck out paragraphs 14, 15 and 25 of the petition and striking out the names of the 5th -14th Respondents on the ground of misjoinder where the Independent National Electoral Commission is made a party. We were urged to resolve this Issue in favour of the Appellant.
I had earlier on in this judgment reproduced the three issues as formulated by the 1st, 2nd, 4th to 14th Respondents in response to those of the Appellant. Having earlier in this judgment struck out the Appellant’s grounds one (1) and three (3) as well as his issues one (1) and two (2), the arguments in their respect will no longer be relevant, therefore will not be reviewed. In respect of their issue one, Mr. Balogun in their joint brief of argument submitted that the issue of jurisdiction can be raised at any stage or time of the proceedings and once raised by a party must be determined first before the Court or Tribunal can proceed further, reliance was placed on the case of ABDULSALAM V. SALAWU (2002) 13 NWLR (Pt.785) 505. Paragraph 49(2) OF THE ELECTORAL ACT 2006 was also relied upon.
It was contended that what was challenged by the 3rd Respondent in their preliminary objection was the competency or capacity of the Petitioner to bring the petition, which borders on jurisdiction, where the locus standi of the Petitioner was challenged.
Further, that the issue of locus standi being jurisdictional, it is immaterial when it is raised, see BUHARI V. OBASANJO (2003) 17 NWLR (Pt.850) 423 and MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587.
It was argued that the objection was timeously brought at the pretrial conference stage of the proceedings when no hearing had commenced nor any evidence taken from any of the parties. The case of BABA BICHI V. HALADU & ORS (2003) 14 NWLR (PT.481). 645 was relied upon as to the time to raise an objection.
In respect of their second issue, it was submitted by the learned counsel to the 1st, 2nd, 4th -14th Respondents that the Appellant as Petitioner did not in his entire petition specify any of the registered political parties that he belongs to and which party had sponsored him in the election. Reference was made to PARAGRAPH 4(1)(b) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT, 2006 and SECTION 106 OF THE 1999 CONSTITUTION. It was argued that Tribunal could not speculate as to which political party the Petitioner belonged to. On speculation reliance was placed on the case of SEISMOGRAPH V. OGBENI (1976) ALL NLR 164.
It was submitted that the Appellant did not state his citizenship, his age and educational qualification as basis to contest the election, and that this defect is fatal and goes to the root of the petition and renders it totally incompetent. The case of EGOLUM V. OBASANJO (1999) 5 SC (PT. 1) P.1 was relied upon. Further, that the word “shall” used in S. 106 of the 1999 Constitution and S. 4(1)(b) of the Electoral Act, 2006 are mandatory, and that the Tribunal was right in carrying out its specific meaning. See OLOWOKERE V. AFRICAN NEWSPAPERS OF NIGERIA LTD. & 2 ORS (1993) 5 NWLR (pt.295) 583 AT P.586 and CHUKUKA V. EZULIKE (1986) 5 NWLR (pt.45) 892.
It was argued further that the Tribunal had no jurisdiction to hear the matter, since the Petitioner/Appellant did not show his locus standi in the matter, lack of which terminated the matter. See DADA V. OGUNSANYA 1992 3 NWLR PT. 232 754 AT 771 MADUKOLU V. NKEMDILIM (SUPRA) and BUSARI V. OSENI (1992) 4 NWLR (PT. 23) 557 AT 585. In Busari’s case, the term “locus standi” was defined.
It was submitted by learned counsel that once it has been established that a party has no locus standi, the court has no jurisdiction to entertain the matter and must strike out the case. See NWANKWO V. NWANKWO (1992) 4 NWLR. (PT 238) 693, and FAWEHINMI V. AKILU (1987) 4 NWLR (PT. 67) 797 cited and relied upon.
On this point, it was further argued that since the Petitioner lacked the locus standi to file the petition, the Tribunal lacked the jurisdiction to entertain same, see OLORIODE V. OYEBE (1984) 5 SC 1 at 28.
Reference was made to page 13, that the Appellant as Petitioner did not state the political party he belonged to and that sponsored him, merely showing that he was a candidate at the election was not conclusive of ascertaining his locus standi in the election and that the Tribunal was right in holding so in its ruling of 23/10/07, and striking out the petition for lack of jurisdiction to entertain same. See SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) 387 AT 442 cited and relied upon.
On their third and last issue, the learned counsel submitted that all the presiding officers were lumped together even though they operated in different polling units in each of the 10 (ten) Wards of Odeda State Constituency instead of listing them individually. Further, that the 1st, 2nd and 4th Respondents were joined in the petition but failed to plead expressly in his petition that they were agents of the 1st Respondent (INEC) by virtue of S. 144(2) of the Electoral Act, 2006.
It was the argument of the learned counsel that the Appellant never expressly pleaded that the 5th to 14th Respondents were agents of INEC, it should have been pleaded or shown that the above officers were agents of INEC, failure of which was fatal to the petition, see ONYEIZO V. OJIAKOR (2000) 6 NWLR (PT. 689) 25; UZODINMA V. UDENWA (2004) 1 NWLR (PT. 854) 303; CHUKWOGOR V. CHUKWOGOR (2007) ALL FWLR (PT. 349) (No page was supplied by Counsel). It was submitted that the presiding officers in the various polling units in each of the 10 wards of the Odeda Constituency should have been listed individually in their official capacity which was fatal to the Appellant’s case, see NNACHI V. IBOM & ORS (2004) 16 NWLR (Pt.900) 614 at 632 and BUHARI V. YUSUF (2003) 14 NWLR (PT. 841) (No page was supplied by counsel).
It was argued further that not joining the presiding and returning officers as necessary officers (parties) who ought to have been joined in the petition, the non-joinder rendered the petition incompetent, see LAMIDO V.TURAKI (1999) 4 NWLR (PT. 600) 578 were cited and relied upon.
Finally, it was submitted that the Tribunal was right to have struck out paragraphs 14, 15 and 25 of the petition and subsequently striking out the names of the 5th – 14th Respondents on the ground of mis joinder. We were urged to uphold same and dismiss the appeal.
On behalf of the 3rd and 15th Respondents, in their joint brief of argument, I will only review the arguments put forward in respect of the Appellants surviving grounds of appeal and issues formulated therefrom, as done with the Appellant and the 1st set of Respondents in this case, touching on the Appellant’s issue 3.
The relevant part of the 3rd and 15th Respondent’s first issue is on the issue of locus standi the Submissions see pages 10-11 of their joint brief of argument.
Basically, the argument is to the effect that the Appellant’s failure to comply with the mandatory provisions of S. 106 of the Constitution, S. 144 of the Electoral Act and paragraph 4(1)(b) of the 1st Schedule robbed him of the standing to institute the petition, and that the Tribunal had no jurisdiction to entertain the matter. Reliance was placed on the cases of OLORIODE V. OYEBI (1984) 5 SC P.1 and RTEAN V. NURTW (1992) 2 NWLR P. 381 AT 391. We were urged to hold that the objection of the Respondents goes to the jurisdiction of the Court and not insufficiency of particulars as argued by the Appellant.
In the submissions of learned Counsel, the 3rd and 15th Respondent’s second issue covers the Appellant’s issues 4 & 5 and 6 & 8 as argued respectively and their 3rd issue covered the Appellant’s issue 7.
Their second issue is whether the Petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same? It was argued that the Appellant did not comply with paragraph 4(1)(b) and (d) of the First Schedule to the Electoral Act, 2006 for failure to specify the right of the Appellant to present the petition, also non-compliance with S. 106 of the Constitution and S. 144 of the Electoral Act as also argued in their issue one above.
Further that the Appellant’s pleadings did not disclose the essential ingredients of an enforceable right in an election petition as required by law. It was submitted that all the requirements in S. 106 and Paragraph 4(1)(b) above must be pleaded, failing which the petition is incompetent.
The learned counsel contended that the Tribunal was right in its ruling when it held that the Appellant failed to specify his right to present the petition on the account of his failure to plead his political party, in compliance with the Schedule to the Act, the case of EGOLUM V. OBASANJO (supra) was relied upon. It was argued that in the present case the decisions of this Court that held that it was enough for the Petitioner to have pleaded that “he was a candidate at the election” are not applicable. The following cases were referred to, UBA V. UKACHUKWU (2004)10 NWLR (PT.881) P. 224; WAZIRI V. DABOYI (1999) 1 NWLR P. 239; PPA V. SARAKI (2007) 17 NWLR PT. 1064, PAGE 453; A.G. ABIA V. A.G. FEDERATION (2002) 6 NWLR PT. 763 AT 264; OBASANJO V. YUSUF (2004) 9 NWLR PT. 877 P. 144 AT 222 and OMOBORIOWO V. AJASIN (1984). NSCC VOL. 15, 81 AT 101.
All the above decisions were reviewed by learned counsel in arguing that the cases cited by the learned Appellant’s counsel are not applicable in the determination of the issues before the Court.
On their third and last issue, whether the Tribunal properly struck out paragraphs 14, 15 and 25 of the petition and the names of the 5th-14th Respondents, it was submitted by the learned counsel that presiding officers and other electoral officers under the Electoral Act are responsible for their actions and it is because of this responsibility that they are made statutory respondents pursuant to S. 144(2) of the Electoral Act. It was argued that it would not be sufficient to simply add INEC as a party to an election petition. Further, that S. 144(2) requires that “such officer is shown to have acted as an agent of the Commission”.
On the authority of NWANKWO V. YAR’ ADUA (citation not supplied by counsel), we were urged to hold that the Tribunal acted properly in striking out the paragraphs which the Respondents complained about.
The Appellant’s reply brief challenged the 3rd and the 15th Respondent’s argument as to their stand on who has locus standi to present an election petition and distinguished the provisions of S. 106 of the Constitution as concerning “qualifications for elections” whereas the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2006, is in respect of the specification of the Petitioner’s right to present the election petition. It was argued on the authority of PPA V. SARAKI (supra) that Sections 144(1) and 145(1)(d) of the Electoral Act, 2006 must be read together to the effect that a validly nominated candidate has the ‘locus standi’ to present an election petition. The above decision as reviewed by the learned counsel distinguished the case of EGOLUM V. OBASANJO (supra) in that the Appellant that Appealed “was not a candidate. Learned counsel defined “locus standi” as interpreted by the apex court in the case of INAKOJU V. ADELEKE (2007) All FWLR (PT. 353) 3, 96-97. Further, that it was improper for the Tribunal not to have followed the decisions of superior courts; in PPA V. SARAKI (supra) and IBIKUNLE V. AMOSUN V. INEC & 259 ORS IN CA/I/EPT/GOV/10/2007 delivered on 13/3/08, Amosun’s case was reviewed.
The learned counsel in his final submission, contended that since the only issue that touches on the competence of the petition or on the jurisdiction of the Tribunal that the resolution of same would be enough to dispose of the appeal on the issue of “locus standi” and that the court would not be under any obligation to consider other issues raised in the briefs of the parties and same would not amount to denial of fair hearing nor occasion a miscarriage of justice. The following cases were relied upon; 7UP BOTTLING CO. V. ABISOLA LTD. (2001) 13 NWLR (Pt.730) 469, 493,494, 514 AND 516; ANYADUBA V. N.R.T.C. LTD. (1992) 5 NWLR (PT. 243) 535, 564; ISHAGA BAMAIYI V. STATE (2001) 8 NWLR (PT. 715) 270, 285,286, 294,295.
Finally, that even if the Respondent’s issues 1 and 3 are resolved in their favour, that the resolution of their issue 2 and the Appellant’s issues 3, 4 and 5, the appeal should still succeed. The two sets of Respondent’s first issues are irrelevant for the determination of this appeal having struck out the Appellant’s issues 1 and 2 as not arising for determination in the present appeal. I also strike out issue one in the two sets of Respondents brief of argument.
The Appellant’s issues 3, 4, 5, 6 and 8 are inter-related and correspond with the two sets of Respondent’s second issues in their respective briefs of argument, as distilled from the grounds of Appeal. The Tribunal struck out the entire Petition at the Pre-trial stage following the preliminary objection in which his locus standi to file the Petition was challenged. Locus standi has been defined to mean interest in a suit. See INAKOJU V. ADELEKE (2007) ALL FWLR (PT.353) 96-97. In other words the Appellant’s capacity or right to bring/file the Petition was challenged, which was upheld by the Tribunal. It is therefore important to resolve this issue before going into any other one if need be, I would in doing so merge the Appellant’s issues 3, 4, 5, 6 and 8 with the two sets of Respondent’s issue two. The question to be determined first is; whether the Appellant as Petitioner pleaded enough material facts in his petition to establish his locus standi to have vested the Tribunal with jurisdiction to entertain the petition?
The issue of locus standi to present an election is statutorily provided for by s. 144(1) of the Electoral Act, 2006, which provides as follows:-
“144(1) –
(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 above provision is crystal, clear and unambiguous that a candidate who participated in an election, a political party which participated in the election or both. “One or more” above means both candidate and political party or one of them.
The provision therefore empowers a candidate who participated in the election to air his complaint at the Election Petition Tribunal if he is not satisfied with the outcome of the election in which he participated in.
There are legions of authorities in support. S.133(1) of the 2002, Electoral Act, which is in pari materia with S. 144(1) of the 2006, Electoral Act was followed in OKONKWOV. NGIGE. (2006)8 NWLR (PT.981) 119 AT 136 where the above section was well clarified. Similarly in UBA V. UKACHUKWU (2004) 10 NWLR (PT. 881) 224, WAZIRI V. DAMSOYI (1999) NWLR (PT.598) 239 AT 246-247, RIMI V. INEC 2004 All FWLR PT. 210P. 1312 AT 1321-1322 PARAGRAPHS 3-C, P.P.A.V. SARAKI (2007)17 NWLR (Pt.1064) P. 453 AT 499 and more recently, decisions of this Court and Division in RAFIU V. INEC delivered on 11/12/08. From the above legal authorities, the Courts have been consistent in their decisions that, once a Petitioner pleads that he was a candidate at the election, it is enough proof of his locus standi or has enough interest to challenge the election by filing an election petition which is exactly what the Appellant as Petitioner did.
Paragraph 4(1) of the First Schedule to the Electoral Act, 2006 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.”
At page 13 of the printed records, paragraphs 1 and 2 of the Petition states:
“1.Your Petitioner, Bankole Taiwo Ganiu 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.
2. Your Petitioner herein states that the election was held on 14th April, 2007 when he Bankole Taiwo Ganiu and Emmanuel Soyemi Coker together with others were candidates at the said election. Emmanuel Soyemi Coker was credited with 13,092 number of votes as against Bankole Taiwo. Ganiu 5,985 with Emmanuel Soyemi Coker. being returned as having been duly elected as member, Ogun State House of Assembly representing Odeda State Constituency of Ogun State of Nigeria.”
In Paragraph one of the Appellant’s petition, he made it clear that he was a candidate at the election he is challenging. In paragraph 2, he gave the scores, his as 5,985 and the 3rd Respondent’s score as 13,092 with which he was returned as having been duly elected as member of the Ogun State House of Assembly.
In the reply to the petition of the 3rd and 15th Respondents, at page 46 of the printed records, paragraph 2 reads as follows:-
“2. Further and in the alternative, these Respondents admit paragraph 1 of the petition, only to the extent that the Petitioner was a candidate at the said election but deny that the Petitioner had the right to be returned or elected at the said election.”
From all of the above, it is clear that from S. 144(1) of the Electoral Act, 2006 read with Paragraph 4(1) of the First Schedule to the Act, the Petitioner had the locus standi to have filed his petition having been a candidate in the challenged election, which the 3rd and 15th Respondents also acknowledged in their reply that he was a candidate. In paragraph 2 of the Petition the scores of the Appellant and the 3rd Respondent who was returned were given, this was not disputed by the Respondents. Can it then be rightly said that the Appellant did not specify his right to present the petition as argued by the two sets of Respondents and as held by the Tribunal, that he had no locus standi to present the Petition? I would certainly say in my considered opinion with due respect that it is erroneous of learned counsel to the Respondents to argue along those lines and for the Tribunal to have upheld such argument and striking out the petition on these basis and I so hold.
In a plethora of legal authorities of the appellate courts even a candidate who was validly nominated or a political party excluded in an election can present a petition. S. 145(1)(d) of the Electoral Act provides:-
“145(1) – An election may be questioned on any of the following grounds,
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
Sections 144(1) and 145(1)(d) of the Electoral Act, 2006 must therefore be read together to the intendment that a validly nominated candidate by a political party to contest in an election but unlawfully excluded, is a candidate under S. 144(1)(a) and has the locus standi to present an election petition. In my earlier judgment in CA/I/EPT/HA/23A&B/08 (supra) I held thus:-
“S. 144(1) must not be read in isolation, but with the provisions of S.145 (1)(d) of the Electoral Act, to the effect that even a validly nominated candidate by a political party to contest in an election but, unlawfully excluded, is a “candidate” under S. 144(1)(a) and has the “locus standi” to present an election petition, talk less the Appellant who by his pleadings in paragraphs 1 and 2 of his petition, admitted by the Respondents in Paragraph 2 of their joint reply that he participated in the election. See PPA. V. SARAKI (supra).”
The situation in the present case is on all fours with the above case and I will not deviate from that view, backed up by the doctrine of stare decisis, I am also bound by previous decisions of the appellate courts on this issue as doing otherwise would be judicial impertinence or affront. I would hate to do that and would respect the long-standing respect for judicial hierarchy.
On this note and in agreement with the learned Appellant’s counsel, having held that the Appellant was a candidate in the election being challenged, having also pleaded that he was a candidate I reiterate that he has disclosed sufficient locus standi to present an election petition and I so hold. See UBA V. UKACHUKWU (supra), and PPA. V. SARAKI (supra). Therefore, the Tribunal was wrong to hold that the Appellant did not disclose in his pleadings the name of the party that sponsored him, his age and nationality to determine his locus standi. In PPA. V. SARAKI (supra), it was held that an excluded candidate had the locus standi to challenge the election. The question is: without a political party, can a candidate contest an election with the present state of our laws, Electoral Act and Constitution? No, he cannot. Without doubt, the Appellant was sponsored by a political party and met all other requirements prior to the election as regards age, citizenship and education qualification and I so hold. In the instant case, the Petitioner not only participated, scores were credited to him and he pleaded same in his petition, there was nothing more required. The decision in the case of EGOLUM V. OBASANJO (SUPRA) relied upon by the learned counsel to the two sets of Respondents and the Tribunal can be distinguished from the present case, in that in the above case: the Petitioner therein was adjudge not to have disclosed locus standi never pleaded that he was a candidate at the election. He pleaded thus:-
“He had a right to contest the presidential election.”
He merely stated that he had a right to contest the presidential election and stopped there, and did not categorically state or allege that he was a candidate in the election. Having a right to contest cannot mean and be the same as being a candidate in an election. Hence, the Supreme Court per Achike J.S.C. in the above case held thus:
“In my opinion, it will be palpably erroneous for me to subscribe to the view that the appellant has locus standi to question an election result by merely stating as the appellant did in paragraph 1 of his petition that she is a person who had a right to contest at the election”. That will leave his locus nebulous and unsatisfactory.”
In AMOSUN V. INEC (supra) my learned brother of this Division, S. S. Alagoa, J.C.A. with reference to Egolum’s case held that:
“That case is clearly distinguishable from the one in the sense that in that case the petitioner failed to state in his petition the basis on which he was claiming to have a right to present a petition and was certainly not a candidate at the election while in the present case the Petitioner/Appellant was a candidate at the election and stated so in his amended petition.”
The present case is also on all fours with the situation in AMOSUN V. INEC and I cannot hold otherwise. Coincidentally, Amosun’s case suffered the same fate as the present case and both were decided by the same Tribunal in Ogun State. It is unfortunate that these same reasons were used to end prematurely the two similar petitions.
Further on jurisdiction, the Tribunal had held that it had no jurisdiction to entertain the appellant’s petition in that he did not establish his locus standi, reliance was also placed on S. 106 of the 1999 Constitution which the Tribunal erroneously interpreted and applied in conjunction with paragraph 4(1)(b) and (c) of the 1st Schedule to the electoral Act, 2006. The line of authorities relied upon by learned counsel and the Tribunal are not applicable here, neither is the argument by learned counsel to the 1st, 2nd, 4th, 14th Respondents argument that the appellant merely showing that he was a candidate at the election is not enough.
I have earlier in this judgment highlighted the provision and purport of Paragraph 4(1)(b) of the First Schedule of the Electoral Act, 2006.
With S. 106 of the Constitution, the Tribunal held that it would not presume the Appellant had satisfied the requirements by merely stating that he was a candidate. At page 261 of the printed records the Tribunal held thus:-
“apart from stating that he was a candidate at the said election, none of the requirements, qualifying the Petitioner from the said election as stated in Section 106(a) and (d) of the 1999 Constitution, and as required to be specified under paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2006, is to be found on the face of the petition.”
With respect, it is not within the jurisdiction of the Tribunal to pronounce or determine the qualification or non-qualification of the Appellant to contest the election which is what S.106 provides for. S. 106 applies to situations where the petitioner was returned as winner of the election sought to be questioned. Since the Appellant was not returned as winner, he cannot be questioned as to his qualification to contest. In agreement with the learned Appellant’s counsel on the issue that a candidate who contested not returned as winner, whether he qualifies to contest in the election or not is outside the jurisdiction of the Tribunal.
The issue of qualification therefore is to be used as a weapon of offence and not a shield of defence as held in Amosun’s case (supra)… Whereas Paragraph 4 (1)(b) of the First Schedule is clear, unambiguous, specific and applicable to the requirement of a Petitioner to state his right to present the election petition. These two provisions are not one and the same thing. A candidate also acknowledged being so by the Respondents has crossed the hurdle of whether he was a candidate or not.
Finally, on this issue I hold that the Appellant had the locus standi to have filed his petition before the Tribunal and the Tribunal therefore had the jurisdiction to have entertained the petition on the merits rather than shutting the Petitioner out by prematurely striking out the petition without allowing the Petitioner ventilate his complaints against the said election fully by hearing same.
Having resolved the Appellant’s issues 3, 4, 5, 6 and 8, and the Respondent’s respective issue 2 in the Appellant’s favour in holding that the Appellant had the locus standi to file his petition before the Tribunal, having qualified to do so, this should and has ended the matter.
I will be a bit superfluous and go the extra mile in saying a word or two in respect of the Appellant’s seventh issue and the Respondents’ respective third issue. That is, in view of the provisions of Section 144(2) of the Electoral Act, 2006. The issue of whether the Tribunal was not wrong to have struck out Paragraphs 14, 15 and 25 of the petition and subsequently striking out the names of the 5th -14th Respondents on the ground of mis joinder, notwithstanding that the Independent National Electoral Commission was made a party.
This issue as rightly argued by the learned counsel to the Appellant requires a proper interpretation of S. 144(2) of the Electoral Act, 2006 which provides:-
“S.144(2) – The person whose election is complained of, is in this Act, referred to as the Respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
As submitted rightly to which I am in agreement with, the proviso in the above provision is to limit or exclude the operation of the rule that allegations against the conduct of an electoral official who is not joined as a respondent is incompetent, where the Independent National Electoral Commission (INEC) is made a respondent, the proviso in S. 144(2) is an exception to the main body of the provision preceding the proviso in situations where such respondent is shown to have acted as an agent of the Commission, therefore his nonjoinder will not operate to void the election, the above provision is clear. See F.M.B.N. V. N.D.I.C. (1999) 2 NWLR (PT. 591) P.33 AFRIBANK (NIG.) PLC V. K.C.G. (NIG.) LTD. (2001) 8 NWLR (PT. 714) P. 87 AT 92 relied upon by the learned Appellant’s counsel. The tribunal was wrong to have relied upon OBASANJO V. BUHARI (supra) which decision was based on the Electoral Act, 2002, which is not the case now.
The essence of the proviso is to save pleadings in which there are allegations of conduct of electoral officers who are deemed to have acted as agents of INEC, where INEC has been made a party. The 1st, 2nd, 4th to 14th Respondents were therefore wrong to have argued that these officers were responsible for their actions, for which they were made statutory Respondents by virtue of S. 144(2) of the Electoral Act. With respect, learned counsel misinterpreted the intendment of the section. The learned counsel’s argument that it was not enough to add INEC as a party to an election petition is also not tenable in the Law guiding Election petitions, in submitting that the Tribunal acted properly in striking out the paragraphs and the Respondents complained about.
The learned counsel to the 3rd and 15th Respondents also argued along the same line. It was argued that the Appellant as Petitioner only joined the 1st, 2nd and 4th Respondents respectively but did not expressly plead same in his petition that they were agents of the 1st Respondent and also relied on the S. 144(2) of the Electoral Act, 2006, in submitting that this is fatal to the Appellant’s case and that the Tribunal was right to have struck out the paragraphs aforementioned along with the names of the 5th – 14th Respondents. I tend to disagree, and hold that the struck out Respondents are agents of INEC and once INEC is a party, the Petition is in order.
In any case, the 5th to 14th Respondents did not complain or challenge their joinder in the petition. Does it then lie in the mouth of the 3rd and 15th Respondents to complain? I would say they have no such capacity. See OBASANJO v. YUSUF (2004) 9 NWLR (PT. 977) 144 at 186.
I therefore hold that the Tribunal was wrong to have struck out paragraphs 14, 15 and 25 of the petition and striking out the names of the 5th – 14th Respondents on the ground of mis joinder when INEC was made a party. The Appellant’s seventh issue and the Respondent’s respective third issues are resolved in favour of the appellant.
In the prevailing circumstances, I hold that the appeal has merit and succeeds. The ruling of the election petition Tribunal, sitting at Abeokuta, Ogun State, delivered on 23rd October, 2007 striking out the Petition is hereby set aside. In its place, it is ordered that the petition be and is hereby remitted back to the Ogun State Tribunal for trial on the merits, same should be given accelerated hearing.
I award costs of N20,000:00 against each set of Respondents, that is the 3rd and 15th Respondents and 1st, 2nd, 4th to 14th Respondents respectively in favour of the Appellant. Cumulative costs of N40, 000:00 to the Appellant.
STANLY SENKO ALAGOA, J.C.A.: I read before now the judgment of my brother Chidi Nwaoma Uwa (J.C.A.) just delivered and I also agree that the appeal has merit and should succeed. I abide by the Orders contained in the said judgment including order on costs.
MODUPE FASANMI, J.C.A.: If I had the privilege of reading the Judgment of my learned brother C. N. Uwa, J.C.A just delivered. I agree entirely with the reasoning and conclusion therein which I adopt as mine. I abide by the consequential orders contained in the lead Judgment.
Appearances
A. A. Yesufa with F. O. AkereleFor Appellant
AND
B. A. Balogun Esq. for the 1st, 2nd, 4th – 14th Respondents
E. S. Ichiefietano (Miss) with A. F. Ogunlesi (Miss) for the 3rd and 15th RespondentsFor Respondent
