INEC & ORS V. FAZING & ORS
(2010)LCN/3931(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of July, 2010
CA/J/EP/HA/38/08
RATIO
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION MUST BE RAISED TIMEOUSLY AND RESOLVED FIRST BEFORE EMBARKING ON FURTHER PROCEEDINGS
I must first of all state here that the jurisdiction of a Court is a radical and crucial question of competence Dapialong. Vs. Dariye (2007) 8 NWLR Pt. 1036 Pg. 332. The question of jurisdiction is very fundamental that it should be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings however well conducted amounts to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to the Supreme Court. However, it Is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Ukwu Vs. Bunge (1997) 8 NWLR Pt.518 Pg. 527; Messrs. N.U. Scheep vs. The M.V. “S. Araz” (2000) 12 SC Pt. 1 Pg. 164, Nnonye vs. Anyichie (2005) 2 NWLR Pt.910, Pg. 623. The court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiffs’ claim before it to determine whether or not it has jurisdiction to entertain it. PER UZO NDUKWE-ANYANWU, J.C.A.
JURISDICTION OF COURT: CONDITIONS THAT MUST BE COMPLIED WITH FOR THE COURT TO BE COMPETENT
It is settled law that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of he case is within its jurisdiction; and there is no feature in the case which prevents, the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court.” Umanah vs. Attah (2006) 17 NWLR Pt 1009 Pt. 503, Madukolu vs. Nkemdilim (supra). PER UZO NDUKWE-ANYANWU, J.C.A.
JURISDICTION: DUTY OF THE COURT WHENEVER ITS JURISDICTION TO ENTERTAIN A MATTER IS CHALLENGED; WHETHER THE COURT CAN RAISE THE ISSUE OF JURISDICTION SUO MOTU
Where ever or when ever the jurisdiction of the Court is challenged, the Court should deal with it expeditiously at the trial stage or even on appeal. The Court can also raise the issue of jurisdiction suo motu as in this case, Galadima Vs. Tambai (2000) 6 SC Pt. 1 Pg 196. PER UZO NDUKWE-ANYANWU, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 32(1) AND (2) OF THE ELECTORAL ACT 2006 AS IT RELATES TO THE CONDITIONS THAT MUST BE STRICTLY COMPLIED WITH FOR A CANDIDATE TO BE VALIDLY NOMINATED
Section 32(1) and (2) of the Electoral Act 2006 which provides as follows: (1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the Party proposes to sponsor at the elections. (2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office. For a candidate to be validly nominated, this Section must be complied with strictly. The key words are “shall not later than….. 120 days before the date appointed for a general election….” PER UZO NDUKWE-ANYANWU, J.C.A.
LOCUS STANDI: WHETHER A PERSON WHO WAS NOT VALIDLY NOMINATED LACKS THE LOCUS STANDI TO PRESENT AN ELECTION PETITION
If a person is not validly nominated, he cannot also be classified as a candidate at the election and therefore lacks the locus standi to present an election petition. Locus standi and jurisdiction are interwoven, in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus were there is no locus standi to present a petition in the first place the Court cannot properly assume jurisdiction to entertain the petition. Waziri Vs. Danboyi (1999) 4 NWLR Pt. 598 Pg 239. A-G Akwa Ibom State Vs. Essien (2004) 7 NWLR Pt. 872 Pg 288. Where the Petitioner has no locus standi to present a petition, the petition becomes incompetent and thereby robs the Tribunal of its jurisdiction to entertain the petition- Ejikeme Vs. Amaechi (1999) 3 NWLR Pt 542 Pg 456, Ogunmokun Vs. Military Administrator Osun State (1999) 3 NWLR Pt 594 Pg 261, Ayoola Vs. Baruwa (1999) 11 NWLR Pt. 628 Pg 595. PER UZO NDUKWE-ANYANWU, J.C.A.
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
1. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. RETURNING OFFICER, LANGTANG SOUTH CONSTITUENCY IN THE ELECTION INTO PLATEAU STATE HOUSE OF ASSEMBLY
3. THE ELECTORAL OFFICER, LANGTANG SOUTH LOCAL GOVERNMENT AREA Appellant(s)
AND
1. KARGWAK FAZING
2. DEMOCRATIC PEOPLES PARTY
3. JOYCE L. RAMNAG Respondent(s)
UZO NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgement) This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal Plateau State holden at Jos. The 1st, 2nd and 3rd Appellants were the 1st, 2nd and 3rd Respondents at the Tribunal. The 1st and 2nd Respondent herein were the Petitioners in the Tribunal. The grounds for the petition were that the 1st petitioner Kargwak Fazing was nominated by the 2nd petitioner Democratic Peoples Party but was unlawfully excluded by the 1st Appellant to contest for election into the Langtang South Constituency of Plateau State on the 14th April, 2007.
The 1st and 2nd Petitioner/Respondents were aggrieved that the name of the 1st Respondent and symbol of the 2nd Respondent were omitted in the ballot paper for the election into the Langtang South Constituency Election held on 14th April, 2007.
At the trial the Tribunal in its considered judgment delivered on the 12th December, 2007 nullified the election for non compliance with the provision of the Electoral Act. The Court thereafter ordered that the name of the 1st Respondent and the logo of the 2nd Respondent be in the ballot paper for the re-run.
Being dissatisfied, the 1st – 3rd Appellants filed their notice and 9 grounds of appeal. The 1st – 3rd Appellants filed their brief of argument settled by Stephen Ibyem Esq, on 17th March, 2008 and deemed properly filed and served on 16th April, 2008. In it he articulated 5 issues for determination namely:
(1) Whether the 1st and 2nd Respondents possessed the requisite locus standi to present an election petition? (Ground 1 of the Grounds of Appeal).
(2) Whether the 1st and 2nd Respondents proved their allegation of unlawful exclusion? (Grounds 2, 3, 4 and 6 of the Grounds of Appeal).
(3) Whether Section 45(1) of the Electoral Act 2006 was violated by the Appellants? (Ground 7 of the Grounds of Appeal).
(4) Whether the Honourable Tribunal rightly invoked the doctrine of estoppels against the Appellants? (Ground 5 of the Grounds of Appeal).
(5) Whether the Honourable Tribunal rightly nullified the election in respect of Langtang South Constituency? (Grounds 8 and 9 of the Grounds of Appeal).
The 1st – 3rd Appellants also filed a Reply Brief of Argument to the 1st and 2nd Respondents’ Brief of Argument on 30th April, 2008. The 1st and 2nd Respondent filed their joint Respondents’ Brief on 24th September, 2008 and was deemed properly filed and served on 17th February, 2009. In it they formulated 3 issues for determination namely thus:
(1) Whether the Lower Tribunal was correct in finding that they had jurisdiction over the petition? (Ground 1).
(2) Whether the Lower Tribunal was correct in finding that the petitioners proved the validity of the nomination of the 1st Respondent? Relates to Grounds 2, 3, 4, 6, 7, 10 and 11.
(3) Whether on the pleadings and evidence before the Tribunal, the Petitioners were entitled to judgment? Relates to Grounds 5, 8, 9, 12 and 13.
The 1st – 3rd Appellants raised the issue of jurisdiction which the Respondents replied to. However the Court suo motu ordered the parties to address it comprehensively on the issue as to locus standi and whether the issue of valid nomination was not a pre-election matter.
The 1st – 3rd Appellants on the 10th June, 2010 adopted and relied on the arguments in their 1st 3rd Appellants’ Brief filed on 17th March, 2008 but deemed properly filed and served on 16th April, 2008.
The learned counsel to the 1st – 3rd Appellants submitted that the 1st and 2nd Respondents lacked the requisite locus standi to present an election petition. The learned counsel submitted that the proper party to present a petition is a candidate and or the political party which participated in the election See Section 144(1) of the Electoral Act, 2006.
Counsel submitted that a person will qualify as a candidate in an election if such a person was validly nominated and sponsored by a political party. A candidate can only be validly nominated if the nomination is in compliance with Section 32(1) and (2) of the Electoral Act 2006.
Section 32 envisages that any candidate to an election must submit his nomination form accompanied by his own personal affidavit which shall be submitted to Independent National Electoral Commission (INEC) not later than 120 days before the date appointed for the election. A political party which fails to submit its list of candidates later than 120 days before the date of the election can not qualify as a candidate nor a political party which participated in that election within the meaning of Section 144(1) (b) of the Electoral Act 2006. Such a candidate cannot be said to be a validly nominated candidate.
Counsel submitted that the elections were held on 14th April, 2007 and that the affidavit of personal particulars of the 1st Respondent ought to have been submitted by the 2nd Respondent on or before 15th December, 2006 in compliance with Section 32(1) and (2) of the Electoral Act 2006. In proof of the 1st and 2nd Respondents’ petition, Exhibit P2 was tendered and it bore bearing the Independent National Electoral Commission (INEC) stamp for 31st January 2007 Exhibit P2 was submitted later than 120 days to the election in breach of Section 32(1) and (2) of the Electoral Act 2006. The 1st and 2nd Respondents having not submitted Exhibit P2 not later than 120 days do not fall within the candidates envisaged by Section 144(1) of the Electoral Act 2006 and therefore do not possess the requisite locus standi to present an Election Petition. See Nwokoro Vs. Onuma (1990) 13 NWLR Pt. 136 Pg 22
Counsel submitted further that the Tribunal relied heavily on the case of Adebusuyi Vs. Oduyeye (2004) 1 NWLR Pt. 854 Pg 406 to hold that the 1st and 2nd Respondents had the locus standi to present their petition. The aforementioned case, the Appellants’ counsel contended supported their stand.
The Court of Appeal held inter alia that a petitioner or his candidate validly nominated but unlawfully excluded can present a petition. It can therefore be stated that the key words here are validly nominated. In this case the counsel to the Appellants submitted that the 1st Respondent was not validly nominated by the 2nd Respondent as it failed to file the 1st Respondent’s nomination form and affidavit of personal particulars within time. This failure robbed the 1st and 2nd Respondents of the requisite locus standi to present this petition. See Okon Vs. Bob (2008) All FWLR Pt. 243 Pg 674, Asinya Vs. INEC (2005) All FWLR Pt. 247 Pg 1495.
Counsel submitted further that with the above, the 1st and 2nd Respondents lacked the locus standi to present this petition and as such, the Tribunal ought to have declined jurisdiction to entertain the petition. See Madukolu Vs. Nkemdilim (1962) 1 All NLR Pg 587.
Counsel further contended that only a person who is qualified to contest an election, can challenge the election. See Egolum Vs. Obasanjo (1999) 7 NWLR Pt. 611 Pg 423 where Ejiwunmi JSC of (blessed memory) stated:
“it is my respective view that a person who claims to have a right to challenge the election of a president should himself be a person qualified to contest the election.”
In the present case learned counsel submitted that where a statute provides for an act to be done, failure to do so is fatal to the offending party. Here the 1st and 2nd Respondents failed to comply with the provisions of Section 32(1) and (2) and thereby lacked the competence to present the petition.
Counsel finally urged the Court to hold that the 1st and 2nd Respondents lacked, the locus standi to present a competent petition therefore the Court should decline jurisdiction to entertain the petition filed by 1st and 2nd Respondents.
In reply, the 1st and 2nd Respondents filed their arguments on the issue of jurisdiction on the 18th May, 2010 and submitted that the petitioners’ case had nothing to do with the validity of nomination.
Counsel stated that the petitioners’ case is predicated on Section 145 (1)(d) of the Electoral Act 2006 which provides as follows;
“An election may be questioned on any of the following:
(a)
(b)
(c)
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election;
Section 145 (1) (d) has been interpreted by Agube JCA in the case of P.A.C Vs. INEC (2009) ALL FWLR Pt. 478 Pg 260 to mean that-
“…..the petitioners must first prove inclusion to contest the election before they were unlawfully excluded.”
Learned counsel to the 1st and 2nd Respondents submitted that they proved inclusion by the publication of their names as candidates standing nominated 30 days to the date of the election as prescribed by Section 35 of the Electoral Act 2006. See also paragraphs 6 and 9 of the petition which was also admitted by the 1st – 3rd Appellants.
Learned counsel argued that the issue of jurisdiction could have properly arisen had, the 1st and 2nd Respondents’ petition been predicated on the ground of who is the nominated candidate of the party. ”
The issue in the instant case the learned counsel submitted is that, the 1st and 2nd Respondents were nominated and recognized by INEC as a candidate but their names and logo were not included in the ballot papers for the election of 14th April, 2007. Since the complaints of the 1st and 2nd Respondents are about what happened on Election Day, it is an electoral dispute and not a pre-election issue.
Counsel went on to submit that the 1st and 2nd Respondents as Petitioners were candidates at the election since the 1st and 3rd Appellants recognized their candidacy and published their names in conformity with Section 35 of the Electoral Act 2006. See Saraki Vs. PPA (2007) 17 NWLR Pt. 1064 Pg 453.
This in effect means that not only persons who contested in an election are entitled to be called candidates. See Ugwu Vs. Ararume (2007) 12 NWLR Pt. 1048 Pg 367
Learned counsel re-iterated that, the Electoral Act 2006 did not define the term candidate The 1st Respondent as 1st Petitioner was never substituted by the 2nd Respondent. He remained a candidate with the requisite locus standi to present a petition. Adebusuyi Vs. Oduyeye (2004) 1 NWLR Pt 854; Pg 06. Justice Party Anor Vs. INEC & Ors (2004) 12 NWLR Pt. 886 Pg 140. Counsel submitted that the term candidate includes a nominated candidate who is to contest or has contested the election or whose nomination was rejected or prevented from reaching the nomination office, is a candidate for purposes of an election. Nyako Vs. Belewa (1965) 1 NWLR pg 1.
Counsel submitted that the Tribunal had jurisdiction to entertain the petition and that the Tribunal was not called upon to determine who was the Democratic Peoples Party candidate for that election but to determine, the right of the Electoral body to remove the names and logo of the 1st and 2nd Respondents from the ballot paper.
Counsel submitted that all the parties are ad idem that the 1st and 2nd Respondents were candidates at the election because their names were duly published in Exhibit P3 as required by Section 35 of the Electoral Act 2006.
Also learned counsel stated that the ground for contending that the 1st Respondent’s candidature was invalid, was that his nomination was late. The Respondents raised this issue even though the defence does not form the basis for determining the competence of an action or the jurisdiction of the Court to entertain the action. Counsel submitted that Section 145(1)(d) of the Electoral Act 2006 does not contemplate the issue of improper or late nomination as a ground for the unlawful exclusion of a party.
It is also trite that the replies of the Appellants in the petition contended that the Tribunal had no jurisdiction to entertain this petition. Whatever that constituted the invalidity of the nomination must have been apparent before Exhibit P3 was published in compliance with Section 35 of the Electoral Act 2006. Counsel submitted that the Tribunal ought to have struck out all the paragraphs in the Appellant’s replies to the petition that raised the issue of late nomination. See Chime Vs. Onyia (2009) 2 NWLR Pt. 1124 Pg 1 where Bada JCA held:
“it is my view that late or improper nomination is a pre-election matter which is not within the competence of an election tribunal rather it is a matter for the Federal or State High Court.”
Counsel finally submitted that it is the Appellants who raised the issue of the late nomination of the Respondents and that this cannot form a basis for resolving the issues of jurisdiction against the petitioners. Counsel finally urged the Court to hold that the petition was competent and that the Tribunal had jurisdiction to entertain the petition because;
(a) Section 145(1)(d) of the Electoral Act, provides that a petition can be filed where the petitioner is validly nominated and unlawfully excluded;
(b) The exclusion of the petitioners was on the day of the election, in that the name and symbol of the 2nd petition was excluded from the ballot paper;
(c) Matters that took place on the day of the election are not pre-election matters, and the tribunal has powers to entertain a petition that complains against the unlawful exclusion of a party;
(d) The validity of the nomination of the petitioners ceased to be a material fact having regards to the publication by the INEC of the names of the petitioners as candidates standing nominated to contest the election thirty days before the election, in compliance with Section 35 of the Electoral Act;
(e) The petition did not raise any issue of who is entitled to be the candidate of the DPP, as to render it a pre-election matter in line with the decision this court in Balonwu Vs. Ikpeazu (supra).
(f) The Appellants in their response or replies to the petition raised the issue of late nomination of the petitioner, this issue of late nomination in the decision of Chime Vs. Onyia (supra).
(g) The Appellants are not entitled to raise the issue of late nomination since the names of the petitioners were published thirty days to the election, since the Appellants already knew of the publication of names of the petitioners thirty days to the date of the election.
(h) Paragraphs 5 and 8 of the Appellants Reply to the petition are incompetent and ought to have been struck out, and not entertained by the tribunal.
(i) Issue raised by the Appellants (Respondents to the petition, cannot form a basis for determining the competence of the petition or the jurisdiction of the tribunal to entertain the petition.
Counsel therefore urged the Court to hold that the 1st and 2nd Respondents had locus standi and that their petition was competent therefore the Tribunal had jurisdiction to entertain it.
I must first of all state here that the jurisdiction of a Court is a radical and crucial question of competence, Dapialong. Vs. Dariye (2007) 8 NWLR Pt. 1036 Pg. 332. The question of jurisdiction is very fundamental that it should be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings however well conducted amounts to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings. Ukwu Vs. Bunge (1997) 8 NWLR Pt.518 Pg. 527; Messrs. N.U. Scheep vs. The M.V. “S. Araz” (2000) 12 SC Pt. 1 Pg. 164, Nnonye vs. Anyichie (2005) 2 NWLR Pt.910, Pg. 623.
The court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiffs’ claim before it to determine whether or not it has jurisdiction to entertain it.
“It is settled law that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents, the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court.”
Umanah vs. Attah (2006) 17 NWLR Pt 1009 Pt. 503, Madukolu vs. Nkemdilim (supra).
Where ever or when ever the jurisdiction of the Court is challenged, the Court should deal with it expeditiously at the trial stage or even on appeal. The Court can also raise the issue of jurisdiction suo motu as in this case, Galadima Vs. Tambai (2000) 6 SC Pt. 1 Pg 196.
The question of jurisdiction in this case was raised timeosly during the trial stages. The 1st – 3rd Respondents/Appellants in their reply to the petition in paragraphs 5, 8 and 14 questioned the jurisdiction of the Tribunal to entertain this petition.
Paragraph (5) In answer to paragraphs 8 and 10 of the petition, the 1st – 3rd Respondents state that the names published by the 1st Respondent were not names of qualified/cleared candidates but names of nominated candidates.
(8) The 1st -3rd Respondents aver that the non appearance of the logo of the Democratic Peoples Party (DPP) on the ballot papers was as a result of the failure of the petitioners to nomination forms within the time stipulated by the 1st Respondent.
(14) The 1st – 3rd Respondents shall raise a preliminary objection challenging the jurisdiction of this Honourable Tribunal to entertain this petition on the ground inter alia that the petitioner lacks the locus standi to maintain this petition.
The 4th Respondent to the petition also in her reply in paragraph 10(b) (d) and (e) challenged the jurisdiction of the Tribunal to entertain the petition.
(10) Paragraphs 28 to 30 are denied and 4th Respondent states further as follows:
(b) The 1st Petitioner was an aspirant under the platform of the 2nd Petitioner for nomination as a candidate to the House of Representatives, but was withdrawn and fielded instead for election into the state House of Assembly after the close of nomination.
(d) The 1st Petitioner’s name was not on the final list of cleared candidates.
(e) The 1st Respondent only provides for the names and logos on the ballot papers, of those political parties whose candidates satisfy the constitutional and other requirements for contesting.
All the four Respondents challenged the jurisdiction of the Tribunal to entertain this petition in their various replies to the petition.
The crux of this appeal is whether the 1st Respondent Kargwak Fazing was validly nominated by the 2nd Respondent Democratic Peoples Party as envisaged by Section 32(1) and (2) of the Electoral Act 2006 which provides as follows:
(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the Party proposes to sponsor at the elections.
(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.
For a candidate to be validly nominated, this Section must be complied with strictly. The key words are “shall not later than….. 120 days before the date appointed for a general election….”
The question is “did the 2nd Respondent submit the form and affidavit of personal particulars within the time frame provided?” The 1st and 2nd Respondents submitted their forms and affidavits on 31st January, 2007 less than 120 days to the election. The form and affidavit of personal particulars ought to be submitted on or before 15th December 2006.
The word shall denote that it is mandatory to all concerned. Neither the parties nor INEC can abridge any of the time stipulated in this Act. It is not in dispute that the 1st and 2nd Respondent submitted their forms later than 120 days envisaged by the Act. Any form, received later than 120 days to the election date is out of time and therefore renders the nomination invalid. See Ehinlanwo Vs. Oke (2008) 16 NWLR Pt, 1113 Pg 357.
The Supreme Court in this case held that:
While the Court ignores the activities of a political party in arriving at the name or names of its candidates sent to INEC they are bound to ensure that the relevant specific provisions of the Electoral Act are complied with such as Sections 32(1) and 34 of the Electoral Act 2006.
After the submissions of the forms of 1st and 2nd Respondents INEC published the list of nominated candidates Exhibit P3 in compliance with Section 35 of the Electoral Act 2006. This publication Exhibit P3 cannot validate an otherwise invalid nomination of 1st Respondent submitted outside the prescribed period.
An invalid nomination of a candidate robs him of his candidature. The 1st Respondent is not a candidate in the election of 14th April 2007. Agreed his party nominated him but late. His nomination is -valid and cannot be validated by any acts of the Appellants. Exhibit P3 published by the 1st Appellant is a list of nominated candidates by the political parties. Section 32(1) and (2) of the Electoral Act 2006 is a strict liability rule and cannot be abridged by any of the parties. Bada JCA in Chime Vs Onyia (2009) Pt. 1124 NWLR Pg.1 held that:
…..It is my view that late or improper nomination is a pre-election matter which is not within the competence of an Election Tribunal rather it is a matter for Federal or State High Court.
I quite agree with this assertion and hold that the 1st and 2nd Respondents who submitted their nomination forms less than 120 days before the 14th April, 2007 election were outside the group of persons to be classified as candidates as envisaged by Section 144(1) of the Electoral Act 2006.
“A person would not be allowed to derive benefits from his own wrong doing.”
See A.P Ltd Vs. Owodunni, Saraki Vs. Are (1999) 3 NWLR Pt. 595 Pg 469. Buhari Vs. Obasanjo (2005) 2 NWLR Pt. 910 Pg 241.
If a person is not validly nominated, he cannot also be classified as a candidate at the election and therefore lacks the locus standi to present an election petition. Locus standi and jurisdiction are interwoven, in the sense that locus standi goes to affect the jurisdiction of the Court before which an action is brought. Thus were there is no locus standi to present a petition in the first place the Court cannot properly assume jurisdiction to entertain the petition.
Waziri Vs. Danboyi (1999) 4 NWLR Pt. 598 Pg 239. A-G Akwa Ibom State Vs. Essien (2004) 7 NWLR Pt. 872 Pg 288. Where the Petitioner has no locus standi to present a petition, the petition becomes incompetent and thereby robs the Tribunal of its jurisdiction to entertain the petition- Ejikeme Vs. Amaechi (1999) 3 NWLR Pt 542 Pg 456, Ogunmokun Vs. Military Administrator Osun State (1999) 3 NWLR Pt 594 Pg 261, Ayoola Vs. Baruwa (1999) 11 NWLR Pt. 628 Pg 595. The 1st and 2nd Respondents’ counsel in his argument stated that their petition was not predicated on the ground of who the nominated candidate of the 2nd Respondent is. Counsel argued that the 1st and 2nd Respondents petition was that they were duly nominated as candidates but unlawfully excluded by INEC.
This is a misconception of the true position as to the facts of this case. The 1st and Respondents were not validly nominated as their forms were submitted outside the time frame envisaged by Section 32(1) and (2) of the Electoral Act 2006. If the 1st and 2nd Respondents were not validly nominated their petition cannot be presented premised on Section 145(1)(d) of the Electoral Act 2006.
Their nomination was not valid and as such, they cannot be rightly referred to as candidates in an election as envisaged by Section 145(1)(d) aforementioned.
The Lower Tribunal was in error having relied on Exhibit P3 published by the 1st Appellant Independent National Electoral Commission (INEC) to assume that the nomination of the 1st Respondent was valid. The nomination of the 1st and 2nd Respondents was invalid and therefore robs them of the locus to present this petition.
The Lower Tribunal lacked the requisite jurisdiction to entertain this petition and therefore should have dismissed it forthwith. Egwu Vs. Eke (1999) 3 NWLR Pt. 594 Pg 189.
This court lacks the requisite jurisdiction to entertain this petition. This appeal is meritorious and therefore allowed. The election and return of Joyce L. Ramnag as the elected member for Langtang South Constituency of Plateau State is hereby affirmed. The judgment of the Lower Tribunal is set aside, it being a nullity.
I make no orders as to costs. Each party is to bear its own costs.
BODE RHODES-VIVOUR, J.C.A.: I have had the advantage of reading in draft the leading judgment of my learned brother Ndukwe-Anyanwu JCA. The appeal allowed. I agree that the election and return of Joyce L. Ramnag be affirmed, as the elected candidate for Langtang South Constituency of Plateau State.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
Appearances
Stephen Ibyen Esq.,For Appellant
AND
O. Akobundu Esq.,
V. Damulak Esq.,
P.A. Ubong (Mrs);
D.P. DusuFor Respondent
