ACTION CONGRESS OF NIGERIA & ANOR. V. PRINCE BAMIGBADE ADEKOLA PETER & ORS.
(2011)LCN/5006(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of December, 2011
CA/EPT/EK/04/2011
RATIO
RIGHT OF APPEAL: WHETHER IT IS ONLY AN AGGRIEVED PARTY THAT CAN APPEAL
The Supreme Court, put the matter beyond argument in Akinbiyi Vs. Adelabu (1956) 1 NSCC 40 at pp.41-42 thus: “The only person entitled to appeal is a person aggrieved. In Ex parte Sidebotham, 14 Ch. D. 465, James L.J said:- “a person aggrieved” must be a man who has suffered a legal grievance.” As Lord Esther in his judgment in Ex parte official Receiver in re Reed, Bowen & Co., 19 Q.B.D. 174, observed, referring to the passage cited in the judgment of James, L.J., “he does not say a pecuniary grievance, a grievance to his property or to his person; he says “a legal grievance” it means a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something which he had a right to demand.” PER TOM SHAIBU YAKUBU, J.C.A
RIGHT TO A COUNSEL: WHETHER THE COURT HAS BUSINESS IN INQUIRING WHETHER THE COUNSEL ENGAGED BY PARTY TO REPRESENT HIM IN A TRIAL WAS REGULARLY OR PROPERLY BRIEFED
NUR Vs. NRC (1996) 9 NWLR (Pt.473) 490 at p.500 – Per MUSDAPHER, JCA (as he then was, now CJN) that: “Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the Court has no business into inquiring whether the counsel was regularly or properly briefed. The Court must allow the counsel to represent the party without any restriction or any procedural requirement. PER TOM SHAIBU YAKUBU, J.C.A
LOCUS STANDI: TESTS FOR DETERMINING THE LOCUS STANDI OF A PARTY TO SUE IN AN ACTION
There is nothing esoteric about the doctrine of locus standi. It is an innocuous term. It is indeed harmless and the Supreme Court in a more recent decision in Sunday Adegbite Taiwo Vs. Serah Adegboro & Ors (2011) 5 SCNJ 125 laid down two main tests which would guide the courts in determining the right or authority to sue in an action which is all that the doctrine of locus standi means. The two main tests are: (1) Is the action justiciable and (2) Is there in existence a dispute between the parties? In determining the locus of a person to sue, the probability of the success of the action is not a relevant factor. Once there is a nexus between the litigant and the cause of action, then the litigant has the right to sue. PER TOM SHAIBU YAKUBU, J.C.A
COMPETENCE OF A JURISDICTION: WHETHER A CLAIM OR PETITION MUST COME WITHIN THE AMBIT OF THE LAW THAT HAS CONFERRED THE JURISDICTION
Jurisdiction is a creation of the Constitution and statute. And the settled principle of law is that it is the claim or petition that determines its competence. The claim or petition must come within the ambit of the law that has conferred the jurisdiction. In this case there is no challenge of the competence of the petition. PER TOM SHAIBU YAKUBU, J.C.A
NON-COMPLIANCE WITH PROCEDURAL STEPS: CONSEQUENCE OF NON-COMPLIANCE WITH THE PROCEDURAL STEPS NECESSARY FOR THE SUCCESSFUL PROSECUTION OF A CLAIM OR PETITION
Where a plaintiff in a procedural steps necessary for the successful prosecution of the claim or petition, his act or omission constituting such failure or default does not affect the jurisdiction of the court. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal. PER TOM SHAIBU YAKUBU, J.C.A
NOMINATION OF CANDIDATES: WHETHER INEC CAN SCREEN OR DISQUALIFY ANY CANDIDATE NOMINATED BY A POLITICAL PARTY FOR AN ELECTION
The Electoral Act 2010 as amended, at section 31(1) thereof stipulates that: Section 31(1): “Every political party shall, not later than 60 days before the date appointed for the general election under the provision of this Act, submit to the Commission in the prescribed forms, the list of candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.” The aforementioned provision at section 31(1) of the Electoral Act 2010 (as amended) has no ambiguity. It is very clear and straight forward. It is indeed didactic, to the effect that once a political party presents its list of candidates not later than 60 days to a general election, to the Independent National Electoral Commission, the latter on no account whatsoever, is to reject or disqualify such candidate(s) nominated by a political party. The apex court as far back as 2007 in Action Congress & Anor Vs INEC (2007) 12 NWLR (Pt.1048) 270 at P.275 per my Lord, Onnoghen, JSC, had laid the matter to rest when he said: “I have no hesitation whatsoever in holding that having regard to the state of the applicable law, the Respondent (INEC) has no power either under the 1999 Constitution or 2006 Electoral Act, or any other law to screen or disqualify any candidate for any election in Nigeria.” The above view was re-echoed more recently in Independent National Electoral Commission (INEC) Vs Action Congress (2009) 2 NWLR (Part 1126) 524 at P.589, that. “a person whose name was submitted to INEC as a candidate….would be entitled to defend that right. A person who secured the nomination of his political party and whose name u/as submitted….and accepted as a nominated candidate is entitled to petition if he is unlawfully excluded.” PER TOM SHAIBU YAKUBU, J.C.A
JUSTICES:
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ACTION CONGRESS OF NIGERIA
2. OJO OYETUNDE OLADIMEJI – Appellant(s)
AND
1. PRINCE BAMIGBADE ADEKOLA PETER
2. NATIONAL TRANSFORMATION PARTY
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RESIDENT ELECTORAL COMMISSIONER, EKITI STATE – Respondent(s)
REASONS FOR JUDGMENT
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): On 17th November, 2011, I dismissed this appeal and pursuant to section 9(8) of the second Alteration No.2 of 2010 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended), and reserved the reasons therefore to a future date. The said reasons are hereby given:
The 1st and 2nd Respondents had filed a petition at the Ekiti State National and State House of Assembly Elections Petition Tribunal, sitting at Ado-Ekiti, whereby they complained of the unlawful exclusion of the 1st Respondent who had been validly nominated to contest election into the office of Member, House of Representatives, representing Ekiti Central Federal Constituency of Ekiti State.
And that the election in respect of the Ekit i Central II Federal Constituency held on 26th April, 2011 and which produced the 2nd Appellant as the winner was invalid and vitiated by reason of the unlawful exclusion of the petitioners/1st and 2nd Respondents from participating in the said election.
The 1st and 2nd Appellants in their Reply to the petition averred that the 2nd Appellant was duly elected as the member, House of Representatives representing Ijero Ekiti West/Efon Federal Constituency on 26th April, 2011 and the 1st and 2nd Appellants never participated in any election in respect of a non-existing Ekiti Central II Federal Constituency of Ekiti State on 26th April, 2011.
Furthermore, the 3rd and 4th Respondents averred that there was no record with them that “the 2nd petitioner never conducted in (sic) primary election wherein the 1st petitioner emerged as the candidate of 2nd respondent’s party” because neither the 3rd and 4th respondents nor any of their officials were invited to witness any. At the close of pleadings, a pre-hearing session was conducted. Thereafter, the petition proceeded to hearing and at the end thereof, the lower tribunal entered judgment for the petitioners/1st and 2nd respondents and nullified the election of the 2nd Appellant. It also ordered that within 90 days, a fresh election must be conducted by the 3rd Respondent and that the 1st and 2nd Petitioners must be participants at the re-run election for the member of House of Representatives representing Ijero/Ekiti West/Efon Federal Constituency of Ekiti State.
It is against the decision of the lower tribunal that the 3rd and 4th respondents at the lower tribunal appealed to this court. They are the 1st and 2nd appellants herein. The notice and grounds of appeal is dated 10th October, 2011. The 1st and 2nd Respondents at the trial, also filed a Notice of Cross-appeal dated 10th October, 2011 as the 3rd and 4th respondents/Cross-appellants herein.
The appellants filed their brief of argument on 24th October, 2011 wherein, four issues were identified for determination as follows:-
1. “Whether or not the Lower Tribunal was right in overruling the Preliminary Objection of the Appellants on the issue of locus standi and other sundry and far reaching objections raised before it?”
2. Whether the proceedings in this Petition has not been fundamentally violated by the failure of the petition to bring a proper application for prehearing in accordance with paragraphs 18(1) and 47(11 of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition?
3. Whether or not the issues canvassed before the Lower Tribunal are pre-election matters?
4. Whether having regard to the totality of the evidence and circumstances of this case, the lower tribunal was not wrong to have nullified the election and or return of appellants.”
The 1st and 2nd appellants also filed a Reply Brief of Argument on 3rd November, 2011 and at the hearing of the appeal, both the main brief of argument and the Reply Brief of Argument were each adopted and relied upon by Niyi Idowu, Esq., of counsel as his submissions on the appeal.
The 1st and 2nd Respondents filed their Brief of Argument on 28th October, 2011. Three issues were identified at paragraph 4.02 of the brief of argument for determination, to wit:
“1. Whether the Tribunal was right to have held the nomination of the 1st Petitioner valid in view of the evidence before it.
2. Whether the Tribunal was right to have held that the Petitioners were unlawfully excluded from the election held on 26th April, 2006 into the House of Representatives seat in Ekiti Central Federal Constituency II comprising Ijero/Ekiti West/Efon LGAs.
3. Whether the Tribunal was right to have nullified the return of the 2nd Appellant/Cross Respondent and ordered a fresh election that will include the Petitioners on the ground of their unlawful exclusion having regard to the circumstances of this case. ”
At the hearing of the appeal, the same was adopted and relied upon by Mr. Obafemi Adewale. On their part, the 3rd and 4th Respondents/Cross-appellants filed their own briefs of argument on 24th October, 2011 and they at paragraph 4.01 thereof, identified two issues for determination as follows:
“ISSUE 1
Whether the lower tribunal was right in holding that the issue of whether the 1st Respondent was validly nominated as raised by them i.e. the 1st and 2nd Respondents and denied by cross-appellants was a pre-election matter and therefore a “no go area for the Election Petition Tribunal.”
“ISSUE 2
Whether the reliance of the lower tribunal on exhibit P1 and P6 to hold that 1st Respondent was validly nominated is supportable by the oral and documentary evidence adduced at the trial and the relevant provisions of Electoral Act 2010 (as amended).”
The 3rd and 4th Respondents also filed their cross-appellants’ brief of argument on 3rd November, 2011 and at the hearing of the appeal each of the briefs of argument at the instance of the 3rd and 4th Respondents/cross-appellants were adopted and relied upon by Mr. Oso Adetunji, Esq., of counsel.
It is noteworthy that the 1st and 2nd appellants filed an application- a motion on notice on 26 October, 2011. Both the application and the main appeal with the cross-appeal were all heard together.
The said application, which has to be determined first, is reproduced thus:
“MOTION ON NOTICE
BROUGHT PURSUANT TO (i) ORDER 6 RULES 4 & 5.
ORDER 7 RULES 1 & 2 OF THE COURT OF APPEAL
RULES 2011
(ii) SECTION 15 COURT OF APPEAL ACT
(iiiI INHERENT JURISDICTION OF THE HONOURABLE COURT
AS PRESERVED BY SECTION 6(6) A CONSTITUTION OF THE
FEDERAL REPUBLIC OF NIGERIA (1999) AS AMENDED
(iv) SECTION 36. CONSTITUTION OF THE FEDERAL
REPUBLIC OF NIGERA 1999 (AS AMENDED)
(v) SECTION 142. ELECTORAL ACT 2010 (AS AMENDED)
(v) SECTION 142. ELECTORAL ACT 2010 (AS AMENDED)
TAKE NOTICE that this Honourable Court will be moved on ……… day of ……… 2011 at the hour of 9 O’clock in the afternoon or so soon thereafter as counsel may be heard on behalf of the appellants/applicants for the following order(s).
(1) Leave of this Honourable Court permitting the Appellant/Applicants to file a ground of appeal on an issue not addressed at the lower tribunal which issue touches on the jurisdiction of the said lower tribunal to hear and determine the petition of the respondents herein as contained in ground two (2) of the Notice of Appeal.
(2) AN ORDER permitting the appellants/applicants to file a ground of appeal on an issue not addressed at the lower tribunal which issue touches on the jurisdiction of the said lower tribunal to hear and determine the petition of the respondents herein as contained in ground two (2) of the Notice of Appeal.
(3) Leave of this Honourable Court to raise, formulate and argue the issue of jurisdictional incompetency of the lower court in entertaining the Respondents petition as constituted to wit: that the respondents as petitioners before the lower tribunal failed to file the required and prescribed pre-hearing application form as provided by the rules.
(4) AN ORDER allowing the appellants/applicants to raise, formulate and argue the issue of jurisdictional incompetency of the lower court in entertaining the respondents’ petition as constituted to wit: that the respondents as petitioners before the lower tribunal failed to file the required and prescribed pre-hearing application form as provided by the rules.
(5) Leave of this Honourable court permitting the Appellant/Applicant to argue the said ground hereinafter referred to as GROUND two (2) underlined in the annexed copy of the Notice and Grounds of appeal already filed and served in addition to other ground(s) of Appeal.
(6) AN ORDER deeming the said ground two (2) as having being properly filed.
AND for such further order(s) as this Honourable court may deem fit to make in circumstances.
GROUNDS FOR THE RELIEFS SOUGHT
(i) The ground and issue sought to be filed and argued borders on jurisdictional incompetency of the lower tribunal in entertaining the Respondents petition.
(ii) Section 18 (1-5) first schedule Electoral Act 2010 (as amended) prescribed a petitioner’s application for prehearing session by motion and not by a letter as done by the respondents herein.
(iii) The proper mode of applying for pre-hearing session touches on the jurisdiction of the lower tribunal.
(iv) Jurisdiction is a threshold issue in adjudication.
(v) Parties cannot by consent confer jurisdiction on a court that has non nor-waive same
(vi) Issue of jurisdiction is a life one which can be raised of any stage of a matter or court.
(vii) The appellants/applicants are not calling fresh evidence but relying on the exhibits attached and the printed records.
(viii) It is to afford the Respondents know the case put forward by the appellants/applicants on appeal and fair hearing.
(ix) The present issue was inadvertently omitted from our written address at the lower tribunal due to technical fault and so argument on same was missing which fault was only detected after adoption of written addresses and by which time it was too late in the day to bring it before the judges of the lower tribunal.”
There is an affidavit of 7 paragraphs in support of the application. Learned counsel to the appellants/applicants filed a written brief of argument in support of the application and identified one issue for determination, thus:
“Whether having regard to the circumstances made out in the applications, and the affidavit, the Honourable Court can grant this application and the appellants/applicants entitled to the reliefs sought?”
Arguing the application, Mr. Niyi Idowu, for the appellants/applicants, submitted that the issue being sought to be raised borders on the jurisdiction of the lower tribunal and it is a threshold issue in adjudication. And that the issue relating to the application for issuance of pre-hearing notice was prepared by counsel to the appellants/applicants, but for technical reasons, was inadvertently omitted from the final address of the same counsel at the lower tribunal. He relied on Haruna Vs. Modibo (2004) 16 NWLR (Pt. 900) 487 at P.536; Oyegun Vs. Nzeribe (2010) 7 NWLR part 1194 577 at 596. He urged us not to punish the applicants, for the mistake, error or inadvertence of their counsel.
Learned counsel relying on Shonekan Vs. Shittu (1964) All NLR 168 at 173; Falae Vs. A.G. Oyo State (1982) 13 NSCC 52 at p.57; Akpame Vs. Barclays Bank of Nigeria Ltd. & Anor (19771 1 SC 47; I.P.D. Abaye Vs. Ikem Uche Ofili (1986) 1 SC 231 at p.235; Abinabina Vs. Enyimadu 12 WACA 171 at 173 (b); Djukpum Vs. Orovujortebe & Anor. (1967) All NLR 134 at pp.136 – 139; Fadiora Vs. Gbadebo & Ors. (1978) 1 LRN 97 at 108-109 argued us to grant the application to enable him raise the new and fresh point not raised at the lower tribunal.
The 1st and 2nd respondents filed a counter-affidavit of 15 paragraphs in opposition to the application. And at paragraph 3.01 3.18 of their briefs of argument in respect of the main appeal learned counsel Obafemi Adewale, Esq., for the 1st and 2nd respondents submitted that since the pre- hearing application was filed by the petitioners on 16th June , 2011 and consequently, the lower tribunal issued the pre-hearing sheet “TF 008′ to all the respondents and a pre-hearing session was thereafter held before the petition proceeded to hearing, the submission of learned counsel to the appellants/applicants that the new issue was inadvertently omitted in his written address was not true. Thereafter, Mr. Adewale proceeded to argue the merits of the new issue, which to my mind, cannot be so done at this stage. It is when the application is granted, that the merit of the new or fresh issue can be argued and considered for determination. Indeed, it is formulated as issue 2 by the appellants in their brief of argument.
Having deeply considered the application, and on the authorities relied upon by the 1st and 2nd appellants/applicants, I am of the opinion that the application has merits and I grant it accordingly.
I shall now determine the competence or otherwise of the 1st and 2nd appellants’ appeal as raised by the 1st and 2nd respondents at paragraph 3.19 to 3.23 of their brief or argument.
Mr. Adewale, for the 1st and 2nd respondents submitted that the substance of the complaint at the lower tribunal, by the petitioners was against the acts and/or omission of the 1st and 2nd respondents therein, that is INEC, and another now 3rd and 4th respondents/cross-appellants herein. And that the 1st and 2nd appellants here were nominal parties, because the order made by the court below was targeted at the INEC and not at the 1st and 2nd appellants. Mr. Adewale therefore submitted that in the absence of an appeal by INEC, the appeal by the 1st and 2nd appellants becomes academic. He referred to Agbakoba Vs. INEC (2008) 18 NWLR (Pt. 1119) 489 at pp. 546 – 547; Adeogun Vs. Fasogbon (2008) 17 NWLR (Pt.1115) 149 at pp. 180-181; Ededo Vs. INEC (2008) 17 NWLR (20081 17 NWLR (Pt. 11171 554 at pp.600 – 602.
Mr. Adewale wondered why Adetunji Oso, who settled the cross-appeal for the 3rd and 4th respondents, would have done so when he was counsel to the 3rd and 4th respondents, at the lower tribunal, who are now the 1st and 2nd appellants herein. Furthermore, he wondered how Oso Adetunji transformed from being counsel to a political party at the lower tribunal, to a counsel to INEC, in this appeal.
The 1st and 2nd appellants in their Reply brief of argument submitted that since the 1st and 2nd respondents had joined the 1st and 2nd appellants as parties to their petition at the lower tribunal and the decision of the said lower tribunal, adversely affected their interest, having nullified their election they have a legal right of appeal in reliance on the authorities of Dagazau Vs. Bokir Int. Ltd. (1999) 7 NWLR (Pt.610) 293 at p.305; Akinbiyi vs. Adelabu (1956) 1 NSCC 40 at pp. 40-42.
On his own part, learned counsel to the 3rd – 4th respondents/cross-appellants, in his reply brief of argument, at paragraphs 2.00 to 2.02 thereof, submitted that the challenge to the competence of counsel Oso Adetunji, as counsel to the 3rd and 4th respondents/cross-appellants is of no moment because the cross-appellants are constitutionally enabled to engage any counsel of their choice and this court would decline an invitation to inquire into which counsel appears for which party. He relied on NUR Vs. NRC (1996) 1 NWLR (Pt.473) 490 at p. 502.
Regarding the contention by learned counsel to the 1st and 2nd respondents, that the 1st and 2nd appellants were nominal parties and so had no right of appeal, I must say that I am not impressed by that submission. And if I may ask, why did the petitioners/1st and 2nd respondents, join the 1st and 2nd appellants in the petition at the lower tribunal if they were not necessary parties? In the circumstances of this case, where the lower tribunal in her judgment of 21st September, 2011 nullified the election of the 2nd appellant herein, was the latter and indeed the 1st appellant too, just to fold their arms and brood over the nullification of their election whether it was right or not and do nothing when they were bound by the order of the lower tribunal? I do not think so. Each of them constitutionally had a right of appeal. The decision and order of the lower tribunal being challenged on appeal, had certainly circumscribed the acquired/vested interest of the 1st and 2nd appellants in the House of Representatives seat at the National Assembly, so the said order adversely affected their interests and certainly they cannot by any stretch of imagination, be shut out from appealing against a decision which has affected them adversely. I know of no law which says that their right of appeal can be stultified.
The Supreme Court, put the matter beyond argument in Akinbiyi Vs. Adelabu (1956) 1 NSCC 40 at pp.41-42 thus:
“The only person entitled to appeal is a person aggrieved. In Ex parte Sidebotham, 14 Ch. D. 465, James L.J said:- “a person aggrieved” must be a man who has suffered a legal grievance.” As Lord Esther in his judgment in Ex parte official Receiver in re Reed, Bowen & Co., 19 Q.B.D. 174, observed, referring to the passage cited in the judgment of James, L.J., “he does not say a pecuniary grievance, a grievance to his property or to his person; he says “a legal grievance” it means a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something which he had a right to demand.”I think that is the essence of the 1st and 2nd appellants’ notice of appeal. I am satisfied that the said appeal is competent and I dismiss the 1st and 2nd respondents’ objection against it, for being devoid of merit.
I have also dispassionately considered the observation of Mr. Adewale regarding the appearance of Oso Adetunji, Esq., of counsel to the 3rd and 4th respondents/cross-appellants. Certainly the observation is not an objection to the appearance of Mr. Oso Adetunji for the 3rd and 4th respondents/cross-appellants. In any event, suffice it to reiterate the opinion of this court in NUR Vs. NRC (1996) 9 NWLR (Pt.473) 490 at p.500 – Per MUSDAPHER, JCA (as he then was, now CJN) that:
“Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the Court has no business into inquiring whether the counsel was regularly or properly briefed. The Court must allow the counsel to represent the party without any restriction or any procedural requirement. “I am afraid, I have nothing more to say to improve that opinion.
Mr. Adewale’s next grouch is in respect of the 3rd and 4th Respondents’ cross-appeal, although he referred to them as 1st and 2nd respondents. He submitted that the judgment of the lower tribunal was against the Independent National Electoral Commission (INEC) and the Resident Electoral Commissioner (REC) perse who were the 1st and 2nd respondents at the lower tribunal. And that if they felt aggrieved with that judgment, they should have appealed against it. Furthermore that as it is, the INEC and REC have no competent appeal before this court. He also submitted that it is only a successful party, who wants a judgment affirmed or varied on grounds different from those relied upon by the lower court, who can cross-appeal. He relied on Owners of MV “ARABELA” VS. NAIC (2008) 11 NWLR (pt.1097) 182 at pp.213-215; Chrislieb Plc. Vs. Majekodunmi (2008) 16 NWLR (pt. 11131 234 at pp. 345 – 346; Adekoye Vs. N. S.P.M.C. Ltd., (2009) 5 NWLR (pt. 1134) 322 at p. 338′ Unity Bank Plc. Vs. Buhari (2008) 7 NWLR (pt. 1086) 372 at p.413 – that an unsuccessful party cannot cross-appeal.
In his response, Mr. Oso Adetunji, for the cross-appellants submitted that the procedure adopted by the 1st and 2nd respondent in challenging the competence of the 3rd and 4th respondents’ cross-appeal, is incompetent. He referred to Order 10 Rule 1 of the Rules of this court, 2011 to the effect that the 1st and 2nd respondents ought to have filed a proper Notice of Preliminary Objection setting out the grounds of the objection. He relied on SCOA (Nig) Plc Vs. Denbetta (2002) 13 NWLR (Pt. 785) 461 p. 473.
In the alternative, Mr. Adetunji, submitted that a cross-appeal can be filed by one or two parties who are not satisfied with the judgment of a lower court. He relied on Igwe Vs Kalu (2002) 14 NWLR (Pt.787) 435 at P.454; Obasanjo Vs. Omolaja (2001) 28 WRN 21 at P.35.
Mr. Adetunji contended that the 1st and 2nd Respondents ought to have filed a Brief of Argument on behalf of the 1st and 2nd Cross-Respondents to the cross-appeal of the 3rd and 4th Appellants. That the failure to so do, tantamounts to the 1st and 2nd Cross-Respondents having conceded to the issues raised in the Cross-Appellants’ Brief of Argument. He relied on Ayelogu Vs. Agu (1998) 1 NWLR (Pt.532) 129 at P.140; Okangwu Vs. NNPC (1989) 1 NWLR (Pt.115) 296 at P.309.
In his oral reply at the hearing of the appeal, Mr. Adewale referred to Order 17 Rule 7 of the 2011 Rules of this court and urged us to hold that the 1st and 2nd Respondents/Cross-Respondents, have responded to the Cross Appeal at paragraphs 4.03-7.07 of the 1st and 2nd Respondents’ Brief of Argument filed on 28th October, 2011.
Let me start from the rear and determine Mr. Adetunji’s contention in respect of the 1st and 2nd Respondents/Cross-Respondents’ alleged no Brief of Argument on the Cross-Appellants’ Appeal. I think the short answer to that contention is Order 18, Rule 7 of the Court of Appeal Rules, 2011. It says:
“A Respondent may without leave, include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross-appeal or Respondent’s notice.”
I have perused the 1st and 2nd Respondents’ Brief of Argument in respect of the original appeal and at paragraphs 4.03-7.07 thereof, there are submissions in respect of the cross-appeal. I am therefore satisfied that the 3rd and 4th Respondents/Cross-Appellants’ Appeal, was validly responded to by the 1st and 2nd Respondents/Cross-Respondents in their Brief of Argument on the original appeal.
Regarding the contention of Mr. Adetunji that the objection by Mr. Adewale against the competence of the cross-appeal, ought to have been properly raised as a Preliminary Objection to the hearing of the cross-appeal, the Supreme Court in Charles -Chikwendu Odedo Vs. Independent National Electoral Commission (INEC) (2008) 7 SCNJ 1 at P.25, provided a guide as to how a Preliminary Objection can be raised in a Brief of Argument or address. It is to be raised under a conspicuous title of “PRELIMINARY OBJECTION”, followed by the grounds of the objection and supported with argument thereon. Further see: Chief Emmanuel Osita Okereke Vs. Alhaji Umaru Musa Yar’adua & Ors (2008) 5 SCNJ 1.I agree therefore with the contention of Mr. Adetunji that the objection by the 1st and 2nd Respondents/cross-respondents against the cross appeal by the 3rd and 4th Respondents, is incompetent. It is accordingly discountenanced. In other words, the cross-appeal by the 3rd and 4th Respondents subsists and it is extant.
Now to the meat in the original appeal and the cross-appeal. I have perused the issues for determination formulated by each counsel in the main appeal and cross-appeal. I am satisfied that 1st and 2nd Appellants’ issues 1 and 2 each stand alone.
Appellants’ issue 3 covers 1st and 2nd Respondents’ issues 1 and 2 and also the Cross-Appellants’ issues 1 and 2. Appellants’ issue 4 is the same as the 1st and 2nd Respondents’ issue 3. Therefore, I adopt the four issues formulated by the 1st and 2nd Appellants, for the determination of this appeal.
ISSUE 1
“Whether or not the lower tribunal was right in overruling the preliminary objection of the appellants on the issue of locus standi and other sundry and tar reaching objections raised before it.”
Niyi Idowu, Esq., of learned counsel to the Appellants, submitted that locus standi being a threshold issue of jurisdiction enables a court to entertain the matter before it and where a party who institutes the action/matter lacks the locus standi to institute the action, the court will be robbed of its power to adjudicate on the action. He referred to A.G. Federation Vs. A.G. Abia State & Ors (2001) FWLR (Pt.64) 202 at PP.276-277; Waziri Vs Danboyi (1994) 4 NWLR (Pt.598) 239.
Mr Idowu also submitted that since the matter in the instant appeal was founded on an election petition, the Petitioners/1st and 2nd Respondents herein, must disclose sufficient facts in their petition showing that they have the locus standi to have instituted the petition. He relied on paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2010 (as amended) and the decision of this court in Amosun Vs. INEC (2009) 4 WRN 32 at P.82.
Learned counsel furthermore submitted that the Petitioner who complained of an unlawful exclusion from participating in an election must establish that he was validly nominated but unlawfully excluded from the election. That the averment at paragraph 3 of the petition falls short of the requirement that the 1st Petitioner must state how he came to have the right to present the petition. He relied on Egolum Vs. Obasanjo (1999) 7 NWLR (Pt.611) 355 at PP.399-400, which was decided on section 50(1) of the Electoral Decree which according to Mr. Idowu is in pari materia with the provision in section 4(1)(b) of the Electoral Act, 2010 (as amended) as well as section 65(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
Mr. Obafemi Adewale, learned counsel to the 1st and 2nd Respondents responded to this issue at paragraphs 4.06 to 4.19 of their Brief of Argument. He submitted that under section 137(1) of the Electoral Act, 2010 (as amended); Egolum Vs. Obasanjo (1999) 7 NWLR (Pt.611) 350; Kamiel Vs. INEC (2010) 1 NWLR (Pt. 1174), that what a petitioner needs to state in the petition is either that it is a registered political party or that he was a candidate nominated by his party for an election, so either the political party or a candidate nominated by the political party or both of them are qualified to bring or file a petition. He referred to paragraphs 1, 2, and 3 of the petition and that the issue of the qualification of the Petitioners to file the petition was not before the lower tribunal and that if it were so, the Appellants ought to have filed a Cross-Petition, because an alleged non-qualification cannot be a defence to a petition. He relied on Idris Vs. ANPP (2008) 8 NWLR (Pt.1088) 1 at P.97.
I have perused paragraphs 1, 2, 3, 9, 12 and 18 of the petition at pages 2 – 7 of the Records of Appeal and it appears clear to me that the basis for the petition, was that the 1st Petitioner was nominated by the 2nd Petitioner – a registered Political Party in Nigeria, to enable the 1st Petitioner participate in the election of the Member representing Ekiti Central II Federal Constituency of Ekiti State at the National Assembly. However, neither the names of the 1st Petitioner nor the logo of the 2nd Petitioner who sponsored the 1st Petitioner, was on the ballot paper used at the election of 26th April, 2011. So, the Petitioners did not participate in the said election and that was why the petition was filed.
In view of the averments in the petition, summarized above, can it be reasoned and said that the Petitioners/1st and 2nd Respondents herein, did not aver sufficient facts upon which they would have ventilated their grievance through an election petition? Did the fact of the 1st Respondent’s nomination by the 2nd Respondent to participate in the 26th April, 2011 election and the fact that the 3rd Respondent at the lower tribunal, did not put the name and logo of the 1st and 2nd Respondents herein, on the ballot paper for the election, indicate that there was a dispute in respect of that election between the 1st and 2nd Respondents and the aforesaid 3rd Respondent? Can it be said that a cause of action had arisen between the said parties and there was a nexus between the Petitioners/1st and 2nd Respondents as litigants and the cause of action in the petition?
I am satisfied that a cause of action arose and existed in the circumstances of this case. There is nothing esoteric about the doctrine of locus standi. It is an innocuous term. It is indeed harmless and the Supreme Court in a more recent decision in Sunday Adegbite Taiwo Vs. Serah Adegboro & Ors (2011) 5 SCNJ 125 laid down two main tests which would guide the courts in determining the right or authority to sue in an action which is all that the doctrine of locus standi means.
The two main tests are:
(1) Is the action justiciable and
(2) Is there in existence a dispute between the parties?
In determining the locus of a person to sue, the probability of the success of the action is not a relevant factor. Once there is a nexus between the litigant and the cause of action, then the litigant has the right to sue. The facts averred in the petition clearly indicate that there is a justiciable cause of action which gave rise to the dispute between the petitioners and appellants and cross-appellants herein.
In sum, I am satisfied that the lower tribunal was not in error when it dismissed the Appellants’ Preliminary Objection in respect of the locus standi of the Petitioners/1st and 2nd Respondents. Therefore, I resolve issue one (1) against the 1st and 2nd Appellants. Ground 1 of the 1st and 2nd Appellants’ grounds of appeal, accordingly fails.
ISSUE 2
Whether the proceedings in this petition has not been fundamentally violated by the failure of the petition to bring a proper application for pre-hearing in accordance with paragraphs 18(1) and 47(1) of the 1st schedule to the electoral act and having regards to such defect, whether the tribunal had not been robbed of jurisdiction to adjudicate over the petition?
Learned counsel to the 1st and 2nd Appellants, submitted that there was non-compliance by the Petitioners with paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) in their application for the issuance of pre-hearing notices for the pre-hearing session on their petition at the lower tribunal and that the alleged failure robbed the latter of its jurisdiction to adjudicate on the petition. Mr. Idowu contended that the phrase “shall apply” used at paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) imports a force of compulsion – a mandatory provision and that with the provision at paragraph 47(2) of the First Schedule to the Electoral Act 2010 (as amended) the application intended under the said paragraph 18(1) of the First Schedule of the same Act, must be by way of a notice of motion. He referred to Ararume Vs INEC (2007) 9 NWLR (pt.1038) 127 at P.160; Achimeku Vs Ishola (1998) 4 NWLR (Pt.89) 411 at 420; Ahambele Vs Imperial Medical Centre (2005) 5 NWLR (Pt.9171 51 at P.61; Oju L.G. Vs. INEC (2007) 14 NWLR (Pt.1054) 242 at 263-264; Abiodun Vs. A.G, Federation (2002) 15 NWLR (Pt.1057) 359 at P.396.
Learned counsel, furthermore submitted that the decision of this court in Riruwai Vs. Shekarau (2008) 12 NWLR (Pt.1100) 142 at P.159 to the effect that the application intended under paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) was an application by “Motion Ex-parte or a Notice” which we should follow. Mr Idowu also submitted that the application in question at page 148 of the record was not signed and therefore invalid. He referred to Saidu Vs. Abubakar (2005) 12 NWLR (Pt.1100) 201 at P.300; and that rules of court are meant to be obeyed and not toyed with by litigants. He relied on Edun Vs. Odan Community (1981) 8 – 11 SC 103 at P.127; William Hope Rising Voluntary Funds Society (1982) NSCC (Vol.13) 36; Ali Vs Osakwe (2009) 14 NWLR (Pt.1160) 75 at P.149; Ogunsaki Vs. Ajidara (2008) 6 NWLR (Pt.1082) 1; Ikoro Vs. Izunazo (2009) 4 NWLR (Pt.1130) 45 at P.69; Amachi Vs. INEC (2008) 5 NWLR (Pt.1080) 227 at P.318. He urged us to read paragraph 47(2) of the First Schedule to the Electoral Act 2010 (as amended) with paragraph 18(1) of the same schedule to the Electoral Act 2010 (as amended) and give them their simple meanings as they are unambiguous. He placed reliance on Buhari Vs. Obasanjo (2005) 2 NWLR (Pt.910) 241.
Mr Obafemi Adewale at paragraphs 3.05 to 3.18 of the 1st and 2nd Respondents’ Brief of Argument submitted to the effect that the application for the issuance of a pre-hearing notice at the instance of the Petitioners was not a letter and that it has the features of an application ex-parte. He submitted that the said application was in substantial compliance with paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).
Now, the essence of a pre-hearing notice is no more than that the parties be informed that pleadings had been concluded on the Petitioners’ petition and a fortiori, the Petitioner had the duty under paragraph 18(1) of the first schedule to the Electoral Act, 2010 (as amended) to inform the Secretary of the election tribunal, by an application, for the issuance of pre-hearing notices to the Respondents. Thus, the application was a communication between the Petitioners and the secretary of the lower tribunal for the issuance of Form TF/007, for the parties to attend the pre-hearing session.
The Respondents/Appellants herein, responded to the hearing notice vide Form TF/008. There is no record that the Form TF/008 was filed in protest by the Appellants.
The Appellants attended and participated at the pre-hearing session and since there was no protest at that time, the Respondents certainly had waived their rights to complain against any step taken by the Petitioners in activating the pre-hearing notice and session. A right waived, in law, is as good as a right lost or abandoned!
See: Bakare Vs. Lagos State Civil Service Commission (1992) 10 SGNJ 193 at P.229.
In any event, by the provision of section 38(5) of the Electoral Act, 2010 (as amended), the Respondents wishing to raise an objection to the hearing of a petition could do so in their reply to the petition but this was not done by the Respondents – Appellants herein.
The decision of this court in Riruwai Vs. Shekarau (Supra) relied upon by the Appellants no longer represents the law. In its place, the decisions of the Supreme Court in Okereke Vs. Yaradua (2008) 12 NWLR (Pt.100) 95 at P.120 and Nwankwo Vs. Yaradua (2010) 12 NWLR (Pt.1209) at P.559 to the effect that no motion can be moved and determined prior to the pre-trial session represents the law. Thus, if no motion can be moved and determined prior to the pre trial session, it follows that it would be absurd to file an application, Ex parte or on notice of motion which must be heard and determined before the commencement of the pre-trial session.
Thus, the application envisaged under paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) meant no more than the Petitioners alerting the Secretary of the lower tribunal that Form TF/007 be issued to activate the pre-trial session.I am fortified in my view by the most recent decision of the Supreme Court in the unreported case SC.350/2011 of 9th November, 2011 between Mallam Abubakar Abubakar & Ors Vs. Saidu Usman Nasamu, where his Lordship, Tabai, JSC opined:
“I have already held that there was no noncompliance with the provisions of paragraph 18(1) of the First Schedule to the Electoral Act. Assuming, for the purpose of argument, that there was such non-compliance, would it affect the jurisdiction of the court to entertain the petition? I would answer this question in the negative.
Jurisdiction is a creation of the Constitution and statute. And the settled principle of law is that it is the claim or petition that determines ifs competence. The claim or petition must come within the ambit of the law that has conferred the jurisdiction. In this case there is no challenge of the competence of the petition.
The challenge here is non-compliance with paragraph 18(1) of the First Schedule to the Electoral Act. Where a plaintiff in a procedural steps necessary for the successful prosecution of the claim or petition, his act or omission constituting such failure or default does not affect the jurisdiction of the court. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal. In view of the foregoing I hold, with respect that the argument of learned senior counsel for the 1st – 3rd respondent is untenable.”
Further see: Unreported Suit No: SC.360/2010 of 14th November, 2011 between PROF. STEVE TORKUMA UGBA & ORS VS PEOPLES’ DEMOCRATIC PARTY (PDP) AND ORS.
Flowing from the above, it is crystal clear that this issue is not only fanciful but fluffy. lt has no onions. I therefore resolve it against the Appellants. Ground 2 of the Appellants’ grounds of appeal, fails too.
ISSUE 3:
“Whether or not the issues canvassed before the Lower Tribunal are pre-election matters?”
The submission of Niyi Idowu, learned counsel to the 1st and 2nd Appellants is that the issues of nomination of candidates for an election and all the processes connected thereto cannot be said to be a pre-election matters within the meaning of the provision of the Electoral Act, 2010 (as amended). But that even if it is so, the Petitioners were required to prove that the 1st Petitioner was properly nominated by the 2nd Petitioner/Respondent. He further submitted that the decisions in Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 562; Action Congress Vs INEC (2007) 12 NWLR (Pt.1043) 270 which were relied upon by the lower tribunal, were decided under the Electoral Act, 2006 and so the ratio decidendi in those cases could not have been applied in the interpretation of the Electoral Act, 2010 (as amended) where the provision is not in pari material and that a case is an authority for what it actually decided and cannot apply in all situations and seasons. He relied on A,G. Anambra Vs Okeke (2002) 12 NWLR (Pt.782) 575 at P.608; and that the facts in a given case must readily be on all fours with the case on hand, before a Court will apply such a decision of a superior court. He referred to Adegoke Motors Vs Adesanya (1989) 3 NWLR (Pt.109) 250 at P.266.
The Cross-Appellants, argued this issue at paragraphs 5.00 to 5.13 of their Brief of Argument under their own issue one. Learned counsel submitted that since the 1st and 2nd Petitioners made the issue of the valid nomination of the 1st Petitioner/Respondent, an issue in the petition which was contested by the Appellants, the lower tribunal was duty bound to resolve it based on the oral and documentary evidence at its disposal at the trial. He referred to ACB Vs Emostrade (2002) 8 NWLR (Pt.770) 501 at P.515; Ekwealor Vs Obasi (1990) 2 NWLR (Pt.131) 231 at P.251. Furthermore that under Section 138(1)(d) of the Electoral Act 2010, under which the petition was predicated, the issue or question of a valid nomination became a vital ingredient of a claim of an unlawful exclusion but that since the lower tribunal said it could not determine the question of valid  nomination, it had lost the jurisdiction to entertain the whole claim of the Petitioners. He referred to Edet Vs Customs and Excise (1965) 4 NSCC 58 at P.63; UBA Vs Etiaba (2010) 10 NWLR (Pt.1202) 343 at P.393.
Mr. Oso Adetunji, furthermore submitted that since the processes leading to an election included the sponsorship and nomination of candidates for an election, and the actual conduct of the election itself, they are all within the jurisdictional competence of an Election Petition Tribunal, where and indeed an election had taken place. He relied on Ohakim Vs. Agbaso (2010) 19 NWLR (Pt. 1226) 172 at PP.232-233. He also relied on Sections 31 of the Electoral Act 2010 (as amended) and the authorities of O.S.I.E.C Vs. AC (2010) 19 NWLR (Pt. 12261 at 318; DPA Vs Saraki (2007) 17 NWLR (P1.1064) 453 at P.496.
Furthermore, Mr. Adetunji contended that the Cross-Appellants could not have invoked the provision of Section 87(10) of the Electoral Act, 2010 (as amended) against the nomination of the 1st Petitioner since the question of the valid nomination of the 1st Petitioner was not an intra party affair within the party. He referred to Saidu Vs. Abubakar (2008) 12 NWLR (Pt.1100) 201 at P.300. It is the contention of Mr. Adetunji that under Section 85(1) of the Electoral Act, 2010 (as amended), and the Supreme Court decision in Ugwu Vs Ararume (2008) ? NWLR (Pt. 1048) 499 that the Cross-appellants have the power to control the processes and procedures of nomination and sponsorship of candidates for general elections in the country. And that the cross-appellants in the circumstances of this case relied on section 87(9) of the Electoral Act 2010 (as amended) against the nomination of the 1st Petitioner and needed not to have approached the court to do so. He referred to A.D VS FAYOSE (2005) 8 NWLR 639 and that a person must first be qualified before he can be disqualified. He relied on A.D Vs. Fayose (2005) 10 NWLR (Pt.932) 151 at P.187. He urged us to resolve this issue against the 1st and 2nd Respondents.
On his part, Mr. Obafemi Adewale, submitted that the petition at the lower tribunal was hinged on Section 138(1)(d) of the Electoral Act 2010 (as amended) to the effect that the 1st Petitioner was validly nominated by the 2nd Petitioner but was unlawfully excluded by the 3rd Respondent/Cross-appellant. He referred to Egolum Vs Obasanjo (1999) 7 NWLR (Pt.611) 350; Kamiel Vs INEC (2010) NWLR (Pt.1174) 125 at P.142; ANPP Vs Usman (2008) 12 NWLR (Pt.1100) 1. He submitted furthermore that the question of the valid nomination of the 1st Petitioner by the 2nd Petitioner as found by the lower tribunal vide Exhibit P1 at pages 375-376 of the Records of Appeal was irrefutable by the Respondents/Appellants who did not cross-petition on the qualification of the 1st Petitioner as a candidate at the aforesaid election. He referred to Etim Vs. Obot (2010) 12 NWLR (Pt. 1207) 108 at P.204; Idris Vs ANPP (2008) 8 NWLR (Pt.1065) 50 at P.97; Action Congress Vs INEC (2007) 18 NWLR (Pt.1065) 50 at P.73 and concluded that the issues of disqualification, nomination, substitution and sponsorship of candidates for an election precede the conduct of elections and are therefore pre-election matters.
I have perused again paragraphs 1, 2, 3, and 9a of the petition at the Lower Tribunal and it is clear to me that the said petition was grounded on the fact that the 1st Petitioner was validly nominated by the 2nd Petitioner, but that they were unlawfully excluded from participating in the election of 26th April, 2011. Thus, the petition was in pursuance of section 138(1)(d) of the Electoral Act 2010 (as amended) which provides that:
Section 138(1) “An election may be questioned on any of the following grounds, that is to say:
(a) ………………………………
(b) ………………………………
(c) ………………………………
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The 1st and 2nd Appellants herein were the 3rd and 4th Respondents at the lower tribunal and at paragraphs 3, 4, 5, and 6 of their Reply to the petition they contended that the 1st Petitioner was not nominated by the 2nd Petitioner, firstly because the 1st Respondent (INEC) at the lower tribunal but 3rd and 4th Respondents/Cross-appellants herein, “did not have in its designation any constituency named and called Ekiti Central Federal Constituency and no election took place in any constituency so called; secondly, that the Petitioner, though a registered political party, “does not have any office in Ekiti State.”
The lower tribunal in her findings at pages 375-376 of the Records of Appeal, came to the conclusion that the 3rd Cross-Appellant acknowledged the receipt of the nomination form CF001 from the 2nd Petitioner in respect of the 1st Petitioner, thus:
“Exhibit P1″ that is, the acknowledgement of the receipt of the form CF001 from NTP shows that the name of BAMIGBADE PETER was submitted to INEC for the office of the House of Representatives. None of the Respondents challenged or rebutted this Exhibit. …”
Unarguably, the question of the conduct of political party primaries to select a candidate whom it intends to sponsor and participate in an election are pre-election matters which by virtue of section 285(1) of the 1999 Constitution of the Federal Republic of Nigeria, the lower tribunal had no jurisdiction to inquire into and determine. This position of the law, was to my mind appreciated by the lower tribunal when it applied the decisions of the Supreme Court in Odedo Vs. INEC (2008) 17 NWLR (Pt. 1117) at pages 562-563 and of this court in ANPP VS Usman (2008) 12 NWLR (Pt.1100) 1. See pages 374 – 375 of the Records of Appeal. Hence, it came to the decision that it had “no power to enquire whether the nomination of the 1st Petitioner was proper or legal or whether the 2nd Petitioner conducted proper primaries through which the 1st Petitioner emerged as the candidate of the National Transformation Party. They are no go areas.” So, the lower tribunal could not have investigated the conduct of the 2nd Petitioner’s primaries which threw up the 1st Petitioner as the candidate of the 2nd Petitioner for the election in question. An investigation of whether or not the 2nd Petitioner conducted a proper primary election which threw up the 1st Petitioner as the former’s candidate for the actual election, would have amounted to investigating a pre-election matter which is a “no go area” for the lower tribunal.
However, in order to determine the petition which was anchored on section 138(1)(d) of the Electoral Act 2010 (as amended) the lower tribunal was duty bound to determine whether or not that the 1tt Petitioner was validly nominated before he was unlawfully excluded from the actual election in question. This, the lower tribunal did ex facie on its perusal of Exhibits P1 and PG which confirmed the valid nomination of the 1st Petitioner by the 2nd Petitioner and which was acknowledged by the 3rd Cross-appellant. The lower tribunal certainly from the Records of Appeal, herein, did not inquire into the conduct of the 2nd Petitioner’s primaries which produced the 1st Petitioner as her candidate which she nominated to stand for the election of 2nd April, 2011, to the office of member, House of Representatives of the Nigerian National Assembly.
In all, the position of the law on qualification or valid nomination for an election as a ground upon which an election petition can be predicated remains as it was stated by this court in IDRIS Vs ANPP (2008) 8 NWLR (Pt.1088) 1 at PP.97-98, to wit:
*To my mind, the issue of qualification of a candidate is a ground upon which a petition can be presented…. In the instant case, the ground upon which the petitioners brought their petition was under section 145(1) (d) of the Electoral Act 2006, if the Appellant wanted to use the ground of qualification against the 2Nd petitioner for whatever reasons, it has to file a cross- petition and not to use such alleged non-qualification of the 2nd petitioner as a defence. ..This, they failed to do.”In the end, I resolve this issue in the affirmative and against the Appellants/Cross-appellants. Ground 3 of the 1st and 2nd Appellants’ ground of appeal and grounds 1, 2, 3, 4, and 5 of the Cross-appellants’ grounds of appeal each fail.
ISSUE FOUR (4):
“Whether or not having regard to the totality of evidence and circumstances of this case, the lower tribunal was not wrong, to have nullified the election and return of the Appellants.”
The tenor of the submissions of learned counsel to the Appellants on this issue was more of the argument in respect of issue 3, to wit: that the Petitioners at the lower tribunal did not comply with the provisions of section 87(9) of the Electoral Act 2010 (as amended) to the effect that if proper primaries are not conducted by a political party to elect its candidate for an actual election, the names of “its candidates for election shall not be included in the election for the particular position in issue.” And that was why the Petitioners were excluded from the election, in question. Mr. Idowu furthermore submitted that the lower tribunal’s order for “a fresh election for “the House of Representatives in Ijero/Ekiti West/Efon Federal Constituency” was a charitable order because Relief 6 prayed for by the petitioners was for:
“An order of the Court ordering the 1st Respondent to conduct a fresh election in Ekiti Central II Federal Constituency of Ekiti State”.
He relied on Agip Vs Agip (2010) 5 NWLR (Pt.1187) 348 at P.424.
Learned counsel to the 1st and 2nd Respondents, submitted that by virtue of section 31(1) of the Electoral Act 2010 (as amended), the 3rd Cross-appellant had no power to have rejected or disqualified the candidature of the 1st Petitioner, who was excluded from participating in the election, in question. He relied on Action Congress Vs INEC (2007) 12 NWLR (Pt.1048) 220; INEC Vs Action Congress (2009) 2 NWLR (Pt. 1126) 524 at P.589; Idris Vs ANPP (2008) 1 NWLR (Pt.1088) 101 at PP.119 and 129. He urged us to hold that the 3rd Respondent/Cross Appellant had no power to have rejected the nomination of the 1st Respondent by the 2nd Respondent, hence the lower tribunal was right to have nullified the election of the 2nd Appellant.
Undeniably, and irrefutably, the 3rd Respondent/Cross-appellant herein, rejected the candidature of the 1st Petitioner/Respondent who was nominated by the 2nd Respondent to contest the election into the House of Representatives as a member, thereof from Ekiti State. The reason for the said rejection by the 3rd Respondent/Cross-appellant was that the 1st Petitioner did not go through any proper party primary election conducted by the 2nd Petitioner/Respondent and supervised by the 3rd Respondent/Cross-appellant. So, neither the name of the 1st Petitioner/Respondent, nor the logo of the 2nd Petitioner/Respondent was reflected on the ballot paper that was used for the election in question on 26th April, 2011. These facts are uncontroverted.
Now, did the 3rd Respondent/Cross-appellant possess the power to reject the nomination of the 1st Petitioner/Respondent by the 2nd Petitioner/Respondent?
The Electoral Act 2010 as amended, at section 31(1) thereof stipulates that:
Section 31(1): “Every political party shall, not later than 60 days before the date appointed for the general election under the provision of this Act, submit to the Commission in the prescribed forms, the list of candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.”
The aforementioned provision at section 31(1) of the Electoral Act 201 0 (as amended) has no ambiguity. It is very clear and straight forward. It is indeed didactic, to the effect that once a political party presents its list of candidates not later than 60 days to a general election, to the Independent National Electoral Commission, the latter on no account whatsoever, is to reject or disqualify such candidate(s) nominated by a political party.
The apex court as far back as 2007 in Action Congress & Anor Vs INEC (2007) 12 NWLR (Pt.1048) 270 at P.275 per my Lord, Onnoghen, JSC, had laid the matter to rest when he said:
“I have no hesitation whatsoever in holding that having regard to the state of the applicable law, the Respondent (INEC) has no power either under the 1999 Constitution or 2006 Electoral Act, or any other law to screen or disqualify any candidate for any election in Nigeria.”
The above view was re-echoed more recently in Independent National Electoral Commission (INEC) Vs Action Congress (2009) 2 NWLR (Part 1126) 524 at P.589, that.
“a person whose name was submitted to INEC as a candidate….would be entitled to defend that right. A person who secured the nomination of his political party and whose name u/as submitted….and accepted as a nominated candidate is entitled to petition if he is unlawfully excluded.”Therefore, apart from the authorities referred to above, section 31(1) of the Electoral Act, 2010 (as amended) effectively and for the avoidance of doubt, removed the carpet from under the feet of INEC (the 3rd Respondent/Cross-appellant herein) from having any platform upon which it can stand to reject or disqualify a nominated candidate by a political party to participate in an election. So, in the circumstances of the instant case, the exclusion of the 1st Petitioner/Respondent, from participating in the 26th April, 2011 general election to the office of member, House of Representatives, from Ekiti State, by the 3rd Respondent Cross-Appellant was inexcusable and unlawful, because it lacked the vires to have done so.
Having resolved under issue 3, that the 1st Petitioner/Respondent was validly nominated as a candidate for the 26th April, 2011 election to the House of Representatives; and that the 3rd Respondent/Cross-Appellant had no power which it erroneously assumed and unlawfully rejected the said nomination and invariably excluded the 1st Petitioner/Respondent from participating in the aforementioned election by not listing his name as one of the candidates for the election and also not featuring the logo of the 2nd Petitioner/Respondent on the ballot paper used for the election, but declared the 2nd Appellant as the winner of the same election, I am satisfied that all the features in the authority of IDRIS VS INEC (Supra) are present in the instant case. Hence, with the nullification of the election of Ibrahim Idris in that case because of the unlawful exclusion of Abubakar Audu from the election to the office of Governor of Kogi State on 14th April, 2007; so also the nullification of the election of the 2nd Appellant – OJO OYETUNDE OLADIMEJI, who allegedly won the House of Representatives Election of 26th April, 2011 with the unlawful exclusion of the 1st Petitioner, was sine qua non. It could not have been otherwise! The lower tribunal was commendably on the side of the law when it nullified the said election.
I have considered the contention of the 1st and 2nd Appellants that the lower tribunal donated to the petitioners what they did not ask for in relief 6 of the petition. The simple answer to that contention was provided by the lower tribunal thus:
“It must be stated here also that INEC had no doubt as to the proper Constituency the 1st Petitioner intended to stand for election into the House of Representative. RW1 confirmed in her testimony before us that there are two Federal Constituencies in Ekiti Central Electoral District and that they are known and may be called Federal Constituency I or Federal Constituency II.
This line of arguments by the Respondents on this issue that there is no Constituency called Ekiti Central II Federal Constituency are mere semantics and technicalities not ripe for further consideration in this petition.”
I entirely agree with the finding of the lower tribunal. In the end, I resolve this issue against the Appellants. Grounds 5 and 6 of the Notice of Appeal, each fail.
I hold that the 1st and 2nd Appellants’ appeal has no merits and fails in its entirety. It is accordingly dismissed.
I also hold that the 3rd and 4th Respondents/Cross-Appellants appeal fails in its entirety, for lacking in merits. I dismiss it, accordingly.
The judgment of the lower tribunal delivered on 21st September, 2011 is hereby affirmed.
It is directed that the fresh election ordered by the lower tribunal, which must include the 1st and 2nd Petitioners as a candidate and a party respectively in the fresh election, be carried out within 90 days from 17th November, 2011, in respect of the House of Representative seat for Ijero/Ekiti West/Efon Federal Constituency, by the 3rd Respondent/Cross-appellant.
Each side to bear own cost.
OBANDE OGBUINYA, J.C.A: On the 17th day of November, 2011, I made a pronouncement, pursuant to section 9(8) of the second alteration No. 2 of 2010 of the 1999 Constitution (as amended)’ wherein I dismissed the appellants’ appeal. I now give my reasons for giving that decision which was different from the leading judgment delivered by my learned brother Sotonye Denton West, J.C.A.
Before marshalling out the reasons, it is germane to state, briefly, the facts, which are not complicated, that led to the appeal. The third respondent/cross-appellant, the Independent National Electoral Commission, INEC, conducted an election into the House of Representatives for Ijero/Ekiti West/Efon Federal Constituency of Ekiti State on 26/04/2011. In that election, the second appellant, Ojo Oyetunde Oladimeji, was the flag or standard bearer for the first respondent, the Action Congress of Nigeria (CAN) whilst the second respondent, the National Transformation Party (NTP) fielded the first respondent, Prince Bamigbade Adekola Peter, as its candidate. After the election, the fourth respondent/cross-appellant returned the second appellant as the winner of that election.
The first and second respondents were peeved by that return and they, as petitioners, presented a petition challenging that declaration before the National and State Houses of Assembly Election Petition Tribunal of Ekiti State on 17/05/2011. Their petition was predicated on three grounds to wit:
“9a. That the election is invalid by reason that the 1st petitioner was validly nominated by the 2nd petitioner but was unlawfully excluded from the election. Be that the election is invalid by reason of non-compliance with the provisions of the Electoral Acts 2010.
C. That the 4th Respondent was not duly elected and returned because of the unlawful exclusion of the petitioners.”
In a swift reaction to the petition, the appellants, as the third and fourth respondents, entered a conditional appearance and filed a reply to the petition, which incorporated a notice of preliminary objection, on 27/05/2011. On their part, the first and second respondents/cross-appellants, as the first and second respondents in the petition, filed their reply to the petition on 01/06/2011. In turn, the first and second respondents, the petitioners, filed a reply in answer to the appellants’, the third and fourth respondents’, reply on 15/06/2011. All those processes, the petition and replies, were accompanied by statements on oath of witnesses as required by law.
At the closure of the exchange of pleadings as narrated above, the tribunal in consonance with the law, conducted pre-hearing proceedings on 23/06/2011 and 24/06/2011 with the participation of all the parties. The pre-hearing proceedings duly terminated at the issuance of pre-hearing session report by the tribunal on 24/06/2011 contained on pages 210-214 0fthe printed record.
During trial, the first and second respondents called three witnesses, PW1-PW3, the third and fourth respondents/cross-appellants called one witness, R.W.1, whereas the appellants called two witnesses, Rw2 and Rw3. After the addresses of learned counsel for the parties, the tribunal, in its judgment, delivered on 21/09/2011, granted the first and second respondents’ prayers by nullifying the election and ordering a fresh election to be conducted for the House of Representatives seat in Ijero/Ekiti West/Efon Federal Constituency to include the first and second respondents.
The appellants were dissatisfied with that judgment and they filed a six-ground notice of appeal on 10/10/2011. The third and fourth respondents/cross-appellants were also aggrieved by that decision and they filed a notice of cross-appeal, hosting five grounds, on 11/10/2011.
In line with the provisions of the Election Tribunal and Court Practice Directions, 2011, parties filed and exchanged their respective briefs of argument. The appeal came up for hearing on 14/11/2011 and was heard on that day. During the hearing of the appeal, learned counsel for the appellants, Niyi Idowu, Esq., adopted the appellants’ brief of argument and their reply brief of argument, filed on 24/10/2011 and 03/11/2011 respectively, as representing his submissions i1 support of the appeal. He urged the court to allow the appeal. In the same vein, learned counsel for the third and fourth respondents/cross-appellants, Oso Adetunji, Esq., adopted their brief of argument and their reply brief of argument, filed on 24/10/2011 and 03/11/2011 respectively, as forming his arguments in support of the cross appeal. He urged the court to allow the cross appeal. On the other hand, learned counsel for the first and second respondents, Obaferni Adewale, Esq., adopted their brief of argument, filed on 28/10/2011, as representing his submissions against the appeal and the cross appeal. He urged the court to dismiss both of them.
Sequel to those adoptions, the court fixed the appeal for judgment on 17/11/2011. On that day, 17/11/2011, the court gave its decision and reserved its reasons later. The leading judgment was delivered by Stonye Denton-West, JCA, wherein she allowed the appeal. I gave a dissenting opinion different from hers. I dismissed the appeal. Hence, the reasons for that my decision.
In the first and second respondents’ brief of argument, precisely from pages 10- 12 thereof, their learned counsel raised an objection to the competence of both the appellants’ appeal and the third and fourth respondents/cross-appellants’ cross appeal. Against the appellants, appeal, learned counsel submitted that it was incompetent because they, the appellants, were nominal parties at the tribunal as they were joined because their interest would be affected by the its decision. He further submitted that the substance of the petition was a complaint against the acts and/or omission of the third and fourth respondents/cross-appellants who unilaterally disqualified the first respondent and omitted the name and logo of the second respondent on the ballot paper, exhibit R6, notwithstanding several protestations by them. He referred to the order of the tribunal and added that it was directed to INEC to carry out a particular duty. He took the view that the appellants, as nominal parties, had no other role or duty than to present themselves for erection whenever INEC called for fresh election as ordered by the tribunal. He stated that in the absence of an appeal by INEC, the appellants’ appeal became academic as they would not cry more than the bereaved. He cited the case of Agbakoba v. INEC (2008) 18 NWLR (Pt.1119) 489 at 546-547; Adeogun V. Fasogbon (2008) 17 NWLR (Pt.1115) 149 at 180-181; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 534 at 600 – 602 in support of his submission.
It was the further submission of learned counsel that Oso Adetunji, Esq., who settled the cross appellants’ briefs of argument, was one of the counsel that appeared for the appellants in the tribunal and filed their notice of appeal. He added that Soji Olowolafe, Esq. filed the notice of cross appeal and Oso Adetunji, Esq. took over it without any notice of change of counsel He urged the court to dismiss the appeal as incompetent.
Regarding the cross appeal, Learned counsel contended that it was incompetent because the judgment of the tribunal was against the cross-appellants per se and if they felt aggrieved, they should have filed an appeal against it, He explained that a cross appeal could only be filed by a successful party who opposed the appeal or who wanted a judgment affirmed or varied on grounds different from those relied on by a lower court. In support he referred to the cases of owners of MV “Arabella” v. NAIC (2008) 11 NWLR (Pt.1097) 182 at 213 – 215; Christlieb Plc v. Majekodunmi (2008) 16 NWLR (Pt.1113) 234 at 345-346; Adekoye v. N.S.P.M.C. Ltd. (2009) 5 NWLR (Pt.1134) 322 at 338; Unity Bank PLC V. Bouari (2008) 7 NWLR (Pt.1086) 372 at 413. Learned counsel insisted that an unsuccessful party, like the cross appellants, could not file a cross appeal. He urged the court to dismiss it as incompetent’
On the other hand, the appellants’ learned counsel’ on pages 2 – 3 of their reply brief, argued that the contentions of the first and second respondents were novel and untenable because it was them that joined the appellants and the decision appealed against substantially affected them, the appellants, since the election and return of the second appellant were annulled by the tribunal. He further argued that the second appellant as the person declared and returned as the winner of the election, the subject matter on appeal, was a necessary party by virtue of section 137(2) of the Electoral Act, 2010 (as amended) and without him, the petition would not have been competent and so he was not, in law and infact, a nominal party.
Learned counsel insisted that the right of a party properly joined as a party to a suit, assuming without conceding that such party was nominally joined to the appeal, provided he felt dissatisfied with the decision in the said suit, was constitutional and such right could not be taken away by anybody, not in the least by a party that joined him. The reason, according to learned counsel, was because the appeal was a continuation of the process originated by him, the first and second respondents therein. He relied on the case of Dagazau v. Bokir Int Ltd. (1999)7 NWLR (Pt.610) 293 at 305. He added that the appellants having their legal right to participle in election, as a political party and a candidate respectively, and declared as winners had suffered a legal grievance by the decision of the tribunal annulling their election and they had a right to appeal. He placed reliance on the case of Akinbiyi V. Adelabu (1956) 1 NSCC 40 at 41 – 42. He urged the court to overrule the objection.
Similarly, learned counsel for the cross appellants submitted that the first and second respondents’ procedure in challenging the competence of the cross-appeal was incompetent and should be dismissed. Referring to the provisions of Order 10 rule 1 of the Court of Appeal Rules, 2011, he maintained that a respondent that intended to challenge the whole appeal must file a proper notice of preliminary objection setting out the grounds of such objection. He cited the case of SCOA (Nig.) Plc V. Danbatta (2002) 13 NWLR (Pt.785) 461 at 473.
In the alternative, learned counsel for the cross-appellants posited that a cross appeal could be validly filed by parties one or two, not only a successful party, who felt dissatisfied with the judgment of a lower court. He referred to the case of Igwe V. and Kalu (2002) 14 NWLR (Pt.787) 435 at 454 in support. He explained that the appellants filed their appeal first on 10/10/2011 and made the cross-appellants respondents to it so that they, the cross appellants, could not have filed another appeal since there could be only one appeal, all others should be cross-appeals. He persisted that where a respondent to a main appeal, like the cross-appellants, was desirous of calling for a reversal of the judgment, the only option left to him was to file a substantive cross-appeal. He relied on the cases of Owners MV “Arabella” V. NAIC (supra); Obasanya v. Omolaja (2001) 28 WRN 21 at 35.
Learned counsel notified the Court that the first and second respondents failed to react to the issues raised in the cross-appellants’ brief by filing a cross-respondent’s brief and so deemed to have conceded to all the issues raised in the cross-appellants, brief. In support of his view, he cited the cases of Ayelogu v. Agu (1998) 1 NWLR (Pt. 532) 129 at 140; Okangwu v. NNPC (1939) 1 NWLR (Pt.115) 296 at 309 – 422.
On the issue of Oso Adetunji’s appearance for the cross-appellants, learned counsel tagged it academic since they, the cross appellants, were constitutionally enabled to engage any counsel of their choice and that they had not alleged any impropriety or conflict of interest against Oso Adetunji, Esq. He persisted that the court could not inquire into who appeared for who and relied on the case of Nur V. NRC (1996) 9 NWLR (Pt. 473) 490 at 402.
He urged the court to dismiss the objection.
Before attending to the first and second respondents’ objection, I will, first and foremost, consider the objection raised by the cross-appellants’ learned counsel against it to the effect that it was not brought in line with the provisions of Order 10 rule 1 of the Court of Appeal Rules, 2011. That provision reads:
ORDER 10 – NOTICE OF PRELIMINARY OBJECTION.
1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
It admits of no argument that the first and second respondents observed this provision in the breach as they factored their objection into their brief of argument, pages 10 -12 thereof. The objection does not contain the grounds on which it is predicated upon as mandated by that provision.
Nevertheless, I will not terminate the objection in limine for two reasons. Firstly, I take refuge under the overriding interest of substantial justice, as enshrined in Order 20 rule 3 (1) of the Rules to waive their non-compliance with the prescription of Order 10 rule 1 of the Rules. The case of Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1 is apt. After all, where strict adherence to the rules of court constitutes a decoy or hiccups in the terrain of substantial justice, the courts are enjoined to lean on the side of justice, see U.T.C. (Nig.) Ltd. V. Pamotei (1989) 2 NWLR (Pt. 103) 244; Duke v. Akpabuyo L.G (2005) 19 NWLR (Pt.959) 130.Secondly, the objection questions the competence of the both the main appeal and the cross-appeal which, in turn, impinges on the jurisdiction of this court to adjudicate over them. Since it touches on the jurisdiction of this court, jurisdiction being the linchpin and fulcrum of all adjudications, I have no option than to determine it one way or the other. In holding this view, I draw on the case of Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 423 wherein Rhodes-Vivour, JSC stated:
Nowadays, preliminary objections are filed once a respondent notices any error in the appellant’s processes. This is wrong. Where the respondent complains of the competency of a ground/s of appeal as in this appeal, and the other ground/s are in order, and can sustain the appeal, the respondent ought to file a motion on notice to strike out the incompetent grounds and not a preliminary objection…
Finally and for emphasis, a preliminary objection is field only against the hearing of the appeal and not against one or more grounds of appeal. I shall proceed to examine the objection wrongly couched as preliminary objection as I cannot brush it aise, it being fundamental… (underlining mine).
Let me add apace that the decision of the Court of Appeal in the case of SCOA (Nig.) Plc. V. Danbatta (supra), on which learned counsel for the cross appellants pegged his submission, is quite in tandem with the pronouncement in Odunukwe’s case supra and, I dare say, both seriously count against his stance. It is on account of these two signal reasons that I beg to differ with learned counsel for the cross-appellants on their objection to that objection. In the circumstance, I overrule that cross appellant’s objection to the respondents’ objection.
It considering the objections against the competence of the main appeal and cross appeal, I will take them in sequence. I will, therefore, kick off with dealing with the objection against the main appeal. I must, without much ado, observe that I am not at one with the contention of the learned counsel for the objectors, the first and second respondents, that the appellants were nominal parties and the petition was directed or targeted at INEC, the cross appellants. I hold the view that the appellants were/are, to all intents and purposes, necessary parties to the petition. This is because all the issues in the petition could not have been completely and effectively determined without their being made parties so as to be bound by its result, see Green v. Green (1987) 3 NWLR (Pt. 61) 480; Okonta v. Philips (2010) 18 NWLR (Pt. 1225) 320; Cotecna Int’l Ltd. v. Churchgate (Nig) Ltd. (2010) 18 NWLR (Pt. 1225) 346. Indeed, it is novel, curious and unfathomable that the very respondents/objectors who joined the appellants as parties to the petition should turn round or make a volte face to deride their appeal as incompetent. It cannot lie in their, the objectors’, mouth to do the somersault.
That is not all. The right of appeal, against decisions of courts, the tribunal herein, is donated to the appellants by the constitution, the fons et origo of our laws. In other words, appeal is a constitutional right. It is allocated, as of right, to the appellants by the sacred and inviolable provisions of section 246(1)(b) of the 1999 Constitution, as amended, by the Second Alteration, Act No. 2 of 2011. In the case of E.F.P. Co. Ltd. V. N.D.I.C. (2007) 9 NWLR (Pt.1039) 216 at 253, Tobi, JSC, lucidly opined:
The right of appeal is constitutional as it is provided in the Constitution. It stands on the very height of the appeal decision by virtue of the fact that the Constitution provides for it. As a constitutional right, it overrides most other negative principles aimed at foreclosing the right.
See, also, Nwana V. F.C.D.A. (2007) 11 NWLR (Pt. 1044) 59.
Indeed, if “any other person having an interest in the matter”, one not an original party to an action, could have a right of appeal, albeit with the leave of court, under section 243 of the 1999 Constitution, as amended, then afortiori the appellants who were parties to the petition ab initio. Going by the foregoing analyses, I do not buy in toto the argument of the objectors that the appellants’ appeal is academic in the absence of any appeal from INEC. The cases of Agbakoba v. INEC (supra); Adeogun v. Fasogbon (supra) and Odedo V. INEC (supra), on which their learned counsel place high premium on that contention, are, with due respect, not in Point.
The learned counsel for the respondents/objectors also castigated or carpeted the appellants’ appeal on the ground that the learned counsel for the cross- appellants, Oso Adetunji, Esq., was one of the counsels that appeared for them in the tribunal and filed their notice of appeal as shown on pages 288, 343, 391 and 396 of the printed record. That is totally correct. However, it seems to me that those appearances or his name making the list of counsel for the appellants and his subsequent decamp and defection to the camp of the cross appellants are not sufficient justifications to constitute a blot on the competence of their appeal. The reasons offered earlier are potent enough to take care of this adjunct point made by the objectors. In the end, I hold that the appellants’ appeal is competent, in all ramifications, before this court. It follows that the objection made against it is devoid of any iota of merit. Consequently, I overrule it.
I will now thrash out the objection against the competence of the cross-appeal. I agree, without reservations, with the submission of the learned counsel for the objectors that it is a successful party that files a cross appeal seeking to set aside or reverse a finding which is crucial and fundamental in a matter, see Owners of MV “Arabella” V. NAIC (supra).Hence, the Blacks Law Dictionary, Seventh Edition, or page 94, defines cross-appeal as: “An appeal by the Appelle, usu,(sic) heard at the same time as the appellant’s appeal”. The same Blacks Law Dictionary, Seventh Edition, on page 95, defines appelle as: “A party against whom an appeal is taken and whose role is to respond to that appeal, usu, seeking affirmance of the lower court’s decision. Cf. APPELLANT”.
It can be discerned or garnered from the above highlights, when married with the facts of this appeal, that the cross-appellants, against whom the tribunal gave judgment, were/are not in the least appelles who ought to seek affirmation of the tribunal’s decision. They are supposed to be the appellators or appellants’ and, de jure, ought to file an appeal. It is also not in doubt that the appellants’ appeal was for the respondents/objectors, not the cross-appellants, to respond to it. It is the respondents/objectors that have the bounden duty, where necessary’ to file a cross-appeal, hence the prefix “cross”. The fact that the reliefs claimed by the appellants are symmetrical with those supplicated by the cross-appellants, on pages 395 and 406 of the record respectively, further justifies and fortifies my view that the latter should have filed an appeal, not a cross appeal. Even the case of Igwe V. Kalu (supra), on which the Learned Counsel for the cross appellants heavily relied on, does not help them an inch. This is because the two parties dissatisfied with a judgment in that case envisaged two opposing parties, not two parties in the same boat/camp in an action as in this appeal. In all, I hold the view that the cross-appellants ought to have filed a substantive appeal.
Be that as it may, the filing of an appeal or a cross appeal falls within the remit or realm of practice and procedure governing appeal, regulated by the Rules’ To this end, I will still take sanctuary in the crying need to do substantial justice and deploy the salvaging provision of order 20 rule 3(1) of the Rules to save the cross appellants’ cross appeal so as to hear it on its merits, see Dingyadi v. INEC (No.1). U.T.C (Nig’) Ltd v. Pamotei (supra); Duke v. Akpabuyo L.G (supra).
To my mind, this will meet the ends of justice in this appeal. After all, the cross appellants’ right of appeal is a constitutional one entrenched in the inviolate provision of section 246(1) (b) of the 1999 Constitution, as amended. The right of appeal being “… a Constitutional right, it overrides most other negative principles aimed at foreclosing the right,”. See E.F.P. Co. Ltd. V. N.D.I.C. (supra), at page 253, per Tobi JSC. See also,, Nwana v. F.C.D.A. (supra). I am of the view that anything short of hearing the cross appeal on the merit, just because of the nomenclature cross-appeal, smacks of worshipping, resurrecting and promoting technicality which had been buried in our legal system. That will be akin to doing justice in inverted commas. In holding this view, I draw inspiration and strength from the words of Lord Denning in the case of Allen v. Sir Alfred Mc Alphine & Sons. Ltd. (1963) 2 QBD 229/245 34B wherein he succinctly stated:
Let no man walk out of our courts disappointed in the administration of justice, He will prefer to loose the case on its merits than to allow an opponent win by default’ There is no provision for a walk over in our adversary system. It is not “game of football or a tennis competition, it must be shown and seen that any party has a fair trial.
See, also, Usikaro v. Itsekiri communal Land Trustees (1999) 2 NWLR (Pt. 172) 150; Egorum v. Obansanjo (supra); Omogui v. FRN (2008) 7 NWLR (PT.1085) 38.
Against the background of the above extenuating circumstances, I am inclined and minded to save the cross appeal. I, therefore, declare it competent. On that score, I hold that the objection launched against it by the first and second respondents/objectors is bereft of any tinge of merit. Accordingly, I overrule it.
In view of the fact that the objection has fallen flat, I will proceed to consider the appeals on their merits. I will kick off with the appellants, appeal, particularly as the cross appeal is separate and independent from it. The appellants, in their brief of argument, crafted four issues for determination of the appeal to wit:
1. Whether or not the Lower Tribunal was right in overruling the preliminary objection of the appellants on the issue of locus standi and other sundry and for reaching objections raised before it?
2. Whether the proceedings in this petition has not been fundamentally violated by the failure of the petition (sic) to bring a proper application for pre-hearing in accordance with paragraphs 18(1) and 47(1) of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition?
3. Whether or not the issues canvassed before the Lower Tribunal are pre-election matters?
4. Whether having regard to the totality of the evidence and circumstances of this case, the lower tribunal was not wrong to have nullified the election and or return of appellants.
On their part, the first and second respondents formulated three issues for determination of the appeal, viz
1. Whether the Tribunal was right to have held the nomination of the 1st petitioner valid in view of the evidence before it.
2. Whether the Tribunal was right to have held that the petitioners were unlawfully excluded from the election held on 26th April, 2011 into the House of Representatives seat in Ekiti Central Federal Constituency It comprising Ijero/Ekiti West/Ebnt L.G. As.
3. Whether the Tribunal was right to have nullified the return of the 2nd Appellant/Cross Respondent and ordered a fresh election that will include the petitioners on the ground of their unlawful exclusion having regard to the circumstances of this case’
I have situated the appellants’ issues with those framed by the first and second respondents. In my view, the two sets of issues are interrelated. The first and second respondents’ issue one can properly be dissolved in the appellants’ issue three whilst their issues two and three can be subsumed under their, the appellants’, issue four. Given this interfaced or symbiotic relationship, I will consider the appeal on the more comprehensive issues distilled by the appellants.
ISSUE ONE
Learned counsel for the appellants intimated the court that the issue arose from the appellants’ failed preliminary objection in the tribunal when it ruled that the first and second respondents had expressed enough facts to establish their locus in the petition. He then stated the law that locus standi was the power/special right of a party to institute an action the absence of which would rob the court the jurisdiction to adjudicate over it. He cited the cases of A.-G., Fed v. A.-G., Abia State (2001), FWLR (Pt. 64) 202 at 276-277; Waziri v. Danboyi (1994) 4 NWLR (Pt.598) 239. He then submitted that a petitioner must plead sufficient facts to support his locus to be heard. He referred to the provision of paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2010, as amended, and the case of Amosun v. INEC (2009) 4 WRN 32 at 82. He further submitted that the provision of section 137 of the Electoral Act, 2010, as amended, donated locus to candidate and parties in an election who must disclose sufficient facts to be complied with paragraph 4(1)(b) of the First Schedule.
He took the view that where, a petitioner was alleging unlawful exclusion, he must plead sufficient facts to show he met all the constitutional and statutory requirements for the election as unlawful exclusion presupposed that he was qualified and validly nominated to contest the election. He insisted that what the first and second respondents pleaded in paragraph 3 of their petition did not meet the above requirements. In support, he referred to the cases of Egolum v. Obasanio (1999) 7 NWLR (Pt.611) 355 at 399-400; Amosun v. INEC (supra). He concluded that there were not enough facts and evidence shown by the first and second respondents to establish their locus standi to present the petition.
Contrariwise, learned counsel for the first and second respondents drew the court’s attention to the provision of section 138(1)(d) of the Electoral Act, 2010, as amended, on which the petition was predicated and insisted that their standing was not in doubt. He, also, referred to the provision of section 137(1) of the Electoral Act, 2010, as amended, and submitted that the first and second respondents needed to state that they were either a registered political party or a candidate nominated for an election. He placed reliance on the cases of Egolum V. Obasanjo (supra); Kamiel v. INEC (2010) 1 NWLR (Pt.1174) 125 at 142; Idris v. ANPP (2008)8 NWLR (Pt.1088); Okonkwo v. Ngige (2006) 8 NWLR (Pt. 598) 239 (sic); Rimi v. INEC (2004) 15 (Pt.895) 121; Adisa v. Oyinlola (2010) 10 NWLR (Pt.674) 168 (sic); Saidu v. Abubakar (2008) 12 NWLR. (Pt. 1100) 201 at 300.
Learned Counsel noted that neither the qualification of the first respondent nor the existence of the second respondent was an issue before the tribunal. He urged the court to uphold the finding of the tribunal on pages 375 – 376 of the record.
ISSUE TWO:
On that issue, learned counsel for the appellants submitted that it touched on the jurisdiction of the tribunal as it related to pre-hearing session and the appropriate mode of applying for same. He persisted that the filing of pre-hearing application was a jurisdictional matter in election petition. He set out, in extenso, the provision of para graph 18(1)(10) of the First Schedule to the Electoral Act, 2010, as amended, and submitted that failure to comply with the procedure for applying for pre-hearing session vitiated the jurisdiction of the tribunal which could not by consent or waiver be conferred on it. He observed that the use of the word “shall” in that paragraph imposed a mandatory obligation and referred to the case of Ararume V. INEC (2007) 9 NWLR (Pt. 1038) 127 at 160; Achineku v. Ishola (1983) 4 NWLR (Pt.89) 411 at 420; Ahambele v. Imperial Medical Centre (2005) 5 NWLR (Pt.917) 51 at 61.
Learned counsel stated that by virtue of paragraph 47(2) of the First Schedule, the application ought to be by motion and not by a letter or any means or procedure because of the use of shall and that mandatory provisions must be complied with. He placed reliance on the cases of Oju L.G. V. INEC (2007)14 NWLR (Pt. 1054) 242 at 263 – 264; Abiodun v. A.-G. Fed. (2002)(sic) 15 NWLR (Pt.1057) 359 at 396.
He further submitted that the application for the issuance of pre-hearing notice dated 16/06/2011, contained on page 148 of the record, did not qualify and satisfy the required mode envisaged by paragraphs 18(1) and (2) and 47(2) of the First Schedule and that the non-compliance robbed the tribunal of jurisdiction to try the petition. In support of the submission, he cited the case of Riruwai v. Shekarau (2008) 12 NWLR (Pt.1100) 142 at 159.
Learned counsel enumerated the defects in the said application. He stated that from its wordings, the first and second respondents filed it before filing their reply to the appellants’ reply and thereby rendered it incompetent. He added that the application was not signed or that the purported signature was that of unknown person. He referred to the case of Saidu v. Abubakar (supra). He insisted that those defects in the application robbed the tribunal of jurisdiction on reason of non-compliance with the law and procedure. He pointed out that the provisions of the first Schedule to the Electoral Act and the Election Tribunals and court practice Directions, 2011, meant to regulate the affairs of the tribunal, must be obeyed, relying on the cases of Edun v. Odan Community (19s1) 8 -11 SC 103 at 127; William v. Hope Rising Voluntary Funds Society (1982) NSCC (vol.13)36. He took the view that the first schedule and the Practice Directions were made pursuant to substantive laws and must be obeyed and placed reliance on the cases of Ali v. Osakwe (2009) 14 NWLR (Pt.1160) 75 at 147, Orji v. PDP (2009) 14 NWLR (Pt.1161) 310 at 405; Ogunsakia v. Ajidara (2008) 6 NWLR (Pt.1082) 1; Ikoro v. Izunaso (2009) 4 NWLR (Pt.1130) 45 at 69. He added that any step taken in breach of the First Schedule and practice Directions was null and void and referred to the case of Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 318
He argued that the pre-hearing session could only be kick started by a motion; adding that no leave was sought and obtained before the letter applying for it. He was of the view that the provisions of paragraphs 18(1) and 47(1) of the First Schedule were simple and should be given their plain and ordinary meanings. He cited the case of Buhari v. Obasanio (2005) 2 NWLR (Pt. 910) 241 in support and persisted that the tribunal lacked the jurisdiction to hear the petition.
For the first and second respondents, their learned counsel contended that the application for pre-hearing notice, contained on page 148 of the record, was in substantial compliance with paragraph 18(1) and 41(1) of the First Schedule to the Electoral Act, 2010. He was of the view that ground two of the appellants’ notice of appeal was incompetent as the issue never arose before the tribunal and urged the court to discountenance all the arguments proffered under the issue two.
ISSUE THREE:
Learned counsel for the appellants, on that issue’ drew the court’s attention to the provisions of sections 85 and 86 of the Electoral Act, 2006 which were repeated verbatim and sections 85 and 86 of the Electoral Act, 2010, as amended. He went further to reproduce the provision of section 87(1) – (4)(c), (9) and (10) of the Electoral Act, 2010, which were absent in the Electoral Act 2006,dealing with party nominations, duty of INEC’ punishment for breaches and remedy in court. He sought in aid the case of INEC v. ACN (2009) 2 NWLR (Pt.1126) 524 at 587 – 588.
He took the view that election did not consist only of voting but included delimitation of constituencies, party primaries, nomination, accreditation, voting, counting, collation declaration of result and return of candidates, citing the case of Ojukwu v. Obasanjo (2003) FWLR (Pt. 182) 176 at 179 (2004) 12 NWLR (Pt. 886) 169. He then contended that issue of nomination of candidate for an election and all the processes connected to it could not be said to be a pre-election matter within the meaning of the provisions of the Electoral Act, 2010, as amended. He added that the cases of Odedo V. INEC (supra); AC V. INEC (2007) 12 NWLR (Pt. 1043) 27 0- 275, relied upon by the tribunal, were decided under the Electoral Act, 2006 and, the ratio could not be imported to the interpretation of the Electoral Act, 2010 when they were not identical; particularly when a case would serve as an authority for what it decided. He cited the cases of A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 575 at 608; Adegoke Motors Ltd. v. Adesanya (1939) 3 NWLR (Pt.109) 250 at 266. He maintained that all the processes in an election were joint and not separable and none of the procedures could be termed pre-election matter.
On the contrary, learned counsel for the first and second respondents took a different view on that issue. He observed that one of the matters before the actual conduct of the election was nomination of candidates for the elections. He then argued that the issue of nomination of candidates for elective positions had been held to be an internal of fair of a political party upon which a tribunal had no jurisdiction to dabble into. He placed reliance on the cases of: ANPP V. Usman (2008) 12 NWLR (Pt. 1100) 1; Odedo v. INEC (supra); Etim v. Ebot (2010) 12 NWLR (Pt.1207) 108 at 204; Ehinlanwo v. Olusola Oke (200s) All FWLR (Pt.442) 1007 (2008) 16 NWLR (Pt. 1113) 357; Amaechi v. INEC (2007) 18 NWLR (Pt. 1015) 170 (sic); Zaraiyda v. Tilde (2008) 10 NWLR (Pt. 1094) 184 at 201; Bakam v’ Abubakar (1991) 6 NWLR (Pt. 199) 564 at 574; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 at 545; Dalhatu v. Turaki (2003) FWLR (Pt. I74) 247 at 271 – 272; Chime v. Onyia (2009) 2 NWLR (Pt. 174) 1 at 72 – 73; He added that the implication of those authorities was to give effect to the provisions of section 87(10) and 87(9) of the Electoral Act, 2010, as amended, which must be read together.
Learned counsel further argued that for the appellants to successfully challenge the nomination of the first respondent, they must abide by the decisions in the cases of Idris v. ANPP (supra) and Saidu v. Abubakar (supra) which enjoined them to raise the question of the first respondents nomination in a cross petition, hence the use of the word “initiate” in section 87(10) of the Electoral Act, 2010. He posited that the nomination of the first respondent by his party raised a presumption that he was qualified for the position after fulfilling all the requirements of the constitution and the Electoral Act. He noted that that position had been envisaged by the lawmakers as a result of the excesses of the INEC in taking laws into its hand by disqualifying candidates on flimsy and technical excuses. He referred to the provision of section 31(1) of the Electoral Act, 2010, as amended which specifically restrained INEC from disqualifying candidates. For support, he relied on the case of AC V. INEC (2007) 12 NWLR (Pt. 1048) 220. He stated the law that parties could not by agreement, consent or acquiescence confer jurisdiction on a tribunal or court and cited the cases of A.C v. INEC (2007) 18 NWLR (Pt.1065) 50 at 71; Sossa v. Fokpo (2001) 1 NWLR (Pt.693) 16 at 19; Ajayi v. Military Administrator, Ondo State (1997) 5 NWLR (Pt. 504) 237.
On reply on points of law, learned counsel for the appellants contended that the appellants and the first and second respondents were not members of the same political party to make the provisions of section 87(10) of the Electoral Act, 2010 applicable to the appeal. He placed reliance on the case of Onajeme v. Azodo (2005) All FWLR (Pt.275) 555 at use 590 – 571. He explained the appellants case to be that based on the case placed and presented by the first and second respondents, the first respondent was and could not have been duly sponsored and nominated by the second respondent for the election. He added that the first and second respondent should not run away from the issue of valid nomination which they submitted to the tribunal. He insisted that issues of valid nomination and unlawful exclusion could not be constructive or presumed as both must be proved by hard facts. He cited the case of Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 95-96 as the authority for his submission. Ife submitted that the first and second respondents were blowing hot and cold when they contended that the tribunal would not look into the issue of nomination and at the same time arguing that there was valid nomination on the basis of exhibit P1 without looking into admitted fact and legal consequence of not filling INEC form EC4 B (iv). He urged the court to resolve the issue in favour of the appellants.
ISSUE FOUR:
The appellants, through their learned counsel, observed that it was the first and second respondents that made nomination an issue and the appellants rightly joined issues with them contrary to the decision of the tribunal that they raised it as a defence. He then submitted that a petitioner claiming lawful nomination and unlawful exclusion must establish both and it was for respondent to show otherwise. He restated the fact that the issue of invalid nomination was not a pre-election matter. He repeated that a petitioner was under obligation to clearly plead facts he relied upon, citing the cases of Buhari v. Obasanio (2005) 13 NWLR (Pt.941) 1 at 200; He also cited the case of Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 169-170 and African Continental Seaways Ltd. v. Nigerian Dredging Roads & General Works Ltd. (1997) 5 SC 235 at 250 on the functions and bindingness of Pleadings.
Learned Counsel persisted that the tribunal made a case for the first and second respondents for the following reasons/because (a) It closed its eyes to the pleadings and failed to realize that the first and second respondents pleaded valid nomination and the appellants pleaded invalid nomination of the first respondent. (b) It closed its eyes to the evidence of PW2, under cross-examination, that the second respondent’s party primary took place in Ado-Ekiti outside the constituency contrary to the provision of section 87(4)(c)(i) of the Electoral Act, 2010; particularly when that evidence, though from cross-examination, supported the appellants’ case, citing the case of Ogbede V. Osula (2004) 12 NWLR use (Pt.886) at 118. (c) The tribunal did not consider the provision of section 85(1) of the Electoral Act, 2010 which made it mandatory for political parties to involve INEC in their activities, including congress to pick flag bearers. (d) It refused to give effect to the provision of Section 87(9) of the Electoral Act, 2010 which showed that there was nothing like exclusion when the provisions of the Electoral Act were violated. (e) The tribunal misunderstood the provision of section 87(10) of the Electoral Act, 2010, when it held that it was the appellants who ought to have gone to the Federal High court or High Court when it was an aspirant who should invoke the provision, referring to INEC v. A.C. (2009) 2 NWLR (Pt.1126) 54 at 587- 586 where the word “candidate” was defined. (f) It, also, misconstrued exhibit P1, form CF 001, &S a conclusive proof of nomination when the first respondent admitted, under cross-examination, that he did not know nor submit form EC 4B(iii) to INEC. (g) It did consider the appellants’, arguments on issue three before it which it treated as abandoned. It placed greater burden of proof on the appellants on the issue of validity of nomination of the first respondent which occasioned a miscarriage of justice.’
It was the further contention of learned counsel that the tribunal erred when it ordered that election should be held in Ijero/Ekiti West/Efon Federal Constituency when the first and second respondents, claim was for a fresh election in Ekiti Central II Federal constituency and thereby granted a relief not claimed, citing the case of Agip v. Agip (2010) 5 NWLR (Pt. 1187) 348 at 424. He noted that there was no amendment of the petition to reflect the correct constituency. He repeated that valid nomination and unlawful exclusion, a ground under the provision of section 138(1)(d) of the Electoral Act, 2010, were unlike intra party issues bordering on party primaries and nomination, not pre-election matter and the tribunal was wrong to declare them “no go areas”. On the bases of the foregoing submissions, learned counsel urged the court to allow the appeal.
On behalf of the first and second respondents, their learned counsel submitted, per contra, that exhibit P1 was conclusive evidence that they were not strangers to INEC as it was part of the process of nomination and introduction of a political party’s candidate to it as it contained affidavit of person al particulars of person seeking election. He stated that nomination of candidates was for a political party, not INEC which, if uncomfortable, should fall back on sections 31(1) – (6) and 87(10) of the Electoral Act, 2010, and not to resort to self-help by unilaterally disqualify a nominated candid ate, citing the cases of AC v. INEC (supra) and A.-G., Lagos State v. A.-G., Fed (2004) 18 NWLR (Pt.904) 1 at 127 in support. He posited that the role of INEC over political parties were supervisory. He relied on the cases of Ugwu v. Ararume (2008) NWLR (Pt. 1043); AD v. Fayose (2005) 10 NWLR (Pt.932) 151 at 187. He insisted that the first and second respondents satisfied the ingredients of valid nomination and the tribunal was right to confirm it.
Learned counsel further submitted that the first and second respondents laid the foundation, in the tribunal, that they were a registered political party and a duly nominated member of a party and both qualified to contest election and that exhibits P1 and P6 attested to those facts. He restated the point that INEC had no power unilaterally to disqualify a candidate and exclude his party from contesting an election by virtue of the provisions of section 31(1) of the Electoral Act, 2010, as amended, the cases of AC V. INEC (2007) 12 NWLR (Pt.1048) 270 at 275; Idris v. ANPP (supra). He maintained that an argument against the nomination of a candidate was taken care of by section 87(10) of the Electoral Act, 2010 or filing of a cross petition which was not done in the appeal. He insisted that the exclusion of the first and second respondents was wrong and unlawful, as found by the tribunal, since it was a court that had such power.
He contended that a petitioner who claimed to have been duly nominated, but unlawfully excluded from the election must prove that he was validly nominated by his party, that election was conducted and concluded and that a winner was declared and his name was not on the list of contestants and that the first and second respondents proved them. He cited the cases of Effiong v. Ikpeme (1999) 6 NWLR (Pt.6 06) 260 at 274; Idris v. ANPP (supra).
He argued that there was no issue joined, in the trial on the identity of the first respondent and could not be made an issue before this court. He relied on the case of Mkpa v. Mkpa (2010) 14 NWLR (Pt. 1214) 612 at 635-636 in support. I{e urged the court to uphold the finding of the tribunal that the first and second respondents were unlawfully excluded from the election. Learned counsel further argued that section 140(1) of the Electoral Act, 2010 was clear on the relief of nullification available to a petitioner who successfully challenged an election under section 138 of the Electoral Act, 2010. He stated that the unlawful exclusion of the first and second respondents from the election was a breach of sections 31(1), 44, 82 and 83 of the Electoral Act, 2010, whether or not they would have lost in the election. He took the view that taking into account the totality of the circumstances of the case, the tribunal was not wrong to have nullified the elections and return of the appellants.
Learned counsel persisted that the provision of section 87(9) of the Electoral Act, 2010 did not give INEC power to unilaterally disqualify the first and second respondents as it must not be read in isolation from sections 87(10) and 31(1) of the same Electoral Act, 2010. He placed reliance on the cases of Orakul Resources Ltd. v, N.C.C. (2007) 16 NWLR (Pt.1060) 270 use at 304; Arowolo v. Akapa (2003) 8 NWLR (Pt.823) 45l; Mobil Oil (Nig) Plc. v. IAL Inc (2000) 6 NWLR (Pt.695) 146. He maintained that a community reading of sections 31 (1), (5) and (6) and 87(1), (9) and (10) of the Electoral Act, 2010, showed that any person, including INEC, that had a complaint over nomination of any candidate should go to the Federal High Court or High Court of a State which had the power of disqualification or exclusion of candidates and parties. On the strength of those arguments, he urged the court to dismiss the appeal.
Resolution of the issues:
ISSUE ONE:
The locus of this issue is whether or not the respondents had the locus standi to present the petition leading to this appeal. As a necessary prefatory remarks, it is germane to appreciate the term locus standi and its nature before going into the meat of the issue-determination of the locus standi of the respondents to file the petition.
Etymologically, the expression, locus standi, is a Latin Language derivative with locus as a place and standi as standing. In the legal parlance, locus standi simply connotes the legal competence or right of a person to seek for redress in a court of law when his rights are trampled upon by other person(s) or authority.
A party to a proceeding invalidly a plaintiff or a petitioner, will be taken to have locus standi in a matter where he has special legal right or sufficient interest in the performance of a duty seeking to be enforced or if his interest will be unfavourably affected, See Adesanya V. President of the Federal Republic of Nigeria (1981) All NLR 1; Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149; Disu v. Ajilowuta (2006) 14 NWLR (Pt. 1000) 783; Nyame v. FRN (2010) 7 NWLR (Pt.1193) 344; A.-G., Fed. v. A.-G., Abia State (supra); Waziri V. Danboyi (supra).
The law is settled that once a party, a plaintiff or a petitioner, is bereft of locus standi to institute an action or a petition, such a matter will mired in the intractable web of incompetence and the court will be disrobed of the jurisdiction to entertain it, see Amosun v. INEC (supra); Emezi v. Osuagwu (2005) 30 WRN 1 (2005) 12 NWLR (Pt.939) 340; A.-G., Anambra State v. A.G. Fed. (2007) 13 NWLR (Pt.1047) 4:
In a bid to discover whether a plaintiff or a petitioner is imbued with the locus standi or legal capacity to sue, it behoves the court to look, like in all jurisdictional issues, at a statement of claim filed by the plaintiff, not a statement of defence. In the case of Adesanoye v. Adewole (2006) 14 NWLR (Pt.1000) 247 at 274, Tobi, JSC, confirmed that:
It is elementary that in order to determine locus standi of the plaintiff the only court process to look at is the statement of claim. It is the statement of claim that should exclusively donate locus standi See, also, Olofu V. Itodo (2010) 18 NWLR (Pt.1225) 545.
In the domain of electoral law, which this appeal is hinged on, a petition is an equivalent of a statement in ordinary civil proceedings, see Egolum V. Obansanjo (supra).
Following the central or indispensable position of the petition in ascertaining the locus standi of the respondents to institute the petition vis-a-vis the jurisdiction of the court to adjudicate same. I will, at the risk of prolixity, but borne out of obvious necessity, cull from the record, pages 2 – 7 thereof, the petition verbatim ac literatim, thus:
PETITION
The petition of Prince Bamigbade Adekola Peter of Okemesi Ekiti in Ekiti Central II Federal Constituency of Ekiti State and the National Transformation Party whose names are herein subscribed.
1. Your 1st Petitioner Prince Bamigbade Adekola Peter was a House of Representative candidate of National Transformation Party for Ekiti Central II, Federal Constituency of Ekiti State. A copy of the nomination form is hereby pleaded.
2. The 2nd Petitioner is one of the registered political parties in Nigeria. The 2nd Petitioner sponsored the 1st Petitioner as a member of the House of Representatives.
3. Your Petitioner claim to have had a right to contest or be returned at the above election.
4. Your Petitioner claim that the election was held on the 26th day of April, 2011 and 3rd Respondent was one of the registered political parties that contested the election and the parry declared as the winner of the said election, while the 4th Respondent of the outcome of the election.
5. The 1st Respondent is the statutory body charged with the conduct of elections for elective offices at the Federal and State levels of administration in Nigeria.
6. The 2nd Respondent is an agent of the 1st Respondent who conducted the elections on behalf of said Respondent.
7. In the performances of its statutory functions in the conduct of election including the, House of Representative Election, the 1st and 2nd Respondents are constitutionally and statutorily enjoined to be independent, neutral, fair and treat all political parties equally and at all times act in the interest of the Federal Republic of Nigeria, Henceunder Section 28(1) and (2) of the Electoral, Act, 2010, they are mandatorily required to affirm or swear to an oath of allegiance to the Federal Republic of Nigeria and neutrality on the conduct of the election.
B. Your Petitioners claim that the above election was vitiated by their wrongly exclusion from the election notwithstanding notice and protest letters sent to the 1st and 2nd Respondents before the day of the election.
9. GROUNDS AND FACTS UPON WHICH THIS PETITION RELIES
a. That the election is invalid by reason that the 1st Petitioner was validly nominated by the 2nd Petitioner but was unlawfully excluded from the election.
b. That the election is invalid by reason of non-compliance with the provisions of the Electoral Acts, 2010.
c. That the 4th Respondent was not duly elected and returned because of the unlawful exclusion of the Petitioners
10. FACTS SUPPORTING THE GROUNDS
Your Petitioners plead that the election sought to be nullified was conducted in substantial negation of the fundamental principles of the Electoral Act, which are the sustenance of democracy, neutrality in the conduct of the election, fairness and allegiance to the Federal Republic of Nigeria. The 1st and 2nd Respondent were in the conduct of the election undemocratically, lacking in neutrali4t, unfair to all concerned save the 3rd Respondent intentionally excluded the petitioners from the election so as to pave smooth way for their loyalist in Ekiti State, the Respondent.
11. The 1st and 2nd Respondents failed, neglected or omitted to be diligent in the preparation of the Ballot papers by omitting the name and logo of the Petitioners from the Ballot papers notwithstanding the error discovered and the notification sent to the 1st and 2nd Respondents. This day of Friday 8th April, 2011 and our response Titled Request for your urgent action dated 7th April, 2011 shall be relied on at the hearing of this petition.
Your Petitioner plead that this failure, neglect or omission robbed the election into the House of Representatives, Ekiti Central II the competence and the free and fair principle. As a result, the petitioners plead that the election is null and void.
12. The 1st and 2nd Respondents conducted the election, without the name and logo of the Petitioners who was validly nominated and sponsored. The Petitioners shall contend at the hearing that in the circumstance, there was no valid ballot papers, and thus the election so conducted was invalid. The Petitioners shall rely on a copy of the Ballot paper used for the election in Ekiti Central II Federal Constituency of Ekiti State at the hearing of this petition.
13. That the 1st and 2nd Respondents in the morning of 2nd April, 2011 the 1st date fixed for the election, announced the postponement of the election in Ekiti Central II reason being that the Petitioners’ name and logo were omitted. The Petitioners shall rely on all documents and all press releases by the 1st and 2nd Respondents as related to the omission of the name and logo of the Petitioners.
14 The Petitioners sent letter of protest dated 2nd April, 2011 and 7th April, 2011 to the 1st and 2nd Respondents to correct their Ballot papers, also include the comprehensive list of other places where 1st Respondent misplaced their candidates’ names or where it is omitted. We shall rely on the two letters with the attached list at the hearing of the petition.
15, The Chairman of the 3rd Respondent in Ekiti State, Mr Jide Awe granted an interview which was reported in most dailies of 3rd April, 2011 that why should INEC postponed an election in Ekiti Central II because of one unknown political party? Petitioners shall rely on all the dailies that reported the outpoured of the 3rd Respondent’s Chairman in Ekiti State.
16. On the day of election which was 26th April, 2011, the Petitioners mobilized all their party agents to man all the polling booths in Ekiti Central II, also mobilized all their known supporters throughout the Federal Constituency numbering over 27,000 to vote for the Petitioners at their various polling booths, not to talk of some unknown admirers and intended voters; but the Petitioners, their agents, their admirers and supporters were disappointed when the name and the logo of the Petitioner were not included in the ballot papers and some of the supporters since they had to vote for any other candidate. We shall rely on the voters’ cards of some of our supporters at the hearing of the petition.
17. The Petitioners immediately on the 26-4-2011 prepared a protest letter which was received by the 1st and 2nd Respondents on 29-4-2011, also addressed the press. Petition shall rely on the press release of 26th April, 2011 and protest letter of 26th April, 2011.
18. The 1st Petitioner was validly nominated by the 2nd Petitioner, 1st Petitioner obtained from for nomination of member House of Representatives and party members singed FORM E.C 4(B)(IV) for the 1st Petitioner, also 1st Respondent acknowledged the receipt of form CF 001 from the Petitioners. The Petitioners shall rely on the copies of CF 001, from EC.4B (IV) and other related attachment at the hearing of this petition.
19. The petitioner’s shall rely upon and hereby plead all documents used of purported to be used at the election, all press releases by any of the parties which are relevant to the just hearing of this petitions or other correspondences by aggrieved person or other complainants to the 1st Respondent or any of its agents or ward levels at the election. The 1st and 2nd Respondents are hereby given notice to produce the product of which ever of the documents are his/her or its possession.
20. The Petitioners stated preparation for the election since October, 2010 by contributing to the 2nd Petitions Contention, Radio and T.V jingle for almost 3 months from February, 2011 till the 24th day of April, 2011, printing of Bill boards, posters, handbills, campaigned in all the Wards that made up Ekiti Central II, Federal Constituency, door to door campaign, mobilization and training of party Agents, sensitizing of supporters and education of voters. Some posters, handbills and other receipts relevant to this petition are hereby pleaded.
21. The 4th Respondent who pooled title above 22,000,00 votes should not have been returned as elected if the name and logo of the Petitioners were not omitted from the ballot papers as the Petitioners were very sure to have pooled above 27,000.00 vote of the total vote cast, even 2nd petitioner who did not campaign or filed in candidate in that Ekiti Central. I still pooled over 89 votes. We rely on the result of Ekiti Central I at the hearing. Notice is hereby given to the 1st and 2nd Respondents to produce it.
22. Wherefore, your petitioners pray as follows:
(a) An order of court that the election is invalid by reason that the petitioners were excluded from the election.
(b) An order of the court that the election is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2010.
(c) An order of the court ordering the 1st Respond.ent to conduct a fresh election in Ekiti Central II Federal Constituency of Ekiti State.
I have, in due obeisance to the law, leafed through the respondents’ 22-pargraph petition with a fine tooth comb, The respondents showcased in their petition that they had special legal right to contest the election into the House of Representatives in Ijero/Ekiti West/Efon Federal Constituency of Ekiti State held on 26/04/2011. They also disclosed, in the petition, the cold fact that their interest was unfavourably or negatively affected by their exclusion by INEC during the conduct of that election. Therefore, in my humble view, the respondents clearly and abundantly disclosed sufficient interest in the election to be crowned with the necessary right to locus standi to present the petition’
In arriving at that finding, that the respondents established locus standi in their petition, I am guided by the yawning gap between a party’s possession of locus standi to institute a proceeding and his being successful in that proceeding. A party bestowed with the locus standi to sue in a matter may not have a win-win opportunity in it as he may or may not coast home with victory at the end of the day. In fact, such a party has a fifty-fifty chance of losing or winning in the matter. Indeed, the bottom line is that such a parry, armed with locus standi, is permitted to ventilate his grievances in a court of law, the final fortune of his action notwithstanding. The cases of Ojukwu v. Ojukwu (2008) 18 NWLR (Pt. 1119) 439 and Ladejobi v. Oguntayo (supra) are in point here.
The appellants’ learned counsel plucked out the facts pleaded in paragraph 3 of the petition and chastised the petition as not donating legal capacity to the respondents. I do not, with due reverence to him, share that view expressed by the learned counsel. That submission, as fascinating and inviting as it is flies, in the face of the law. In law, pleadings of parties, the petition of the respondents herein, are not read in piecemeal or isolation, but holistically so as to obtain a flowing story or case of a party, see Okochi v. Animkwoi (2003) 18 NWLR (Pt.851) 1; Agballah v. Chima (2009) 1 NWLR (Pt. 1122) 373. A microscopic examination of the petition as a whole, as enjoined by law, reveals clearly that the respondents established their legal capacity to institute the petition.
Before I call it quits on this critical issue, it is significant to briefly consider the applicability or otherwise of the case of Egolum V. Obasanjo (supra) to this appeal. This is because the appellants harped on it and implored the court to use it as the index for holding that the respondents never disclosed locus standi in their petition. I have, painstakingly, perused through that case of Egolum v. Obasanjo (supra). The facts of that case are not on all fours with those of this appeal. In that case, the appellant met a brick wall based on the confused state of his petition on his locus standi. He made an unpardonable inconsistent pleadings and claims that he had a right to contest the election and at the same time to be declared the winner, having scored 11, 627, 789 votes, for an election he did not contest. Cntrariwise, the respondents’ case here, from the onset, was valid nomination but unlawful exclusion from the election. The facts of the two cases are, therefore, distinguishable and, de jure, the case of Egolum is inapplicable to this case owing to facts differentials. Cases are decided on their peculiar facts, the latter being the fountain heads of the law, See Ugwu V Ararume (supra); Obasi Bros. Co. Ltd. v. M.B.A.S. Ltd. (2005) 9 NWLR (Pt.929) 117 at 134.
On account of the foregoing reasons, I hold that the respondents indicated enough interest in their petition that qualified them to have locus standi to present it. In the result, I resolve this issue against the appellants.
ISSUE TWO:
The nucleus of this issue is that the respondents’ application for pre-hearing notice violated the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended, and thereby robbed the court of the jurisdiction to try the petition. The said paragraph 18(1) of the First Schedule, which is at the epicenter of this issue, reads:
18.-(1) Within 7 days after filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
In the respondents, desire to comply with the above provision, they filed an application, contained on page 148 of the record, which states:
APPLICATION FOR THE ISSUANCE OF PRE IIEARING NOTICE
TAKE NOTICE that the petitioners herein are desirous of filing Reply to the Respondents’ Reply and the pleadings are deemed to be closed thereby.
We therefore pursuant to the provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as Amended. I pray this Honourable tribunal to issue a pre-hearing notice accordingly.
Dated 16th day of JUNE 2011
It is the appellants’ grouse or quarrel that the respondents’ application ran foul of the provision of paragraph 18(1 ) of the First Schedule since it was not a motion argued with the leave of court as required by paragraph 47(1) and (2) of the First Schedule. To do justice to this issue, the recent decision of the Supreme Court in Suit No. sc.350/2011: Mallam Abubakar Abubakar & 2 Ors v. Saidu Usman Nasamu & 3 Ors, (unreported), decided on 09/11/2011, comes in handy. In that case, the appellants were petitioners before the Governorship Election Tribunal of Kebbi State whilst the respondents were respondents. The appellants wrote a letter to the tribunal for “APPLICATION FOR THE ISSUANCE OF PRE-HEARING NOTICE” The respondents filed applications for the dismissal of the petition on grounds, inter alia, that no application for the issuance of pre-hearing notice was made by petitioners in accordance with the Electoral Act, 2010 (as amended).
The tribunal, in a considered ruling, refused the applications. The respondents, appeal to the court of Appeal was allowed and the petition dismissed. The appellants’ appeal to the Supreme Court was upheld. His Lordship, Tabai, JSC, on pages 25, 26, 27, 29 and 30 of the judgment, elaborately opined in these illuminating words:
First to be examined is the provision of paragraph 18(1) of the First schedule of the Electoral Act 2010 (as amended). Therein a duly is placed on the petitioner to apply for the issuance of prehearing session notice after the filling and service of the petition and the necessary replies. The provision is however silent on the mode of application. There is no mention of word “Motion” therein.
…The clear meaning of the provision is that at or during the period of pre-hearing session all applications must be by way of a motion. But at the period before the commencement of the pre-hearing session, an application needs not e by a motion. It can be in the form of a letter as was done in this case.
I hold therefore that in the absence of any special mode by which an application can be made at the period preceding the commencement of the pre-hearing session the Appellant’s letter dated the 14th June, 2011 is an application within the meaning of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). The letter constitutes a sufficient compliance with the requirements of the provision.
..I have already held that there was no non-compliance with the provisions of paragraph 18(1) of the First Schedule to eth Electoral Act. Assuming for purposes of argument, that there was such non-compliance; would it affect the jurisdiction of the court to entertain the petition? I would answer this question in the negative. Jurisdiction is a creation of the Constitution and Statute. And the settled principle of law is that it is the claim or petition that determines its competence. The claim or petition must come within the ambit of the law that has conferred the jurisdiction. In this case there is no challenge of the competence of the petition…
The challenge here is non-compliance with paragraph 18(1) of the First schedule to the Electoral Act. Where a plaintiff in a procedural steps necessary for the successful prosecution of the claim or petition, his act or omission constituting such failure or default does not affect the jurisdiction of the court. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal.
The above ex cathedra decision in the case of Abubakar v. Nasamu (supra) has put paid to all the alluring submissions of learned counsel for the appellants on this seminal issue. In a nutshell, by that decision, a letter, like the one written by the appellants herein, is sufficient conformity with the provisions of paragraph 18(1) of the First Schedule. It can be gleaned from the decision that non-compliance or otherwise with the provision of that paragraph 18(1) is a far cry from an issue of jurisdiction, contrary to the stance of learned counsel for the appellants. Being a decision of the apex court I am, willy-nilly, bound to follow it on the strength of stare decisis, see Ogunsola V. Nicon (2010) 13 NWLR (Pt. 1211) 225; Dingyadi v. INEC (2011) 10 NWILR (Pt.1255) 347. Even if this decision, Abubakar’s, is irreconcilably in conflict, on this point only, with those of Okereke v. Yar’Adua (supra) and Nwankwo v. Yar’Adua (supra), both Supreme Court decisions, which learned counsel placed high premium on this issue, the law gives me the unbridled licence to follow and apply the one later in time, see Osakwe V. F.C.E. Asaba (2010) 10 NWLR (Pt. 1201) 1. In due obedience to this hallowed principle of law, I am bound to apply Abubakar’s case, being later in time. As I stated earlier, the decision in Abubakar’s case (supra) makes mincemeat of the fascinating arguments of the appellant’s learned counsel. In a word, with the Abubakar’s case supra, the elegant arguments of learned counsel for the appellants are castrated without any bubbles of persuasion that will make tilt towards his view.
Let me, for purposes of ex abundant cautela, resolve one tangential or adjunct point raised by the appellants under this issue. The learned counsel for the appellants took a swipe against the contents of the respondents’ letter or application for the issuance of pre-hearing notice in that they stated therein that they are desirous of filing reply to the Respondents’ Reply…” Indisputably, the word “not” or any negative tense is missing in that first sentence of the letter or application. Learned appellants’ counsel cashed in on this omission to contend that the respondents did not actualize their desire of filing a reply before turning in the letter or application, id est, it was filed prematurely. As ingenious as that argument appears, it will not be on hand to the appellants on this issue. The reason is not far-fetched. It, seriously overlooks the all-important ageless principle of interpretation of documents, namely, that to understand a passage in a document the sentences that precedes and the ones that come after it must be read together. That is to say, a document must be read harmoniously as a whole in order to get the purport of it. The last lap of that first sentence, which learned counsel extracted as damaging to the letter, and the other sentences thereafter clearly signify that the respondents did not intend to a file a reply and that pleadings had closed. In the case of Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1138) 429 at 457, Muhammad, JSC, had this to say on communal construction of documents:
In view of the above therefore, could exhibit p45 be said to isolate any of the two sets of charges against the respondent for the purposes of handing down the warning. I must answer this question in the negative…
Although exhibit P45 is not an Act of Parliament or a piece of any legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.
What the appellants’ learned counsel did was to fragment the contents of the document and construed the sentences in isolation. That procedure, with all due respect to him, is not in tune with the law on the communal canon of interpretation of documents. I therefore, hold that there are no ex facie vitiating features in the respondents, letter and same was not issued prematurely. The letter is duly and properly signed. Altogether, I, resolve this issue (two) against the appellants’.
ISSUE THREE:
This issue centres on whether or not the issue of valid nomination and unlawful exclusion from election is a ,pre-election matter for which the tribunal was divested of the jurisdiction to inquire into. Incontestably, the bone of contention in this appeal is whether the respondents were validly nominated and unlawfully excluded from the election of 26/04/2011. It is one of the ground upon which an election can be challenged under section 138(1) of the Electoral Act, 2010, as amended, which provides: 138-(1) An election may be questioned on any of the following grounds, that is to say-
(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election,’
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
The respondent’s principal ground in the petition is contained in section 138(1)(d) of the Electoral Act, 2010 and it was fought, won an lost on that ground in the tribunal.
The law is trite, as confirmed by a battery of judicial of case law authorities, that an election tribunal, such as the one from which this appeal emanated from, does not have the vires or jurisdiction to entertain pre-election matters- matters that transpired before the conduct of an election. Its jurisdiction is circumscribed to post election matters – incidents that took place during and after the erection while the regular courts have the monopoly to handle pre-erection matters, see Olofu v. Itodo (supra); Odedo V. INEC (supra); Dalhatu V. Turadi (supra); Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172; Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386; section 87(9) of the Electoral Act, 2010, as amended; Zaraiyda v. Tilde (supra) Bakam v. Abttbakar (supra); Anazode v. Audu (supra), in the case of Agbakoba V. INEC (supra), at 544, Chukwuma-Eneh, JSC, stated:
…Section 185(1)(a) of the 1999 Constitution deals with whether any person has been validly elected as a member of the National Assembly. The provision is clear and unambiguous and literally construed is concerned with post election disputes. Any election resulting from the conduct of an election is not a pre-election dispute but a post-election dispute.
In the light of the above state of the law, the knotty question, begging for an instant resolution, is: whether the issue of nomination of the first respondent was a pre-election or post-election matter so as to know the court that his jurisdiction over it? The case of Agbakoba v. INEC (supra) is still a beacon for this stubborn or nagging point. On page 536 of that case, Chukwuma-Eneh, JSC, said:
And that pre-election disputes encompasses the stage of conducting party primaries to holding of actual election; on the other hand, that post election disputes contemplates actual election which is challengeable on the ground of undue election or undue return albeit on a specific ground(s) as presented by section 140(1) and (2) of the Electoral 2006 for adjudication. And I so hold that the foregoing represents the true position of the law in this regard.
Taking the above pronouncement as a compass, it becomes obvious that the issue of valid nomination of a candidate and unlawful exclusion from erection comes squarely within the province of post-election dispute. The reason is simple. An issue of valid nomination but unlawful exclusion is one of the grounds which section 138(1) of the Electoral Act, 2010, as amended, recognized and catalogued, precisely in section 138(1)(d) thereof, as the basis for questioning the conduct of election in Nigeria. Unarguably, an election is invariably challenged after its conduct, not prior to its conduct. Since an issue of valid nomination and unlawful exclusion is cognizable as a ground for such a post-election challenge, it axiomatically, follows that it is an issue that is determinable within the jurisdictional confine of election petition tribunals. If it were to be otherwise, id est, it is not made a ground to question and erection, then would it have fallen within the jurisdictional remit of the regular courts such as the Federal High court and High court of a state. It is my view that to reason that the issue of valid nomination and unlawful exclusion is for the regular courts to entertain automatically strips candidates and political parties of their right to question conduct of election on this ground. The INEC will have a field day to exclude candidates and political parties from election.
In holding this view, I take into account the provision of section 87(9) of the Electoral Act, No.10. 2010, as amended, which reads:
87(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of the political party has not been complied with the election or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State of FCT, for redress.
This provision, mistakenly or wrongly cited as section 87(10) of the Electoral Act, 2010, by learned counsel to both feuding parties, must be read in conjunction with the provision of section 138(1)(d) of the Act already reproduced at the dawn of this issue. By virtue of this provisions, section 87(9) of the Act an aspirant, defined by section 156 of the Act, as one who seeks to contest an election, to a political office, who is aggrieved or offended by an infraction of the process of nomination of a candidate can seek relief or remedy in the enumerated regular courts. In other words, this subsection deals with intra party disputes over nomination of candidates of political parties. An aspirant must be a co-member of a political party with a nominated candidate to be qualified to invoke the provision.
On the contrary, under the stipulation in section 138(1)(d) of the Electoral Act, 2010, a person must have validly emerged as a candidate of a political party to be qualified to invoke the provision That is to say, this provision involves inter party dispute in that a person must have been duly nominated as candidate of a political party, but excluded from the election to the electoral advantage of other nominated candidates of other political parties. Given these explanations, I am at odds with the submissions of the learned counsel for the respondents that the tribunal had no jurisdiction to inquire into nomination of candidates. The submission counts against the respondents. If I may pause and ponder, how would a petitioner prove a ground bordering on valid nomination but unlawful exclusion, as in this appeal, if a tribunal is not clothed with the jurisdiction to determine it. For a petition to fly high on this rare ground, the burden of proof resides in the petitioner to show that his political party nominated him. In doing that, he may not go the whole hog of establishing the procedures for primary election reading to his nomination as prescribed in section 87(1) – (8) of the Act. A certificate or document from his political party to INEC would, to my mind suffice. In the instant case, exhibits P1 and P6 serve the needed purpose.
It is for this subtle or slim dichotomy in the relationship between the provisions of sections 87(9) and 138(1)(d) of the Act, 2010 that I hold that the tribunal was correct when, on pages 374, lines 14-24, and 375, lines 18-21, of the printed record respectively, it found.
We have read all the sections of the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010 cited by the parties to this petition. We agree that they all pertain to the Qualification of Candidates, Conduct of Party Primaries and Processes of Nomination and submission of candidates by political parties to INEC for purposes of election.
These procedures and processes pre-dated the conduct of elections into the Federal House of Representatives in Ekiti State by INEC on the 26th day of April, 2011 and no doubt takes it into the realm of pre-election matters.
There are abundant judicial decisions to the effect that conduct of party primaries and nomination of candidates by parties are pre-election matters which Election Tribunals should not concern themselves with…
This Tribunal therefore has no power to enquire whether the nomination of the 1st petitioner was proper or legal or whether the 2nd petitioner was proper or legal or whether the 2nd petitioner conducted proper primaries through which the 1st petitioner emerged as the candidate of the National Transformation Party. They are no go areas.
But is there nothing to show that the 1st petitioner was validly nominated by his party?
For the sake of emphasis, that finding by the tribunal wholly tallies or rhythms with mine expressed above. I find it unimpeachable. I will not tinker with it since it does not offend the law, the provisions of sections 87(9) and 135(1)(d) of the Electoral Act, 2010, as amended, which I have laboured to dissect earlier. Lets I forget, the argument made by the learned counsel for the appellants is quite in keeping with these findings, mine and that of the tribunal, on the slight chasm in the interpretation of these two provisions. Having regard to these reasons, I hold the firm view that the issue of valid nomination and unlawful exclusion, the touchstone of the respondents’ petition’ was not a pre-election dispute for which the jurisdiction of the tribunal was denuded. The tribunal was perfectly on the right track when it went on to appraise or evaluate the evidence, both oral and documentary, tendered by the parties in the determination of the petition. In all, I resolve this issue (three) in favour of the appellants.
ISSUE FOUR:
The kernel of that issue is whether the tribunal was right to have nullified the election based on the evidence before it. I have just reached a finding, which I have no reason to disturb, that the issue of valid nomination and exclusion of the respondents from the election was a post-election dispute for which the tribunal was cloaked with the jurisdiction to look into it.
My first port of call on this issue is to first resolve the contention of the learned appellants’ counsel that the tribunal granted unclaimed relief to the respondents. The rationale for taking this ancillary point first is obvious. It evinces an issue of jurisdiction which the law compels me to consider first, see Offia v. Ejem (2006) 11 NWLR (Pt.992) 652; Ohukim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172. Learned appellants’ counsel picked holes in the order for a fresh election made by the tribunal for the House of Representatives in Ijero/Ekiti West/Efon Federal Constituency of Ekiti State.
I completely fall in with the learned counsel that a court, not being a santa claus, lacks the capacity to grant to a party an unsolicited or unsupplicated relief, see Agbi V. Ogbe (2006) 11 NWLR (Pt.990) 65; Odunze V. Nwosu (2007) 13 NWLR (Pt.1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2007) 17 NWLR (Pt.1105) 486; Agio V. Agip (supra); The rider to this hallowed principle of law are in the realm of consequential order and ubi jus ibi remedium, where there is a right, there is a remedy, see Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; Bello v. A.G. Oyo State (1986) 5 NWLR (Pt.45) 828; Labode V. Otubu (2001) 7 NWLR (Pt. 712) 256; SPDC Nig. V. Okonedo (2008) 9 NWLR (Pt.1091) 85.
But did the tribunal grant to the respondents the relief they did not claim? I have my doubts. The grouch of the appellants’ learned counsel was that Ekiti Central II never existed in the Constituency nomenclature of INEC and that it was not the same as Ijero/Ekiti West/Efon Federal Constituency except shown by evidence for the latter. That argument ignored the fact that the respondents filed the petitioners’ reply in answer to the appellants’ reply on 15/06/2011 contained on pages 112-116 of the record. In paragraph 2(b) of that reply, they pleaded that the cross appellants (INEC) “used to alternate the names of the constituencies especially in Ekiti Central Federal Constituencies as follows: i. Ekiti Central 1 -Ado-Ekiti/Irepodun/Ifelodun. ii. Ekiti Central II – Ijero/Ekiti West/Efon”.
The respondents called PW, Rufus Kehinde, who gave evidence of those pleaded facts by adopting his additional deposition or statement on oath, made on 15/06/2011, before the tribunal on 19/07/2011. Thereafter, the witness’ PW2, was subjected to cross-examination. Curiously, the appellants and the cross-appellants never asked attempted to impugn that crucial piece of evidence by asking him questions on it under the crucible of cross-examination. That omission is a costly failure in the sense that, in law, the implication is an undiluted admission of that critical piece of evidence, see Gaji v. Paye (2003) 8 NWLR (Pt.823) 5S3; Iteogu C. LPDC (2009) 17 NWLR (Pt.1171) 614; Oludamilola v, State (2010) 8 NWLR (Pt.1197) 565. It is on the basis of this evidential admission by the appellants and cross-appellants, by which they played into the hands of the respondents that I hold the humble view that there is no disconnect between Ekiti Central II and Ijero/Ekiti West/Efon Federal Constituency. This glaring nexus between them has torpedoed the viewpoint of the learned counsel for the appellants. In view of this established oneness relationship, I hold that the tribunal did not make ex-gratia awards to the respondents.
In an attempt to prove and disprove that issue of valid nomination and unlawful exclusion, the parties, from both sides of the divide, proffered both oral and documentary evidence. The synopses of the oral testimonies of both parties before the tribunal were not complex. Whereas the oral evidence of the respondents pointed to the fact of their valid nomination and unlawful exclusion from the election, those of the appellants and cross-appellants were to the contrary. Thus, it is crystal clear that their oral testimonies were discordant on that ground.
For that reason of divergence in their oral testimonies, I will deploy one decisive rule of law to ascertain who was telling the truth. Where two adversary parties offer viva voce evidence that are diametrically opposed to one another, the law gives the court the nod to use any documentary evidence as the parameter to decide the veracity of their testimonies. In the process of using documentary evidence as a hanger or a yardstick, a party whose evidence is buttressed by the documents is credited as the truthful party. On the other hand, a party whose oral evidence is not supported by documents is taken as being economical with truth, See Eya V. Olopade (2011) 11 NWLR (Pt.1259) 505.
Interestingly, the parties tendered documentary evidence (exhibits) that will be used to assess the oral evidence. Also, I have the mandate of the law to evaluate documentary evidence, see Ayuya v. Yonrin (2011) 10 NWLR (Pt.1254) 135. Fagunwa v. Adibi (2004) 17 NWLR (Pt.903) 544; I will, therefore, utilize some of the documentary evidence in resolving this impasse in the parole evidence. Exhibit P1, an acknowledgement receipt, which bears INEC stamp, shows that INEC headquarters was in receipt of the first respondent’s form CF001, on 31/01/2011 for the office of House of Representatives. Exhibit P6, presentation of party aspirants, was a letter sent to the second cross appellants by the second respondents to which its list of candidates was attached. The name of the first respondent was clearly written as the candidate for the House of Representatives therein. Exhibit R1, House of Reps 2011 Final List, tendered by INEC’s RW1, was to counter exhibit P6 tendered by the respondents. The said exhibit R1 is undated and unsigned document. In the eyes of the law, an undated and unsigned document has no probative value. See Garuba v. K.I.C. Ltd. (2005) 5 NWLR (Pt.917) 160, Omega Bank (Nig) Plc V. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) 547; Jinadu v. Esuromobi-Aro (2009) 9 NWLR (Pt.1145) 55. I cannot bypass this agelong principle of law and ascribe any qualitative probative weight to it. Since it is a document not worth the paper it is written, it cannot offset the value appurtenant to exhibit P6.
On the exclusion of the respondents, exhibit R3, tendered by INEC’s RW1, is quite of moment. It is the ballot paper wherein party symbols for Federal Constituency Election in Ekiti Station are encapsulated. It contains the names and logos of these political parties: CAN, AD, ANPP, APGA, LP and PDP. The name of the second respondent and its logo were conspicuously absent from it. The exhibit, therefore, demonstrates that the respondents were deliberately excluded from the election. Exhibits P8B and R2, both results of election for the House of Representatives for Ekiti State, lend credence to exhibit R3 since the names of the respondents were apparently not in them. Exhibit P3A, dated 26/04/2011, was a letter addressed to INEC in which the respondents complained against their exclusion from exhibit R3 and the election and made a clarion call for its nullification. Exhibit P3B, dated 02/04/2011, was another protest letter which was a forerunner to what happened in exhibit R3 on 02/04/2011 when the election was held half way and postponed. In that exhibit, they also called for a correction of the omission of their logo on INEC ballot on 02/04/2011. When these exhibits are pieced together and married with each other, their end product is not a second guess-the name and logo of the respondents were not placed before the electorate in the election. In the very language of the provision of section 138(1)(d) of the Electoral Act 2010, as amended, that was unlawful exclusion from the election.
In the aggregate, the parole evidence of the respondents have the backing of the documentary evidence tendered in the proceedings. It follows, when the principle of law stated earlier is applied, that the oral testimonies of the respondents are more dependable. In obedience to the law, I will crown them with the logo of credibility. The corollary of this is that the oral evidence of the appellants and cross appellants is not buttressed by the documentary evidence. In effect, they are half truths which are unreliable and I will treat them with a pinch of salt. The end result of all these is that the respondents proved that they were validly nominated, but unlawfully excluded from the election.
Now, I will proceed to consider the legality of otherwise of the respondents, exclusion from the election. The appellants’ counsel took the stance that they were lawfully excluded by virtue of the provision section 87(9) of the Electoral Act, 2010, which he quoted thus:
87 -(9) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.
On the other hand, learned counsel for the respondents tenaciously held the opinion that they were unlawfully excluded and anchored his insistence to the provision of section 31(1) of the Elector al Act, 2010, as amended, which states:
31-(1) Every political party shall, not later than 60 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, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.
To begin with, that provision of subsection (9) of section 87 of the Electoral Act, which the learned counsel for appellants made heavy weather of, had, perhaps unknown to him, been weeded out from that legislation by the Electoral (Amendment) Act No. 10, 2010. With that expunction, that provision became non-existent. Its life span came to an end with that amendment that ousted its existence from the Act. It can be compared to a repealed statute which is lifeless and impotent to influence a decision. Thus, in the case of Olafisoye V. FRN (2004) 4 NWLR (Pt. 864) 580 at 636, Tobi, JSC. stated:
Let me pause here and deal briefly with learned Senior Advocate’s reference to the repealed Corrupt Practices Decree, I975. It is wrong in law to refer to a repealed law in the way learned senior Advocate did. A repealed law no more has legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with existing law. It cannot be quoted side by side with existing law as Learned Senior Advocate did.
Being an expunged provision, it has no capacity to determine, much less to turn around, the destiny of any matter inclusive of this issue. In the circumstance, I will turn a blind eye to it since it will not serve any useful legal purpose in this appeal. Accordingly, the arguments weaved on it, with due respect to learned, came to naught.
On the contrary, the provisions of section 31(1) of the Electoral Act, 2010 is extant and existing. The proviso to it, “provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever,” was counted into the subsection by the same Electoral (Amendment) Act, of 2010. To start with, the provision, inclusive of its proviso, is, clear and unambiguous. In this wise, I will apply the literal rule or canon of interpretation of statutes to its construction. To this effect, I will give the words in that provision their grammatical and ordinary meanings without any interpolation or embellishments. This is particularly so when the chief function of a Judex is jus dicere, not jus dare, that is, to declare the law and not to make one. This ancient rule has received the imprimatur of the Apex court in a galore of cases, see Cotecna Int’l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Olofu v. Itodo (supra); Agbiti v. Nigerian Army (2011) 4 NWLR (Pt. 1236) 175; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; A.C v. INEC (supra); Obiuweubi v. CBN (2011) 7 NWLR (Pt 1247) 465.
By that provision, every political party is mandated, not later than 60 days before an election, to submit a list of its candidates to INEC which must not reject any candidate (s) for any reason. It can be discerned/distilled from the proviso to the provision that even if there are strictures or defects on the list of candidates or procedures leading to their choice, INEC is totally dispossessed of the power to reject or disqualify any candidates for any reason, whether real or phantom. The use of the word “whatsoever”, an adverb usually employed to underscore a negative statement, speaks volume about the powerlessness and incapacity of INEC to disqualify any candidates. In other words, INEC is wholly stripped of the authority to prevent any candidate from partaking in an election no matter the reason. The proviso solidifies its restraint on INEC over candidates by the use of the word “shall” which implies compulsion or mandatory obligation on its part not attempt to reject or disqualify any candidates, see Achineku v. Ishola (supra); Ahambele v. Imperial Medical centre (supra) Ugwu v. Ararume (supra); Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562. For the avoidance of doubt, to disqualify, a synonym of to exclude, means “to unfairly prevent someone from doing a job or taking part in an activity,” see Longman, Dictionary, of contemporary English Lt 452. By happenstances, paragraph 15 of the Third Schedule to the 1999 Constitution, as amended, which specifies the power of INEC never allotted to it the authority to disqualify candidates for any election. Thus, the lawmakers, in their infinite wisdom, have divested INEC of all powers to disqualify any candidates for any election. These prescriptions are sacrosanct and inviolable and it is unlawful for INEC to disregard them
As a matter of fact and law, these provisions’ especially that of section 31(1) of the Electoral Act, 2010 had received the blessing of judicial authority in the case of Action Congress v. INEC (supra) wherein, on page 262 – 263, Katsina-Alu, JSC (as he then was) stated:
… In the light of these provisions, I think it is beyond argument that the law makers clearly intended that the courts would have the power to deal with matters of disqualification of candidates in an election in the 2007 general elections. I think with little imagination on the part of the defendant, it would have been so clearly obvious to it that it does not possess the powers to disqualify any candidate including the 2nd appellant from contesting election. I am clearly of the view that this approach is consistent with the constitution and the Electoral Act, 2006 and with common sense.
Flowing from the law as X-rayed above, it seems clear to me that the INEC went beyond or exceeded its powers when it published exhibit R3, the ballot paper, without the name and logo of the respondents therein. That was a flagrant infraction of the sacred provision of section 31(1) of the Electoral Act, 2010. A conglomeration of the foregoing analyses pointedly indicate that the respondents established, in the tribunal, that the first respondent was validly nominated by the second respondent, that the election was conducted and concluded, that a winner was declared and that the name and 10go of the second respondent were not included on the list of contestants as enunciated in the cases of Effiong v. Ikpeme (supra) and Idris v. ANPP (supra). In short, the respondents proved their valid nomination and unlawful exclusion from the election before the tribunal.
Having regard to the bold fact that the respondents had proved that ground, valid nomination, but unlawful exclusion from the election, the tribunal was on a firm footing when it invoked the provision of section 140(1) of the Electoral Act, 2010, as amended, which Provides:
140 – (1) Subject to subsection 2 of this section, if the Tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election
This is especially so when it is incumbent on a court of law not to a citizen of rights accruable to him by statute, see Longe v. FBN, PLC (2010) 6 NWLR (Pt. 1189) 1. I endorse through and through, the finding, of the tribunal on this point as same is unassailable. Overall, I resolve this issue (four) against the appellants.
Now, I have painstakingly, I believe, resolved all the four issues distilled for determination in this appeal. It will be recalled that issues one, two and four were resolved against the appellants, that is, in favour of the respondents. It is correct that issue three was resolved in favour of the appellants, but, I am afraid, they only clinched a barren victory over it. The reason is that, in substance, that issue three, the issue of valid nomination, but unlawful exclusion from the election, is not a pre-election dispute consolidates the major ground upon which the respondents grounded their petition and the decision of the tribunal that went in their favour. The point I am struggling to run home is that all the odds are against the appellants in this appeal. It is, therefore, wanting in merit.
Before I handing down my last verdict in this appeal, it is imperative to place on record that what INEC did, by deliberately excluding the respondents from participating in the election, amounted to a crucifixion of the inviolate provisions of section 31(1) of the Electoral Act, 2010, as amended, and paragraph 15 of the third Schedule to the 1999 Constitution, as amended. I exculpate the appellants and the respondents from that exclusion. In excluding the respondents from taking part in that election, INEC suddenly forgot that in a participatory and a constitutional democracy, which we practice, all the political parties and their members must be given a level playing ground to seek for the sovereign man date of their people. A person elected to represent his people must have obtained or scored votes of majority of them. Such a person returned by INEC cannot claim to have that majority when his opponent is disabled and edged out, by unlawful exclusion, by a body meant to be an unbiased electoral umpire, that is, INEC. Like in the administration of Justice, a political party or a candidate will prefer to lose an election on an even keel than to concede victory to an opponent by default of an electoral empire. The illegitimate conduct of INEC ran foul of the tenets and spirits of the rule of law, the very soul of any democracy inclusive of Nigeria’s. It is only a fresh election, no matter the mountainous funds that will be expended, that will sufficiently atone for the selective justice perpetrated by INEC. It, fresh election, is one of the ways to promote and solidify our fledgling and toddling democracy which is yearning and itching for observance of the rule of law and transparency.
On the whole, it was on the strength of the reasons advanced above, that I held, on 17/11/2011, that the appeal was devoid of any jot of merit and 1: (a) dismissed the appeal; (b) affirmed the decision of the tribunal; (c) ordered that a fresh election beheld for the House of Representatives in Ijero/Ekiti West/Efon Federal Constituency to include the first and second respondents within ninety (90) days from 17/11/2011; and (d) ordered that parties bear their respective costs of prosecuting and defending the doomed appeal.
CONSIDERATION OF THE CROSS-APPEAL
In the cross-appellants’ brief of argument, their learned counsel, Oso Adetunji Esq., formulated two issues for determination to wit:
ISSUE 1
Whether the Lower tribunal was right in holding that the issue of whether the 1st Respondent was validly nominated as raised by them i.e. 1st and 2nd Respondents and denied by cross-Appellants was a pre-election matter and therefore a “no go area for the Election Petition Tribunal.
ISSUE 2
Whether the reliance of the lower trial tribunal on exhibit P1 and P6 to hold that 1st Respondent was validly nominated is supportable by the oral and documentary evidence adduced at the trial and the relevant provisions of Electoral Act 2010 (as amended).
I have juxtaposed these two issues with those considered in the main appeal and I hold the opinion that they are identical and intertwined. The cross appellants’ issue one, properly, fits into issue three in the main appeal. Their issue two falls within the four walls of the appellants’ issues four. The arguments made by learned counsel for the cross-appellants, in his briefs, are a clone of those advanced by learned counsel for the appellants in his own briefs of argument too. Owing to this interfaced relationships between the two sets of issues for determination, the determination of the appellants’ issue three and four has successfully rendered the cross-appellants’ two issues otiose or in this connection, it will be pointless, nay, unnecessary duplication of efforts, to repeat the submissions of the cross appellants’ learned counsel on the two issues and my resolutions on them. The two issues, to my mind, suffer the same fate with the appellants’ issues three and four. Put simply, the unsuccessful fate of those issues under which they were subsumed, contaminates theirs too. In the circumstance, the cross appellants’ issue one is resolved in their favour without, as already noted in the main appeal, any electoral advantage to them. Also, their issue two is resolved in favour of the respondents.
While adopting this summary procedure, I am not oblivious of the law that a cross appeal is independent of the main appeal and failure to hear it erodes a cross appellant’s right to fair hearing as engrained in section 36(1) of the 1999 Constitution, as amended, see Best (Nig.) Ltd. V. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95. The law itself has sanctified this procedure where, as in this case, the main appeal and the cross appeals are interwoven with themselves. In the case of Unity Bank Plc. V. Bouari (supra), at 413, Tobi, JSC lucidly opined:
Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the cross-appeal summarily without finding on the issues of law that were raised in the appellants’ cross appeal and expatiated in their brief of argument. While I concede that a cross-appeal is an independent appeal, having a life of its own in the appellant process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate court to go over the arguments raised by the cross appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate court has the option to dismiss a cross-appeal summarily in the way the Court of Appeal did in this appeal. I do not see anything wrong procedurally in what the Court of Appeal did
I was certainly emboldened by that binding pronouncement in attending to the cross-appeal summarily as I did.
All in all, it was for those reasons that I found no iota of merit in the cross-appeal. Accordingly, I discovered it, on 17/11/2011, and made the order in the main appeal which I wholly adopted in the ill-fated cross-appeal.
SOTONYE DENTON WEST (PJ), J.C.A(Dissenting): This appeal would expire on the 18th November, 2011 and in order not to subject same to expiration, the judgment in the appeal was pronounced and the detailed reasonings of the court is hereby given.
This is an Election Petition Appeal against the judgment of the Ekiti State National Assembly Election Tribunal which was delivered on 21st day of September, 2011, in an Election Petition No: EPT/EK/HR/001/2011, brought by the Appellants/Cross Respondents namely, Action Congress of Nigeria as 1st Appellant/Cross Respondent and Ojo Oyetunde Oladimeji as 2nd Appellant/Cross Respondent who were the 1st and 2nd Respondent before the Election Tribunal which hereinafter shall be referred to as the Tribunal.
The 1st and 2nd Appellants/Cross Respondents are appealing against the 1st and 2nd Respondents namely Prince Bamigbade Adekola Peter as 1st Respondent and 2nd Respondent – National Transformation Party on the one hand and whilst the Independent National Electoral Commission (INEC) is the 3rd Respondent/Cross Appellant and the Resident Electoral Commissioner, Ekiti State as the 4th Respondent/Cross Appellant.
The Appellants being dissatisfied with the judgment of the Tribunal wherein the Tribunal nullified the Election of the Appellant Ojo Oyetunde Oladimeji before this Court as the winner of the Election of 26th day of April, 2011. Prince Bamigbade Adekola Peter and National Transformation Party were Petitioners before the Tribunal whilst the Respondents therein were:
(1) The Independent National Electoral Commission (INEC)
(21 The Resident Electoral Commissioner, Ekiti State.
(3) Action Congress of Nigeria and
(4) Ojo Oyetunde Oladimeji
The 1st and 2nd Appellants filed a Notice of Appeal dated 10th October, 2011 and filed on same date.
For ease of further reference, it would be desirable to reproduce this Notice of Appeal thus:
NOTICE OF APPEAL
TAKE NOTICE that the appellants being dissatisfied with the decision of the NATIONAL ASSEMBLY ELECTION TRIBUNAL sitting in Ekiti State contained in the judgment of their Lordships (1) Justice I.M. BAKO (Chairman); (2) Justice R.B. ADEBIYI; (3) Justice U. Uhuo; delivered on 21st September, 2011, the part of which is contained in paragraph 2 hereof here do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
AND the APPELLANTS further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision of the tribunal.
GROUND (1) ONE:
The learned judges of the lower Tribunal misdirected themselves and erred in law (by overruling the preliminary objection on locus standi) when they held that the petitioners/respondents have the locus to bring the petition thus
‘It seems to us therefore, that the petitioners have expressed enough facts to establish their locus in the petition and we so hold’.
PARTICULARS:
(a) Locus standi is the threshold of jurisdiction.
(b) Locus standi is the power/special right of a party to institute an action.
(c) Lack of locus standi robs the Court of its jurisdiction.
(d) A party cannot by mere pleading, of facts not supported by evidence be clothed with jurisdiction.
GROUND (2) TWO:
The learned judges of the tribunal lack the jurisdiction to hear and determine the matter due to the failure of the 1st & 2nd respondents to file pre-hearing application as required by the rules.
PARTICULARS:
(a) Filing of pre-hearing application is a jurisdictional matter in election petition.
(b) The 1st and 2nd respondents failed to file the pre-hearing application as prescribed by Electoral Act, 2010 as amended.
(c) Failure to abide or observing the manner of filing/applying for prehearing session affects the jurisdiction of the court.
(d) Parties can not by consent or acquiescence confer jurisdiction on a Court that has none.
GROUND (3} THREE:
The lower Tribunal erred in law when they held as follows:
“These procedures and processes predated the conduct of elections into the Federal House of Representatives in Ekiti State by INEC on the 26th day of April 2011 and no doubt takes into the realm of pre-election matters…
This tribunal therefore has no power to enquire whether the nomination of 1st petitioner was proper or legal or whether the 2nd petitioner conducted proper primaries through which the 1st petitioner emerged as the candidate of the National Transformation Party. They are ‘no go areas'”.
PARTICULARS:
(a) The tribunal failed to understand the case of the Respondents.
(b) ODEDO V. INEC (2008) 17 NWLR (Pt.1117) 562 – 563 relied upon by the tribunal was decided under the Electoral ACT 2006 likewise the decision in ACTION CONGRESS & ANOR V. INEC (2007) 12 NWLR (Pt.1048) 270-275.
(C) The Electoral ACT 2010 (as amended) re-ordered the processes giving INEC more visible powers including party primaries and nomination.
(d) The Respondents under Cross-Examination agreed and admitted that their purported primaries were not held at the Headquarters or within the House of Representative District as provided as provided by the law.
(e) The Respondents herein as petitioners brought up the issue of valid nomination in their pleading/petition and the respondents validly joined issues with them on this issue.
The decision in IDRIS V. A.N.P.P. (2008) 8 NWLR (Pt.1088) does not help the respondents herein as petitioners.
(g) The petitioners/respondents are required by law to complete all relevant forms prescribed for nominating a candidate.
GROUND (4) FOUR:
The learned judges of the lower Tribunal erred in law when it placed a far greater burden of proof on the respondents/appellants, by closing their eyes to the written address of the appellants (particularly 3rd & 4th) thereby occasioning a miscarriage of justice.
PARTICULARS:
(a) All the issues formulated by the 3rd & 4th respondents as appellants were duly argued together.
(b) Nothing forbids a party from arguing their issues together.
(c) The concluding part of the 3rd & 4th respondents is to the effect that “there is nothing to disturb the election and return of the 4th Respondents as the Honourable member of the National Assembly representing Ijero/Ekiti West/Efon Federal Constituency in the House of Representatives”.
GROUND (5) FIVE:
The learned judges of the lower Tribunal erred in law when they held:
“It could therefore be seen clearly that the elements of the petitioner’s petition have been proved.
ln all therefore this appeal succeeds.
Consequently, the election held on the 26th day of April 2011 to the office of the House of Representatives in Ijero Ekiti West/Efon Federal Constituency and the return Ojo Oyetunde Oladimeji as the winner by the 1st and 2nd Respondents is hereby nullified in accordance with the provisions of Section 140(1) of the Electoral Act, 2010 (as amended).
It is hereby ordered that the 1st and 2nd Respondents conduct a fresh election for the House of Representatives seat in Ijero/Ekiti West/Efon Federal Constituency including the 1st and 2nd petitioners as a candidate and a party respectively in the fresh election.”
PARTICULARS:
(a) The petitioners/respondents have failed to proof valid nomination to confer locus in them.
(b) The issue of nomination and other processes including election are joint and not separable.
(c) The process of election starts from voting by party members to choose their candidates in accordance with the laid down rules.
(d) There is no material upon which the order of the lower tribunal could be based.
GROUND (6) SIX:
The judgment of the learned judges of the tribunal is against the weight of evidence.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(i) AN ORDER allowing the appeal
(ii) AN ORDER setting aside the judgment of the lower tribunal
(iii) AN ORDER dismissing the petition.
PERSONS DIRECTLY AFFECTED BY THE APPEAL AND THEIR ADDRESSES
NAMES Â ADDRESSES
1. ACTION CONGRESS OF NIGERIA c/o Their Counsel
OJO OYETUNDE OLADIMEJI NIYI IDOWU
TUNJI OSO
LAWAL ALABI
c/o Ibrahim Olanrewaju
90, Ajilosun Street,
Ado-Ekiti, Ekiti State.
1st & 2nd RESPONDENTS:
1. PRINCE BAMIGBADE ADEKOLA PETER c/o Their Counsel
2. NATIONAL TRANSFORMATION PARTY Obafemi Adewale Esq.,
(2nd Floor)
44, Ejigbo Street,
Ado-Ekiti, Ekiti State
3RD & 4TH RESPONDENTS 3RD & 4TH RESPONDENTS
1. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) c/o INEC OFFICE IYIN ROAD,
2. THE RESIDENT ELECTORAL COMMISSIONER, EKITI STATE ADO EKITI
Dated this ……. day of …………. 2011
…………………………….
NIYI IDOWU
TUNJI OSO
LAWAL ALABI
C/o Ibrahim Olanrewaju
90, Ajilosun Street,
Ado-ekiti, Ekiti State
FOR SERVIGE ON:
THE RESPONDENTS
c/o Their Solicitor
Obafemi Adewale Esq.
2nd Floor, 44 Ejigbo Street
Ado-Ekiti.
3RD & 4TH RESPONDENTS
c/o INEC OFFICE
NEW IYIN ROAD
ADO EKITI
When the Appeal came up for hearing, Mr. Niyi Idowu of Counsel to the Appellants/Cross-Respondents referred the Court to the Appellant’s Brief of Argument, the 20th day of October, 2011 and filed on 24th day of October, 2011 and there was also 1st and 2nd Appellants Reply Brief dated the 2nd day of November, 2011, and filed on 3rd day of November, 2011, in response to the Respondent’s Brief of Arguments. These two Briefs were adopted by Mr. Niyi Idowu and relied upon by him as the case of the Appellant.
The 3rd and 4th Respondents also cross-appealed and accordingly filed their Respondent’s/Cross-Appellants’ Brief dated 23rd day of October, 2011 and filed on 24th day of October, 2011. Their Counsel, Oso Adetunji, who referred the Court to this Brief and further to the Brief of 2nd day of November, 2011 and filed on 3/11/2011 as their Respondent’s/Cross- Appellant’s Reply Brief which he adopted as their Reply and defence to this Appeal. The 3rd and 4th Respondents also filed a Notice of Cross Appeal which can be found on pages 400 – 408 of the Record before the Tribunal. It would not be necessary to reproduce same as it is nearly similar in content to that of the Appellant, and they anchored their Cross-Appeal upon five grounds.
In this appeal, the Appellants raised four (4) issues for determination; the 1st and 2nd Respondents raised three (3) issues for determination whilst the Cross-Appellants raised two (2) issues for determination.
The issues are hereby stated. The issues raised by the Appellants are as follows:
1. Whether or not the Lower Tribunal was right in overruling the preliminary Objection of the appellants on the issue of locus standi and other sundry and far reaching objections raised before it?
2. Whether the proceedings in this petition has not been fundamentally violated by the failure of the petition to bring a proper application for pre-hearing in accordance with paragraphs 18(1) of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition?
3. Whether or not the issues canvassed before the Lower Tribunal are pre-election matters?
4. Whether having regard to the totality of the evidence and circumstances of this case, the lower tribunal was not wrong to have nullified the election and or return of appellants.
Whilst the issues raised by the 1st and 2nd Respondents are three, namely:
1. Whether the Tribunal was right to have held the nomination of the 1st petitioner valid in view of the evidence before it.
2. Whether the Tribunal was right to have held that the Petitioners were unlawfully excluded from the election held on 26th April, 2011 into the House of Representatives seat in Ekiti Central Federal Constituency II comprising Ijero/Ekiti West/Efon LGAs.
3. Whether the Tribunal was right to have nullified the return of the 2nd Appellant/Cross Respondent and ordered a fresh election that will include the Petitioners on the ground of their unlawful exclusion having regard to the circumstances of this case.
In order to effectively determine this appeal, the issues as raised by the Appellant would adequately address the issue herein raise in this appeal and cross-appeal for determination.
Consequently, in respect of issue one,
“Whether or not the lower Tribunal was right in overruling the Preliminary Objection of the Appellants on the issue of locus standi and other sundry and far reaching objections raised before it?”
In my humble view, after analyzing the various Preliminary Objections to the petition before the Tribunal by the Appellants, I hereby state categorically the 1st and 2nd Respondents are entitled to be heard and so do not lack locus to institute this action and the Tribunal is not robbed off of its jurisdiction to adjudicate on the petition brought by the 1st and 2nd Respondents before it.
My disposition is that a party seeking a redress from our law Courts should be entertained so that the temple of Justice should be accessible to whoever knocks on the door, for Justice should not be denied to those who seek same without allowing the party to ventilate his grievances.
This view may not be in accord with the decision in NUHU SANNI IBRAHIM VERSUS INDEPENDENCE ELECTORAL COMMISSION (INEC) (2007) EPR 3 AT PAGE 50. SEE ODEDO VERSUS INEC AND ANOR (2008) 17 NWLR, PART 1117, PAGE 554; AMAECHT VERSUS INEC (NO.1) (2007) 18 NWLR (PT.1065) PAGE 42.
Indeed, in ODEDO’s case supra on page 624, paragraphs C – D, Tabai JSC observed that “A genuinely aggrieved person who approaches the court for redress must be accorded the redress if he establishes his right thereto at the trial. Otherwise, there can be break-down of public order with the possibility of the aggrieved opting for vengeance by, violent self-help. That can be dangerous.”
Locus standi per se is not the threshold of jurisdiction. Jurisdiction is a creation of the constitution and statute. NUHU SANNI IBRAHIM VERSUS INDEPENDENCE ELECTORAL COMMISSION (INEC) (2007) EPR 3 AT PAGE 50.
See: MADUKOLU VERSUS NKEMDILIM (2001) VOL. 46 NWLRN 1; S.C.350/2011 MALLAM ABUBAKAR ABUBAKAR & ORS VERSUS SAIDU USMAN NASAMU (Unreported) and delivered on 9th November, 2011.
This issue is therefore resolved in favour of the 1st and 2nd Respondents.
ISSUE TWO (2):
Whether the proceedings in this petition has not been fundamentally violated by the failure of the petition to bring a proper application for pre-hearing in accordance with paragraphs 18(1) of the 1st schedule to the Electoral Act and having regards to such defect, whether the Tribunal had not been robbed of jurisdiction to adjudicate over the petition.?
The Tribunal as earlier said has not been robbed of jurisdiction to try the petition. Indeed, it is the Tribunal that declared categorically in its own judgment that it has no jurisdiction to try pre-election matters and referred to same as a “No go Area” and if the Tribunal sincerely believe that the petitions as couched is a “No Go Area”, then, it ought to issue a dismissal order.
Instead, the Tribunal is blowing hot and cold. In one breath, it divests itself completely of jurisdiction and in another breath, it proceeds to arbitrate. In a plethora of cases, the Apex court has held that once a court has no jurisdiction, that court is obliged not to take any further steps in the matter. However, an election petition tribunal may by the provisions of section 138(1)(A) (B) (C) and (D) of the Electoral Act as amended question the validity of an election from the onset of the primaries to the election proper. Section 138(1)(A)(B)(C) and (D) provides thus:
138.-(1) An election may be questioned on any of the following grounds, that is to say-
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Although, generally an Election Tribunal has no jurisdiction over pre-election matters including nominations, a petition which is premised on Section 138(d) of the Electoral Act brings the issue of nomination within the jurisdiction of an election tribunal. Where therefore a petition is grounded on the allegation that the petitioner was validly nominated but was unlawfully excluded, the tribunal cannot decline jurisdiction. It has been vested with jurisdiction by virtue of the provisions of Section 138(1)(d) of the Electoral Act.
A party who claims, as in this case, that he was validly nominated but unlawfully excluded has a duty to strictly prove the fact of that nomination. It would not suffice to simply say that he was validly nominated. There must be strict proof of that valid nomination. In other words, the Tribunal has a duty to inquire into the validity of the alleged nomination. And where the Petitioner fails to strictly prove the nomination, the petition fails and should be dismissed.
It was therefore wrong for the trial Tribunal to hold that the procedures and processes had taken the matter into the realm of pre-election matters and that it had no power to enquire into whether the 1st Petitioner/Respondent was validly nominated. With respect to the requirement of strict proof of the 1st Petitioner/Respondent, there is no evidence to show that the 1st Petitioner/Respondent “PRINCE BAMIGBADE ADEKOLA PETER” is one and the same person as that in the documents evidencing his nomination. The name in Exhibit “P1” is “BAMIGBADE PETER” and the name in Exhibit P6 is “KOLA BAMIGBADE”. None of these can be said to be one and the same as PRINCE BAMIGBADE ADEKOLA PETER.
Contradictions in the findings of the Tribunal; the Trial Tribunal held that the matter is a pre-election matter over which therefore that it has no jurisdiction. It nevertheless went ahead to nullify the election on the ground that the 1st Petitioner/Respondent was validly nominated but unlawfully excluded. This, in my view, is a contradiction in terms.
In my view, the Court of Appeal should invoke its powers under Section 16 of the Court of Appeal Act, I therefore invoke same and accordingly resolve issue two (2) in favour of the Appellants.
ISSUE THREE (3):
Whether or not the issues canvassed before the Lower Court are pre-election matters?
This issue is also resolved in favour of the Appellants because most of the issue brought for the determination before the panel in the Tribunal were mostly issues that arose before the Election proper and they are issues relating to nomination, conduct of primaries and unlawful or lawful exclusion, e.t.c.
Unilaterally and specifically, the Tribunal held inter-alia the issue canvassed before it are pre-election and which they referred as “No Go Areas” for lack of jurisdiction, and yet still at the end of it, the Tribunal did a 3600 (360 Degrees) summersault and on their own vested itself with jurisdiction, thus taking an Appeal on their decision.
Justice is straight jacketed and would not fail to note that a court should be extremely cautious about its pronouncements which could have far reaching effects. How could we now assume that the court is now capable and has indeed inquired into the “No Go Areas” effectively when it declared itself not competent jurisdictionally to hear the parties’ Pre-election. The Tribunal did not say how come in the course of its summersault whether the issues before it are no longer pre-election matters. They still remain pre-election matters.
There is a line of plethora of cases on jurisdiction generally but there are also diverse cases of the Supreme Court and of this Court dealing specifically with jurisdiction of Tribunals in dealing with Election Petition which are of a special nature. In the case of S.A. ONITIRI VERSUS BENSON, T.O.S. (2007) 3 EPR, page 22 at page 27 – 29, Ademola C.J. (as he then was) in 7 SC/76.1960 HAD, this is to say in respect of jurisdiction by an election Tribunal. Thus “We have carefully considered all the authorities cited to us and it is abundantly clear to us from them all that the jurisdiction of any Tribunal to deal with such matters as election petition, which affect membership of a legislative assembly, is a jurisdiction of a very special nature which does not carry with it the ordinary incidents of appeal in an ordinary civil case. True it is that the 1959 Regulations do not expressly provide for any appeal to this Court from a decision of the High Court on an election petition, but it is quite plain from Regulations Nos. 9, 10, and 11 of the 1959 Regulations that it is intended that an appeal shall lie to this Court. The judgment of the privy council in Senanayake v Navarantne (supra) collects and discusses the previous cases decided on this point and it seems to us that all the authorities quoted including that of Patterson v. Solomon (Supra) point conclusively to there being no right of appeal to the Privy Council in a case such as this. It is pointed out in many of the authorities that it is essential that there should be proper and, so long as that Parliament lasts, permanent representation of a constituency, and therefore the matter is one of considerable urgency. It is well known that for various reasons the taking of an appeal to the Privy Council often occupies a considerable period of time. It seems to us that the whole object of the election of persons to represent Constituencies would be nullified if for a considerable period the electors were not to know who their representative was, or was likely to be.
Moreover, it noteworthy that under Regulation 9, notice of appeal against the decision of a High Court on an election petition must be given within one month of the decision in question-a most important variation from the rules of procedure in an ordinary civil matter indicating that an appeal against the decision of a High Court on an election petition is in a class by itself.
See also NUHU SANI IBRAHIM VERSUS INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS (2007) 3 EPR, PAGE 50.
In view of the foregoing and other related authorities alike, I am obliged to resolve “Issue three (3)” in favour of the Appellants and the Cross-Appellants.
ISSUE FOUR (4):
“Whether having regard to the totality of the evidence and circumstances of this case, the lower tribunal was not wrong to have nullified the election and or return of appellants”.
4. This is issue relating to the nullification of the Election and or return of the Appellants on 26th April, 2011. The reason for the nullification of the election had not been manifestly articulated by the Tribunal who had in its self appraisal in their judgment declined the responsibility of inquiry to the conduct of an election. How and when did the Tribunal assume the onerous task of looking into the conduct of this Election prior and after to be able to arrive at their conclusion as parties cannot by consent or acquiescence confer jurisdiction on a Court that has declined jurisdiction and so cannot give the order made by it, for if a court has no jurisdiction, the order to be returned is striking of our order, but in Election Petition, it has been held that the order should be a dismissal. See: IBRAHIM VERSUS INEC (2007) 3 EPR, PAGE 50.
It is argued on behalf of the 1st and 2nd Respondents that the 3rd Respondent/Cross-Appellant had breached certain provisions of the Electoral Act, 2010 especially provision of Section 44, 82 and 83 of the Electoral Act, and therefore they failed to perform their statutory roles and duties which led to unlawful exclusion of a validly nominated candidate and therefore the Election is flawed and therefore invalid.
This contention or stance of the 1st and 2nd Respondent was vehemently opposed by all Appellants when in ground five of their Notice of Appeal, where they said the Petitioners, that is, 1st and 2nd Respondents have failed to prove valid nomination to confer locus in them and that the issue of nomination and other processes including Election are joint and not separable and that the process of election starts from voting by party member to choose their candidates in accordance with the laid down rules and that there is no material upon which the Tribunal could have made or based its order.
Similarly, the Cross-Respondents/Appellants also strenuously in their Notice of Appeal dated 10th October, 2011 and filed on 11th day of October, 2011 comprising of five grounds stated in their grounds 1 and 2 where they specifically attacked the nullification of the election in these words:
GROUNDS OF APPEAL:
GROUND 1
ERROR IN LAW:
The learned Judges of the Tribunal erred in law when they held that;
“In ODEDO VS INEC (2008) 17 NWLR (PT. 1117) 562 – 563, the Supreme Court faced with a similar argument as to whether part of the Election Appeal before it was a pre-election matter had this to say:
“Section 285 of the 1999 Constitution as amended provides for the jurisdiction of Election Tribunals. S.285(1)(a) of the 1999 Constitution cannot accommodate pre-election matters. The Sub-paragraph rather provides for the determination whether any person has been validly elected as a member of the National Assembly. The Sub-paragraph provides for election matters which give rise to post-election and not pre-election proceedings…,,That sub-paragraph does not provide for litigation arising from Party Primaries.”
The Court of Appeal, Kaduna Division in ANPP VS. USMAN (SUPRA) following the above case held that:
“The grounds recognized for the purpose of presenting an election petition are acts or omissions that were contemporaneous with the conduct of the election. An election Tribunal has no power to investigate matters which took place before the conduct of the election.(underlining ours).
See also: CHIME VS ONIYA (SUPRA), IBRAHIM VS. INEC (SUPRA) and ANAZODO VS AUDU (SUPRA).
This Tribunal therefore has no power to enquire whether the nomination of the 1’t Petitioner was proper or legal or whether the 2nd Petitioner conducted proper primaries through which the 1st Petitioner as the candidate of the National Transformation Party, since they claim that they are ‘no go areas”.
PARTICULARS OF ERROR:
1. The learned trial judges of the Tribunal with due deference had no jurisdiction to approbate and reprobate at the same time.
2. The Tribunal which had already foreclosed itself from going into the area of nomination, albeit wrongly, turned around and made findings against the Appellant and in favour of the 1st and 2nd Respondents on the same “no go area”.
I am not attunement with the fact that the Tribunal said it has no jurisdiction and therefore “No go area”.
However, having agreed to the evidence adduced before the Tribunal which evidence seem wishy-washy in view of the fact that the real identity of the 1st Respondent is not very clear as in one breath he has almost three different names, and identities that is, PRINCE BAMIGBADE ADEKOLA PETERS, KOLA PETER & KOLA BAMIGBADE
These inconsistencies in my view are unreasonable and I find it difficult to rely on same.
Policy thrust of Justice in this appeal requires that the appellant who actually participated in the election and was in no way a block, stone wall or privy, to the aspirations of the first Respondent or his travails should not and would not be allowed to be subjected to a return of an election which he won without any form of perceived rigging by him or his party.
Should a clear winner in a contest of which he had participated with clear votes and without any form of alteration between the 2nd Appellant and the first Respondent whose problems if any is with his party, and therefore whatever the problem he has is inter party affair and not intra party nor intra contestants. Besides, these appellants have such an overwhelming votes that were not subjected to litigatory concerns, and so it would serve no useful purpose to ever nullify such an election of the 2nd Appellant on the winner of Ekiti Central Federal Constituency II election on 26th April, 2011 for it is crystal clear that no matter what the 2nd Appellant would clear the poll even in a re-run election in a land-slide.
I disagree in toto with the majority judgment that had failed to consider the foregoing and thus ordered the rerun of the election during our pronouncement of the judgment wherein the majority decision inter-alia nullified the election of the 2nd Respondent and ordered for a re-run within 90 days. Same rerun of the election that was nullified took place nearly instantly and judicial notice is taken of the fact that the Appellant, Oyetunde Ojo was still declared the winner of the rerun election with a land slide victory votes of 26,338 to win the poll against the 1st Respondent, Mr. Peter Bamigbade, who only scored 153 votes.
Justice should not be delayed and must not be too onerous as a repeat of a clear election that is cancelled for mere technical reasons could entail an expensive exercise on all fronts to parties, their respective political parties, the INEC. Security Agencies and indeed the State and Federal Governments. All these could have been averted as it is crystal clear that the tribunal should not have nullified an election petition which they declared they have no jurisdiction to hear on the basis that it is pre-election matter and thus the majority judgment ought not to have upheld their decision.
Consequently and from the fore-going, issue 4 is hereby resolved in favour of the Appellants.
Finally, in my humble view, this Appeal succeeds and the judgment of the Tribunal dated the 21st day of September 2011 is hereby set aside, in its entirety, with no order as to cost.
Appearances
Niyi Idowu, Esq., (With him is Lawal Alabi, Esq., for 1st and 2nd Appellants)
Oso Adetunji, Esq., With S.B. Oladeinde for 3rd and 4th Respondents/Cross-Appellants. For Appellant
AND
Obafemi Adewale, Esq; (With Sesan Akinola, Esq., Prince Gbadebo Ibuoye, Ajide Olayemi Esq., Joseph Ogunsemi, Esq., Ezekiel Agunbiade, Esq., Bunmi Olugbade, Esq., Abi Inalegwu (Miss),
Yemi Adewumi, Esq.,for 1st and 2nd Respondents/Cross-Respondents For Respondent
