CHIEF WELLINGTON ILORI AKINGBULU & ANOR. v. HON. OLUSEGUN OGUNBANJO & ANOR.
(2008)LCN/2660(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2008
CA/L/EPT/LAS/NA/001/2007
RATIO
ELECTION PETITIONS – CANDIDATE : WHO IS A CANDIDATE IN AN ELECTION
“Does “participating in the election” only refer to the actual voting at the election? The learned Counsel to the Appellant says it is much more while the Respondents say it is just the voting. This controversy led to the consideration of who is a candidate in the election? The decisions of this Court in the cases of Alliance for Democracy Vs Peter Fayose (2004) 1 EPR 85 at 97-98, Okonkwo Vs INEC (supra) and (2006) 2 EPR 94 at 146 and Tsoho Vs Yahaya (1999) 4 NWLR Pt.600 Pg.657 are cited as authority to say that only persons who took part in the election can be referred to as candidates at fin the election. The other class of cases which hold the contrary view are those of Effiong Vs Ikpeme (1999) 6 NWLR Pt. 606 Pg.260 and Egolum Vs Obasanjo (1999) 7 NWLR Pt. 611 Pg. 355. To my mind, this seeming conflict can be adequately resolved by a consideration of the relevant electoral law at the time of the decision. The Apex Court has also made some pronouncements on this issue. The decision of the apex Court is the authority which is binding on all Courts. In Egolum Vs. Obasanjo (supra) the Supreme Court held that to disclose sufficient interest to contest an election is to show that the party is the member of a political party, he is sponsored by that political party but was disallowed from contesting. The Apex Court explained further that:- “The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the Court not on the issues he wishes to have adjudicated”. (Refer Per Obaseki JSC in Adesanya Vs. President of Nigeria and Anr. (1981) 2 NCLR P.358, also in (1981) 12 NSCC 146 P. 173). My learned brother Fabiyi JCA was more expressive when his lordship declared that: “Standing to sue is not dependent on the successor merit of a case; it is a condition precedent to a determination on the merits. It literally means that the Plaintiff has shown sufficient interest in the matter and is entitled to be heard. The presence of locus standi does not mean the successor failure of the action. The Plaintiff stiff has to establish his case by a preponderance of evidence”. (Refer Per Fabiyi JCA in Okuleye Vs Adesanya supra, relying on Ajagungbade III Vs Laniyi (1999) 13 NWLR (Pt. 633) Pg. 92 at 112. see also Per Ogundare JSC, of blessed memory in Owodunni Vs Registered Trustees of CCC (2000) 10 NWLR (Pt.675) P.315 at 338, see also Ukegbu vs NBC (2007) 14 NWLR (pt.1055) P551 at 571.” PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
DEFINITION OF WORDS – LOCUS STANDI: WHAT DOES LOCUS STANDI MEANS
“The term locus standi refers to the legal capacity of a person to institute a valid proceeding in a Court of law. It also means the right of a person to appear and be heard on the question before any Court or Tribunal (Refer Per Fabiyi JCA in Sikiru Olaide Okuleye V Alh. Rasheed Adeoye Adesanya and Am, (2007) 32 WRN P31 at 48). In the case of Chief Chuba Egolum V General Obasanjo (supra), the Apex Court held, that:- “The fundamental aspect of locus stand; is that it focuses on the party asking to get his complaint before the. “Court not on the issues he wishes to have adjudicated.” PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
INTERPRETATION OF STATUTE – RULES OF INTERPRETATION : WHETHER IN INTERPRETING STATUTORY PROVISIONS THEY SHOULD BE READ IN ISOLATION OF OTHER PARTS OF THE STATUTE OR CONSTRUCTION
“In PDP Vs INEC (2001) FWLR (Pt 31) 2735 the apex court stated that: “In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of other parts of the statute or construction. The statutes should be read as a whole in order to determine the intendment of the makers of the statute or constitution every clause of a statute should be construed with reference to the context and other clauses of the Act so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.” The main object of all statutory interpretation is to discover the intention of the law maker which is deducible from the language used. See Buhari Vs Yusuf (2003) 14 NWLR (Pt 841) 446 at 535. In a further related case of Gen. Muhammed Buhari & Anor Vs Alhaji M. Dikko Yusuf & Anor 14 NSC QR (Pt 11) 1114 at 1161 the apex court per Nikki Tobi JSC had this to say:- “It is settled principle of interpretation of statutes that the Court should ascertain the intention and purpose of the law makers and give effect to same. The court should not give a statute a construction that would defeat the very intention and purpose of the law maker.” PER ADZIRA GANA MSHELIA J.C.A.
JUSTICES
DALHATU ADAMU (OFR) Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM JP+ Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
CHIEF WELLINGTON ILORI AKINGBULU
DEMOCRATIC PEOPLE ALLIANCE (DPA) Appellant(s)
AND
1. HON. OLUSEGUN OGUNBANJO
2. THE RESIDENT ELECTORAL OFFICER FOR LAGOS STATE AND 2 ORS. Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A, JP+ (Delivering the Leading Judgment): The 1st and 2nd Appellants had filed a joint petition before the National Assembly/Governorship and legislative Houses Election Petition Tribunal holden at Lagos State. The 1st – 4th Respondents were the Respondents in the said joint petition.
In the joint petition which was filed on the 21st day of May 2007, the Appellants complained of having been unlawfully excluded from the election for the House of Representatives seat for the Ajeromi/Ifelodun Federal Constituency.
The said election was held on the 21st day of April, 2007 after which the 1st Respondent was declared and returned as the person who won. The 2nd and 3rd Respondents are officials of the 4th Respondent. The 1st Appellant alleges that the 3rd Respondent had screened and cleared him as a nominated candidate of his political party, the 2nd Appellant.
Paragraph 12 of the Petition filed bears the relief sought of the election Tribunal and they are in these terms:
“12. Wherefore the 1st and 2nd Petitioners pray:-
(a) That it may be determined that the Federal House of Representatives Election held on the 21st day of April, 2007 for the Ajeromi/Ifelodun Constituency where the 1st Respondent Hon. Olusegun Ogunbanjo was returned is invalid, null and void.
(b) That it may be determined that having used the wrong ballot papers which excluded the 1st and 2nd Petitioners a winner should not have been declared.
(c) That the return of the 1st Respondent be set aside.
(d) That the Tribunal shall nullify the said election and order that a fresh one be conducted for the House of Representatives, Ajeromi/Ifelodun Constituency to enable the Petitioners participate in the contest and thereby ensure equality, fairness and natural justice in accordance with the law”. (Refer pages 6-7 of the records for this appeal).
All the respondents filed their replies to the Petition denying the allegations of the Appellants.
However, on the 17th day of July 2007, the 1st Respondent filed a preliminary objection to the Petition in which the jurisdiction of the Election Tribunal was challenged. The grounds for the objection are as follows:-
(a) The Petitioners lack locus standi to present the Petition,
(b) The Petitioners did not meet all the conditions precedent to the filling of the Petition,
(c) The entire Petition as presently constituted is incompetent.
(d) The Tribunal lacks Jurisdiction to entertain the Petition.
The quo waranto of the objection was cited as (Paragraph 49 of the 1st schedule to the Electoral Act 2006,and Order 3 Rule 2 (2) of the Federal High Court Civil procedure) Rules of 2000. Also invoked is the inherent powers of the Tribunal.
Upon consideration of the arguments of the learned Counsel of the respective parties, the learned members of the Tribunal invited the learned Counsel of the parties to address them on the import of the provisions of Section 144(1) of the Electoral Act to the Appellants’ Petition. The learned Counsel each obliged.
After an indebt consideration of the submissions made before them, the learned members of the Tribunal upheld the preliminary objection and struck out the Petition in limine in these terms.
“…We hold that the Petitioners have no locus stand; to present this Petition. Consequently, the petition is incompetent and the Tribunal lacks jurisdiction to entertain same. The Petition is hereby struck out.”
The Appellants felt aggrieved and have come to this Court seeking a reversal of the decision of the Tribunal and an order for the determination of their Petition on the merit.
The Appellants formulated three issues for determination. The issues are:-
“1. Whether the Tribunal was right in holding that the 1st and 2nd Appellants were not candidate and a political party who participated in the election respectively and thereby lacked locus standi to file their Petition when the 4th Respondent whose statutory responsibility it was to prescribe the format of the ballot papers and conduct a free and fair election unilaterally and unlawfully excluded, the 1st and 2nd Appellants (the 1st Appellant having been validly nominated by the 2nd Appellant) after 1st Appellant had been screened and cleared by the 4th Respondent to contest. (Grounds 1, 2, 5 and 11).”
“2. Whether the interpretation given by the Tribunal to the provisions of Section 144(1) and 145 (1) (d) was right in view of the facts and circumstances of the Appellants’ case. (Grounds 3 & 4).”
“3. Whether or not the facts and circumstances in this case revealed a sufficient interest in the Appellants, as to accord them a locus standi in presenting their Petition before the Honourable Tribunal. (Grounds 6, 7, 8, 9 and 10).”-
The 1st and 2nd – 4th Respondents each formulated a sole issue for determination as follows respectively:-
1st Respondent
“Upon a critical review of Section 144(1) and 145 of the Electoral Act, whether the Honourable Tribunal was right in holding that the Petitioners did not have locus standi to challenge the results of the election.”
2nd – 4th Respondent
“…The sole Issue for determination stems from the interpretation of section 144(1) and 145 of the Electoral Act 2006 on whether the Honourable tribunal was right in concluding that the Petitioners did not have locus standi to challenge the results of the Election which Is now being appealed against.”
I agree with the Respondents that the sole issue for determination is that of the locus standi of the Appellants as Petitioners before the Election Tribunal.
The Appellant made it its 3rd issue, there is thus, a consensus among all the parties as to the relevance of this issue. The Appellants formulated it from grounds 6, 7, 8, 9 and 10 of the Notice of Appeal.
In my humble opinion, a determination of the status of the Appellants as Petitioners before the Election Tribunal is the essence of this appeal. Accordingly, the appeal shall be determined on the sole issue formulated by the Respondents, which is also the 3rd issue of the Appellants. The 1st two issues of the Appellants shall be discountenanced as irrelevant at this preliminary stage. The Petition is yet to be heard and if at all, it shall be heard by the trial Tribunal not by this Court.
The Issue (as formulated by the Appellant)
“Whether or not the facts and circumstances in the instant case revealed a sufficient interest in the Appellants as to accord them a locus standi in presenting their petition before the Honourable Tribunal (Grounds 6, 9 and 10).
It is the submission of the learned Counsel for the Appellants that section 140 (1) of the Act accommodates the Appellants. The learned Counsel maintains that the facts and circumstances stated in the grounds and the claim in the petition cloth the Appellants with the locus standi and the Tribunal with the Jurisdiction to hear the petition. The Appellants, maintains the learned counsel, have nowhere else to go for reddress. The fact of a valid nomination of the 1st Appellant by the 2nd Appellant and the clearance given by the 4th Respondent are sufficient to give capacity to the Appellants to approach the Tribunal with an election Petition. So contends the learned Counsel for the Appellants.
The learned Counsel next drew a line of distinction between the 2002 and 2006 Electoral Acts in that unlike the provisions of Section 133 (1) (d) of the repealed Act of 2002, the 2006 Act made no definition of the terms “candidate, participating, election “in” and “at”. The Tribunal should have therefore adopted the golden rule of interpretation, maintains the Counsel.
Section 285 (1) (a) 1999 Constitution states that the Election Tribunal to the exclusion of any Court or tribunal has original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly … (Refer Per Oguntade JSC in Peter Obi V Independent National Electoral Commission (INEC) and Ors, (2007) 45 WRN P1 at 105). This provision confers a right, the scope of which exercise is determined and delineated by the provisions of the Electoral Act 2006. (See Per Ogundare JSC of blessed memory, in Chief Chuba Egolum V General Olusegun Obasanjo and 59 Drs (1999) 7 NWLR Pt 611 P. 355 at 385).
The relevant provisions relating to the challenge of an election are Sections 144 (1) and 145 (2) of the Electoral Act of 2006 herein after referred to simply as the Act of 2006 or 2002 mutandi mutandis.
These provisions state the persons who may present a petition and the grounds upon which such petitions could be presented. Thus a petitioner who does not fall within the stated categories has no locus standi to present an election petition. Thus, as is part of the submission of the learned Counsel to the 1st Respondent, if the Appellant has no locus standi, the question of the grounds for the petition would not arise. The learned members were right by inviting submissions of the learned Counsel on the provisions of section 144(1) of the Electoral Act of 2006; that is the core of the Appellants’ petition.
The cardinal question in this appeal is thus whether the Appellants have the locus standi to file the petition?
The term locus standi refers to the legal capacity of a person to institute a valid proceeding in a Court of law. It also means the right of a person to appear and be heard on the question before any Court or Tribunal (Refer Per Fabiyi JCA in Sikiru Olaide Okuleye V Alh. Rasheed Adeoye Adesanya and Anr. (2007) 32 WRN P31 at 48). In the case of Chief Chuba Egolum V General Obasanjo (supra), the Apex Court held, that:-
“The fundamental aspect of locus stand; is that it focuses on the party asking to get his complaint before the… Court not on the issues he wishes to have adjudicated.”
It is the case of the Appellants and the submission of their learned Counsel that the fact of;
(a) A valid nomination of the 1st Petitioner/Appellant by the 2nd Petitioner/Appellant
(b) The clearance of the 2nd Petitioner/Appellant by the 4th Respondent and
(c) The unlawful exclusion of the both Appellants from the election;
give the Appellants the capacity to approach the Election Tribunal.
The learned Counsel for the Respondents do not agree with the Appellant Counsel.
It is the submission of the learned Counsel for the 1st Respondent that the provisions of 144(1) of the 2006 Electoral Act and that of Section 133 (1) of the 2002 Act are in pari material, therefore, cases decided under the 2002 Act are applicable to cases decided under the 2006 Act. Accordingly, the learned Counsel cites the cases of Alliance for Democracy v. Peter Fajose (2004) 1 EPR85 at 97 – 98 and Okonkwo V INEC (2004) 1 NWLR Pt. 854 P. 242 as defining who qualifies as a candidate for the purposes of presenting an election petition. Following these authorities, Counsel submits that by the provision of Section 144 (1) (c) of the 2006 Electoral Act, only a candidate in an election can challenge the conduct of the election. The Appellants were not candidates at the election of 21st April 2007 posits the learned Counsel.
The learned Counsel also cites the cases of Egolum Vs Obasanjo (1999) 7 NWLR Pt. 611 Pg. 355 and Effiong Vs Ikpeme (1999) 6 NWLR (Pt 606) P. 260 each of which was decided under the provisions of Section 50 (1) (a) of Decree No.6 of 1999. Both decisions, contends the learned Counsel, which hold that a candidate who had been screened and cleared to contest an election but was unlawfully excluded can present a petition is no longer the law. Such situation no longer confers a locus standi under the provisions of Section 144 (1) (a) of the Electoral Act of 2006. The learned Counsel maintains that the current position under the 2006 Electoral Act is that “only a candidate in an election can challenge the conduct of the election. Thus, argues the learned Counsel, as the 1st Petitioner was not a candidate at the election under review, he has no locus standi to present a petition.
It is further the submission of the learned Counsel that it is only a person who has locus standi to present an election under Section 144 (1) that can rely on the provisions of Section 145 (1) (d). The learned Counsel urges us to uphold the decision of the Tribunal to the effect that a person nominated by a political party must have contested the election before he can be qualified to present a petition. It is the opinion of the learned members of the tribunal that to hold otherwise would be to say that Section 144 (1) of the Act is at large and would mean any person who participated in election campaign etc is a potential candidate with a right to present an election.
The learned Counsel for the 2nd – 4th Respondents also purports that the provision of Section 144 (1) of the Electoral Act 2006 is in Pari material with that of Section 133 (1) of the repealed Electoral. Act of 2002. Counsel therefore relies entirely on the decisions made under the said repealed Act in support of his contention against the locus standi of the Appellants.
The learned Counsel maintains that an election petition can only be filed by the candidate (who lost the election) or by any political party which participated at the election. The learned counsel cites the case of Buhari Vs Obasanjo (2003) FWLR Pt.180 Pg.709 – 747 as the authority to say that for a political party to qualify as a Petitioner “…It only needs to participate at the election and no more and participation simply means “taking part” in an election.
By paragraphs 7 and 8 of their joint Petition, argues Counsel, the Appellants averred that they did not participate in the election.
Heavy reliance is placed on the following cases:
1. Buhari V Obasanjo (2003) 17 NWLR Pt. 848-850 Pg. 423, (2003) FWLR Pt.186 Pg.709 – 747.
2. Justice Party V INEC (2006) FWLR Pt.339 Pg.915
3. Patrick Jany V INEC and Ors. (2004) 12 NWLR pt.886 Pg.46
4. Sowemimo V Awobajo (1999) 7 NWLR Pt.610 Pg.335.
The decision of the Supreme Court pet Kalgo JSC who pronounced the lead Judgment in the case of Obasanjo V Buhari, (2003) 17 NWLR Pt. 848- 850 Pg.423 has, in my humble opinion, been fragmented, misconstrued and misapplied.
With utmost respect, I dare say that it amounts to scratching the cover of a gulf (a big hole) to say that Kalgo JSC, interpreted “participation” to mean “taking part” in the election, therefore, since the Appellants were not voted for at the election, they lack the locus standi to challenge the said election. The reason for their want of locus? THEY DID NOT PARTICIPATE IN THE ELECTION. That would be totally misconstruing the pronouncement made by that honoured Jurist. His lordship, JSC was infact drawing an essential distinction between participating in an election as a party/candidate, who canvassed for votes before the election, voted and was voted for at the election, as against an official who directed -“conducted” the election. His lordship was addressing the issue of roles as in official function, management, as against candidates/contestants at the election.
A look at the facts may accentuate a better understanding of the issue. It was actually the Appellant’s 1st of the four issues formulated which generated the “participation” and “conduct” “in/at” the election argument. The 1st issue was coughed in these terms:-
“(1) Whether or not P.D.P., the victorious political party which sponsored, funded and campaigned for its candidate is a statutory party in a petition challenging the election and alleging unlawful returns; and if not, whether PDP is not a necessary party having regard to the numerous allegations of misconduct made against PDP being a participating political party.
(2) Whether a candidate in an election and the party that sponsored him can be deemed to be one and same person for the purpose of a petition.
(3) Whether or not the failure to consider the alternative prayers of the appellant at all does not constitute breach of appellants’ right to fair hearing and thereby occasioning miscarriage of justice.
(4) Whether allegations made against persons who were not made parties to the petition are competent and fit for trial in the petition and whether those incompetent pleadings ought not to be struck out?”
The 1st – 3rd Respondents formulated a similar issue also as their 1st as follows: –
“Whether Section 133(2) of the Electoral Act, 2002 accommodates the joinder of political parties as respondents in an election petition under the Act.”
In considering the issue, Kalgo JSC, stated as follows:
” ……I am of the respectful view that the answer to issue one lies in the interpretation of Section 133(2) of the Act and no more”, Section 133 (2) of the Act provides as follows:-
“The person whose election is complained of is in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
His lordship Ogundare JSC identified three classes of Respondents by the provision of Section 133 (2) of the Act.
“The third class of Respondents declared his lordship, are only Identifiable on the interpretation and meaning of the expression “any other person who took part in the conduct of an election” (Pg.561) It is my view that the category of persons envisaged under this class must be those who took part in the conduct and management of the election itself not being INEC staff or officials (Pg.561).
“….It is my view that the operative word in this phrase is “conduct”. It is not enough to show that a person merely participated at the election to come within the provisions of Section 133 (2) of the Act; he must be shown to have taken part in the conduct (management) of the election. The word “conduct” as a noun is defined …. as a persons behavior, manner of directing and managing things, business, war, etc; and as verb, “to lead, guide, behave, direct or manage,” In Section 132 (2) the word “conduct” is used there as a noun, and it must therefore mean the manner of directing or managing the election.””……In my view those who are primarily charged with the conduct of the election are INEC officials who have no interest other than ensuring that the election is carried out peacefully and in accordance with tile of the Act. (Pg.562).”
Thus, “Participation,” means taking part not in any specified way.
Surely, a political party which has not only “participated in any specific way”, but has infact sponsored a candidate to contest at the election has participated at the election to deserve a hearing?
It was the case of Chief Chuba Egolum V General Olusegun Obasanjo and 59 Ors. (1999) 7 NWLR Pt. 611 P.355, which actually addressed the question of locus standi at an election. This case was decided under the provisions of Section 50 of Decree No, 6 of 1999.
The venerable Ogundare JSC (of blessed memory) prepared the lead Judgment in this landmark decision of the Apex Court.
Briefly, in what the apex Court declared a “confused state in which the Petitioner has put his locus standi..” the Petitioner had claimed in paragraph one of the petition that he was ” ….a person who had a right to contest at the election”. He also claimed in paragraph 2.1 that he scored 11,627,789 lawful votes at the election and prayed that the Tribunal declares him as having been dully elected and ought to have been returned.”
This Court which was the Court of trial, held that the Petitioner had not stated sufficient facts in paragraph I to establish his locus standi and that the Petitioner should have gone further to state how he acquired that right. The Supreme Court agreed. The Apex Court held that:-
“…It is unclear whether he was petitioning as a person who had had a right to contest (in which case he would have had to show that he is a member of a political party and he is sponsored by that political party as stipulated in Section 2 of the Decree, but was disallowed from contesting) or as a candidate. It becomes necessary, therefore, for him to state clearly in his petition the basis of which he was claiming to have a right to present the petition. Paragraphs 21 and 24(a) taken together are clearly in conflict with paragraph 1 on the locus standi of the Petitioner before allowing him to proceed the trial of his petition”. (pg.385)
The relevance of the decision in Egolum (supra) to the instant appeal is that the Appellants claim to be a candidate and the party which nominated and presented the candidate but were excluded from the contest. (Refer paragraphs 1, 2, 7 and 8 of the Petition Pg 2 of the records). It is for these reasons that the Appellants approached the Tribunal with their grievance of having been excluded from the election.
The twin pillars for “sustaining” an election petition are as stated in Section 144 (2) of the Electoral Act – the 2nd Appellant is a political party which participated in the election by complying with all requisite electoral processes leading up to the nomination of a candidate for the election.
The 1st Appellant was a candidate nominated by his political party, the 2nd Appellant, but was not allowed to contest in the casting of votes to determine the final outcome of the election.
Did they participate in the election? Yes they did except at the casting of votes, Why? They claim they were excluded by the 2nd – 4th Respondent. Why did the 2nd – 4th Respondents exclude them? These are questions the answers to which can only be deciphered through a judicial process. A preliminary objection does not allow for a thorough judicial process which will require the testing of avowed facts (pleadings) under the scrutiny of the Court. If there is no manifest nor apparent defect in the petition of the Appellants, it cannot therefore be determined in limine without inflicting some injury to the democratic process. In the case of People’s Progressive Alliance and Miss Oyinkansola Aminat Saraki Vs Dr. Bukola Saraki and 3 Ors (2007) 17 NWLR pt.1064 P.453 at 517, per Muntaka – Coomassie JCA counselled judicial officers in these words:-
If we are really serious about the rule of law in this country, parties who can show that they have some legal rights and interest should not be loosely and carelessly denied access to our law Courts or tribunals especially where it affects these all important matters of election petitions.
We must make haste slowly in order to lay a proper and lasting foundation in the developing political process in our great Nation. No doubt, it is an onerous, exerting and stressful job most times, but that is the duty judicial officers have committed to; we must do it fully!
The Hon. President of the Court of Appeal, Umaru Abdullahi CON set the standard for us in the case of Alh. Atiku Abubakar (Vice President FRN) v. Attorney – General of the Federation and 5 Ors. (2007) 3 NWLR Pt.1022 P.601 at 635. Characteristically my lord first cautioned himself;
”I am about to embark on the interpretation of the provisions of the Constitution in an area which I respectfully hold to be Novel in the sense that never in the annual of this country had a Court been invited to examine and determine that the second highest office in the realm is vacant. It behoves me to take the assignment with the highest sense of responsibility and caution in the interest of the country and posterity. I will therefore, be guided by the principle of interpretation of the Constitution enunciated in the case Nafiu Rabiu Vs State (1981) 2 NCLR 293. It seems to me to be locus classicus on construing our Constitution. It discountenanced frivolity and requires Court, in construing the Constitution to do so with liberalism and should avoid constructing it in a manner that one section would defeat the intent or purpose of another. ”
In like manner, all judicial officers currently engaged in the resolution of electoral matters; Petitions and appeal, are embarking on the development of the Nigerian Judicial Electoral common law and must discountenance technicality. With microscopic lens, we must search the details of “substantial” complaints filed in protest of electoral results declared.
Does “participating in the election” only refer to the actual voting at the election? The learned Counsel to the Appellant says it is much more while the Respondents say it is just the voting. This controversy led to the consideration of who is a candidate in the election? The decisions of this Court in the cases of Alliance for Democracy Vs Peter Fayose (2004) 1 EPR 85 at 97-98, Okonkwo Vs INEC (supra) and (2006) 2 EPR 94 at 146 and Tsoho Vs Yahaya (1999) 4 NWLR Pt.600 Pg.657 are cited as authority to say that only persons who took part in the election can be referred to as candidates at fin the election. The other class of cases which hold the contrary view are those of Effiong Vs Ikpeme (1999) 6 NWLR Pt. 606 Pg.260 and Egolum Vs Obasanjo (1999) 7 NWLR Pt. 611 Pg. 355.
To my mind, this seeming conflict can be adequately resolved by a consideration of the relevant electoral law at the time of the decision. The Apex Court has also made some pronouncements on this issue. The decision of the apex Court is the authority which is binding on all Courts.
In Egolum Vs. Obasanjo (supra) the Supreme Court held that to disclose sufficient interest to contest an election is to show that the party is the member of a political party, he is sponsored by that political party but was disallowed from contesting. The Apex Court explained further that:-
“The fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the Court not on the issues he wishes to have adjudicated”. (Refer Per Obaseki JSC in Adesanya Vs. President of Nigeria and Anr. (1981) 2 NCLR P.358, also in (1981) 12 NSCC 146 P. 173).
My learned brother Fabiyi JCA was more expressive when his lordship declared that:
“Standing to sue is not dependent on the successor merit of a case; it is a condition precedent to a determination on the merits. It literally means that the Plaintiff has shown sufficient interest in the matter and is entitled to be heard. The presence of locus standi does not mean the successor failure of the action. The Plaintiff stiff has to establish his case by a preponderance of evidence”. (Refer Per Fabiyi JCA in Okuleye Vs Adesanya supra, relying on Ajagungbade III Vs Laniyi (1999) 13 NWLR (Pt. 633) Pg. 92 at 112. see also Per Ogundare JSC, of blessed memory in Owodunni Vs Registered Trustees of CCC (2000) 10 NWLR (Pt.675) P.315 at 338, see also Ukegbu vs NBC (2007) 14 NWLR (pt.1055) P551 at 571).
The principle of front loading before the Election Tribunal does not take away the right of the litigant to adduce evidence in substantiation and the espousal of the proof of evidence filed (Refer Election Tribunal and Court Practice Directions, 2007, as amended, Section 1 (1) – (c) and Section 5 (1) – (6).) What it does certainly is foreclose a party from dreaming up irrelevant witnesses mid way through the trial in an attempt to mend fences and held to be defective and therefore incompetent. What is important, said his lordship is whether the petition he presented satisfies one of the capacities in which he offered to present the petition. I agree with his lordship on this point. It has not been denied that the Appellants are a political party and a registered member of the party who was nominated and put forward for the election. They were not allowed to participate in the election. Are they not entitled to complain?
I am unable to comprehend the distinction drawn between the provisions of Section 50 (1) (a) of Decree No.6 of 1999, Section 133 (1) (a) and 133 (1) (b) of the Electoral Act of 2002 and Section 144 (1) (a) of the 2006 Electoral Act.
Section 50 (1) (a) refers to “a person claiming to have had a right to contest or be returned at an election”. Is such a person not a candidate who was excluded from the election?
Section 133 (1) (a) refers to “a candidate at an election” is a candidate at an election not “a person claiming to have had a right to contest or be returned at an election”. What do these two persons have in common? They have a grievance which is that although they had a right to contest at the election, they were (unlawfully) excluded. Section 144 (1) (a) of the 2006 Act conveys a similar situation. The case of Effiong Vs Ikpeme (supra) expounded the spirit and principle of the electoral provision while the Apex Court drew the boundaries in the case of Egolum Vs Obsanjo (supra) I will expatiate anon.
In the case of Effiong Vs Ikpeme, this Court held that “by virtue of sections: 50 (1) (a) of Decree No.6.
” On whether a person claiming to have been unlawfully excluded from an election can present a petition against INEC under Decree No.36 of 1998. By virtue of Section 84 (1) (d) and (2), 99 (1) and paragraph 1 (2) to Schedule 4 of Decree No.36 of 1998, when read together, a person who was validly nominated, screened and cleared to contest an election but unlawfully excluded from the grievance which is that although they had a right to contest at the election, they were (unlawfully) excluded. Section 144 (1) (a) of the 2006 Act conveys a similar situation. The case of Effiong Vs Ikpeme (supra) expounded the spirit and principle of the electoral provision while the Apex Court drew the boundaries in the case of Egolum Vs Obsanjo (supra) I will expatiate anon. In the case of Effiong Vs Ikpeme, this Court held that “by virtue of sections: 50 (1) (a) of Decree No.6.
“On whether a person claiming to have been unlawfully excluded from an election can present a petition against INEC under Decree No.36 of 1998. By virtue of Section 84 (1) (d) and (2), 99 (1) and paragraph 1 (2) to Schedule 4 of Decree No.36 of 1998, when read together, a person who was validly nominated, screened and cleared to contest an election but unlawfully excluded from the election is entitled to present a petition against the independent National Electoral Commission for his unlawful exclusion” (P.277, paras. G-H).
Section 84 (1) (d) of the Decree No.6 provides the grounds upon which an election may be questioned under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. By virtue of section 84 (1) (d) of Decree 36 of 1998, an election may be questioned on the ground that the petitioner was validly nominated but unlawfully excluded from the election. (P.277, Paras. A-B)
This Court per Obadina JCA outlined the issues to be established in a petition which alleges a valid nomination and unlawful exclusion. These are: (a) (b) (c) (d):-
(a) That he was validly nominated by this party;
(b) That the election was conducted and concluded
(c) That a winner was declared; and
(d) That his name, was not included in the list of the contestants.
It was further the decision of the Court that by virtue of Section 84 (1) (d) and (2), 99 (1) and paras, 7(2) of schedule 4 of Decree No. 36 of 1998, a person who was validly nominated and claiming to have been unlawfully excluded from an election can present a petition against I.N.E.C under Decree No, 36 of 1998.
In Egolum Vs Obasanjo (supra) the Apex Court per Ogundare JSC (of blessed memory) held that by the provision of Section 50(1) of the Decree No, 6, that the Petitioner must be:-
“either a person claiming to have had a right to contest or be returned at the election or he was a candidate at the election..”
Only a person falling within the provisions of Section 50 (1) has the locus standi to present a petition under the Decree.
The Apex Court did not leave the provision of Section 50 (1) of the Decree at large. The eminent Jurists set the barrier; their Lordships held that only a registered member of a political party with a valid nomination can present an election. I respectfully maintain that the said position still holds sway under the 2006 Electoral Act. The focus should be on whether the Appellants are who they claim to be; a registered political party which dully nominated and presented a registered “card holding” member of the said party.
If they are, then the Appellants have a locus standi to approach the Election Tribunal with their grievance.
None of the Respondents has raised any question as to the acclaimed identity of the two Appellants. All other details would be issues to be traversed at a full hearing of the Petition.
I have refrained from considering the question of who is a candidate because as Olagunju JCA stated in Okonkwo Vs INEC (supra) it is academic; a realm beyond the scope of this appeal. The ratio decedendi in Okonkwo Vs INEC (supra) was that the election petition filed was:-
“…incompetent having been filed in violation of sub-paragraph 4 (1) (a) of the prescribed procedure, …therefore, the question of whether he could bring the petition 85 a candidate is (sic) no avail to the intrinsic incompetence of the petition..”
What mischief do the 2002 and 2006 Electoral Acts seek to correct? Within the scope of this appeal, what props up is the thorny issue of locus standi in the previous electoral laws. Decree No.6, Section 50, is a special culprit. It was indeed wide and wild. This fact is captured in the decision of Oguntade JCA as he then was. In the case of Egolum Vs Obasanjo (supra), the noble jurist held as follows:
“There is no doubt that Section 50 of Decree No.6 of 1999 is a clear departure from the common/law practice as to locus standi and to the law on the point in Nigeria. Under Section 50 of Decree No.6 of 1999, a person who was not a candidate at the election could come to Court to challenge the conduct of the election. It is in my view a welcome change. I believe that the enthronement of democracy in Nigeria is sufficiently important to all Nigerians to enable anyone who feels aggrieved to approach the Court of redress.”
The Supreme Court promptly came to the rescue when it held that it was not an all comers field. A Petitioner must be a registered member of a Political Party and must have been validly nominated, to qualify to bring an election. This decision to my mind, laid to rest the issue of locus standi in an election petition.
Section 50 (1) of Decree No. 6 was modified from which emerged sections 133 and 144 respectively of the 2002 and 2006 Electoral Acts. (Refer Effiong Vs Ikpeme Pg. 260)? Kolawole Vs Alberto (1989) 1 NWLR (Pt.98) P.382 at 511. My considered view, with utmost respect, is that what has changed is the scope of the persons who can present an Election Petition.
On whether election is an event or a process. Election matters being matters of pubic and national interest, this Court is bound to take judicial notice of some essential features of the electoral process. By that token, I am aware that there are guidelines and regulations both for the political parties on one hand and the officials of INEC on the other. The guidelines for the officials, is headed” MANUAL FOR ELECTION OFFICIALS 2007″, an official document of the INEC. The table of contents has the following sub-titles:
(1) Forward;
(2) Introduction;
(3) Election Calendar;
Item 3 which is Election Calendar clearly shows that election is not a one day affair. A person or a political party cannot wake up on the morning of the election day, declare himself a candidate and then expect to be voted for without the prior sponsorship of a political party. Thus, the election process starts from the registration of eligible voters, the Registration of political parties, membership of the political parties, submission of list of nominated candidates by political parties etc. (Refer generally to Sections 31-46 of the Electoral Act 2006). A political party which does not ”participate” in the processes cannot field a candidate for election. It will be like reaping where one has not sown.
Indeed, such a political party will be like a fish out of water, a total stranger to the process, a real meddlesome interloper!
It would most certainly be absurd to hold that any person who participated in election campaign or go through the primaries of ‘his political party may be a potential candidate with a right to present an election petition as submitted to by the learned Counsel to the 1st Respondent. This proposition is trivializing the whole issue and it is not feasible. The Supreme Court has draw border line in Egolum Vs Obasanjo (supra).
There is nothing like a potential candidate jumping from the campaign podium into an Election Petition Tribunal. There is nothing at large about the provisions of Section 144 (1) of the 2006 Electoral Act. The provision is clear and direct. All political aspirants first and foremost must be members of one political party or the other. At the election, contestants are put forward by their respective Political Parties each of which desire their candidate to win at the election. What will be at large is the conduct of a political party who opens its gates wide to all aspirants to jump from the campaign grounds into the ballot boxes at the general election; that would be self-destruction. No responsible party would present more than one candidate for a particular elective office. If there were such a party, the 1st Appellant is not such. It nominated a candidate and is standing by the said candidate and that is cool and sensible. They are determined and are entitled to exercise their rights.
Who is a candidate? Is it the candidacy or the fact of election that confers locus standi on a person? In Egolum Vs Obasanjo (supra) the Petitioner, Egolum was a total stranger, a classical example of a meddlesome interloper, a busy body or a sympathizer at a funeral crying louder than the beveared! That situation is not same in the instant appeal. Egolum (supra) did not state his standing. Perhaps he was an independent candidate, but he failed to so disclose.
One would think that a meddlesome interloper will be one who for instance, is neither a party member or in any way an active participant. I use the word “active” because all Nigerians are stricto senso, participants in the electoral process. A person who not only joins a party but takes step to and indeed puts himself up for an internal contest within his party (the nueclues), is nominated, whether validly or not, and is put forward as the candidate of his party, has indicated a substantial interest to be reckoned with. If in furtherance of his active interest, he steps out with the mandate of the party to the national body (INEC) which is conferred with the jurisdiction to conduct election among competing parties in the Federation Republic of Nigeria; the said body screened him as a candidate, never communicated to him nor his party that for any reason he was disqualified from contesting, then if he does not cry out fowl I do not know who else will do so for him!
The Appellants are fully clothed with the competence to challenge their alleged exclusion from the election, whether it was a lawful or unlawful exclusion is a matter of fact to be determined by the adduction of credible evidence before the tribunal. To this extent, I am of the opinion that the Appellants have the locus standi to bring an Election Petition. They could not be voted for, which is the ultimate end of the electioneering processes because they were shut out.
In my limited understanding of the electoral process it appears reasonable to expect that once a person has been nominated by his party, presented and screened by INEC officials the only hurdle left in the process of election is the casting of votes. The outcome of the votes (polls) caps the election processes.
Thus, such a person is a candidate and his locus standi is incontestable. He has crossed the threshold of campaign to the pedestal of a nominated candidate. He has been armed with the authority to represent his party and its supporters at the battle. The gate way into the battlefield was however allegedly shut on him by the “arbiter (INEC)”, He has a right to complain. The tribunal has a duty to listen to him.
It is my candid opinion that by the provisions of Section 144 (1) of the Electoral Act of 2006, both the Appellants are eminently qualified to present an election petition and they both rightly presented a joint petition. Each of the Appellants were a candidate and a political party which participated in the election up to the point they were allegedly excluded from the final aspect of the election which was the casting of votes by themselves and their supporters!
Accordingly, I agree with the learned Counsel for the Appellants that election is not an event but a process. The process which starts with the formation of the political parties, ends with the election which is the casting of votes, the collation and counting of the votes cast and the declaration and return of the person who wins in accordance with the law and the spirit and principle of the electoral process.
I am of the firm view that once a candidate has been nominated by a dully registered political party and is screened and cleared by the INEC, the only place to go with a grievance about the election is the Election Tribunal.
This appeal is allowed. The decision of the Tribunal is hereby set aside and quashed. Consequentially, the petition of the Appellants shall be heard and determined on the merit by the Election Petition Tribunal. (Refer in Mr. Peter Obi Vs INEC and 6 Ors (2007) 11 NWLR (Pt.1046) P.565 at 633-645, per Aderemi).
A cost of N30,000 is awarded to the Appellant against each of the set of Respondents.
DALHATU ADAMU, J.C.A.: I have had a preview of the lead judgment of my learned brother M.B. DONGBAN-MENSEM, JCA (JP+), in this appeal on election petition. I am in complete agreement with the reasons given and the conclusion arrived.
The sole issue for determination as adopted in the judgment from the respondent’s respective briefs is predicated on the locus standi of the appellants as petitioners before the Governorship and Legislative Houses Election Petition Tribunal for Lagos State. The issue of the appellant’s locus standi arose from the decision of the Tribunal on the preliminary objection filed before it by the respondent challenging the locus standi of the appellants as persons who did not participate or take part in the election held nationwide (and in Lagos State in particular) on 21/4/07 for the House of Representatives. In its decision the Tribunal upheld the preliminary objection that the appellants who did not take part in the said election have no locus standi to challenge the said election at the tribunal by virtue of section 144(1) (a) and (b) of the Electoral Act 2007. Thus the Tribunal was faced with the interpretation of the above provisions, which it did against the appellant. In its exercise the tribunal merely concentrated on the provision in isolation without reference to the provision of section 145(1) (d). The two provisions have been aptly reproduced in the lead judgment and need no repetition. It suffices that there is a deliberate conflict in the wordings of the two provision (i.e. 144 (1) and 145 (1)(d). Whereas under the former, the persons who can present an election petition are specifically mentioned as-
“(a)” a candidate in an election; and (b) a political party which participated in the election”, the later provision allows all election to be questioned on the ground inter alia “that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”. It is a settled rule of interpretation of statutory provision that words that are clear and unambiguous should be given their ordinary literal or grammatical meanings – See MAXWELL on the interpretation of Statutes (12th Edition) page 28; NAFIU RABIU v. KANO STATE (1980) 8 – 11 SC 130 at 184. BRONIK MOTORS v. WEMA BANK (1983) 1 SCNLR 296; A.G. FEDERATION v. ABUBAKAR (2007) VOL.20 WRN 1; at 49-50 and BAKARE v. NRC (2007) 17 NWLR (pt.1064) 606 at 621. If the Tribunal made a proper approach to the interpretation of the two seemingly conflicting provisions it would have found them to be complementary to one another and with a view to providing a solution whereby even though a candidate or a political party did not participate in the election, he or it can still challenge the election at the Tribunal on the ground that the candidate was validly nominated but he was unlawfully excluded at the election. This is therefore a panacea for unlawfully excluding a candidate who was duly nominated from election by INEC.
The fact whether or not the appellant was validly nominated but unlawfully excluded were to be determined in the appellant complain at the tribunal and by preventing him in lamine from proving those facts it would be against his right to fair hearing and the principles of natural justice. He is thus entitled to a remedy, on appeal from this court. In OBASANJO v. BUHARI (2003) 17 NWLR (pt.850) 510 it was held that sponsorship or nomination of a candidate is enough to qualify him and his political party to participate in an election – see also OKONKWO v. INEC (2004) 4 NWLR (pt. 854) 242; OKON VS. BOB (2004) 1 NWLR (pt. 854) .178; and P.P.A Vs. SARAKI (2007) 17 NWLR (pt.1064) 453 at 521.
The term locus standi has been interpreted mean the standing or competence of a party to sue, His right to approach the Court to ventilate his grievance or seek for a remedy from the said court. As a threshold question it has been extended to mean the right or interest or a party to invoke the jurisdiction of the Court for a redress over his complaint. Thus where a party shows that he has sufficient interest in a matter, he is thereby conferred with the required standing or right to see – see GUDA V. KITTA (1999) 12 NWLR (PT.629) 21; ELENDU V. EKWOABA (1995) 3 NWLR (Pt.386) 704; DISU Vs. AJILAWURA (2006) 14 NWLR (pt. 1000) 783; UKECBU VS. NBC (2007) 14 NWLR (pt. 1055) 551; and ADESANYA v. PRESIDENT OF FRN (1981) 2 NCLR 358; (1981) 5 SC 112. In the present case there is no doubt that the 1st and 2nd appellants who validly nominated for the election but were unlawfully excluded (as per their allegation In the petition) have sufficient locus standi to present their present petition and it was all error for the Tribunal to hold otherwise.
It is trite that in the determination of the issue of locus standi of the Plaintiff (or a petitioner in an election petition) it is the claim or the petition of the said plaintiff or petitioner rather than the defence or the reply of the defendant or respondent (as the case may be) that should be considered or looked into by the Court -See TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517; DISU V. AJILOWURA (supra) and P.P.A. v. SARAKI (supra).
On my above consideration and the detailed consideration in the lead judgment, I too find the present appeal as meritorious and accordingly allow it.
I abide by the consequential orders made the lead judgment including the order on costs.
PAUL ADAMU GALINJE, J.C.A.: I read before now the judgment Just delivered by my learned brother, Dongban-Mensem, JCA, JP+ and I agree that this appeal should be allowed and it is allowed by me.
The question for decision which was submitted before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal (Henceforth to be referred to as Tribunal) by the 1st Respondent’s preliminary objection was whether the Appellants herein have locus standi to present this petition.
Where the locus standi of a Plaintiff is challenged, it is the writ of summons and the statement of claim that are subject to Court’s consideration. In other words it is the Plaintiff’s complaints that are relevant in the determination of whether the plaintiff has locus standi to sue. The statement of defence is irrelevant. For it is all the statement of claim that the Court will determine whether the Plaintiff has sufficient legal interest to grant him the locus standi. See Arowolo v. Akapo (2003) 8 NWLR (Pt.823) 451 at 504 paragraph A-B; Eleso v. Govt. Ogun State (1990) 2 NWLR (pt.133) 420; Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (pt.675) 315.
In the instant appeal, it is the Appellants’ petition that is relevant in determine whether the Appellants have the locus standi to present this petition.
The Appellants complaint at the Tribunal is that the 1st Appellant was validly nominated by the 2nd Appellant to contest the election of 21st April 2007, but he was unlawfully excluded from contesting the said election. The Appellants founded their complaint upon Section 145 (1) (d) which makes exclusion of a person who is validly nominated to contest an election justiciable. For avoidance of doubt, the said section provides as follows: –
“All election may be questioned on any of the following grounds; that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
The Supreme Court and indeed this Court have in a number of decisions set out the criteria for determining the locus standi of a person.
These criteria are twofold, namely: –
I. The action must be justiciable.
2. There must be a dispute between the parties.
See Arowolo v. Akauo (Supra) pages 503-504 paragraphs H- A; A.G. Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483.
Apart from the fact that the action instituted by the Appellants is Justiciable, the dispute between the Appellants and the Respondents herein is whether 1st Appellant was a candidate in that election.
The Respondents’ contention in this appeal is that the 1st Respondent was not a candidate in the election of 21st April 2007, as contemplated by Section 144 (1) (a) of the Electoral Act 2006 because he did not participate in the said election. The Tribunal upheld this contention when it wrongly construed the provision of S. 144 (1) (a) of the Electoral Act, and cited several authorities that were also misunderstood. Section 144 (1) of the Electoral Act 2006 provides as follows:
“An election petition may be presented by one or more of the following persons:
(a) a candidate in an election;
(b) a political party which participated in the election.”
The 1st Respondent’s contention in his preliminary objection calls for interpretation of this section of the Electoral Act 2006. The apex Court has held in a number of decisions that where the words of a statute are clear, straightforward and unambiguous the courts should apply the ordinary grammatical and natural meaning to those words. However, where the application of the ordinary grammatical meaning will lead to absurdity, then the Courts should resort to various cannons of interpretation.
The aim of interpretation of statutes is to discover the intention of the legislator through the actual words used in the law. In the consideration to have a comprehensive intention of the legislator the provisions of all sections must be considered and not a particular section in isolation of other sections or out of con of the other sections. See Awolowo v. Shagari (1979) 6-9 SC 79; Salami v, Chairman LEDB (1989) 5 NWLR (Pt. 123) 539; Toriola v. Williams (1982) 7 SC 27.
Section 45 (1) of the Electoral Act 2006 provides as follows:-
“The commission shall prescribe the format or the ballot papers which shall include the symbol adopted by the political Party of the candidate and such other information as it may require.”
In this provision, the inclusion of party symbol adopted by a political party of a candidate on the ballot paper is made mandatory by the use of the word ‘shall’. One of the Appellants complaints is that the 1st Appellant’s name and his party symbol were not on the ballot paper. Since it is the Appellants’ complaint that would be considered in determining whether they have locus standi. I think they did make a case in that regard.
Section 145 (1) (d) which has made unlawful exclusion justiciable is not in conflict with S. 144 (1) (a) and (b) of the Electoral Act 2006. It instead helps to explain who a candidate in an election is, While Section 144 (1) (a) provides for a candidate in an election, section 145 (1) (d) provides that an election may be questioned by a candidate who was validly nominated but was unlawfully excluded from the election. It follows therefore that when a person is validly nominated by his political party, he becomes a candidate in the election to the office in which he is sponsored.
Black’s Law Dictionary, 6th Edition defines “Nominate” as follows: –
“To name, designate by name, appoint or propose for selection or appointment.”
The Appellants in their joint petition claimed that the 1st Appellant was validly nominated by the 2nd Appellant, and that they were excluded from the election of 21st April 2007 in Ajeromi/lfelodun Federal Constituency of Lagos State. Surely the legislature cannot approbate and reprobate by asking persons who are validly nominated, but excluded front election to question such election at the Tribunal, and then turn round to deny them access to Court on the ground that they did not vote or were voted for Exclusion means denial. Once a person is excluded from election, there is no way he can participate or vote and be voted for in that election.
For all I have said here I am of the firm view that this appeal is meritorious. I allow it. The decision of the lower Court is set aside. I abide by the order of retrial in the lead judgment and the order as to cost.
ADZIRA GANA MSHELIA, J.C.A.: I was privileged to read in draft the judgment of my learned brother Dongban-Mensem, JCA just delivered. I agree with the reasoning and conclusion that the appeal is meritorious and should be allowed.
My learned brother has adequately treated the sole issue identified for the determination of this appeal as such may little contribution is only for the purpose of emphasis.
On the 21st day of April, 2007 elections were held throughout Nigeria into the National Assembly seats of the 36 States of the Federation. In Lagos State in particular 11 political parties contested the Election to the Federal House of Representatives for Ajeromi/Ifelodun Constituency. At the end of the Election, the 1st respondent Hon. Olusegun Ogunbanjo, who was sponsored by the Action Congress (AC) was declared the winner with 44, 449 votes. No votes was recorded for the candidate of Democratic Peoples Alliance because his name, the party’s name and symbol or Logo were not reflected on the ballot papers.
The elections result was declared on the 22nd day of April, 2007.
Appellants were not satisfied with the result declared by 3rd respondent so they jointly presented a Petition before the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Lagos. The grounds for the Petition are:-
(i) Non-compliance with the provisions of the Electoral Act
(ii) Unlawful exclusion of the 1st and 2nd Petitioner’s at the Election though 1st Petitioner validly nominated (sections 44(2), 45 and 145).
Upon presentation of the Petition by the Appellants, the 1st Respondent filed a preliminary objection that the Honourable Tribunal had no jurisdiction to sit on the petition, which was incompetent and which disclosed that Appellants had no locus standi. The thrust of the application of the 1st respondent’s objection was hinged on Section 144(1) of the Electoral Act 2006, which provided for two categories of those who can file a petition and argued that same cannot accommodate the Appellants. That section 145(d) could also not provide shelter for the Appellants. After argument by counsel, the Tribunal in a considered ruling delivered on the 16th day of August, 2007 upheld the objection and the petition was accordingly struck out.
Appellants were unhappy with the decision of the Tribunal so they appealed against same to this court by filing their Notice of Appeal dated 5th day of September, 2007 which contained 11 grounds of appeal. Appellants formulated three issues for determination. 1st Respondent formulated one issue for the determination of the appeal. While 2nd – 4th respondents also distilled one issue for the determination of this appeal.
After perusing all the issues formulated by appellants, 1st respondent and 2nd – 4th respondents, the sole issue identified by all parties for determination of this appeal is that of locus standi of the appellants as petitioners before the Election Tribunal. It is now trite law that locus standi of a plaintiff or petitioner is a crucial matter touching on the competence and by extension the jurisdiction of the court to adjudicate on the suit or petition or application before it. It is a fundamental Jurisdictional question that can be raised at any time during the trial as a preliminary issue or even raised for the first time on appeal.
The term locus standi simply means the right or capacity to sue or institute proceedings in a court law. It is well settled that locus standi is the legal capacity to institute proceedings in a court of Law. In Odeneye Vs Efunuga (1990) 7 NWLR (Pt.14) 618 at 639 the Supreme Court per Belgore, JSC (as he then was) held that “A person will have legal capacity to sue in a matter in which it has been clearly shown to the court that his right or obligation has been or ar about to be or are in imminent danger of being violated or invaded or adversely affected by the act complained of.”
See also Adesanya Vs President Federal Republic of Nigeria 1981 5 SC 112 at 149-150.
For the Appellants to have locus standi, they must satisfy the requirement of Section, 144(1) of the Electoral Act 2006. That is to say appellants must amplify on the capacity which they relies on to bring the petition. See Egbolon Vs Obasanjo (1999) 9 NWLR (Pt 611) 355.
Section 144(1) of the Electoral Act 2006 enumerates the type of persons who has the capacity to bring Election Petition. For purpose of clarity section 144(1) is reproduced hereunder as follows:-
“Section 144(1). An election petition may be presented by one or more of the following persons-
(a) A candidate in an election.
(b) A political party which participated in the election.”
Appellants contended in their brief of argument that they were proper persons who could challenge the result of the election as stipulated under the provisions of section 144(1) of the Electoral Act. They contended that 1st appellant was validly nominated by his party, screened and cleared by INEC to contest the election. Similarly 2nd appellant who sponsored the 1st appellant also has a right to present an election petition. While the 1st and 2nd – 4th respondent contended that appellants did not participate at the election as such they are not candidates as envisaged by section 144(1) of the electoral Act. The electoral Act does not define the ambit of the term candidate. Does it include a person intending to contest the election or is it limited to a party who actually contested the election? The word candidate is defined in Oxford Advanced Learners Dictionary 6th Edition at page 158 as follows: “a person who is trying to be elected or is applying for a job; a person taking exam; a person or group that is considered suitable for something or that is likely to get something or to be something.” The Tribunal was of the view that since the Electoral vests locus standi only on a candidate at an election or political party which participated in the election as in section 144(1) of the Act, the fact that section 145(1)(d) provides that an election may be questioned on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from election, would not confer the right to institute a petition or a petitioner who was not a candidate in the election but merely found his claim on unlawful exclusion. The Tribunal went further to hold that only candidate at an election can present election petition and candidate means a person who contested an election. If the literal interpretation given by the Tribunal is accepted then the question is who is the proper person to ring compliant under section 145(1)(d) of the Electoral Act 2006. Surely a person who took part in the election cannot complain of lawful exclusion. This provision states that an election may be questioned on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. I am of the humble view that every statute referred to should be carefully examined in order to ascertain the intention of the law makers. In the instant case the provisions of sections 144(1) and 145(1)(d) of the Electoral Act 2006 should be read together and not in isolation so as to ascertain the real intention of the lawmakers.
In PDP Vs INEC (2001) FWLR (Pt 31) 2735 the apex court stated that:
“In interpreting statutory or constitutional provisions, such provisions should not be read in isolation of other parts of the statute or construction. The statutes should be read as a whole in order to determine the intendment of the makers of the statute or constitution every clause of a statute should be construed with reference to the con and other clauses of the Act so as far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.”
The main object of all statutory interpretation is to discover the intention of the law maker which is deducible from the language used. See Buhari Vs Yusuf (2003) 14 NWLR (Pt 841) 446 at 535.
In a further related case of Gen. Muhammed Buhari & Anor Vs Alhaji M. Dikko Yusuf & Anor 14 NSC QR (Pt 11) 1114 at 1161 the apex court per Nikki Tobi JSC had this to say:-
“It is settled principle of interpretation of statutes that the Court should ascertain the intention and purpose of the law makers and give effect to same. The court should not give a statute a construction that would defeat the very intention and purpose of the law maker”.
Therefore in construing the two provisions under reference a purposive interpretation should be adopted which would translate the real intention of the law makers. The word Candidate in my humble view should include those persons nominated by their Political Parties, screened and cleared by INEC to contest an election. The inclusion of the provisions of Section 145(1)(d) clearly shows that the law makers had in mind those persons who were denied opportunity to participate in an election though they have satisfied all the requirements to do so. Election is not just what took place on 21/4/07 but it is a process and cannot be limited to voting but also includes nomination.
It is worthy of note that the issue of locus standi or standing is not dependant on the success or the merits of a case but is a condition precedent to a determination on the merits. Whether or not a plaintiff or a petitioner has locus standi to sue is a matter to be determined on the state of pleadings. See Oduneye Vs Efunuga (1990) 7 NWLR (Pt 164) 621.
From the state of pleadings particularly paragraphs 2, 7, 8 and 9 of the joint petition, 1st appellant prima facie has shown that he has sufficient interest or sufferance of injury and is therefore entitled to be heard. In the paragraphs of the joint petition mentioned supra 1st appellant averred, that he was validly nominated by his party the 2nd appellant to contest the election; that election was conducted and concluded; that his name was not included in the list of the contestants. Whether he would succeed is not the issue at this stage. This equally applies to the 2nd appellant who nominated 1st appellant to contest the election. 2nd appellant sponsored the 1st appellant so
it has right to bring election petition under section 144(1). I am of the firm view that both appellants have the capacity to present an election petition under section 144(1) of the Electoral Act 2006 either jointly or severally. I agree with the submission of appellants’ counsel that appellants joint petition ought to have been heard on merit by the Tribunal. I resolve the sole issue identified for the determination of this appeal in favour of the appellants.
With this little contribution of mine and the detailed reasons contained in the lead judgment I too would allow the appeal and set aside the decision of the Tribunal delivered on the 16th day of August, 2007. I abide by all other consequential orders made in the lead judgment cost inclusive
HUSSEIN MUKHTAR, J.C.A.: The 1st and 2nd appellants have, by a petition dated and filed on the 18th May, 2007 before the Lagos State Governorship and Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal) challenged the validity of the National Assembly election into the House of Representatives in the Ajeromi/Ifelodun Federal Constituency held on the 21st April, 2007.
The petition was premised on ground of allegation of non-compliance with the provisions of the Electoral Act and unlawful exclusion” of the 1st petitioner at the election having been duly nominated by the 2nd petitioner.
After the first pre-hearing session on 16th July, 2007, a notice of Preliminary objection was filed on the 17th July, 2007 by the 1st respondent’s counsel Kunle Adegoke by what he tagged as “motion on notice” challenging the competence of the petition inter alia on the ground that the petitioners lack locus standi to present the petition and the Tribunal, therefore, has no jurisdiction to entertain same.
At the resumption of the pre-hearing session on 25th July 2007 the said preliminary objection was argued by adoption or the written addresses. The Tribunal in it’s ruling delivered on the 16th August 2007 upheld the preliminary objection by finding that the petitioners have no locus standi to present the petition, and that the petition was incompetent and it, therefore, lacked jurisdiction to entertain it and same was struck out. Dissatisfied with that decision the petitioners/appellants appealed to this court on eleven grounds as reproduced in the lead judgment.
The main issue and common denominator to the all the issues raised by all the learned counsel in this appeal is whether upon a critical review of sections 144 (1) and 145 of the Electoral Act, the lower Tribunal was right in holding that the petitioners did not have locus standi to challenge the result of the election.
The learned counsel to the appellants Tunde Sobowale argued that the averments in the appellants’ petition reveal that the 2nd appellant was nominated and sponsored by the 1st appellant, as the candidate for election to the House of Representatives for the Ajeromi/Ifelodun Constituency, which was forwarded to and accepted by the 4th respondent. The appellants’ counsel further argued that on the 21st April, 2007 when the appellants and their supporters went to the polls they were shocked to find that the name/logo/acronym of the 2nd appellant were missing from the ballot papers and the appellants were thereby unlawfully excluded from participating in the election. It was further submitted for the appellants that having not complied with the provisions of the Electoral Act 2006, by the omission of the 2nd appellant’s name/logo/acronym on the ballot papers, the 4th respondent was not in a position to conduct free and fair election on the 21st April 2007 to the House of Representatives in the Ajeromi/Ifelodun Consistency. The case of ORIZU VS UZOEGWU (1999) 6 NWLR (pt.605) 32 cited by the appellants’ counsel is, however, based on disqualification of candidate in an election and, therefore, distinguishable from the instant case which boarders on focus standi or legal capacity of the appellants to present their petition before the Tribunal.
The learned counsel to the appellants submitted that a “candidate in an election” as envisaged in sections 144 (1) and 145 (1) (d) of the Electoral Act 2006, includes not only those candidates who participated at the election but also such candidates who were duly nominated and sponsored by their political parties and cleared by INEC but unlawfully excluded from participating in the election. See ADEBUSUYI VS ODUYOYE (2004) 1 NWLR (pt. 854) 406. She drew distinction between the prepositions “in” and “at” as used in the Electoral Acts 2002 and 2006 respectively and distinguished the decisions on the interpretation of section 133 (1) (a) of the 2002 Act from those interpreting section 144 (1) of the 2006 Act. The locus standi of the appellants is their right or capacity in law to present a petition, which is deducible from the averments in the petition and the Electoral Act 2006.
The provisions of sections 144 and 145 of the Electoral Act, which are germane to the issue of locus standi, are very clear and straightforward.
Section 144 (1) of the Electoral Act 2006 provides:-
“An election petition may be presented by one or more of the following persons:
(a) A candidate is an election;
(b) A political party which participated in the lection”
From the wordings of this provision there seems to be no hide and seek about eligibility to present an election petition. The only question is whether or not the 1st and 2nd appellants have qualified as a candidate in an election and a political party that participated in an election respectively.
The next immediate provision section 145 (1) is quite friendly as it clearly exposes the scope and purport of section 144(1). It provides thus:
“An election may be questioned on any of the following grounds,
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.” (Emphasis mine)
The law in this provision is very clear on the grounds upon which an election may be questioned by way of petition. Persons eligible to present an election petition under section 144 (1) may only do so strictly on the basis of the provision of section 145 (1) (d). These two provisions are therefore complimentary of one another and must be read harmoniously in order to make out proper interpretation and necessary intendment of the legislature.
My learned brother Ogunwumiju, JCA in the recent case of P.P.A VS SARAKI (2007) 17 NWLR (pt. 1064) 453 at pp. 511-512 paras F-B has aptly expressed the following views:
“Statutes with several clauses must be interpreted harmoniously, so that the various parts of the statute are not brought in conflict with their natural meaning. Thus, in interpreting statutory or constitutional provisions, the provision should not be read in isolation of the other parts of the statute or Constitution. In other words, the statute or constitution should be read as a whole in order to determine the intendment of the makers of the statute or Constitution. Every clause of a statute should be construed with reference to the con and other clauses of the statute so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. In this case, that explains why it is imperative to construe both sections 144 (1) and 145 (1) (d) of the electoral Act, 2006 together to arrive at the justice of the case. A court is bound by the averments in an election petition and must limit itself to them in determining whether a petitioner has locus standi to bring the petition.”
The provision of section 145 (1) (d) therefore gives a clear scope anti intendment of the lawmaker as to who are a candidate and/or a political party that participated in an election. If the exclusion of a candidate from participating in the balloting process grounds a petition, then common sense suggests that a person duly nominated by his political party but unlawfully excluded from participating at the election is eligible to present a petition in the same case of P.P.A. VS SARAKI my learned brother Sankey, JCA observed that:
“145 (1) (d) of the Electoral Act, 2006, the lower tribunal was in error to have presumed to close the door on them forever from making their voices heard by striking out the petition. The Latin maxim ubi jus ubi remedium will apply here to restore the appellants to the status conferred upon them by statute, for it is not envisaged that the law will confer a right on a party without the means of giving them a remedy where such a right is violated. If, for one moment, one were to buy the argument that the appellants’ legal standing or right to sue is not conferred by section 145 (1) (d), then pray tell, who will take the benefit of the said provision? Could it possibly be the so-called ‘candidates’ who contested in the polls and who would therefore have no reason to complain on this ground of having been excluded? Of course, this would make nonsense of the law and lead to nothing but an absurdity. The only class or persons it could meaningfully refer to are such persons as the present appellants who participated in the process of election by nomination and sponsorship, to screening and clearance, but who where the excluded from the polis, purportedly unlawfully.”
With the guidance and harmonious interpretation of the two provisions in sections 144 (1) and 145 (1) (d) of the Electoral Act 2006 one has no difficulty in finding that a candidate duly sponsored by a political party and whose nomination has been duly accepted by INEC is, without doubt a candidate and his political party is a party that participated in the election though unlawfully excluded at the balloting process. An unlawful exclusion, usually by INEC does not reduce the status of a candidate or a political party from their locus standi as envisaged by section 144 (1). There is nothing in fact in the law to suggest that a candidate or political party must participate at the balloting progress on the Election Day to qualify as a candidate in an election. It will otherwise make the provision of section 145 (1) (d) a complete nonsense .. That cannot be the intendment of the legislature. In P.P.A. VS SARAKI (supra) at p 509 paras D-F; 511 paras E-F; 513 paras G- H it was further held thus:
“A candidate, within the meaning of section 144 (1) of the Electoral Act, 2006, is a person who has been nominated by his party to the Independent National Electoral Commission and whose eligibility the Commission has ostensibly or prima facie cleared or confirmed. The requirement or having actually contested on the day of polls is not stated in the Electoral act. If the law could give a right against unlawful exclusion from election, there is bound to be a remedy for the breach of that right by way of filing election petition. In the instant case, the 2nd appellant has sufficient interest to present a petition at the election tribunal.”
The views of my learned brother Omage, JCA in ADEBUSUYI VS ODUYOYE (2004) 1 NWLR (pt. 854) 406 at 427-428 paras H-D expresses a similar opinion. The learned Jurist stated:
“Locus standi is the capacity to institute an action in a court of law; not because the plaintiff has no juristic existence but because of other issues created by law. The right to file an election petition is vested by section 133 of the Electoral Act, 2002 in a candidate at an election or in a political party. However, the Electoral Act does not define the ambit of the term “candidate”. But section 134 (1) (d) gives a petitioner or its candidate validly nominated but unlawfully excluded from the election a right to file a petition. Therefore, a party who intended to contest an election but was disallowed may claim a right to file a petition at the Election Tribunal. In the instant case, the objection of the 1st respondent to the appellant’s petition on the ground of absence of Locus standi cannot stand as section 134 (1) (d) of the Electoral Act can properly admit’ the appellant’s petition. It gives the appellants locus standi to file the petition.”
The foregoing und the more detailed reasons in the lead judgment of my learned brother Dongban-Mensem, JCA which I have had the privilege of reading before now and with which J am in complete agreement, I have no hesitation in allowing this appeal on its clear merits. The Tribunal was in serious error in shutting out the petitioners/appellants on the misconceived ground that they lack locus standi to present the petition. The Tribunal judgment delivered on the 16th August 2007 is accordingly hereby set aside.
I abide by all the consequential orders made in the lead judgment including the one on cost.
Appearances
1. O. Sobowale (Mrs), B. Nkemere (Mrs)For Appellant
AND
Kunle Adeogoke, B. A. Ramoni, Teju Tijani (Mrs), and Joan Mbanisi for the 1st Respondent
A. O. Owoyele for 2nd and 4th RespondentsFor Respondent
