DR. MICHAEL ENYONG & ANOR v. HON. EMMANUEL ETIM EKPEYONG & ORS
(2011)LCN/5075(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of August, 2011
CA/C/NAEA/170/2011
RATIO
THE POSITION OF THE LAW ON THE CATEGORIES OF PERSONS WHO CAN PRESENT AN ELECTION.
Section 137 of the Electoral Act, 2010 as provides:
“137. – (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.
(2) A person whose election is complained of is, in this Act, referred to as the respondent.”
The position of the law is firmly established, that where the words of a statute are very clear and unambiguous, courts are duty bound to give them their literal, ordinary and usual meaning. In the instant case, S.137 of the Electoral Act, (supra) is lucid clear and unambiguous. Hence, its interpretation need not be a be labouring task. Under the said provision, the categories of persons who can in the main present an election petition are, a candidate in an election and apolitical party which participated in the election. Both are the major activists allowed by the law to present an election petition either alone or jointly. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
THE JURISDICTION OF THE ELECTION TRIBUNAL TO ENTERTAIN AND DETERMINE
The core issue in this appeal borders on both the competence of the petition and jurisdiction of the election tribunal to entertain and determine it. For one, the law is trite that a court of tribunal is competent to exercise its conferred jurisdiction in respect of any matter where among other conditions the subject matter of the suit is competently within its jurisdiction and there is no feature in the case which prevents the court or tribunal from exercising its jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536; N. E. P. A. v. Eze (2001) 3 NWLR (Pt.701) 606. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
THE VALIDITY OF THE JUDGEMENT OF THE COURT
The law is trite, that a judgment of a court remains valid, effective and binding, unless it is set aside by an appellate court or by the lower court itself, if it acted without jurisdiction or in the absence of an aggrieved party or where the said judgment was obtained by fraud. See Witt & Busch Ltd. v. Dale Power System Plc. (2007) 17 NWLR (Pt.1062) 1. Thus, the said judgment of the Federal High Court cannot be ignored by any party or authority until the reverse is pronounced thereon. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
JA’AFARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
1. DR. MICHAEL ENYONG
2. PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
1. HON. EMMANUEL ETIM EKPEYONG
2. ACTION CONGRESS OF NIGERIA
3 . INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Assembly Election Tribunal holden at Uyo, Akwa Ibom State, hereinafter referred to as the election tribunal. The said ruling was delivered on 28th June, 2011 wherein the election tribunal struck out the petition filed by the appellants on the ground inter alia that the 1st appellant was not a candidate at the election held on 9th April, 2011 and so lacked the requisite locus standi to present the petition.
Both appellants herein, were the petitioners before the election tribunal. Briefly put, the relevant facts of the case as gleaned from the record of appeal are as follows. It was pleaded in the petition that the 1st appellant, Dr. Michael Enyong was nominated and sponsored as a candidate by the 2nd appellant, Peoples Democratic Party (PDP) for the 9th April, 2011 general elections into the office/membership of the House of Representatives of the Federal Republic of Nigeria, representing Uyo Federal Constituency. The election was organized, and conducted by the 3rd respondent herein. When the result was announced, the 1st respondent who was the candidate of the 2nd respondent was declared as the winner of the said election by the 3rd respondent.
It is to be noted that before then, there was a tussle between two persons, viz, one Hon. Ekere Afia and the 1st appellant herein, with regard to who was the accredited or authentic candidate, nominated and sponsored by the 2nd appellant for the said election. Along the line, Hon. Ekere Afia who claimed that he won the primary conducted by the 2nd appellant herein was upstaged. He challenged the decision of the 2nd appellant in this regard and instituted suit No.FHC/UY/CS/11/11 in the Federal High Court, Uyo Judicial Division. On 25th February, 2011 the said Federal High Court delivered its judgment. It ordered and declared the plaintiff thereat, Hon Ekere Afia as “the duly nominated candidate” of the 2nd appellant herein, “for the Uyo Federal Constituency, Akwa Ibom State for the 2011 general election.” It is noteworthy, that while the 1st appellant was not a party to the said suit at the Federal High Court, Uyo, both the 2nd appellant and 3rd respondent herein were made parties thereto.
Thus, upon the declaration of the 1st respondent herein as the winner of the said election, the appellants filed the aforedescribed election petition, seeking inter alia for the nullification of the election of 1st respondent with an alternative prayer that the 1st appellant should be declared, “the elected, candidate having scored the highest number of valid votes cast at the election.” Before the election tribunal, the 1st respondent filed his notice of preliminary objection to the petition together with his reply on 20th May, 2011. Also, the 3rd respondent herein filed theirs on 26th June, 2011. For the 1st respondent; the grounds of objection are:
“1. The petition has not complied with the mandatory provisions of the Electoral Act 2011 to wit paragraph 4, 5(b) of the first schedule to the Electoral Act as No Written Statements on Oath of the witnesses are attached.
2. The 1st Petitioner lacks the requisite Locus Standi to present this petition not being a candidate at the election in line with Section 137 of the Electoral Act by virtue of the judgment of the Federal High Court in suit No. FHC/UY/CS/11/11 delivered on 25/2/2011.
3. The said judgment above mentioned declared the Plaintiff in that case Hon. Ekere Afia as the duly nominated candidate of the 1st Defendant (PDP) for the Uyo Federal Constituency, Akwa Ibom State for the 2011 General Elections.”
On 23rd June, 2011 the election tribunal heard the preliminary objections raised by the 1st and 3rd respondents herein on the oral submissions and written addresses filed by the respective learned counsel for the parties in respect of both notices of preliminary objection. The election tribunal delivered its said ruling on 28th June, 2011 and at pages 243 -244 of the record of appeal, held as follows:
“We have Seriously considered the submissions of learned counsel to the 1st Respondent and learned counsel to the 3rd Respondent informed this Tribunal that he had no objection to this preliminary objection and that he has filed a notice of Preliminary objection equally on the competence of the Petition. On the issue of competence of the Petition, we are of the view that the Petition is incompetent for the failure to attach the witness statement so as to accompany the Petition in accordance with paragraph 4, 5(b) as it ought not to have been accepted for filling by the Secretary. For this ground alone this Petition can be struck out. This ground is meritorious and as it renders this Petition incompetent. On the issue of locus standi of the 1st petitioner, we are equally satisfied that the judgment of the Federal High Court, Uyo delivered on the 25th of February, 2011 when the election in contention was conducted on the 9th of April, 2011 has sealed the fate of the petitioner. It deprived him of the locus standi to present the petition before this Tribunal.
In view of the foregoing, this Petition ought to be struck out for being incompetent and is hereby struck out. However, we have noted and taken the argument of counsel to the 3rd Respondent on his Notice of Preliminary objection filled on the 26th of June 2011, we do no find it necessary to write a ruling on same as it is on all fours with the one filed and argued by the 1st Respondent and struck out by the tribunal in this same Petition.”
Being dissatisfied with the aforesaid ruling of the election tribunal, the appellants filed their joint notice of appeal on 18th July, 2011 containing four grounds of appeal. Parties duly filed and exchanged their respective briefs of argument. In the appellants’ brief of argument, prepared by Ime Umanah Esq. and filed on 5th August, 2011 three issues were formulated for determination of this appeal as follows:
(1) Whether in the circumstances of this case, the appellant’s right to fair hearing had been breached.
(2) whether the appellants complied with the mandatory provisions of the Electoral Act in presenting their petition at the tribunal.
(3) Whether the 1st appellant lacked the requisite locus standi to present the petition at the tribunal.
The 1st respondent’s brief was prepared by Samuel J. Ikpo Esq. and filed on 10th August, 2011. The 3rd respondent’s brief was prepared by E. A. Idom Morphy Esq. and filed on 11th August, 2011. Both the 1st and 3rd respondents respectively adopted the three issues formulated by the appellants as adequate for determination of this appeal. The appellants also filed a reply brief on 11th August, 2011, but no fresh issue was raised therein.
At the hearing of this appeal on 11th August, 2011 learned leading counsel for the 1st appellant, Ime Ansa Esq. adopted and relied on 1st appellant’s brief filed on 10th August, 2011 and the reply brief filed on 11th August, 2011. He urged this Court to allow the appeal. Initially, P.U. Ogbadu Esq. sought to adopt and reply on 2nd appellant’s brief which was also filed on 11th August, 2011. Howbeit, when it dawned on him that since there was no separate notice and grounds of appeal, filed in respect of the 2nd appellant and in the presence of a joint notice and grounds of appeal having been filed for both appellants, it was thus, not feasible to have two sets of briefs for joint appellants. Learned counsel then applied to withdraw the said brief. It was accordingly struck out having been withdrawn by counsel. Learned counsel then aligned himself with the arguments canvassed in the brief filed by the 1st appellant, more so, when both appellants were represented by the same counsel before the election tribunal and one notice of appeal has been filed on behalf of both appellants. He also urged this Court to allow the appeal. Learned counsel for the 1st respondent, S. Ikpo Esq. adopted and relied on 1st respondent’s brief which was filed on 10th August, 2011. He urged us to dismiss the appeal. Also, the learned counsel for the 3rd respondent, E. A. Idom Morphy Esq. adopted and relied on 3rd respondent’s brief which was filed on 11th August, 2011.
Again, he urged us to dismiss the appeal, I have perused the record of appeal with particular reference to the ruling of the election tribunal, contained therein, I am of the mindset that the most crucial issue in this appeal bordered on locus standi of the 1st appellant to present the instant petition before the election tribunal. Thus, the resolution of this issue one way or the other, will dictate the next line of action, regarding the materiality of determining the other two issues. Briefly put, this third issue focused on whether the election tribunal was right when it held that the 1st appellant had no locus standi to present his petition before it.
It his arguments on this issue, learned counsel for the appellants cited a host of cases on locus standi and submitted that a court in addition to being bound by the averments in an election petition, must limit itself to them in determining the locus standi of a petitioner. Citing Disu v. Ajilowura (2000) 14 NWLR (Pt 1000) 783, Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 601 with the submission that the 1st appellant, being a candidate had sufficient interest and haying been nominated and sponsored by the 2nd appellant at the said election, had locus standi to present the instant petition before the election tribunal.
Further reliance was placed by him on the case of P.P.A v. Saraki (2007) 17 NWLR (Pt. 1064) 453, regarding the issue or point as to who is a candidate at an election and the nature of 1st appellant’s candidacy.
It was further submitted by appellants learned counsel that the judgment of the Federal High Court, Uyo in Suit No.FCH/UY/CS/11/11 relied upon by the election tribunal in arriving at its decision, “was predicated on a party primary election conducted by 2nd appellant on 7th January, 2011 which was cancelled due to irregularities and malpractices.” It was that his contention, with reliance being placed on Onuoha v. Okafor (1983) 2 SCNLR 244, Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310, that having won at the fresh primary election and with the power to sponsor/nominate a candidate for a general election, being within the exclusive preserve of a political party, the 1st appellant remained as the candidate of the 2nd appellant in the said erection and thereby has the requisite locus standi, to present his petition at the tribunal.”
In his reply on this issue, learned counsel for the 1st respondent referred to Green v. Green (2001) 45 WRN 90. I must state that I laid my hands on vol. 45 WRN, but the cited authority could not be found therein. It was however submitted, that “in view of the judgment of the Federal High Court in suit No.FCH/UY/CS/11/11, the 1st appellant lacked the locus standi to have presented the petition in the tribunal.”
He referred to the said judgment and quoted therefrom with the contention that on the issue of candidacy, that “the Federal High Court settled the matter on 25h February, 2011 when it declared Hon. Ekere, Afai as the candidate for the Uyo Federal Constituency. He added that this judgment is subsisting, valid and binding, regardless of the pending appeal against it. He placed reliance or on the decision of this Court in Obot v. Etim (2008) 29 WRN 128/142 and Section 287 (3) of the 1999 constitution of the Federal Republic of Nigeria.
The learned counsel for the 3d respondent made similar submissions and toed the line of arguments canvassed by the learned counsel for the 1st respondent. In this regard, I do not find it necessary for me to summarize his submissions all over again. The legal right of a party to institute an action and be heard in litigation before a court of law or tribunal is known inter alia as locus standi. The term connotes the legal capacity to commence an action in a competent court of law or tribunal, without any inhibition, impediment or obstruction from any person, body or quarters whatsoever. See Inakoju v. Adeleke (2003) 30 WRN 1. In order to establish locus standi, once it is challenged a Plaintiff or petitioner as in the instant case, must show sufficient, viable and justiciable interest in the suit.
Question then be asked: Did the 1st appellant herein establish locus standi to present the instant petition? The learned judges of the election tribunal felt otherwise. Were they right or wrong? On the issue of 1st appellant’s standing to present the petition, the election tribunal found as follows:
“On the issue of locus standi of the 1st Petitioner, we are equally satisfied that the judgment of the Federal High Court, Uyo delivered on the 25th of February, 2011 when the election in contention was conducted on the 9th of April, 2011 has sealed the fate of the Petitioner, it deprived him of the locus standi to present the petition before this Tribunal.”
Now to the basics. Section 137 of the Electoral Act, 2010 as provides:
“137. – (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.
(2) A person whose election is complained of is, in this Act, referred to as the respondent.”
The position of the law is firmly established, that where the words of a statute are very clear and unambiguous, courts are duty bound to give them their literal, ordinary and usual meaning. In the instant case, S.137 of the Electoral Act, (supra) is lucid clear and unambiguous.
Hence, its interpretation need not be a be labouring task. Under the said provision, the categories of persons who can in the main present an election petition are, a candidate in an election and apolitical party which participated in the election. Both are the major activists allowed by the law to present an election petition either alone or jointly The core issue in this appeal borders on both the competence of the petition and jurisdiction of the election tribunal to entertain and determine it. For one, the law is trite that a court of tribunal is competent to exercise its conferred jurisdiction in respect of any matter where among other conditions the subject matter of the suit is competently within its jurisdiction and there is no feature in the case which prevents the court or tribunal from exercising its jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536; N. E. P. A. v. Eze (2001) 3 NWLR (Pt.701) 606.
Now, the question or issue as to whether a person was a candidate at an election is one of fact and law, so to say. It is thus capable of being established through various means: For instance, it can be garnered from publication of nomination published by INEC by virtue of S. 34 of the Electoral Act, 2010 as amended and with the name or logo of the party which sponsored the said candidate, being placed on the ballot papers used for the election. Although, the word candidate has not been defined in the Electoral Act, 2010. Nevertheless, recourse can be had to its usage in the said Act. sections 31,32,33,34,35,36,37,38,39, and 41 of the Electoral Act, 2010 as amended, amongst others, applied or employed the word “candidate” for diverse purposes and at various stages of the electioneering process. Thus, a candidate is a person who has been validly nominated by his political party and whose name has, been submitted to the Independent National Electoral commission (INEC) as a candidate, accepted as such and whose name was subsequently published, pursuant to Section 34 of the Electoral Act, 2010 as amended and other relevant sections in that regard. It is to be noted, that for the nomination or sponsorship of a candidate to be valid, it must satisfy both constitutional and statutory requirements and there must be no impediment whatsoever in relation thereto. Thus, the mere proposal by way of nomination of a person by a political party as its candidate in an election to INEC through a notification letter per se, may not amount to a valid nomination in respect of the person so nominated. Again, it should be noted, that it follows therefore that the participation of a political party in an election is squarely grounded on its sponsoring nominating a candidate in the said election.
In the instant case, the 2nd appellant herein was the 1st defendant while the 3rd respondent was the 2nd defendant in suit No. FHC/UY/CS/11/11 in respect of which the Federal High Court, Uyo Judicial Division, delivered its judgment thereon, on 25th February, 2011. Hence, where as in the instant case there is an impediment or obstacle of a sort, dangling like the sword of Damocles on both the party and by extension its sponsored candidate, until that barrier is effectively and validly removed, both the candidate so called and the nominating party, will have an uphill task in assuming the mantle and exercising the vested right of presenting an election petition before an election tribunal.
The law is trite, that a judgment of a court remains valid, effective and binding, unless it is set aside by an appellate court or by the lower court itself, if it acted without jurisdiction or in the absence of an aggrieved party or where the said judgment was obtained by fraud. See Witt & Busch Ltd. v. Dale Power System Plc. (2007) 17 NWLR (Pt.1062) 1. Thus, the said judgment of the Federal High Court cannot be ignored by any party or authority until the reverse is pronounced thereon.
In view of all that I have said above, the election tribunal was right to have struck out the petition jointly filed by the appellants herein on the ground of lack of locus standi. The third issue raised in this appeal is resolved against the appellants and in favour of the 1st and 3rd respondents herein. Having done this, it will be rather futile and unnecessary for me to proceed and deliberate, with a view to determining the first and second issues raised in this appeal. Doing so will be tantamount to conducting an academic exercise and embarking on a fruitless journey. This has been frowned upon by the apex court and this court.
In the premise, the appeal lacks merit and it is hereby dismissed by me. Costs in the sum of N20, 000.00 each is awarded to the 1st and 3rd respondents respectively.
JA’AFARU MIKA’ILU, J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the draft of the lead judgment of my learned brother Massoud Abdulrahman Oredola, JCA in this appeal. I agree with the reasons given therein and the conclusion that the appeal lacks merit. I consequently dismiss the appeal with the consequential order as in the lead judgment including the award of N20,000.00 costs in favour of the 1st and 3rd respondents respectively.
Appearances
IME ANSA ESQ. WITH
IME UMANAH ESQ.
P.U. OGBADU ESQ.For Appellant
AND
SAMUEL IKPO ESQ.WITH
PETER NDEM ESQ.
E. A IDOM – MORPHY ESQ.For Respondent
