HON. KEHINDE AGBOOLA & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13824(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of October, 2019
CA/EK/EPT/REP/02/2019
RATIO
LOCUS STANDI: MEANING
The phrase locus standi denotes the legal capacity to institute proceedings in a Court of law and has been used interchangeably with terms such as standing or title to sue. This Court, in the case of C.N. EKWUOGOR INVESTMENT NIG. LTD. V. ASCO INVESTMENT LTD. 2011 LPELR-CA/L/589/2006 described Locus standi as The right or competence of a party to institute proceedings in a Court for redress or assertion of a right enforceable at law The issue of locus standi does not depend on the success or the merit of a case but on whether the Plaintiff has sufficient interest in the subject matter in dispute.
See the cases of ABRAHAM ADESANYA V. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR. 1981 5 SC 112 and HIS PRE-EMINENCE BOLAJI V. REV. G. A. BANGBOSE 1986 4 NWLR PT. 37 632. PERELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
SUBPOENA DUCES TECUM
In pursuit and proof of their Petition, the Appellants got the 1st Appellant as the PW1 to tender from the bar a report by the 1st Respondents Monitoring Team on the 3rd Respondents Primaries election held on 5/10/18, which was admitted as Exhibit P1 through subpoena duces tecum. The following is the position of the Tribunal on Exhibit P1 on page 557 of the Record which one agrees with:
As far as that exhibit P1 is concerned, its probative value was not tested under cross-examination, we cannot therefore attach any credibility to such a document.
Subpoena duces tecum has been described as follows:
“A subpoena duces tecum is thus a Court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process. See the cases of OBI-ODU v. DUKE 2006 1 NWLR PT. 961 375 and INCORPORATED TRUSTEES OF ISLAND CLUB & ORS v. SIKUADE 2016 LPELR-42278 CA. The law on subpoena duces tecum is clear and the point needs be reiterated as hereunder quoted in order to remove any confusion in its regard as follows:
“A person who brings forward a document in Court in obedience to subpoena cannot be said to have given evidence not to talk of his having capacity to give or tender in evidence the said document particularly when the person served with the subpoena has the option or liberty to cause it to be produced in Court through any other person of his choice…Once a document is delivered to the Court, the person’s obligation is discharged and cannot be sworn nor cross-examined. But the delivery of the document in Court in pursuant to Section 192 of the Evidence Act, does not relieve the person who summoned an adverse party to produce the document of the burden of proving the document by having it admitted in evidence by tendering it through a person who has the capacity to do so. See the cases of FIMAKINWA V. UNIBADAN 1992 7 NWLR PT.255 668 and SANI & ORS V. LERE & ORS 2009 LPELR-4930 CA. Once the person summoned produces the document, he is obliged to be released as he has completed his call and cannot be regarded as a witness. See the cases of ANATOGU V. IWEKA II 1995 8 NWLR PT. 415 547 and INCORPORATED TRUSTEES OF ISLAND CLUB & ORS V. SIKUADE supra. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
ORAL EVIDENCE IN SUPPORT OF A DOCUMENT IS IMPORTANT
There is need for oral evidence in support of a document and it is the duty of the party tendering the document to establish the relevance of the document and what the Court should do with it. The Appellants had the duty in the presentation of their case through their witness to show the nexus with the document, Exhibit P1 and to allow for cross-examination in respect of it. See further the cases of OLUWOLE OKE V, AJADI V. AJIBOLA 2004 16 NWLR 898 195 and OMOBORIOWO V. AJASIN 2007 3 EPR 488, NATHANIEL v. AGUNBIADE supra where this Court explained that although election petitions are of a special class, they are nonetheless, civil proceedings and the Petitioner must satisfactorily discharge the burden of proof. See the cases of OLUWOLE OKE V. NATHANIEL AGUNBIADE & ORS 2011 LPELR 3897 CA and AWUSE V. ODILI 2005 16 NWLR 952, BUHARI V. INEC 2008 19 NWLR PT. 1120 246 and BELGORE V. AHMED 2013 8 NWLR PT. 1355 60. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
PRE- ELECTION MATTERS: MEANING AND EXAMPLES
It must be stated that the complaint of the Appellants comes under what the law has categorized as a pre-election matter. See the case of KOLAWOLE V. FOLUSHO 2009 NWLR PT. 1143 338.
Section 285 (14) provides thus in that regard:
For the purposes of this section, pre-election matter means any suit by:
(d) an aspirant who compels that any of the provisions of the Electoral Act or any of the Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
Section 285 (9) as contained in the Fourth Alteration to the 1999 Constitution states as follows:
(9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JURISDICTION IN ELECTORAL MATTERS IS DIFFERENT FROM THAT OF OTHER CIVIL MATTERS
It is trite to note that issue of jurisdiction of an election Tribunal is of a very special nature and different from that in ordinary civil cases. They are none the less civil proceedings and the Petitioner must satisfactorily discharge the burden of proof. See the case of ONITIRI V. BENSON 1960 SCNLR 314 317. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICES:
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1. HON. KEHINDE AGBOOLA
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MR. PETER OWOLABI
3. ALL PROGRESSIVES CONGRESS – Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Judgment of the National and State Houses of Assembly Election Petition Tribunal (hereinafter referred to as the Tribunal) at Ado-Ekiti delivered on July 6th 2019, by Hon. Justice Danladi D. Adeck, Hon. Justice C. N. Mbonu-Nwenyi and Hon. Justice Khadi M.S. Abubakar, wherein the Petition of the 1st and 2nd Appellants (the 1st and 2nd Petitioners at the Tribunal) was dismissed as unmeritorious and the 2nd Respondent (also the 2nd Respondent at the Tribunal) was returned as Member, representing Ekiti North Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State.
At the Tribunal, the Appellants sought the following reliefs:
i. A declaration that the 2nd Respondent, Mr. Peter Owolabi was not a candidate at the election held on 23/2/2019 to the membership of the House of Representatives for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State.
ii A declaration that all the votes cast and purportedly credited/allotted to the 2nd and 3rd Respondents, Mr. Peter Owolabi and the All
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Progressives Congress (APC) are wasted and null votes, the 3rd Respondent having failed to present a candidate known to the Electoral Act, 2010 as amended at the election to the membership of the House of Representatives for Ekiti North Federal Constituency (Oye/Ikole Federal Constituency) of Ekiti.
iii.A declaration that the 2nd Respondent, (Mr. Peter Owolabi) not being a candidate at the election, was not duly elected by majority of lawful votes cast at the election held on 23/02/19 to the membership of the House of Representatives for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State.
iv. A declaration that the candidate of the 2nd Petitioner, Hon. Kehinde Agboola, having scored the majority of lawful votes cast at the election to the membership of the House of Representatives for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State be hereby declared as the winner of the election to the membership of the House of Representatives for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State.
v. An order of this Honorable Tribunal directing the 1st Respondent
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to withdraw/cancel the Certificate of Return issued to the 2nd Respondent, Mr. Peter Owolabi, and forthwith present a Certificate of Return to the candidate of the 2nd Petitioner, Hon. Kehnde Agboola as the candidate who scored majority of lawful votes cast at the election held on 23/02/19 for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency) of Ekiti State and meet (sic) the requirement of the law in that regard.
The Appellants, aggrieved by the decision, have come to this Court with their Notice of Appeal consisting of twenty (20) grounds of appeal dated, September 17th 2019, as contained on pages 564-579 of the printed Record before this Court.
Brief facts that culminated into this appeal were as follows:
At the National Assembly Election which was conducted all over the Nation on February 23rd 2019 and in Ekiti State in particular, the 1st Appellant under the membership of the 2nd Appellant contested for the office of a Member of the House of Representatives for Ekiti North Federal Constituency 1 (Oye/Ikole Federal Constituency against the 2nd Respondent, who is a member of the 3rd Respondents (also the 3rd
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Respondent at the Tribunal) party. The 2nd Respondent was declared the winner and returned as the Member of the said Ekiti North Federal Constituency 1. Dissatisfied with the result, the Appellants petitioned against same at the Tribunal at Ado-Ekiti on the sole ground that, The 2nd Respondent was not duly elected by majority of lawful votes cast at the election. The Tribunal struck out the Appellants Petition, in consequence of which the Appellants have approached this Court.
RELIEFS BEING SOUGHT
1. Allow the appeal;
2. Set aside the Judgment of the lower Tribunal dated 31st August 2019;
3. Invoke Section 25 of the Court of Appeal Act and grant all the Appellants prayers as contained in the Petition.
The parties in pursuit of this appeal have filed their respective briefs of argument except the 1st Respondent (also 1st Respondent at the Tribunal) that filed none. The Appellants brief of argument was dated October 1st 2019 and filed on October 4th 2019, the 2nd Respondents was dated and filed October 15th 2019 and that of the 3rd Respondent was dated October 14th 2019 and filed on
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October 15th, 2019. The Appellants in response on point of law to the 2nd and 3rd Respondents briefs filed a Reply brief each to the 2nd and 3rd Respondents both dated and filed October 22nd 2019.
NOTICES OF PRELIMINARY OBJECTION BY THE APPELLANTS
It is necessary at this point to mention that the Appellants vide their Motion on Notice dated October 21st 2019 and filed October 22nd 2019 brought pursuant to Order 6 Rule 1 of the 2016 Rules of this Court, seek in the main the following against the 2nd Respondent:
1. An order of this Honorable Court striking out Paragraphs 4.12 to 4.37 in issues 1 and 2 argued together in the 2nd Respondents brief for being incompetent.
There are four (4) grounds for this application as contained on the face of the Motion paper and filed together with a supporting affidavit of ten (10) paragraphs.
A second Motion on Notice dated October 21st 2019 was filed on October 22nd 2019 brought pursuant to Order 6 Rule 1 of the 2016 Rules of this Court which in the main seeks as follows against the 3rd Respondent:
1. An order of this Honorable Court striking out issues 1, 2 and 3 formulated
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