OMOTOSHO NICHOLAS OLUSOLA & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)& ORS
(2019)LCN/13826(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of October, 2019
CA/EK/EPT/REP/01/2019
RATIO
ELECTION PETITION: PETITIONER: WHO IS A PETITIONER
A Petitioner to an Election Tribunal is one who is not satisfied with the outcome of the election i.e the declaration and return of a candidate other than himself. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ELECTION PETITION: GROUND ON WHICH AN ELECTION PETITION CAN BE BROUGHT
The grounds on which a candidate can challenge an election in the Election Tribunal are as follows:-
(1) That the person whose election is questioned was at the time of the election, not qualified to contest the election.
(2) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act.
(3) That the Respondent was not duly elected by majority of lawful votes cast at the election.
(4) That the person whose election is questioned had submitted to the Commission affidavit containing false information of a fundamental nature in and of his qualification for the election.
(5) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election Per Onnoghen in the case of GWEDE VS INEC (2014) LPELR 23763, S.138(1) of the Electoral Act 2010 (as amended) 2015 ALHASSAN VS ISHAKU (Supra). PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ELECTION PETITION: PRIMARY ELECTION: WHO CAN QUESTION THE OUTCOME OF PRIMARY ELECTIONS
What readily comes to mind is the question, who then can question the outcome of a primary election? The Courts in a plethora of cases have held that, the only person who can question the primary election of a party is an aspirant who participated in that primaries that has produced the sponsored candidate by the political party. See UWAZURIKE VS NWACHUKWU (2012) LPELR 19659. BALLANTYNE VS AYI (2011) LPELR 8825, EZE VS PDP (2018) LPELR 44907, MARAFA VS DAN ALHAJI (2019) LPELR 47012. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ELECTION PETITION: WHETHER A MEMBER OF A POLITICAL PARTY WHO DID NOT TAKE PART IN THE PRIMARIES HAS LOCUS TO CHALLENGE IT
A member of a political party who did not take part in the party primaries cannot complain about the conduct of the primaries. He has no locus standi to complain. Only an aspirant who contested the party primaries can complain about the conduct of the primaries S. 87 (9) of the Electoral Act PDP VS SYLVA (Supra)
EYIBOH VS DAN ABIA (2012) LPELR 20607. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
LOCUS STANDI: DEFINITION
Locus Standi simply means legal capacity to sue Per Kalgo JSC in GLOBAL TRANSPORT OCEANICO SA & ANOR VS FREE ENTERPRISES NIG LIMITED (2001) LPELR 1324.
Going by settled judicial authorities, the term locus standi denotes legal capacity to institute proceedings in a Court of law. The fundamental aspects of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. See OJUKWU VS OJUKWU (2008) LPELR 2401, ADESANYA VS PRESIDENT OF THE FRN (1981) LPELR 147, ADETONO VS ZENITH INTERNATION BANK PLC (2011) LPELR 8237. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
LOCUS STANDI: TESTS TO DETERMINE IF A PARTY HAS LOCUS STANDI
B.B APUGO & SON LTD VS OHMB (2016) LPELR 40598.
Rhodes-Vivour JSC held in the above case that-
?A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligation have been or are in danger of being infringed. There are two tests for determining if a person has locus standi.
They are:
(1)The action must be justiciable, and
(2) There must be a dispute between the parties. In applying the test, a liberal attitude must be adopted. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
LOCUS STANDI: RULES APPLICABLE IN CIVIL CASES AND CRIMINAL CASES
SENATOR ADESANYA VS THE PRESIDENT OF THE NIGERIA (SUPRA) lays down the Rule for locus standi in civil cases, while Fawehinmi v Akilu (1987) 12 SC Pg. 199 lays down the far more liberal Rule for locus standi in criminal cases. To have locus standi the plaintiff statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action?.
Per Rhodes-Vivour JSC PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
EVIDENCE: A DOCUMENT ADMITTED IN EVIDENCE WOULD NOT BE OF SO KUCH ASSISANTCE WITHOUT ORAL EVIDENCE TO EXPLAIN THE PURPOSE
It has been held that a document admitted in evidence no matter how useful they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purpose.ALAO VS AKANO (2005) 11 NWLR Pt. 935 Pg. 160. In this appeal Exhibit P1 had no material oral evidence and documentary evidence, for the latter to be used as instrument by which the oral testimony may be evaluated UBA PLC VS JARGABA (2002) 2 NWLR Pt. 750 Pg. 200. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
EVIDENCE: THE PROPER PERSON THROUGH WHOM A DOCUMENT IS TENDERED IS THE MAKER OF THE DOCUMENT
The proper person through whom a document is tendered is the maker of the document. If a person who is not the maker of a document tenders the document the Court should not attach any probative value to the document because the person tendering the document, not being the maker of the document cannot answer questions arising from any examination. LAMBERT VS NIG. NAVY (SUPRA). PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1.OMOTOSHO NICHOLAS OLUSOLA
2.PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2.OLANREWAJU IBRAHIM KUNLE
3.ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the National and State Houses of Assembly Election Petition Tribunal, hereinafter referred to as the Election Tribunal. The Judgment was delivered on 31st August, 2019 by Hon. Justice D.D. Adeck, C.N. Mbonu-Nwenyi, and Hon. Kadi M.S. Abubakar.
The Appellant being dissatisfied with the judgment had filed a notice and eight (8) grounds of appeal on 12th September, 2019.
The facts briefly are as follows: –
The 1st Appellant as Petitioner was sponsored by the 2nd Appellant (P.D.P) to contest at the General Election held on 23rd February, 2019 for the House of Representatives seat for Ekiti North Federal Constituency of Ekiti State.
The 3rd Respondent (A.P.C) sponsored the 2nd Respondent as its candidate at that election. At the conclusion of voting, the 1st Respondent (INEC) declared the 2nd Respondent as the winner and the 1st Appellant as the Runner Up.
The 1st Appellant as Petitioner filed a Petition at the Election Tribunal on 13th March, 2019.
The Appellants sought these reliefs:
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?i) A DECLARATION that, the 2nd Respondent, Olarewaju Ibrahim Kunle, was not a candidate at the election held on 23rd February, 2019, for membership of the House of Representatives for Ekiti North Federal Constituency II (Ido/Osi/Moba/Ilejemeje Federal Constituency).
ii) A DECLARATION that all the votes cast and purportedly credited/allotted to the 2nd and 3rd Respondents, Olarewaju Ibrahim Kunle and all the All 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 for Ekiti North Federal Constituency II (Ido/Osi/Moba/Ilejemeje Federal Constituency) of Ekiti State.
iii) A DECLARATION that the 2nd Respondent, (Mr. Olanrewaju Ibrahim Kunle) not being a candidate at the election, was not duly elected by majority of lawful votes cast at the election held on 23rd February, 2019, to the Membership of the House of Representatives for Ekiti North Federal Constituency II (Ido/Osi/Moba/Ilejemeje Federal Constituency) of Ekiti State.
iv) A DECLARATION that the candidate of the 2nd petitioner, Omotoso Nicholas Olusola, having scored the
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majority of lawful votes cast at the election to the membership of the House of representatives for Ekiti North Federal Constituency II (Ido/Osi/Moba/Ilejemeje 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 II (Ido/Osi/Moba/Ilejemeje Federal Constituency) of Ekiti State.
v) AN ORDER of this Honourable Tribunal directing the 1st Respondent to withdraw/Cancel the Certificate of Return issued to the 2nd Respondent, Olanrewaju Ibrahim Kunle, and forthwith present a Certificate of Return to the candidate of the 2nd petitioner, Omotoso Nicholas Olusola as the candidate who scored majority of lawful votes cast at the election held on 23rd February, 2019, for Ekiti North Federal Constituency II (Ido/Osi/Moba/Ilejemeje Federal Constituency) and met the requirements of the law in that regard.
The 1st, 2nd and 3rd Respondents filed their Replies to the Petition. Thereafter, the Appellants filed the Petitioners? Reply to the 3 Respondents respectively.
After the pre-hearing, the main trial began on 27th May, 2019.
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The 1st Appellant testified as PW1 and called no other witness. The Respondents altogether called 21 Respondents Witnesses.
Final addresses were filed by all the parties and taken. The Election Tribunal thereafter delivered its considered judgment on 31st August, 2019, dismissing the Appellants? Petition.
The Appellants were dissatisfied with the outcome of the judgment and filed their Notice of Appeal with Eight (8) grounds.
According to the Rules of this Court, the Appellants filed their Appellants? brief on 23rd September, 2019. The 1st Respondent, INEC filed no brief. The 2nd Respondent filed his brief on 30th September, 2019. The 3rd Respondent filed its brief on 30th September, 2019.
The Appellants then filed a Reply to the 2nd and 3rd Respondents respectively.
The Appellants articulated three (3) issues for determination by the Court as follows
1) Whether the trial Tribunal was not wrong in refusing to apply the Supreme Court decision in APC v Marafa Suit SC 377/2019 having held that the Appellants had the locus standi and consequently failing to apply the principle of judicial precedence. (Grounds 1, 2, and 3).<br< p=””
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2) Whether the trial Tribunal was not wrong in placing reliance on the discredited evidence of the Respondents witnesses and holding that the Appellants did not call enough number of witnesses especially when the burden of proof has shifted to the Respondents having positively asserted the holding of the 3rd Respondent?s primary election (Grounds 5, 6, 7 and 8).
3) Whether the trial Tribunal was right in striking out the Petition before considering the merit of the petition thus denying the Appellants their fair hearing especially when the preliminary objection was only partially successful. (Ground 4).
The 2nd Respondent articulated two (2) issues for determination by the Court. They are recapped hereunder:-
1. Whether the trial tribunal was not wrong when it held that the 2nd and 3rd Cross Respondents have locus standi to file the petition and assumed jurisdiction to entertain the petition when the fulcrum of the petition is the conduct of the primary election of the 4th cross Respondent that is statute barred. (Grounds 1, 2 and 3).
2. Whether the trial Tribunal was right in failing to reject Exhibit P1, when the requisite legal fee for
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