Alhaji Idris Waziri V. Alhaji Sule Usman Danboyi & Ors (1999)

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SANUSI, J.C.A.

At the end of the Governorship and Legislative Houses election held nationwide on the 9th of January, 1999 the 1st and 6th respondents were returned by the 2nd and 4th respondents as Governor and Deputy Governor of Taraba State respectively. Both of them contested on the platform of the Peoples Democratic Party (P.D.P). The 6th appellant aggrieved by the return of the 6th and 1st respondents as Governor elect and Deputy Governor elect, the petitioner filed a petition on 22nd January, 1999 before the Taraba State Governorship and Legislative Houses Election Petition Tribunal challenging such return on the ground that he was the running mate of the 6th respondent (i.e. Deputy Governorship candidate) at the said election. It is apt to say that the appellant petitioner in filing his petition gave his address of service within 5km radius in Jalingo but failed to mention the occupier. The 1st and 6th respondents filed their joint reply on 20th February, 1999 and issues were joined in the petition. The 2nd to 4th respondents also filed joint reply on the same 20th February, 1999 denying most of the averments in the petitioner’s petition. Thereafter, on 22nd February, 1999 the appellant/petitioner filed what he called reply to the replies of the respondents. As shown in the printed record of proceedings, the tribunal sat on 18th February, 1999 and when the petitioner’s petition was called neither the appellant nor his counsel was present as none of them could be served. The matter was then adjourned to 22nd of February, 1999 for the tribunal’s secretary to serve the appellant’s counsel in Jos since as said above the latter failed to give his occupier’s address in Jalingo. At its sitting on 22nd February, 1999 the tribunal in its considered ruling dismissed the petition giving its reasons for doing so.

Dissatisfied with the ruling of the tribunal the appellant appealed to this court and filed his notice of appeal containing five grounds of appeal.

Issues were founded and the appellant formulated three issues for determination which are reproduced below:

1. Whether the appellant has the locus standi to bring the petition.
2. Whether the petitioner complied substantially with the laws and rules and if any non-compliance has rendered the petition incompetent and the jurisdiction of the tribunal nugatory.
3. Whether the petitioner was given a fair hearing.

Counsel to the 1st, 5th and 6th respondents has formulated two issues for determination in his brief of argument and these include the following:

a. Whether or not the tribunal was right in dismissing the appellant’s petition for want of jurisdiction and or for incompetency.

b. Whether or not the tribunal in determining the appellant’s petition denied the appellant the right to fair hearing.

Only one issue for determination was formulated by the learned counsel for the 2nd to 4th respondents which is simply thus:

Whether or not the learned Justices of the Governorship and Legislative Houses Election Tribunal were correct in law when they dismissed the appellant’s petition on grounds of incompetence on 22nd February, 1999.

I am of the view that the three issues for determination formulated by the learned SAN the counsel for the appellant are more elegant and all encompassing. I shall therefore adopt and deal with them in treating this appeal in the order they are reproduced above.

The 1st issue for determination has to do with the vexed issue of locus standi. The question is, does the appellant have locus standi to bring the petition before the tribunal as he did? It is trite law that the issue of locus standi is a condition precedent to any action before a court of law and as it is a fundamental issue, it goes to the root of the entire action and it ought to be decided at the earliest stage of the proceedings in order to save legal expenses and time of the court and the litigants before even the merit or otherwise of the action is considered. (See Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Pepple v. Green (1990) 4 NWLR (Pt.142) 108 and Bolaji v. Bamgbose (1986) 2 NWLR (Pt.37) 632. Locus standi goes to affect the jurisdiction of the court before which an action is brought, because if there is no locus standi to file the action in the first case, the court cannot properly assume jurisdiction to entertain the action. It is pertinent to note that no evidence was led in the proceedings before the lower tribunal. Where evidence has not been taken in the proceedings before the lower court, the issue of locus standi can only be decided on the statement of claim (in this case the petition of the petitioner) See Oloriode v. Oyebi (1984) 1 SCNLR 390, (1984) 15 NSCC 286; Thomas v. Olufosoye (supra).

I will add here also that the statute creating the cause of action may also be considered in determining whether the party bringing the action has the standing to sue.

By paragraph I of the petition, the appellant stated that he was a candidate for Deputy Governor at the elections held on 9th January, 1999. He further averred in the petition that he was duly nominated, screened and declared qualified to contest the election on that post. Section 133(1)(a) of the State Government (Basic Constitutional and Transitional Provisions) Decree No 3 of 1999 (hereinafter called ‘The Decree’) provides that an election petition may be presented by … a person claiming to have had a right to contest or be returned at an election; section 40 of the Decree also created the post of a Deputy Governor of State. Also section 41 of the same Decree makes it incumbent upon a gubernatorial candidate to nominate his running mate tagged “Deputy Governor”.

The lower tribunal in its ruling which is the subject matter of this appeal recogniscd these facts on page 25 of its records (see lines 14to 18). In his brief the learned Senior Advocate of Nigeria Mr. Ofodile Okafor quoted an excerpt from page 25 lines 18 – 23 of tribunal’s ruling which reads thus: “He has no right as of fact and law to stand separately as a candidate for election into the post of Deputy Governor. It cannot therefore be traced to plead that the petitioner “was a candidate for Deputy Governor at the Governorship and Legislative Houses Election for Taraba State”.