Boma Goodhead V. Mr. Otelemaba Amachree & Ors (2003)

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DAVID ADEDOYIN ADENIJI, J.C.A. 

In this case, the petitioner/appellant was dissatisfied with the ruling of the lower tribunal sitting in Port Harcourt handed down on 26th June, 2003 striking out the appellant’s petition on the ground that she has no locus standi to challenge the results of the election to the Governorship and Legislative Houses Election of 3rd May, 2003.

The 1st respondent was returned as elected in the election to the Rivers State House of Assembly. Sequel to the ruling, the appellant filed two grounds of appeal as per page 55 of the record of appeal.
The facts of the case are that the appellant and others contested the election of 3rd May, 2003 to the Rivers State House of Assembly.

She was nominated to contest the election by her party, the ANPP, while the 1st respondent contested the election on the platform of the PDP. At a stage, the ANPP issued a press release urging its members to contest the election but at another stage, the party withdrew from the contest. The election however, went on and the 1st respondent was returned elected with a total votes of 19,627.
The appellant was said to have scored only 559 votes in all. That prompted her into filing a petition at the lower tribunal for some reliefs.

The 1st respondent however, filed an objection on the ground that the appellant has no locus standi to present the election petition, her party, (ANPP) having withdrawn from the race. The appellant insisted that she had the locus standi to file the petition. The lower tribunal upheld the 1st respondent’s objection and struck out the appellant’s petition on the ground that she could not present such a petition, as she did not fit into any of the categories of persons who could present such a petition under section 133 of the Electoral Act, 2002.

The appellant formulated two issues for determination to wit:
(c) Within the meaning and con of the provisions of the Electoral Act, 2002 in respect of nomination and withdrawal of a candidate for an election, can exhibit A disentitle the petitioner from presenting a petition under the Electoral Act, 2002 having regard to the contents of her petition filed on the 2nd day of June, 2003?.
(d) Whether the tribunal was not obliged by law to look at the petition presented by the petitioner to determine whether or not the petitioner has locus standi to present the petition?.

On his own part, the 1st respondent formulated 3 issues for determination to wit:
(i) Whether the ANPP in Rivers State actually withdrew from the State House of Assembly elections held on 3rd May, 2003?.
(ii) Whether a candidate nominated for sponsorship by a political party for purposes of an election can as a matter of right stand for the election independently irrespective of the political party’s (i.e. the sponsor’s) withdrawal from the election?.
(iii) Whether an aspirant (or a former candidate), no longer sponsored by a political party in an election can maintain any right/locus standi to challenge the validity or otherwise of the election?.

Issues having been joined, the counsel for the appellant and the 1st respondent adopted their briefs; with counsel for the appellant urging this court to allow the appeal while counsel for the 1st respondent urged the court to dismiss same. Counsel for the 2nd – 17th respondents appeared to have merely rested his clients’ case on the brief filed by the counsel for the 1st respondent.
In the main, the counsel for the appellant submitted on issue one that the tribunal failed to give effect to the provisions of the Electoral Act, 2002 dealing with nomination and participation of a candidate in an election. Counsel then went through the provisions of sections 21, 22 and 23 of the Electoral Act.

He also referred to sections 26, 27, 28, 29, 30, 31 and 32 of the Act dealing with nomination, withdrawal of nomination, death of nominated candidate etc. Counsel believed that an election petition being in a class of its own needed to be so treated by a court. He referred in that connection to the case of Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171 at 197. He went on to say that the interpretation of provisions of the Act ought to be strictly construed to ensure that the purpose of the enactment is not defeated. He relied for this on Ike v. Ofokaja (1992) 9 NWLR (Pt. 263) 42 at 64.
Counsel also referred to the press release of 1/5/03 issued by the ANPP and pointed out that it was not addressed to the appellant but to the National Chairman, ANPP, the Resident Electoral Commissioner, Rivers State Commissioner of Police, and the Director, SSS Rivers State. The appellant’s name or her constituency was not mentioned in the release.

Counsel said he needed at that stage, to know if such piece of document could disentitle a nominated candidate from contesting an election and if the INEC could in the circumstances, validly act on such document to the detriment of a candidate for an election. According to the appellant’s counsel, the entire provisions of the Act ought to be read together to discover the intendment of the lawmakers. In that regard he referred to Mobil Oil (Nig.) Plc. v. IAL. 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 168.

He went on to submit that where a statute creates an obligation as to the performance of a public duty together with the method of performance of the duty, only that method prescribed must be followed. He cited Cooperative and Commerce Bank (Nig.) Plc. v. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at 661.

Counsel maintained that where a person has been validly nominated to contest an election, any decision to the contrary must be with his/her knowledge. He added that once a political party has nominated a candidate and has sent the candidate’s name to INEC, the party could no longer take any unilateral decision affecting the candidate. He relied for this, on the case of Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618 at 626.

He then urged this court to have recourse to the mischief rule of interpretation and hold that the mischief to be cured by the provisions of the Act is to avoid a situation where an announcement or publication can be made midstream in an election, to the detriment of a candidate who never had notice of plans to make such announcement. He finally urged the court on that point to adopt the decision in Onagoruwa v. Adeniji (1993) 5 NWLR (Pt. 293) 317 at 337 and hold that exhibit A could not disentitle the appellant from presenting a petition to the tribunal.

On issue No.2, counsel submitted that the tribunal was wrong in holding that the appellant had no locus standi to present a petitioner under section 133(1) of the Electoral Act, 2002. Counsel made reference to the provisions of that section and emphasised that in issues of jurisdiction, what is paramount is the case, as made by the plaintiff in the case is resolving issues of jurisdiction. Counsel relied on Anason Ibeto Int. Ltd. v. Vimex Imports-Exports (2001) 10 NWLR (Pt. 720) 224 at 231.