Mr. Adewale Segun Sunday & Anor V. Independent National Electoral Commission (Inec) & Ors (2008)

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HUSSEIN MUKHTAR, J.C.A.

By an election petition dated 10th May, 2007 and filed on 11th May, 2007 the appellants beseeched the Governorship and Legislative Houses Election Tribunal Lagos State (hereinafter referred to as ‘the Tribunal’) to nullify the election held on 14th April 2007 and subsequent return of the 4th respondent on the platform of the 5th respondent as the winner of the election for the Lagos State House of Assembly in the Alimosho 1 constituency. The petition was brought pursuant to section 145 (1) (d) of the Electoral Act 2006 claiming that the 1st petitioner/appellant was validly nominated to contest the said election on the platform of the 2nd petitioner/appellant, but was unlawfully excluded wherefrom by the 1st respondent.

The respondents filed their respective replies to the petition raising objections to the competence of the petition. A motion dated 15th June, 2007 and filed on 27th June, 2007 by the 4th and 5th respondents challenged the competence of the petitioners/appellants petition. The said motion was argued on the 31st July, 2007, and the tribunal on the 7th August, 2007 delivered its ruling dismissing the objection, and suo motu raised the issue of locus standi of the petitioners/appellants to bring the petition under section 144 (1) of the Electoral Act 2006. Counsel were ordered to file and exchange written addresses by 14th August, 2007, which they did. The tribunal delivered its ruling on the 17th August, 2007 holding that since the petitioners did not contest the election, having not participated in the balloting process by reason of their exclusion from the election by the act or omission of the 1st respondent, they both lacked locus standi to present the petition under section 144 (1) of the Electoral Act 2006.

Being dissatisfied, the appellants lodged an appeal against that ruling by filing a notice to that effect on the grounds reproduced hereunder without their particulars:

“1. The learned Justices of the Election Petition Tribunal Lagos State erred in law when they held that the petitioners do not possess the requisite locus standi to present this petition.

2. The learned Justices of Election Petition Tribunal erred in law when they adopted a strained interpretation of provision of S. 144 (1) Electoral Act 2006 thereby leading to absurdity.
3. The learned Justices of the Election Petition Tribunal denied the petitioners fair hearing when they neglected and or refused to consider and rule on the substantial portion of the petitioners counsel’s written submission dated 9th August, 2007 and thereby occasioning miscarriage of justice.
4. The learned Justices of the Election Petition Tribunal Lagos State misdirected themselves when in determining the locus standi of the petitioners to present their petition, failed to appreciate, see and consider the several paragraphs of the petition dated 10th May, 2007 as one whole petition.
5. The learned Justices of the Election Petition Tribunal Lagos wrongly applied the decision of the Supreme Court in EGOLUM v. OBASANJO (1999) 7 NWLR (pt 611) 355 when the said the case is totally different and distinguishable from the facts and circumstances of this present petition.
6. The learned Justices of the Election Petition Tribunal Lagos State erred in law when in determining who a candidate or a political party that participated in an election is, the only criteria evolved by their Lordships is the inclusion or non-inclusion of the party logo, sign and symbol on the ballot paper used, and nothing more.”

The petition is rooted in the election for the Lagos State House of Assembly for Alimosho I Constituency held on the 14th April, 2007. The petitioners alleged that the 1st petitioner was duly nominated by the 2nd petitioner and duly published by the 1st and 2nd respondents as the candidate of the 2nd petitioner in the said election (paragraphs 3 and 8 of the petition at page 2 of the Record). However on the polling day, while polling was in progress, it was discovered that the 2nd petitioner’s logo, emblem and/or acronym were omitted from the ballot paper used for the polling exercise (Para. 11 of the petition at page 3 of the Record).

The petitioners immediately wrote through their counsel, a letter to the 1st, 2nd and 3rd respondents complaining about their exclusion from the polling process, and urging the respondents to cancel and reschedule the election. Although the respondents acknowledged the receipt of the said protest letter, they nonetheless proceeded to hold the election and declared the 4th respondent, who contested the election as the 12th respondent’s candidate, as the winner of the election (paras. 10 and 11 of the petition at page 3 of the Record).

It was however, further alleged in the petition that the result of the election shows that the petitioners scored 21 votes at the polls. This issue will however be considered only for the purpose of determining the appellants’ locus standi. Its impact on the merit of the petition is a not an issue in this appeal.

Three issues were raised for determination by the appellants counsel as follows: –

1. “Whether the learned Justices of the Election Petition Tribunal were right in interpreting S.144 (1) Electoral Act 2006 to mean that the Petitioners who were alleged to have scored 21 votes at the election were not a candidate and a party that participated in the said election ALTERNATIVELY

Whether the interpretation ascribed to the provisions of S.144 (1) Electoral Act 2006 was not strained and absurd.

2. Whether the appellants were not denied fair hearing when the learned judges of the Tribunal refused and or neglected to consider and pronounced on the submission of appellants’ counsel touching on the 21 votes polled by the appellants as establishing their locus standi
3. Whether their Lordships were right when they determined the locus standi of the appellants on paragraph 13 of the petition only, and refused and or neglected to consider the other several averments in the several paragraphs of the petition.”

The first issue is related to grounds 1, 2 and 6 while the 2nd and 3rd issues were distilled from the 3rd and 4th grounds of appeal. No issue was raised from the 5th ground of appeal, which consequentially renders that ground as abandoned. A ground of appeal is deemed abandoned where no issue has been raised from it. The abandoned ground five is accordingly hereby discountenanced.

The three issues raised by the appellants, however, revolve around the central core issue raised by the counsel for each of the two sets of respondents, i.e.

Whether in view of the provisions of sections 144 (1) and 145 (1) (d) of the Electoral Act 2006, the Tribunal was right in holding that the petitioners did not have the locus standi to present the petition.

This singular issue raised by both respondents’ counsel covers the scope of the appellants’ three issues and shall be adopted for the determination of this appeal.