Alhaji Rabilu Ishaq V. Muhammed Adamu Bello & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This appeal and two Cross appeals arose out of Petition No. EPT/KNS/SEN/36/07 dated 22nd May, 2007 and filed at the National Assembly Election Tribunal holden at Kano in which the Tribunal struck out the said petition in limine. On 21st April, 2007, the 2nd and 3rd Respondents conducted elections into the Senate of the Federal Republic of Nigeria including the Kano State central Senatorial District. On the date of the election, the appellant who alleges that he was lawfully nominated by the Peoples Redemption Party (PRP), went to cast his vote only to discover that his name, photograph, his party’s name and symbol were not reflected on the ballot papers for the election, the implication of which is that the petitioner has been unlawfully excluded by the 2nd Respondent from contesting the Election having been lawfully sponsored and nominated by his party the PRP. At the end of the election the 3rd Respondent declared the 1st Respondent as winner of the election.

Dissatisfied with the turn of events, the Petitioner filed a petition dated 22nd May, 2007 on the same date praying for the nullification of the Kano Central Senatorial Zone Election and an order that the 2nd Respondent conduct another election and that the Petitioner’s name, photograph, his party’s name and symbol be reflected on the Election ballot papers. The grounds for the petition were that the Petitioner, a duly nominated candidate in the Election, was unlawfully excluded from the Election by the 2nd Respondent.

The 1st Respondent filed a motion on Notice dated 18th September, 2007 on the same date praying the Tribunal to strike out the petition for being incompetent and for lack of Jurisdiction because the Petitioner was not a candidate at the Election he was seeking to challenge. The Petitioner filed a counter affidavit against the motion. Both counsel filed written addresses. On 4th October, 2007, the Tribunal in its Ruling held that the Petitioner had no locus standi to present the Petition since he was not a candidate at the Election and that the only person competent in law to present the Petition under Section 145(1) (d) of the Electoral Act, 2006 is the P.R.P. Accordingly, the Tribunal struck out the petition.

Dissatisfied with the Ruling of the Tribunal, the Petitioner filed Notice of Appeal dated 22nd October, 2007 on the same date. The said Notice of Appeal contains four grounds of appeal. The 1st Respondent filed Notice of Cross Appeal dated 24th October, 2007 on 25th October, 2007.

From the four grounds of appeal the Learned Counsel for the appellant decoded three issues for determination. The Issues are:-

1. Whether the Tribunal was right to hold that the Appellant lacked the locus standi to institute the Election Petition.
2. Whether the Tribunal was right to hold that the PRP was the only competent party to present the Petition.
3. Whether the Tribunal erred in law in determining a substantive issue in the Petition at an interlocutory stage thereof.

The Learned Counsel for the 1st Respondent did not formulate any issues but adopted the issues of the Appellants. The 2nd and 3rd Respondents also adopted the issues as distilled by the appellants. I shall determine issues one and two together and issue No.3 separately.

The Learned Counsel for the Appellant submitted on the first issue that the Appellant having fulfilled the requirements of the law to’ contest the Election as a duly nominated candidate of his party, the PRP, the mere fact that the 2nd Respondent, in violation of the provisions of Section 45 of the Electoral Act, 2006, failed to reflect the symbol of the PRP on the ballot papers for the election, cannot deprive the Petitioner of his status as a candidate for the Election within the meaning and intendment of the provisions of Section 144 of the Electoral Act 2006. That the appellant’s locus standi is derivable and protected by Section 145(d) of the Electoral Act 2006. Relying on the case of Senator Abraham Adesanya Vs. President Federal Republic of Nigeria & Anor (1981) 5 S.C. 112, the appellant submits that locus standi is the right or competence to institute proceedings in a Court for redress or assertion of a right enforceable at law.

Furthermore, that the case of Okonkwo Vs. INEC (2004) 1 N.W.L.R. (Pt. 854) 242 relied upon by the Tribunal in striking out the petition does not apply to this case because the Petitioner in that case was not a candidate. That in the instant case, the Petitioner was a candidate and he ought not to cease being a candidate because of the non reflection of his name and that of his party and its symbol on the ballot papers.

As to whether the Tribunal was right to hold that the PRP was the only competent party to present the Petition he submitted that the Tribunal erred because the provision of Section 144(1) of the Electoral Act, 2006 dealing with who could present Election Petition are patent and are to the effect that either a candidate in an election or a political party which participated in the Election may institute a petition. Furthermore, that Section 144(1) of the Electoral Act, 2006 neither specifically provides nor does it imply that unless and until a lawfully nominated candidate for an election institutes a Petition along with his party he cannot benefit from the right to ground his Petition upon Section 145(1)(d) thereof. He then urged the Court to hold that the non – joinder of the appellants’ party in the petition does not vitiate the appellant’s right to bring this petition.

The Learned Counsel for the 1st Respondent submitted that the kernel of the Appellants’ case is rested on the fact that he was validly nominated but was unlawfully excluded from the contest meaning that he has by himself admitted that he was not a candidate properly so called at the election. That for the Appellant to have the locus standi to file a Petition, he has to comply with the tenor of the provision of Section 144(1) and Section 145(1) of the Electoral Act, 2006.

It was the further contention of Learned Counsel that although the word “Candidate” has not been defined in the Electoral Act 2006, its scope cannot be extended to mean and refer to a person who had the intention to contest an election but who was not allowed to contest. He cited and relied on the case of Adebusuyi Vs. Oduyoye (2004) 1 N.W.L.R. (Pt. 854) page 406 at 437 Paragraph B – H, 439 paragraph D.

Furthermore, that even if the Appellant has a cognizable ground for filing a petition, and having not contested the election, he needed to do it through his Political Party placing reliance on the case of Okon Vs. Bob (2004) 1 N.W.L.R. (Pt 854) 378 and Okonkwo Vs. INEC (2004) 1 N.W.L.R. (Pt 854) 242. He urged the Court to resolve this issue against the appellants.

On the second issue, he adopted his argument in respect of the first issue and -added that the only person that can bring an action and complain in an election petition for valid nomination but unlawful exclusion is a political party which participated in the election by virtue of Section 144(1) of the Electoral Act, 2006.