Akinola Kamil V. I.N.E.C. & Ors (2009)

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ISTIFANUS THOMAS, J.C.A.

The appeal is against the ruling of the Election Petition Tribunal sitting in Abeokuta which was delivered on 1/11/2007 wherein the Tribunal upheld the preliminary objections of the 3rd and 21st respondents and that of the 1st, 2nd, 4th – 20th respondents.

As a result of the ruling on the two sets of respondents’ preliminary objection, the Tribunal struck out the appellant’s petition on the ground of incompetence/that appellant had no locus standi.

Being dissatisfied with the Ruling, the appellant filed an appeal on 7/11/2007 containing eight (8) Grounds of Appeal.

It is apt to state briefly the facts of the matter leading to this appeal. The appellant as the petitioner at the lower Tribunal, filed on 11/05/2007, his petition against the duly elected member representing Abeokuta North Constituency at Ogun State House of Assembly, pursuant to the nationwide election held on 14/04/2007. The preliminary objections of the two sets of respondents which were sustained and dismissed the petition were on the grounds that:-

“1. The petitioner did not specify his right (Locus Standi) to present the petition.

2. The petitioner failed to comply with the provisions of Section 144(2) of the Electoral Act, 2006, by failing to properly join the individual presiding officers, returning officers and or all other persons who took part in the conduct of the said election and who allegedly participated in the several electoral malpractices in the various polling units or wards in Abeokuta North Constituency of Ogun State as pleaded in the petition.
3. The afore-mentioned persons are necessary parties for the determination of the petition.
4. The presiding officers petitioned as parties to the petition are merged or amalgamated together and not specified or non-pointed to particular polling unit(s).
5. That the provision of section 144(2) of the Electoral Act, 2006, does not envisage joinder of persons whose titles are generated in scope, purport and intendment or whose titles are nebulous and at large.
6. That the non joinder of the said presiding officers/persons strips this honourable Tribunal of its requisite jurisdiction to entertain the petition.
7. That the petition is incompetent and the Tribunal lacks jurisdiction,”

When the preliminary objections were moved, the petitioner/appellant opposed the motion by filing a written submission in which he referred to his paragraphs 1 and 2 of his petition that read as follows:-

“1. Your Petitioner, Akintola Kamil, is a person who voted, had the right to vote, was a candidate, and had the right to be returned or elected at the above election.

2. Your petitioner herein state that the election was held on 14th April, 2007 when he Akintola Kamil and Lukuman Adiro together with others were candidates at the said election. Lukuman Adiro was credited with 34,085 number of votes as against Akintola Kamil 9,699…”

Having stated the brief facts of the parties’ issues and grounds for the preliminary objections of the two sets of respondents and the petitioner’s objections at the lower Tribunal that finally nailed and dismissed the petition, the appellant filed his Brief on 19/02/2008, but deemly filed on 11/11/2008. In the same manner, the 3rd and 21st respondents’ Brief of Argument was filed on 29/02/2008, but deemly filed on 11/11/2008. It is noted that the 1st, 2nd, 4th – 20th respondents failed to file their Briefs. The appeal is therefore between the appellant and the 3rd and 21st respondents, though 1st, 2nd, 4th – 20th respondents being parties as 2nd sets of respondents, will be bound by the outcome of the appeal.

On 21/01/2009, parties adopted and relied on their respective briefs of argument. Learned counsel for the appellant raised seven (7) issues for determination and they read as follows:-

(1) Whether in the light of the Supreme Court Judgment in OKAFOR V. OKEKE (2007) FWLR (Pt. 368) 1016 at 1020; the Tribunal was right in refusing to entertain the motion by petitioner/appellant for striking out the joint reply on the records for the 3rd and 21st respondents dated 13th June, 2007, settled and signed by WALE ABEEB AJAYI & CO., a non-legal entity who is not on the roll as a Legal Practitioner in Nigeria. (Ground 1).

(2) Whether the learned Justices of the Tribunal were right when they permitted the 3rd and 21st respondents to move the Court to strike out the petition after taking several further steps in the proceedings, and when the objection was based on an alleged lack of pleading of a material fact already admitted by 3rd and 10th respondents in paragraph 2 of their joint reply to the petition – to wit – the petitioner’s pleading in paragraphs 1 and 2 of the petition that he was a candidate at the election. (Grounds 2 & 3).

(3) Whether in the light of the provisions of Sections 144(1) (a) of the Electoral Act, 2006 and the facts contained in the petition, admitted in the replies of respondents, and petitioner’s front-loaded written statement of witnesses, the learned Justices of the Tribunal were correct when they held that the 1st petitioner had not disclosed his locus standi to present the petition. (Ground 7).

(4) Whether the Tribunal had not denied the appellant the right to fair hearing by striking out the petition on technical grounds, without allowing the appellant to prove his case on the merit as enjoined by binding appellate judicial decisions that as far as possible, the election petitions must be determined on the merit except in case of fundamentally incurable defects of incompetence. (Ground 8).