Hon. Emmanuel Bassey Obot V. Elder Bassey Etim & Ors. (2007)

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OMOKRI, J.C.A.

This is an appeal against the ruling of the Election Petition Tribunal sitting in Uyo, Akwa lbom State delivered on the 26/7/07 as a final decision.

The tribunal struck out the petition of the appellant on the grounds that the appellant was not a candidate at the election held on the 28/04/07 and so lacked the locus standi to present the petition.

The brief facts of the case are that the appellant in December, 2006 won the primaries election of the Peoples Democratic Party (PDP) to contest the election into the House of Representatives in the Uyo Federal Constituency of Akwa Ibom State. His name was accordingly submitted to the Independent National Electoral Commission (hereinafter called INEC), the 2nd respondent in this appeal, vide a letter dated 21/12/06. In February, 2007, 1st respondent was substituted for the appellant as the candidate at the election. The appellant challenged the substitution pursuant to section 34(2) of the Electoral Act, 2006 in suit No. FHC/ABJ/CS/286/2007 in the Federal High Court, Abuja. On the 17/05/07, in the said court delivered its judgment and declared the substitution of the appellant null and void and further declared that for the purpose of the said election, the appellant was the candidate. While the case was still pending before the Federal High Court the election was held on the 28/04/07 and the 1st respondent was declared the winner. Armed with the judgment of the Federal High Court, the appellant together with the PDP filed an election petition at the tribunal as 1st and 2nd petitioners respectively mainly to give effect to the judgment of the Federal High Court compelling the 2nd respondent to return the appellant as the winner of the election and give him the fruits of the victory. Before the Tribunal, the 1st respondent filed a preliminary objection on the 28/06/07 pursuant to section 147(3) of the Electoral Act, 2006, and paragraphs 9(5) and 49(5) of the 1st Schedule to the Act. The grounds of the petition were:

“(1) Jurisdiction of this Honourable Tribunal to entertain this application has been impaired.

(2) The 2nd petitioner lacks the locus standi to file or present an election petition before this honourable tribunal.”

Subsequently, the PDP on 10/7/07 applied to be struck out of the petition jointly filed with the present appellant. The tribunal heard the application and on 18/7/07, it struck out the name of PDP leaving the appellant as the petitioner. On that same date, the tribunal heard the preliminary objection of the 1st respondent. On the 26/7/07, the tribunal on upholding the preliminary objection held as follows at page 325:

“We are, therefore, convinced from the petition, the affidavit of the 1st respondent and all the document attached thereto that the petitioner was not a candidate in the election that took place on the 28th April, 2007 in respect of which the petition was filed. Not having been a candidate he has no locus standi to bring this petition.”

and at page 326 it held that:

“We are therefore of the opinion that the lack of presence of the party that allegedly sponsored the petitioner, to lay the complaint of unlawful exclusion of the candidate has knocked the bottom off this petition.

On the whole, therefore, we hold that the preliminary objection succeeds and that the petitioner not having being imbued by statute to file this petition has no locus standi to do so and this petition is hereby struck out.”

Dissatisfied with the ruling of the Tribunal, the appellant appealed to this court on four grounds. From the four grounds of appeal, the appellant formulated three issues for determination in the appellant’s brief of argument dated 17/8/07 and filed the same day. The three issues are as follows:

“1. Whether in determining the locus standi of the petitioner, the Honourable Tribunal was not bound to confine itself to the petition without recourse to the extraneous facts contained in the copious affidavit and exhibits of the 1st respondent in support of the preliminary objection.

2. Whether the Honourable Tribunal was right in holding that the appellant was not a candidate at the election which decision amounted to overruling the valid and subsisting decision of the Federal High Court, Abuja which had already decided that the appellant was the candidate of the PDP at that election.
3. Whether the Honourable Tribunal was right in using an event which occurred in future and in the middle of the proceedings to determine an issue which, as at the time it was raised, was invalid or at best anticipatory and without calling on the parties to address the tribunal on the new state of affairs.”

On being served with the appellant’s brief, the 1st respondent in his brief dated 24/8/07 and filed the same day formulated only one issue for determination as follows: