CORAM

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THERESA N. ORJI-ABADUA JCA

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PARTIES

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1. LABOUR PARTY (LP)

2. BARR. MRS. UGBOAKU  CHINEMEREM TRACY AMADIGWE-DIKE

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. HON. BALOGUN BAYO

3. ALL PROGRESSIVE CONGRESS (APC)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants as Petitioners before the trial tribunal, challenged the Ibeju Lekki Federal Constituency election conducted by the 1st Respondent on the 25th day of February, 2023 claiming that the said 2nd Respondent, Hon. Balogun, was not duly elected and returned, his election is void and that the 2nd petitioner, Barr. Mrs. Ugboaku Chinemerem Tracy Amadigwe- Dike, ought to have been declared elected and returned as winner of the election.

The Appellants in their pleadings and evidence before the trial tribunal, alleged that they were qualified and eligible to contest the election conducted by the 1st Respondent but that the 1st Respondent deliberately excluded the name and logo of the 1st Petitioner from the list of political parties contesting the election and deliberately refused to upload the name of the 2nd Petitioner. It is as a result of the foregoing that the Appellants sought for the trial Tribunal to annul the election and order a re-run where the Petitioners’ names will be included and all qualified candidates will contest the election. The Tribunal found no merit in the petition and ruled in favour of the Respondents. Aggrieved by the decision, the Appellants filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1 Whether the Appellants’ appeal ought not to be struck out on the ground that it is academic as presently constituted?

2 Whether the lower court was right to have dismissed the petition on the basis of the 2nd and 3rd Respondents’ preliminary objections?

3 Whether the Appellants are entitled to the reliefs sought from this Honourable Court?

 

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RATIONES DECIDENDI

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COURTS – CONDUCT OF COURTS TO ISSUES DEEMED TO BE ACADEMIC ISSUES

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It is settled law that since courts are not academic institutions, they should on no account embark on an academic exercise which in the end resolves nothing that can benefit any of the parties. No court has the jurisdiction to engage on an academic voyage. See SALIK VS. IDRIS (2014) LPELR – 22909 (SC). – Per M. B. Idris, JCA

 

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ELECTION – WHETHER IT IS MANDATORY TO SPECIFY THE RIGHT OF THE PETITIONER TO PRESENT AN ELECTION PETITION

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…paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2022 (as amended) which provides: “An election petition under this Act shall specify the right of the petitioner to present the election petition.” The 3rd Respondent had submitted that the above provision is mandatory given the use of the word “shall” in the said provision, as it is trite as to the import and meaning of the word shall in a statute or enactment. See generally, the cases of KWARRA VS. INNOCENT (2009) 1 NWLR (PT. 1121) 199; DARA & ANOR VS. ALAGBOSO & ORS (2015) LPELR – 25672 (CA) and ABUBAKAR VS. INEC (2004) 1 NWLR (PT. 854) 207. In OBUZOR VS. AKE (2OO9) 2 NWLR (PT. 1125) 388, in interpreting paragraph 4(1) of the First Schedule to the Electoral Act, 2006 which is the same as the above provision, this Court held: “The provision of paragraph 4(1) of the First Schedule to the Electoral Act, 2006, are mandatory.” – Per M. B. Idris, JCA

 

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ELECTION – THE IMPORTANCE OF ELECTION PETITION CASES

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The importance of election petition cases has been reechoed in the decision of the Court in the case of AJAYI VS. NOMIYE (2012) 7 NWLR (PT. 1300) 593, where it was held that: “Election cases belong to a class by themselves. They are by their nature sui generis and parties must carefully peruse the rules governing same… failure to abide by the rules would be fatal to the petition….” – Per M. B. Idris, JCA

 

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PETITIONER – WHERE THE PETITIONER FAILS TO COMPLY WITH THE PRESCRIBED RULES FOR THE CONTENTS OF AN ELECTION PETITION

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In the case of KAKA VS. DANIEL (2009) 14 NWLR (1161) 416, it was held that: “The failure of a petitioner, as in the instant case, to comply with the prescribed rules for the contents of an election petition as contained in… paragraph 4(1) of the First Schedule to the Act, renders the petition defective and denies the Tribunal jurisdiction to preside over the petition. – Per M. B. Idris, JCA

 

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PETITIONER – DUTY OF A PETITIONER WHO WAS NOT A CANDIDATE AT THE ELECTION AND WHO HAS A RIGHT TO FILE A PETITION

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A petitioner who was not a candidate in an election and who has a right to file a petition, must specify his right to present the petition. For the reason that the Appellant was not a candidate at the election, it was therefore incumbent upon him to state in full and explicit terms his right to present the election petition. To specify means to explain clearly; to mention clearly; to mention specifically; to state in full and explicit terms and; to particularise and explain in detail.

How will he do this? In this case, this is where section 65 (1) of the Constitution comes in. It provides that a person shall be qualified for election as a member of the House of Representatives if he is a citizen of Nigeria and has attained the age of twenty-five years; if he has been educated up to at least School Certificate level or its equivalent; and he is a member of a political party and is sponsored by that party. These clearly are the requirements a person who wishes to contest at the election must first meet. It follows that a person who claimed to have had the right to contest must be a person who met the above stated conditions. Regrettably, the Appellant did not specify these facts about himself in this regard. A petitioner who claimed to have had a right to contest at the election was bound to comply with paragraph 4(1)(b) of the First Schedule to the Electoral Act 2022 by specifying his right to present the petition in order to have the requisite locus standi to present the petition. See EZEOBI VS. NZEKA (1989) NWLR (PT. 98) 478; EGOLUM VS. OBASANJO (1999) 7 NWLR (PT. 611) 355. – Per M. B. Idris, JCA

 

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PETITION – REQUIREMENTS FOR AN ELECTION PETITION

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Paragraph 4(1)(c) and 9 of the First Schedule to the Electoral Act, 2022 (as amended) provides: “An election petition under this Act shall – State the holding of the election, the scores of the candidates and the person returned as the winner of the election.” (9) An election petition, which does not comply with subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.” It is clear from the wordings of the above that the said provision is mandatory in nature and thus, non-compliance with any of the requirements will render the petition incompetent, null and void and liable to be struck out. See the cases of KWARRA VS. INNOCENT (SUPRA) and ABUBAKAR VS. INEC (2004) 1 NWLR (PT. 854) 207. – Per M. B. Idris, JCA

 

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PETITION – WHETHER RULES FOR ELECTION PETITIONS MUST BE STRICTLY OBEYED – THE NATURE OF ELECTION PETITIONS

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The Rules of court are meant to be obeyed. These include rules of procedure for election petitions that is, the First Schedule to the Electoral Act, and no favour should be shown for not obeying them. They must be complied with and cannot be circumvented. See EMEJE VS. POSITIVE (2010) 1 NWLR (PT. 1174) 48. Generally, election matters, though are a specie of civil matters, have their own different rules and regulations enacted specifically to regulate and govern the procedure and practice to be used in the conduct of proceedings thereof due to their peculiar nature. Due to the timelines and limits prescribed by the Constitution and statutes within which they are to be determined at all levels of the judicial ladder, special and specific rules, regulations, practice directions are enacted pursuant to the relevant provisions of the Constitution and the statutes setting out details of the procedure to be adopted, timelines or limits within which steps must be taken by both the parties and the courts as well as within which processes must be filed in proceedings in order to ensure that the matters are initiated, heard or tried and finally determined or disposed of in compliance and in line with the prescriptions in the Constitution and the statutes. That is primarily why election matters have been described and become known as “sui generis”, different from ordinary civil matters and in a class of their own since they are strictly governed and regulated by the special and specific rules of practice and procedure in the courts. See the cases of ONITRI VS. BENSON (1960) SCNLR 314; OYEKAN VS. AKINJIDE (1965) NMLR 381; OBIH VS. MBAKWE (1984) 1 SCNLR 192; DICKSON VS. SYLVA (2017) 10 NWLR (PT. 1573) 299 and WELLINGTON VS. PDP (2023)10 NWLR (PT. 1893) 455. – Per M. B. Idris, JCA

 

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ELECTION PETITION TRIBUNAL – THE JURISDICTION OF ELECTION PETITION TRIBUNALS

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It is settled that an Election Petition Tribunal is a special tribunal created by the Constitution to

handle post-election disputes. The tribunal has no jurisdiction whatsoever over pre-election disputes or disputes for which its cause of action arose before the election. See generally, the cases of NEC VS. NRC (1993) 1 NWLR (PT.267) 120 and MAIKORI VS. LERE (1992) 3 NWLR (PT.231) 525. It is trite that the complaints for the purpose of presenting an election petition are acts or omissions that were contemporaneous with the conduct of the election. An election tribunal has no power to investigate matters which took place before the conduct of the election. See the cases of ANPP VS. USMAN (2008) 12 NWLR (PT. 1100) 1 AT 55 and IBRAHIM VS. INEC (1999) 8 NWLR (PT. 614) 334. Flowing from the above cited authorities, it is abundantly clear that an election tribunal can only entertain and or accommodate matters which were contemporaneous with the conduct of the election and not events which arose prior to the conduct of the election… It is settled that the grounds upon which an election petition can be presented are those specified at Section 134(1) of the Electoral Act, 2022 (as amended) without more. – Per M. B. Idris, JCA

 

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ELECTION PETITION – PERSONS ENTITLED TO PRESENT ELECTION PETITIONS

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Section 133(1) (a – b) of the Electoral Act, 2022, provides for the persons entitled to present election petitions as a candidate in an election or a political party who participated in the said election complained of. – Per M. B. Idris, JCA

 

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LOCUS STANDI – MEANING OF LOCUS STANDI – LOCUS STANDI IN ELECTION PETITIONS

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The term locus standi has been defined to mean having sufficient interest in a cause or matter to be litigated upon. Thus, in an election petition, for a party to challenge the outcome of an election, the Petitioner must disclose facts showing that he participated in all the stages of the election. See the case of OKOCHA VS. INEC (2009) 7 NWLR (PT. 1140) 295 AT 308 PARA. D. It must be understood that the right to contest an election is not a common law right but rather a right created by statute and anyone seeking a relief under such a statute must bring himself strictly within the provisions of the law. See EGOLUM VS. OBASANJO (1999) 7 NWLT (PT. 611) 355. On the authority of OKOCHA VS. INEC (SUPRA), it is very clear and apposite to the instant case. It is only a person who contests at an election or a political party that participated in the election that can sue or in other words, that will have the locus to bring an action to challenge the outcome of the elections. For the Appellants to have successfully maintained the petition, they must demonstrate that they are persons who fulfilled all the conditions in OKOCHA VS. INEC (SUPRA) which are that the 2nd Appellant was duly nominated by the 1st Appellant and that her name was published in accordance with Section 35 (now 34) of the Electoral Act. – Per M. B. Idris, JCA

 

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NOMINATION – CONDITIONS FOR A VALID NOMINATION OF A CANDIDATE – WHERE A CANDIDATES NOMINATION IS NOT VALID

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The law is settled that for a nomination of a candidate for an election to be valid, such nomination must meet statutory stipulations and necessary conditions precedent to due nomination. Where a candidate is not validly or duly nominated in accordance with statutory requirements, such a candidate cannot therefore challenge the election on the basis of unlawful exclusion where he is precluded from participating at the election. See the case of P. P. A. & ANOR VS. INEC & ORS (2010) 12 NWLR (PT. 1207) 70. Section 31(1) of the Electoral Act, 2010 (as amended) provides that: “Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections. (3) The commission shall within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election. Furthermore, where a candidate in an election is alleging unlawful exclusion as in the instant case, the candidate must first prove that he was validly nominated by his political party.

See the case of IDRIS VS. ANPP (2008) 8 NWLR (PT. 1088) 1; UGWU VS. ARARUME (2007) 12 NWLR (PT. 886) 169 and INIAMA VS. AKPABIO (2008) 17 NWLR (PT. 1116) 225 AT 344. – Per M. B. Idris, JCA

 

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RELIEFS – WHERE THE RELIEFS SOUGHT BY A PARTY ARE INCOMPETENT

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The law is trite that it is the reliefs sought by the petitioners that confers jurisdiction on a Tribunal. See the decision of the apex court in ADEYEMI VS. OPEYORI (1976) 9 – 10 S. C. 30 AT 45. See also the case of AG FEDERATION VS. GUARDIAN NEWSPAPERS LTD (2001) ALL FWLR (PT. 32) 79. In sum, where the reliefs claimed by a party are incompetent or are at variance with the pleadings, as in the instant case, the pleadings preceding such reliefs are deemed abandoned, since the reliefs supersede the pleadings… – Per M. B. Idris, JCA

 

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PROOF – BURDEN AND STANDARD OF PROOF IN ELECTION PETITIONS – WHETHER THE RESPONDENTS CAN RELY ON THE EVIDENCE ELICITED FROM THE APPELLANT’S WITNESSES

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The law is settled that election petitions, being declaratory in nature, must as of necessity rest on the strength of the petitioners’ own case and not the perceived weakness of the Respondents’ case. See the case of CPC VS. INEC (2011) 12 SCNJ 644 AT 710; (2011) 18 NWLR (PT. 1279) 493. The Supreme Court in ANDREW VS. INEC (2018) 9 NWLR (PT. 1625) 507 AT 548 PARAS D – F, held that: “Evidence elicited from a party or his witness under cross-examination which goes to support the case of the party cross-examining constitutes evidence in support of the case or defence of the party. If at the end of the day, the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence. It may be said that the party called no witness in support of his case, but not evidence, as the evidence elicited from his opponent under cross-examination which are in support of his case or defence constitute his evidence in the case”

In the light of the above mentioned authority, the Respondents are allowed to rely on the evidence elicited from the Appellants’ witnesses in support of its case and the arguments of the Appellants to the effect that the Respondents abandoned their pleadings and their case by failing to lead evidence is unfounded and clearly lacks merit.– Per M. B. Idris, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF WHERE THERE IS AN ALLEGATION OF UNLAWFUL EXCLUSION

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Furthermore, on the unlawful exclusion claims of the Appellants and the position of the law, the burden rests on the Appellants, having made this allegation, to prove same. See Section 134 of the Evidence Act, 2011. In discharging this burden, the petitioners must adduce credible, cogent oral and documentary evidence – Per M. B. Idris, JCA

 

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CORRUPT PRACTICES – CONDITIONS FOR A PETITIONER TO SUCCEED ON GROUNDS OF CORRUPT PRACTICES

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In the case of AUDU VS. INEC (NO.2) (2010) 13 NWLR (PT. 1212) 456, it was held that for a petitioner to succeed on the grounds of corrupt practices, the petitioner must lead concrete evidence showing: 1. That the Respondent personally committed the corrupt act or aided, abetted, counselled or procured the commission of the alleged act of corrupt practices. 2. Where the alleged act was committed through the agent, that the agent was expressly authorised to act in that capacity or granted authority; and 3. The corrupt practice substantially affected the outcome of the election and how it affected it. See also, the case of CHIME VS. ONYIA (2009) 2 NWLR (PT. 1124) 1. A Petitioner who alleges corrupt practices on the part of a Respondent with reference to an election must prove not only the actus reus but also the mensrea on the part of the Respondent. See GBADAMOSI VS. AZEEZ (1998) 9 NWLR (PT. 566) 471; NWOLE VS. IWUAGWU (2005) 16 NWLR (PT. 952) 543. – Per M. B. Idris, JCA

 

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NON-COMPLIANCE – DUTY OF A PETITIONER ALLEGING NON-COMPLAINCE WITH THE PROVISIONS OF THE ELECTORAL ACT

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On the allegation of non-compliance with the provisions of the Electoral Act, Section 135 (1) of the Electoral Act stipulates that an election shall not be invalidated by reason of non- compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. In the case of EZE VS. OKOLOAGU (2010) 3 NWLR (PT. 1180) 183, it was held that: “Our courts, my Lords, are unanimous that, based on the principle of he who asserts must prove, the Petitioner must not only prove the non-compliance, he must go further to show how the alleged non-compliance affected the result of the election.” Again, in the case of DPP VS. INEC (2009) 4 NWLR (PT. 1130) 92, it was held that: “The meaning of this is that when the petitioner alleges non-compliance, he must satisfy the court that such non-compliance was substantial enough to affect the overall result of the election. It invariably means that cogent and compelling evidence must be adduced to establish that the election was substantially affected by such non-compliance.” In demonstrating the effect of a complaint of non-compliance with the Electoral Act, it must be shown clearly by evidence that the non-compliance has substantially affected the results of the election. The petitioners must not only show substantial non-compliance but also the figures i.e. the votes that the non-compliance attracted or omitted. See OKE VS. MIMIKO (NO.2) (2014) 1 NWLR (PT. 1388) 332.

… In demonstrating the effect of a complaint of non-compliance with the electoral or corrupt practices, it must be shown clearly by evidence that the non-substantiality has affected the results of the election. The petitioners must not only show substantial noncompliance but also the figures i.e. the votes that the noncompliance attracted or omitted. See the case of OKE VS. MIMIKO (SUPRA). – Per M. B. Idris, JCA

 

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NON-COMPLIANCE – DUTY OF A PARTY COMPLAINING OF NON-COMPLIANCE – TWO TESTS OF SUBSTANTIALITY IN A COMPLAIN OF NON-COMPLIANCE

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Further, it is trite that where a party complains of non-compliance, he must prove it polling unit by polling unit to enable the Tribunal to appreciate the substantiality if any, of the alleged non-compliance. This was the position of the Supreme Court in the case of UCHA VS. ELECHI (2012) 13 NWLR (PT. 1317) 330 AT 359, where the apex court held that: “Where a petitioner complains of non-compliance with the provisions of the Electoral Act, 2010 (as amended), he has a duty to prove it polling unit by polling unit, ward by ward… He must show figures that the adverse party was credited with as a result of the non-compliance, Forms EC8A, election materials not stamped/signed by the Presiding Officers. He must establish that the non-compliance was substantial, that it affected the result.” Whilst interpreting a similar provision contained in the repealed Electoral Act, 2006, the Supreme Court in BUHARI VS. INEC & ORS (2008) 19 NWLR (PT. 1120) 246 AT 442 C – G, held: “Now, the fundamental question is what is the effect of the presidential election conducted with ballot papers not numbered serially nor in booklet forms.

Is that sufficient to vitiate the election? To put it another way, is the fact that the ballot papers used for the presidential election were not serially numbered nor in booklet form affected the result of the election? To answer these questions, it is necessary to examine closely the provisions of Section 146(1) of the Electoral Act, 2006 recited above. In my view, the mere fact that there were irregularities or failure to strictly adhere to the provisions of the Electoral Act is not sufficient to void the election. In order to void the election, it must be shown that – That the irregularities or failures constitute a substantial departure from the principles of the act; and That the irregularities or failures have substantially affected the election. From the foregoing, it is clear that for any court or tribunal to proceed to invalidate an election, the conditions set out above must be met. It follows therefore that in a situation where the irregularities do not constitute a substantial departure from the principles of Act and had not been shown to have affected the result of the election, the tribunal has no power to invalidate the election.” See also, the case of AKINLADE VS. INEC (2020) 17 NWLR (PT. 1754) 439 SC.  The law is axiomatic that proof of non-compliance for seeking nullification of election has to pass two distinct tests of substantiality. The non-compliance must be substantial, and it must also substantially affect the outcome of the election by virtue of Section 135(1) of the Electoral Act, 2022. This is the overwhelming duality burden. See the Supreme Court’s interpretation of identical precursor provision in the 2002 Electoral Act in BUHARI VS. OBASANJO (2005) 7 S. C. (PT. 1) 1. – Per M. B. Idris, JCA

 

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UNLAWFUL EXCLUSION – WHETHER UNLAWFUL EXCLUSION IS A GROUND FOR ELECTION PETITION BEFORE AN ELECTION TRIBUNAL

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By section 134 of the Electoral Act, 2022 which provides the contents of an election petition, there is no ground for unlawful exclusion from the election envisaged by the Act. Only three grounds were provided therein, that is to say: “134 (1) An election may be questioned on any of the following grounds, that is to say: (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act, (c) the respondent was not duly elected by the majority of lawful votes cast at election.” – Per T. N. Orji-Abadua, PJCA

 

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UNLAWFUL EXCLUSION – WHETHER UNLAWFUL EXCLUSION IS A GROUND FOR QUESTIONING AN ELECTION

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section 134(2) of the Electoral Act, 2022 specifically provided that: 60 “(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is nor contrary to the provisions of this Act shall not of itself be a ground for questioning the election.” It follows that even though the act of exclusion may be contrary to any instruction or directive of the Commission that is under a compelling duty to publish the logo and name of the 1st Appellant before the election, since it is not contrary to the provisions of the Electoral Act, 2022, cannot by itself constitute a ground for questioning the election. In Wamini-Emi vs. Igali & ors (2008) LPELR-5091(CA), this Court per Garba, JCA., (as he then was) held that: “The established and accepted interpretation of the provisions is that any ground not stated therein would not be a legally competent ground upon which an election can or may be questioned. In other words, an election may not and cannot be questioned on any other ground outside the ones set out in the provisions. See Rimi v. INEC (2005) 6 NWLR (Pt.920) 56; Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487; Obasanjo v. Yusuf (2004) 9 NWLR (Pt.877) 144; ANPP v. Returning Officer, Abia South Sen. District (2005) 6 NWLR (Pt.920) 140; Nwabochi v. Gift (1998) 12 NWLR (Pt.579) 522 in which provisions in pari materia with Section 145 (1) were interpreted." It follows that the ground of unlawful exclusion from the election having not been made a ground in the 2022 Electoral Act for questioning the election cannot be introduced into the Act by the Appellants notwithstanding the provisions of section 42(4) of the Act which says that a political party shall not complain of unlawful exclusion from the election under this Act in relation to its identity appearing on election materials used for the election unless the party disapproves of its identity under subsection (3) in writing.

Apart from clear appreciation of the possibility of such issue cropping up, regrettably, the Electoral Act, 2022 did not include it as one of the grounds upon which an election petition may be based. – Per T. N. Orji-Abadua, PJCA

 

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ELECTION PETITION – PARTIES THAT MAY PRESENT ELECTION PETITIONS

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…section 133(1) of the Electoral Act, 2022. The section provides that: ‘133(1) An election petition may be presented by one or more of the following persons: (a) a candidate in an election; (b) a political party which participated at the election." It is crystal clear by the said section 133(1)(a) and (b) of the Electoral Act, 2022, that no other person or persons outside those expressly mentioned may present an election petition. – Per T. N. Orji-Abadua, PJCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022

3. Evidence Act, 2011

 

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