AKINOLA KAMIL V. I.N.E.C. & ORS

CORAM

ESO JUSTICE, SUPREME COURT

MODUPE FASANMI JUSTICE, COURT OF APPEAL

K.M.O. KEKERE-EKUN

PARTIES

AKINOLA KAMIL? APPELLANTS

I.N.E.C. & 20 OTHERS DEFENDANTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant as the petitioner at the Election Petition Tribunal sitting in Abeokuta filed a 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 two sets of Respondents raised preliminary objections on the grounds of failure of the petitioner to specify his right to present the petition, non compliance with the provisions of Section 144(2) of the Electoral Act, 2006, that the petition is incompetent and the tribunal lacks jurisdiction among others. The preliminary objections of the two sets of Respondents were sustained and the petition was dismissed, hence this appeal.

HELD

Appeal Allowed

ISSUES

Whether the respondents’ objection was taken within a reasonable time.Whether the petitioner pleaded material facts in his petition to establish his locus standi and thereby vest the Tribunal with jurisdiction to entertain same?Whether the Tribunal properly struck out paragraphs 14, 15 and 25 of the petition and the names of the 5th – 14th respondents.”

RATIONES DECIDENDI

LOCUS STANDI OF A PETITIONER – WHEN CAN A PETITIONER BE SAID TO HAVE ESTABLISHED HIS LOCUS STANDI IN AN ELECTION

“Once a petitioner has expressly stated that he was a candidate in the election, that is enough that he had established his right to present the election, OR, he had established his locus standi in the petition. See: Okonkwo V. Ngige (2006) 8 NWLR (pt. 981) 119; Waziri V. Danboyi (supra); Rimi V. INEC (supra); CA/I/EPT/GOV/10/2007 (Amosun V. INEC) delivered on 13/03/2008.” PER ISTIFANUS THOMAS, J.C.A

PRELIMINARY OBJECTION – REASONABLE TIME WITHIN WHICH TO BRING AN OBJECTION DEPENDS ON THE ACTUAL TIME AND STAGE IN THE PROCEEDINGS

“What is a reasonable time for bringing the objection is a question of fact and depends on the actual time or stage in the proceedings”. PER ISTIFANUS THOMAS, J.C.A

TEST OF QUALIFICATION TO CONTEST AN ELECTION – PRESUMPTION OF DUE QUALIFICATION TO CONTEST AN ELECTION

“Once the Independent National Electoral Commission has cleared a candidate in the election, the Tribunal or the Court, as the case may be, can lawfully presume that the candidate had lawfully passed the test of qualification to contest”. PER ISTIFANUS THOMAS, J.C.A

PRELIMINARY OBJECTION – AN UNOPPOSED PRELIMINARY OBJECTION AMOUNTS TO ADMISSION

“It is settled law that, once a preliminary objection duly filed and served by the other party is not opposed, it amounts to admission of the contents and facts in the preliminary objection”. PER ISTIFANUS THOMAS, J.C.A

ISSUES FOR DETERMINATION – WHETHER IT IS THE NUMBER OF ISSUES RAISED BY A PARTY THAT CONVINCES THE COURT

“It is not the numerical numbers of issues raised by a party that will convince the Court, but rather, it is only the appropriate and relevant issues that are distilled from proper grounds of appeal”. PER ISTIFANUS THOMAS, J.C.A

NON JOINDER OF PARTIES TO AN ELECTION PETITON – WHETHER THE NON JOINDER OF A RETURNING OFFICER, AN ELECTORAL OFFICER OR PRESIDING OFFICER AT A POLLING STATION TO THE ELECTION PETITION WILL HAVE AN ADVERSE EFFECT ON THE PETITION

“It is trite law now that in an election petition, where the Independent National Electoral Commission is made a party, the non-joinder of a returning officer, an electoral officer or presiding officer at a polling station to the election petition, will not have any adverse effect on the petition. The petition subsists notwithstanding the non-joinder of the electoral officers whose conducts are complained of or impugned”. PER ISTIFANUS THOMAS, J.C.A

PROOF OF LOCUS STANDI – WHAT CONSTITUTE SUFFICIENT PROOF OF LOCUS STANDI TO PRESENT A PETITIONER

“Once a petitioner has pleaded that he was a candidate in the election, that is sufficient proof of his right or locus standi to present the petitioner and the Tribunal has the jurisdictional power to hear and determine the petition”. PER ISTIFANUS THOMAS, J.C.A

JURISDICTION OF COURT – CONDITIONS PRECEDENT FOR CONSIDERATION OF JURISDICTIONAL POWERS

“For one to use the word jurisdiction in his application, the two precedent conditions namely reasonable time and taking of fresh proceedings must co-exist first before the jurisdictional power can be considered”. PER ISTIFANUS THOMAS, J.C.A

QUALIFICATION TO CONTEST AN ELECTION -THE ISSUE OF QUALIFICATION IS TO BE USED AS A WEAPON OF OFFENCE

“The issue of qualification is to be used as a weapon of offence and not as a shield of defence”. PER ISTIFANUS THOMAS, J.C.A

CASES CITED

STATUTES REFERRED TO

Electoral Act 2006

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