3PLR – BUKOLA IDAYAT ADEBUSUYI V. BABATUNDE ODUYOYE

Published by Law Nigeria Admin at May 2, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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BUKOLA IDAYAT ADEBUSUYI

BABATUNDE ODUYOYE

COURT OF APPEAL (IBADAN DIVISION)

MONDAY, 4TH AUGUST, 2003

CA/I/NA/EPTA/6/2003

LN-e-LR/2003/56 (CA)

OTHER CITATIONS

1 NWLR (Pt.854)406

__________________________

CHILDREN AND WOMEN LAW:- Women in Politics – Participation in general elections – Intra-party hurdles – Judicial challenge of wrongful substitution of a woman validly nominated for general election for a seat in the National Assembly – How treated

__________________________

BEFORE THEIR LORDSHIPS:

MURITALA AREMU OKUNOLA, J.C.A. (Presided)

SAKA ADEYEMI IBIYEYE, J.C.A.

SULEIMAN GALADIMA, J.C.A.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Read the Leading Judgment)

JA’ AFARU MIKA’ILU, J.C.A.

BETWEEN

(MRS.) BUKOLA IDAYAT ADEBUSUYI

AND

HON. BABATUNDE ODUYOYE
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
RESIDENT ELECTORAL COMMISSIONER, OYO STATE

REPRESENTATION

AFE BABALOLA, SAN, with him, ADEBAYO ADENIPEKUN, ESQ.,

OLUFUNKE AKINSODE [Mrs.],ADENIKESAHIMI [Mrs.], FEMI AMAO, ESQ., A. ADEWUMI, ESQ., ANTHONY AKPAN, ESQ., TAYO ALUKO, ESQ., S. A. RAJI and FIFI OMAGe [Miss] – for the Appellant,

A. FAGBEMI, SAN with him, H. O. AFOLABI, ESQ., L. OBISESAN, ESQ. and L. A. ADEDIGBA, ESQ. – for the 1st Respondent

MAIN ISSUES

ELECTION LAW/PETITION: – Candidates for election – Meaning and ambits – Nomination of candidates by a political party for an election – Statutory basis – Implication and bindingness on electoral body and locus standi to bring election proceedings

ELECTION LAW/PETITION: – Locus standi to present election petition – How determined – Candidate nominated at party primary but not presented to Electoral body as candidate of the party – Whether has locus standi to bring election petition

ELECTION LAW/PETITION:- Parties to election petitions – Who can present election petition – Proper parties – Effect of failure to join same – Intra-party affairs – whether Court has jurisdiction to entertain petition arising from same – Whether it is settled law, that a court of law does not engage itself in the determination of a political or intra party matter

ELECTION LAW/PETITIONS:- Par. 4(1) to the first schedule of the Electoral Act – Requirement that a petition shall state the grounds on which it is based and the relief sought by the petitioner – Section 134(1) of the Electoral Act – Requirement that the ground so stated must be one of the four forms stated in the said sections of the Electoral Act – Whether section 134(1) should be read with section 131 of the Electoral Act – Whether the Electoral Act does not state in what part of petition the relief sought or the counsel of the petition should be stated.

CONSTITUTIONAL LAW: – Section 221 of the 1999 Constitution – Election – Whether the Constitution requires a political party to have a candidate for an election and not that a political party contests election – Whether a petitioner who did not contest an election cannot present a petition regarding the election

PRACTICE AND PROCEDURE – ACTION: – Justiciability – Electoral Matters – Candidacy of a person at an election – Whether justiciable – Relevant considerations

PRACTICE AND PROCEDURE – ACTION: – Locus standi – Meaning of – How determined

PRACTICE AND PROCEDURE – COURT – ESTOPPEL: – Estoppel by record – Whether a dismissed without hearing it on its merit can constitute same

PRACTICE AND PROCEDURE – EVIDENCE: – Estoppel – Estoppel by record – Relevant considerations – When inapplicable

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER: – Reliefs – Relief not claimed by parties – Duty on court not to raise and grant same motu – Jusitfication

PRACTICE AND PROCEDURE – JURISDICTION: – Jurisdiction of court – How determined – What Court looks at

PRACTICE AND PROCEDURE –JUDICIAL PRECEDENT: – Wike v. Ichenwo – Provisions of section 23 of the Electoral Act, 2002 – When precedent is overtaken by subsequent legislative enactment – Duty of court thereto

INTERPRETATION OF STATUTE: – Subsection (d) of section 134(1) to the Electoral Act

WORDS AND PHRASES:– “Candidate”: Meaning and ambit under the Electoral Act – “Locus Standi” – Meaning – “Locus standi is of course defined as a right to stand; a capacity to institute the action in a court of law; not because the plaintiff has no juristic existence; but because of other issues created by law”

NIGERIAN CASES REFERRED TO IN THE JUDGMENT:

Abakaliki Local Government Council v. Abakaliki Rice Mills Owners Enterprises of Nigeria (1990) 6 NWLR (Pt. 155) 182

Adeyemi v. Opeyori (1976) 9-10 SC 31

Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734

Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530

Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) 564

Buhari v. Yusufu (2003) 14 NWLR (Pt. 841) 446

Chukwu v. Icheonwu (1999) 4 NWLR (Pt. 600) 587

Ekpenyong v. Nyong (1975) 2 SC 71

Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142

Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) 267

Igwego v. Ezeugo (1992) 2 NWLR (Pt.249) 561

Ikeni v. Efamo (2001) 10 NWLR (Pt.720) 1, 17-18

INEC v. N.R.C. (1993) 1 NWLR (Pt. 267) 120

Nwosu v. Imo State Environmental Sanitaiion Authority (1990) 2 NWLR (Pt.135) 688

Nyako v. Balewa (1965) NNLR

Ogunleye v. Jegede (1991) 6 NWLR (Pt. 199) 594

Okulate v. Awosanya (2000) 2 NWLR (Pt.646) 530

Onuoha v. Okafor (1983) 2 SCNLR 244

Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156

Owuru v. INEC (1999) 10 NWLR (Pt. 622) 210

Oyediran v. Amoo (1970) 1 All NLR 313-357

Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 592

Wike v. Icheonwo (1997) 4 NWLR (Pt. 600) 618

NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:

Constitution of the Federal Republic of Nigeria, 1999, S. 221

Electoral Act, 1962, S. 91(1)

Electoral Act, 2002, Ss. 21, 23, 100, 133(1)(d), 134(1)(d) & 136(1), Schedule 1, paras. 4(1), 23 & 27(1)

Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, Schedule 4, para. 7(2)

MAIN JUDGEMENT

OMAGE, J.C.A. (Delivering the Leading Judgment):

In the tribunal below, which sat in Ibadan and known as the National Assembly Governorship and Legislative Houses Election Tribunal.

Actually it is the National Assembly Election Tribunal hereinafter referred to as the tribunal; before the said tribunal the petitioner, now the appellant in the person of Dr. Mrs. B. I. Adebusuyi filed a petition couched as follows;

“whereof your humble petitioner prays that it may be determined that the 1st respondent Hon. Babatunde Oduyoye was not nominated, sponsored, elected and or returned and that his nomination was void and that Dr. Bukola ldayat Adebusuyi was duly nominated, sponsored and elected or ought to have been returned as the successful candidate for the lbadan North West/South West federal constituency in the election of 12^th April, 2003.”

The said tribunal delivered its judgment on 2nd July, 2003, thus “In the end result this petition partially succeeds. Pursuant to section 136(1) and paragraph 27(1) of the 1st Schedule to the Electoral Act, 2002; the return and election of the 1st respondent, Hon. Babatunde Oduyoye for the Ibadan North West/South West Federal Constituency in the election held on 12/4/03 conducted by the 2nd and 3rd respondents was not valid and the said return and election of the 1st respondent, Hon. Babatunde Oduyoye is hereby nullified.” Both the petitioner and the respondent were dissatisfied with the judgment of the tribunal. Each has filed an appeal. The petitioner filed an appeal initially of four grounds and subsequently ten additional grounds of appeal; and formulated therefrom the following three issues in the appellant’s brief filed on 21/7/2003.

The following are the issues formulated therein;

“(1) Whether having regard to the facts of this case and all the findings of the lower tribunal in this appeal, the appellant ought not to have been returned as the candidate duly elected in the election in this appeal.

(2) Whether the order of fresh election in this case was not available to the tribunal and whether the order has not led to a miscarriage of justice.”

The 1st respondent filed a respondents’ brief dated 24/7/93.

The 1st respondent crossed appeal by the notice of appeal in the record of proceedings dated 10th July, 2003 at page 124 thereof which contain original and additional grounds of appeal. In his brief dated 21/7/2003, the 1st respondent/cross-appellant formulated the following issues;

“(1) Whether the petitioner had locus standi to present her petition.

(2) Whether the tribunal had jurisdiction to entertain the petition and whether the order nullifying the election of the 1st respondent/appellant can stand in law.

(3) Whether the petitioner proved her case that she was the duly nominated candidate of the Alliance for Democracy.” ,

The appellant that is the petitioner appellant filed a cross-respondents’ brief. I shall state its contents anon. I deem it sequential to relate here the issues contained in the brief of the 1st respondent to the appellant’s brief. In it, the 1st respondent challenged the jurisdiction of the court to entertain the appeal filed by the petitioner on the following grounds:

(I) Whether the appellant has locus standi to present a petition and submitted that the petitioner not being a candidate at the election lacked the requisite locus standi to present her petition under petition section 133(1) of the Electoral Act. Section 133( 1) Electoral Act, provides inter alia-

“An election may be presented by one or more of the following persons;

(a) A candidate at an election.

(b) A political party which participated in the election.”

The 1st respondent quoted the evidence in chief of the appellant when the latter said her name was not in the final list; and that her name was dropped by INEC before the election of 12/4/ 03 was held.

(II) Whether the petition filed contained any ground.

The 1st respondent submitted that the appellant infringed paragraph 4(1) of the 1st Schedule to the Electoral Act, 2003, and that the provision thereon is mandatory. He submitted that non-compliance renders the petition incompetent, the 1st respondent submitted in the objection that the appellant’s petition in the court below is caught by the principle of estoppel; because the suit filed by the said appellant in the Federal High Court is for the same reliefs sought now in the tribunal. He submitted that the parties are the same. The issue being the same the claim before the tribunal is caught by the principle of res judicata. The 1st respondent submitted that the petition was not properly before the court below. 1st respondent urged the court to dismiss the petition. It is subject to the above objections that the 1st respondent submitted on the two issues quoted above. The said two issues will be considered with the appellant’s two issues contained in the appellant’s brief and in the brief of the cross-respondent, the issues which are formulated in the brief of the appellant cross-respondent filed on 24/7/03. In the brief thereof are the issues formulated by the respondent/appellant in the cross-appeal filed by the cross-appellant 1st respondent. The issues formulated by the appellant cross-respondent are: as follows;

“(1) Whether or not the petitioner had the locus standi to present the election petition in this appeal. Grounds 1 -14 of the cross-appeal.

(2) Whether having regard to the issues submitted to the tribunal for determination and the content of the petition, the petitioners petition before the tribunal was not competent and the order nullifying the election of the 1st respondent was not available to the petitioner.

Grounds 2, 3,4, 8,10,13,14,15 and 16 of cross-appeal.

(3) Whether the petitioner was not the candidate nominated and sponsored by her political party; the Alliance for Democracy who is entitled to be returned as the elected candidate in this appeal.” Ground 6 of the cross-appeal.

It is now appropriate to state the facts of the case. The petitioner in the tribunal below is the appellant in this appeal. The 1st respondent is the cross-appellant: The appellant’s petition was filed in the tribunal on 6th May, 2003, in the petition she alleged as recorded above; namely that “the tribunal shall determine that the 1st respondent named was not duly nominated; sponsored; elected and or returned and that his nomination was void.” I prefer here to relate the facts in the words of the appellant at the tribunal, even as the facts occurred before the tribunal was constituted. The appellant deposed in the tribunal below and submitted in this court her evidence in chief before the tribunal. The complaint is therefore a reproduction of paragraph 30 of the petition; at page 5 – 6 of the record of proceedings. It is viz “your petitioner states that despite her formal protests and the letters of confirmation of her name to the 2nd and 3rd respondents, the 2^nd and 3rd respondents neglected, failed and or refused to effect necessary changes on the list, up to the date of the election on 12^th April, 2002 and it was the name of the 1st respondent (who was placed on suspension by the party) that was wrongfully, and illegally published on the list of candidates for the election.”

The appellant also testified in terms of the above as follows, commencing from P.81 of the record headed “petitioners case.” I participated in the election under the aegis of Alliance for Democracy, Oyo State. On 10th February, 2003, “I was nominated to represent Ibadan South/West North West Federal constituency in the National Assembly etc, on page 82.” After the screening, I was issued a nomination letter by the State chapter of the Alliance for Democracy, which was tendered in evidence. On page 83 of the record it continues “Oyo State A.D. forwarded a list of nominated candidates to the 2^nd and 3rd respondents. I obtained a copy from the state A.D.” tendered etc, “The list was pasted by the 2nd and 3rd respondents at its offices in both local governments that constitute the constituency within 7 days. During the course of my campaigns, I was informed that the 1st respondent was parading himself for the seat of Ibadan North/West/South West constituency for which I have been nominated. I informed the A.D. Oyo State and steps were taken by the Oyo State A.D. to the 3rd respondent that I was the duly nominated candidate.

The Oyo State A.D. wrote a letter to the 3rd respondent that I was the duly nominated candidate” continued on page 84 of the record, “I participated in the election. That was on 12/4/03, I was the candidate for the seat in the Federal Houses of representative for lbadan North West/South West. At the end of the Polls the AD, won the election. The 1st respondent was declared the winner. I wrote a petition to the A.D. Headquarters Abuja, copied INEC in Oyo State etc. “I prayed that I should be returned as the elected candidate for the seat of lbadan North West/South West constituency in the House of Representatives. “Under cross-examination, the appellant deposed thus: ” I wrote exhibit C, it elicited no positive response. I was told that the A.D. National Chairman gave a letter to the 1^st respondent to INEC Headquarters Abuja hence I wrote to him. The first list of candidates was released immediately after the nomination. There was no objection” see P. 84 of the record. “The second list was released after objection and withdrawal. My name was not on the final list. The final list did not reflect the list sent by A.D. Oyo State which contained my names. I was informed by colleagues that my names were dropped at INEC. I went to INEC to verify.

My names were not there but that of the 1st respondent was on the final list, and that was the list used for the election.”

On page 89, the 4th respondent testified “I am a civil servant with the 2nd defendant; is INEC “. The 4th PW testified inter alia.

“We substituted the name of the petitioner with the names of the 1st respondent based on the party A.D. headquarters request. The petitioner and her A.D. Oyo State protested. These protests were in writing.”

“We received a letter from A.D. headquarters Abuja.” Exhibit ‘M’ is tendered. Please see page 90 of the record for continuation of evidence of DW4; “As at the time of the election the A.D. headquarters Abuja wrote to us on the change of candidates and that letter represented the position as at the time we went for the election.

We adhered to the instruction of the letter; we issued a form EC8E1 to the 1st respondent.” INEC followed the directive of A.D. Headquarters Abuja.”

In the Tribunal, the 1st respondent testified on page 91, thus with respect to this petition a letter was addressed, I cannot say the date now, by A.D. National Chairman and counter-signed by the National Secretary to the INEC [noting] that the 1st respondent was A.D. candidate for the constituency in question in this petition.

The first letter was in long hand; while the second was typed; dated 12/3/03, and 01/04/03 admitted as exhibits “S”, and “S1”. A.D. sent to INEC the list of its candidates for the election. “In cross-examination 1st respondent on page 92 of the record deposed that “The substitution of the petitioner was on the basis of the party’s decision to have the 1st respondent as its candidate.”

The emanating facts from the testimonies before the tribunal of the appellant, 1st respondent and the staff of the 2nd respondent lNEC quoted above is as follows, before the election which took place on 12/4/03 the local A.D. Oyo Chapter sent to the INEC headquarters the name of the appellant as the candidate to contest the election for the Federal Constituency known as lbadan North West/South West Federal Constituency for election to the Federal House of Representatives or National Assembly. Before the expiration of 30 days provided for in paragraph 23 of the Electoral Act; the headquarters of the A.D. forwarded to the INEC headquarters, the name of the 1st respondent both in manuscript and in typed copies tendered in the proceeding as exhibits S and S 1. The letter is dated 12/3/03. The INEC adhered to the change of candidate required of the INEC in the letter tendered as exhibit S and S 1, and changed the name of the candidate sent by the Chapter of the A.D. Ibadan North West/South West Federal Constituency to that of the 1st respondent. Therefore instead of the name of the appellant which had hitherto been on the list. the name of the 1^st respondent was placed thereon. It was therefore on the name of the 1st respondent that the election of 12/4/03 was conducted not as recorded in the appellant’s brief that the appellant’s name was on the list of INEC, “during and after the election of 12/4/03.” Since by the admission of the appellant as petitioner in the Tribunal, “The name of the 1st respondent was substituted on the list at the time of the election.”

In the brief of the respondent under the heading of facts relevant, the 1st respondent recorded as follows “The petitioner’s case is a reflection of a screening misunderstanding and power tussle between the National body of the Alliance for Democracy and the Oyo State Chapter. The crises within the party became strong that in order to ensure a free and fair election the INEC came up with a circular letter dated 10th January, 2003, which, was tendered through the petitioners own witness PW4. The circular was admitted as exhibit O. In exhibit O, the Independent Electoral Commission stated therein that only the list of candidates endorsed by the National Chairman of the Alliance for Democracy would be accepted by INEC. In the proceedings; exhibits S and S1, were signed by the National Chairman of the party in favour of the 1st respondent as a candidate for the Ibadan Federal Constituency of North West/South West.

Exhibit M signed by the National Chairman of the A.D. in favour of the appellant is for Oyo South West/North West Federal Constituency.” It is not the constituency in issue in the proceedings in the tribunal below. I now wish to consider the several issues formulated by the appellant, cross-appellant and the 1st respondent and that in the cross-respondents’ brief on the issue before the tribunal below; as set out earlier in this presents. I will in this judgment consider also the objections set out by the cross-appellant, as contained in the brief of the 1st respondent [to this petition]. To commence, I will consider first the tripartite objection to the petition filed by the 1st respondent; stated earlier herein in which the 1^st cross-respondent complained.

(a) That the appellant has no locus standi to present the petition; and asked

(b) Whether the petition filed contained any ground as required in section 134(1)(d)

Generally the rule of estoppel operates to prevent a relitigation of matters or issues previously resolved by a court of law, and it creates a res judicata. In the given case, the 1st respondent seeks the effect of estoppel by record. In a proper case of estoppel by record the rule can operate successfully to prevent a relitigation of the case if the parties or privies are the same in the suit that was previously determined, if the issues determined are the same and the facts are the same. See 19wego v. Ezeugo (1992) 6 NWLR (Pt.249) 561; (ii) Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) p. 156; (iii) lkeni v. Efamo (2001) 10 NWLR (Pt.720) 17-18. In suit No. FHC/IB/CS 22/2003, tendered in the tribunal below, the claim was dismissed without evidence being taken. No issue was determined in that proceeding; there can therefore be no recourse to the plea of estoppel.

The objection on (c) is refused, and over-ruled. See Ezeanya v. Okeke (1995) 4 NWLR (Pt.388) 142 at 161. The second objection to the petition is the complaint that the petitioner is liable for an infraction of the provisions of par. 4(1) to the first schedule of the Electoral Act which requires that a petition shall state the grounds on which it is based and the relief sought by the petitioner, and in section 134(1) of the Electoral Act, the ground so stated must be one of the four forms stated in the said sections of the Electoral Act. The appellant’s counsel has submitted that the said section 134(1) should be read with section 131 of the Electoral Act, the appellant submitted that the petition filed contains the prayers and the relief sought. The Electoral Act does not state in what part of petition the relief sought or the counsel of the petition should be stated.

I have read the entire petition in the record of proceedings. The relief sought or the grounds of the petition are as contained in the sub paragraph (d) of section 134(1) of the Electoral Act. That is “the petitioner was validly nominated but was unlawfully excluded from contesting the election. The prayer sought is a declaration that the petitioner be declared the winner of the election held on 12/4/03. I am in agreement with the submission of the appellant’s counsel and rule against the 2nd objection of the 1st respondent. The issue of locus standi to file the petition was extensively considered in both the cross-appellant’s brief in the 1st respondent’s brief above, and in the cross-respondents’ brief. I deem it appropriate to consider the issue together with other issues formulated in the appeal relating to jurisdiction of the court but I will comment here as follows; locus standi is of course defined as a right to stand; a capacity to institute the action in a court of law; not because the plaintiff has no juristic existence; but because of other issues created by law, as in the case of Abakaliki Local Government Council v. Abakaliki Rice Mills Owners Enterprises of Nigeria (1990) 6 NWLR (Pt. 155) 182. See also Nwosu v. lmo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717. In the instant case, it is a right to file the petition because of the prescription made by the Electoral Act, 202, section 133, viz “An election petition may be presented by one or more of the following persons;

(a) A candidate at an election.

(b) A political party.”

The Electoral Act does not define the ambit of the term candidate. Does the word include a person intending to contest the election; or it is limited to a party who actually contested the election?

The parties to the appeal gave their own interpretation of the word candidate, it appears that paragraph (d) of section 134(1) which provides that a petitioner or its candidate validly nominated but was unlawfully excluded from the election can file a petition; enables a party who intended to contest the election but was disallowed, may claim a right to file a petition to the tribunal. In my view the subsection (d) of section 134(1) to the Electoral Act can properly admit of the petition filed by the appellant. It therefore gives to the appellant a locus standi to file the petition. The question which now arises is whether the proper defendants were before the tribunal.

This is the imputation contained in the 1st respondents’ brief of argument which reads thus, “Whether from the facts and evidence adduced, the petitioners’ case relates to intra party affair on which the tribunal can adjudicate.” In his submission; on this issue the 1^st respondent has said the relief sought by the appellant is not a relief for the enforcement of a right, rather it is on a resolution of the issue whether the Alliance for Democracy nominated and sponsored the 1st respondent. The 1st respondent submitted further that since the petitioner prayed for a determination as to the candidate sponsored for the election, the appellant’s claim in the court below is a challenge to the nomination and sponsorship done by the party the Alliance for Democracy. The 1st respondent submitted that the Tribunal was ( therefore in order in coming to the conclusion that the petitioners case relates to intra party affairs, which the respondent submits is a political question over which the court or tribunal has not been given jurisdiction. The 1st respondent described the real scenario before the summon to the tribunal as follows. It is thus; the petitioner said she had filled in the INEC the forms subsequently tendered as A.B.F.G. The appellant was nominated for the election of the 12^th April, 03, by the Oyo State Chapter of the Alliance for Democracy.

The first respondent also tendered what came to be known as exhibits Q.R.S. T1, T and U; as evidence of the nomination of and sponsorship of the 1st respondent for the election of 12/4/03 by the National body of the Alliance for Democracy. The 1st respondent submitted that the issue which arises for determination is which of the two bodies of the Alliance for democracy can lawfully or even successfully nominate a candidate for the 12th April, 03 election. Is it the Oyo State Chapter or the national body of the Alliance for Democracy, The 1st respondent submitted the issue or question to be determined is a political question which the court or tribunal cannot answer; as it lacks jurisdiction to do so, The 1st respondent concludes that the appellants claim is incompetent and should be struck out. He urged the court to dismiss the petition. In response thereto in the brief of the appellant; the stance of the appellant on this issue is as submitted by the appellant as contained in the quotation on the decision in Wike v. Icheonwo (1999) 4 NWLR (Pt.600) 618, 626, in the appellant’s brief of argument filed on 21/7/03. In my view, the decision is manifestation of the thinking of the appellant on the issue which is tendered as the appellant’s submission on the issue. In that case the reasoning and conclusion is of Nsofor, JCA is quoted thus;

“Once a person has been screened and cleared to contest the election, the political party to which he belongs no longer has a power to stop him from contesting the election. Any question or dispute about his sponsorship ceases to be a matter within his political party to determine,”

The appellant submitted therefore that once the appellant had been accepted by lNEC, she remains the only candidate for the A.D, in “Ibadan North West, South West Federal Constituency,”

I write with the authority of the Electoral Act, 2002, that the present position of the law is different. The above decision quoted may have been the position of the law at the time, it was delivered but under the Electoral Law, 2002, the position of the law is different on the issue of presentation of the list of candidates for election, While section 21 of the Electoral Act, 2002 requires the list of candidates for the election to be submitted not later than 90 days before the election; section 23 of the same act, permits and enables the party to change any of the candidates whose name has been submitted; by signifying its intention to do so, The circular exhibit 0 tendered at the proceedings prescribes also that only the nomination of candidate submitted by the National body of a political party is valid for the election. If at all the position of the appellant quoted above in the obiter of Nsofor, JCA in Wike v. Icheonwo (supra) is valid. It is only valid to the situation after. It can only be applicable in the period less than 30 days before the election day of 12/4/03 Up to and within 30 days before the election, the political party has a right to withdraw or change its candidate named 90 days before the election.

In my view therefore the reliance of the appellant on the said decision in Wike v. Icheonwo is unhelpful to its claim and ignores the provisions of section 23 of the Electoral Act, 2002.

It is settled law, that jurisdiction of a court is determined by the plaintiff’s claim in the court, See Adeyemi v. Opeyori (1976) 9 – 10 SC 31; (11) Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt.117) 592; (517); Okulate v. Awosanya (2000) 2 NWLR (Pt.646) 530. In the instant appeal the appellant’s claim before the tribunal read as follows:

“Whereof your humble petitioner prays that it may be determined that the 1st respondent Hon. Babatunde Oduyoye was not nominated, sponsored, elected and or returned, and that his nomination was void; and that Dr. (Mrs.) Bukola IdayatAdebusuyi was duly nominated sponsored and elected or ought to have been returned as the successful candidate for the Ibadan North West, South West Federal constituency in the election of 12^th April, 2001″

In the appellant’s prayer before the Tribunal below she sought that it be determined that the nomination of the 1st respondent was void; and that her nomination correct; which she averred entitles her to be returned as the person elected and to be returned as the candidate who won the election. It is in the Electoral Act that the nomination of the candidate for the election precedes the election and it is done by the political party. Under the Electoral Act only the, party; the political party can do the nomination of a candidate for the election section 100 of the Electoral Act, 2002 which subscribes thus; A person shall be qualified for election under this part if;

(a) He is a citizen of Nigeria.

.(b) He is registered as a voter.

(d) He is educated up to at least the School Certificate Leaver. Or its equivalent.

(e) He is a member of a political party and is sponsored by that party.

(f) He has produced evidence of tax payment.

No candidate for an election therefore can contest the election under the Electoral Act, 2002, unless he is nominated or sponsored by a political party; consequently the relief sought by the appellant in his petition in the tribunal can only be obtained from the political party if it failed to sponsor the appellant for the election. It is not the function of the INEC to determine the proper or correct nomination of the appellant. The function of the INEC, the 2nd respondent is to adhere to the nomination of a candidate made by the party provided the change of nomination is made within 30 days to the election date. In the instant appeal, the 2nd respondent INEC did testify that it adhered to such a request made by the A.D. The issue to be determined now is whether the court has jurisdiction on the complaint of the appellant in the tribunal. It is said to be a domestic affair of the political party and so it is. In Onuoha v. Okafor (1983) 2 SCNLR 244. It was decided by the Supreme Court that a court of law has no jurisdiction over the issue of the determination of intra party political matters. In the instant appeal not only is the proper party not joined in the proceedings; the issue to be determined is on the determination as to whether or not the appellant or the 1st respondent was nominated by the party; or at best to answer the question which of the contestants for the election was properly, validly or legally nominated by the party the Alliance for Democracy. This clearly solely is within jurisdiction of the party. It is settled law, that a court of law does not engage itself in the determination of a political or intra party matter.

This explains the reason why the political party was not cited as respondent in the proceedings. It is a jurisdictional issue. See Ibrahim v. Gaye (2002) 13 NWLR (Pt.784) 267, and the court below has no jurisdiction on the issue subject matter of the appellant’s claim, for relief in the court below. Since the matter of nomination of a candidate for election is an internal matter of the Alliance for Democracy; it is not justiciable by the court of law. I find myself in agreement with the decision held by the tribunal below; and affirm the decision of the Chairman and the honourable members of the tribunal to dismiss the appeal on that issue the appeal is dismissed only in the part of the decision delivered in the judgment on 2nd July, 2003. Having so determined and dismissed the appeal; and hold that the court – the Tribunal below has no jurisdiction on the petition there is no need to consider other issues formulated in the appeal except one, on which I comment below. To proceed on those other issues is merely to engage in academic exercise; and a waste of the time when it is not the practice of the court to act in vain or in a futile exercise.

See Ogunleye v. Jegede (1991) 6 NWLR (Pt. 199) 594. I now proceed to the other issue. It is this in their briefs the appellant and cross- respondent decry the part of the judgment of the tribunal which ordered that the return by the 2nd respondent as the elected person is void and thereafter ordered a fresh election. Both the appellant and 1st respondent, who filed briefs, submitted that the tribunal does not possess the power to order a fresh election as the tribunal did; and urged the appellate court to set the order aside. In their prayers the appellant urged that the appellant be returned as the candidate who won the election; and the 1st respondent urged that the order of court be set aside to facilitate his return to the House of Representatives or National Assembly. In the record of proceedings the tribunal advanced the reasons suo motu why they came to the reasoning and conclusion to void the election of the 1st respondent.

The reason advanced by the tribunal is the non-compliance with the procedural requirements of filing the requisite forms before the name of the 1st respondent was substituted for that of the appellant, I have read carefully the petition of the appellant a complaint against the 1st respondent of non-compliance with the requirements preceding the acceptance of a candidate to contest the election is not there contained.

The appellant did state that she filed the necessary forms and returned same to INEC. She did not complain that the 1st respondent did not so comply as a reason to void the election. The issue was taken by the Tribunal suo motu. It is not founded on the testimony of any witness before it. The action of the tribunal in doing as stated above is a negation of the functions of court of law. A court does not grant to parties reliefs they have not asked for; See Ekpenyong v. Nyong (1975) 2 SC 71, 80-81, (1) Oyadiran v. Amoo (1970) 1 All NLR 313 – 357, and the court does not make itself a party in the proceedings to find grounds to favour or discredit any of the parties before it. In the event I set aside the order of the tribunal which rendered invalid the election held on 12/4/03; and the election of the 1st respondent as there is no such prayer before the tribunal. The appeal has no merit; it is dismissed. There will be no order for costs.

OKUNOLA, J.C.A.:

I have had the advantage of reading in draft the leading judgment of my learned brother Omage, JCA, just delivered in this appeal. My learned brother had succinctly summarized the facts of the case and meticulously covered the issues raised therein. I agree with his reasoning and conclusion that the appeal be dismissed.

However, I would like to adumbrate on the principal issue relating to intra-party dispute in this case – whether the court has jurisdiction on the complaint of the appellant in the tribunal which can be regarded as a domestic affair of the political party. This poser had come for determination and resolution by the appellate courts in this country to the effect that a court of law has no jurisdiction over the issue of determination of intra-party political matters. See Onuoha v. Okafor (1983) 2 SCNLR 244, which was cited with approval in Bakam v. Abubakar(1991) 6 NWLR (Pt.199) 564 p. 573 where the Court held per Ogundere, J .C.A. of blessed memory thus:

“A court of law lacks jurisdiction to adjudicate on intra-party contest on nominations of candidates to contest any election, as no party member has a legal right to that nomination nor is there a corresponding obligation on the political party so that the judicial powers of the court may be invoked under S. 6 of the Constitution and so vest the High Court with jurisdiction under S. 236 thereof.”

See also: INEC v. NRC (1993) 1 NWLR (Pt. 267) 120pp.130-131; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) p. 530; and Chukwu v. Icheonwu (1999) 4 NWLR (Pt. 600) 587 pp. 596-597. In the light of the foregoing authorities, I am also of the view that since the issue for determination at the tribunal and before this court is as to whether or not the appellant or the 1 st respol,ldent was nominated by the party, or rather which of the two contestants was properly, validly or legally nominated by the party, the Alliance for Democracy, I hold that neither the tribunal nor this court has jurisdiction since same is notjusticeable in court of law. See Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) 267.

For this and the fuller reasons given in the lead judgment the appeal is also dismissed by me. I abide with the other orders made in the lead judgment.

IBIYEYE, J.C.A.:

I have had the privilege of a preview of the leading judgment just delivered by my learned brother, Omage, JCA.

My learned brother has succinctly summarized the facts of this case. He has also meticulously dealt with the salient issues raised in the appeal.

I agree with his reasoning and conclusion that the appeal be dismissed. I also dismiss the appeal. I abide by all the consequential orders made in the leading judgment.

GALADIMA, J.C.A.:

I have had the privilege of reading the lead judgment of my learned brother Omage, JCA. I agree with his reasoning and conclusion. I would however say a word or two with respect to the appeal by way of emphasis.

This is an appeal against the judgment of the National Assembly Petition Tribunal and Legislative House Election Tribunal, Oyo State, hereinafter referred to as “Tribunal”, sitting in Ibadan, delivered on 2/7/2003.

By the judgment of the tribunal, it held that the petition although succeeded in part, it went on to nullify the appellant’s election and ordered for fresh elections to be conducted for the Ibadan North West/South West Federal Constituency.

In paragraph 44 of the Appellant’s petition filed on 6/5/2003 she claimed thus:

“WHEREOF your humble petitioner prays that it may be determined that 1st respondent – Hon. Babatunde Oduyoye was not nominated, sponsored, elected and/ or returned and that his nomination was void and that Dr. (Mrs.) Bukola Idayat Adebusuyi was duly nominated, sponsored and elected or ought to have been returned as the successful candidate for the Ibadan North West/South West Federal Constituency in the election of 12th April, 2003.

The 1st respondent filed a defence to the petition. Petitioner thereafter filed a reply to the 1st respondent defence. At the close of the pleadings 1st respondent filed an application at the tribunal praying that the petition be dismissed and/or struck out on the grounds that –

“(i) The tribunal lacked jurisdiction to entertain this petition;

(ii) Necessary parties are not before the tribunal;

(iii) The grounds of the election petition are not cognizable therefore not justiciable;

(i v) The complaint of the petitioner is res judicata and caught by issue of estoppel;

(v) Petitioner lacked locus standi to present this petition; and

(vi) The petitioner did not state the candidates at the election.”

The objection was subsequently argued and the tribunal in its ruling dismissed the objection. The tribunal held that the petitioner though did not contest for the election she was nevertheless a candidate in that she had the intention for contesting only that she was prevented from doing so.

The petition was later heard on its merit. The petitioner called 4 witnesses in all, while the 1st respondent called a witness. The tribunal in its judgment, found inter alia, as follows:

“1. The case of the petitioner as to the duly nominated candidate of the Alliance for Democracy was an internal affair of the party, which it cannot dabble into.

The 1st respondent was a duly nominated and sponsored candidate of the Alliance for Democracy for the election in question.
Notwithstanding the finding that the 1st respondent was the candidate for the election the petitioner can be said to also be a candidate for the purpose of presenting an election.
The rule of estoppel would not apply to the election Tribunal so as to prevent it from looking into the complaint raised by the petitioner.
The election of the 1st respondent should be nullified because his nomination was not done in accordance with the provision of the Electoral Act, 2002.
A fresh election should be conducted by the Independent Electoral Commission.”

Dissatisfied with the aspect of the Judgment of the tribunal which ordered a fresh election filed a notice of appeal containing six grounds; and raised two issues therefrom as follows:

“(1) Whether having regard to the facts of this case and findings of the lower tribunal in this appeal the appellant ought not to have been returned as the candidate duly elected in the election in this appeal? Grounds 1,2,3,4 and 5.

(2) Whether the order of fresh election in this case was available to the tribunal and whether the order has not led to a miscarriage of justice? Ground 6.”

On the other hand, the 1st respondent submitted the following issues for determination in this appeal.

“(1) Whether from the facts and evidence adduced the petitioner’s case relates to an intra-party affair on which tribunal can adjudicate.

(2) Whether the petitioner proved her case to warrant being returned as the duly elected candidate for the Alliance for Democracy.”

First respondent also being dissatisfied with the judgment of the tribunal cross-appealed to this court by an original notice of appeal filed on 11/7/2003; and additional ground of appeal filed on 14/7/2003. From these grounds contained in the two notices the 1st respondent/cross-appellant distilled three issues for determination as follows:

“1. Whether the petitioner had locus standi to present her petition grounds 1 and 14 contained in the notice of appeal.

Whether the Tribunal had jurisdiction to entertain the petition and whether the order nullifying the election of the 1st respondent/appellant can stand in law – grounds 2, 3, 4, 5, 7, 8, 9, 10, 13, 15, and 16 contained in the notice of appeal.
Whether the petitioner proved her case that, she was duly nominated candidate of the Alliance for Democracy ground 6 of the original notice of appeal and ground of the additional ground of appeal.” I have carefully studied all the issues raised by the appellant and the cross-appeal in their respective briefs of argument. Before considering the issues so raised by the parties, I wish to state that the 1st respondent’s challenge to the jurisdiction of this court to entertain the appeal filed by the appellant is a threshold issue. It must be first considered and thrashed. First respondent contended before the tribunal that, the petitioner, not being a candidate at the election lacked the requisite locus standi to present her application under section 133 (1) of the Electoral Act, 2002. It provides:

“133(1) An election petition may be presented by one or more of the following persons –

(a) a candidate at an election;

(b) a political party which participated at the election.”

The wordings of section 133(1) of the Act is clear and unambiguous. It should be given their ordinary grammatical meaning. See Owena Bank (Nig.) PIc. v. NSELtd. (1997) 8 NWLR (Pt. 515). Under the section of the Act to have requisite locus standi, you must either be a candidate at the election or a political party which participated at the election. I find the interpretation of S. 131 (1) of the Act by the Supreme Court in a very recent case of General Muhammadu Buhari & Anor: v. Alh. Mohammad Dikko Yusuf & Anol: (2003) 14 NWLR (Pt. 841) 446 quite supportive. In the deciding judgment of the court Uwaifo, J.S.C. in his judgment at pages 13 – 14 held as follows:

“It is imperative that the present petition, the procedure laid down in the Act be strictly complied with except to the extent that it is relaxed or waived under section 49(1) of the First Schedule to the Act. Section 131(1) of the Act requires that the person elected or returned be joined as a party. Section 133 which I earlier reproduced provides in subsection (1) for persons who may present a petition. It is either one or both of (a) a candidate at an election, (b) a political party which participated at the election. No other person may do so”

(italics is for emphasis)

Also in the judgment Ayoola, J.S.C. had this to say:

“Normally, by virtue of sections 131 and 133 of the Act the parties to an election petition are the petitioner or as the case may be, petitioner who is a candidate or are candidates at an election or a political party which participated at the election.”

Considering the exposition given by the learned Justices of the Supreme Court and the clear provision of S. 131(1) of the Electoral Act, 2002, it goes without saying that to qualify as a petitioner for the purpose of presenting an election petition, the petitioner must have contested the election he or she is challenging.

The question is whether the Appellant was a candidate at the election she is now challenging. By paragraphs 2, 30 and 31 of her petition, the petitioner pleaded thus:

“2. Your petitioner states that the election was held on Saturday 12th April, 2003 when Hon. Babatunde Oduyoye was named as the nominated candidate instead of the Petitioner, Dr. (Mrs.) Bukola Idayat Adebusuyi as the candidate for the Alliance for Democracy (hereinafter called “AD”) party for Ibadan North West South West Federal Constituency for the House of Representative election.

Your petitioner states that despite her formal protests and the letters of confirmation of her name to the 2nd and 3rd respondents, the 2nd and 3rd respondents neglected, failed and/or refused to effect necessary changes on the list up to the date of the election on 12th April, 2003, and it was the name of the 1st respondent who was placed on suspension by his party that was wrongfully and illegally published on the list of candidates for the election.
Your petitioner states that despite her formal protests and the letters of confirmation of her name by the A.D. Party Secretariat in Oyo State, and the suspension of the 1st respondent that was issued with form EC.8E(I) – “Declaration of result of election” by the 2nd and 3rd respondents.”

Besides, the fact that the appellant was not a candidate at the election, and that she never contested for the seat she is now challenging is clearly borne out of her own evidence and that of her witness, one Olufemi Akinbiyi who testified as 4PW.

The petitioner as 1 P. W. said:

“The second list was released after objection and withdrawals. My name was not on the final list. The final list did not reflect the list sent by A.D. Oyo State which contained my names. I was informed by colleagues that my names were dropped at INEC. I went to INEC to verify. My name was not there but that of 1st respondent was on the final list and that was the list used for the election.”

On his own part 4PW said “As at the time of election the AD Headquarters Abuja wrote to us on the change of candidates and that last letter represented the petition as at the time we went for the election. The letter is in the office. We adhered to the instruction of the letter. We identified the winner of the election by their political party’s symbol. At the end of election we issued a form EC8E1 to the 1st respondent. This is the Form EC8E1. Tendered. No objection.

Tribunal – Form EEC8E(1) for 1st respondent to be exhibit N .”

In view of all this, at the conclusion of evidence the tribunal held that the 1st Respondent was the person nominated and sponsored by the AD for the election into the Ibadan North West/South West Federal Constituency in the House of Representatives election held on 12/4/2003.

To correctly give effect to the provisions of section 133(1) of the Electoral Act is to hold that the petitioner was not competent to present an election petition. The scope of the section cannot be extended. Since the word “candidate” has not been defined in the Act, it could not be said to mean and refer to a person who had the intention to contest an election but who was not allowed to contest. The case of Azi Nyako v. Balewa (1965) NNLR relied upon by the tribunal is not relevant to the situation in the instant case. That case was predicated on section 91(1) of the Electoral Act of 1962 on the right of the petitioner to present an election petition. It provides thus:

“91 A petition may be presented by one or more of the following person:

(a) A person whose name is in the register of electors;

(b) A person claiming to have had a right to be elected or to be returned at the election; or

I wish to observe that section 221 of the 1999 Constitution shows that a political party must have a candidate for an election and not that a political party contested an election. By her own showing in paragraph 31 of the petition reproduced already above it was the 1st respondent that contested the election. Consequently since petitioner did not contest the election she cannot present a petition.

Apart from the above complaints on jurisdiction the question is whether from the facts and evidence adduced the petitioner’s case relates to an intra-party affair on which the tribunal can adjudicate. The tribunal reached a conclusion that a decision as to the candidate nominated by the Alliance for Democracy for the election of 12/4/ 2003 as between – the appellant and the 1st respondent was an intra-party affair or which the tribunal cannot dabble into. The appellant has argued in her brief that the case before the tribunal was not an intra-party affair. Rather that the issue is for enforcement of the right of the appellant as the candidate who was cleared to contest the election and should have been declared the winner. The relief claimed by the appellant as contained in paragraph 44 of her petition is a challenge against the nomination by and sponsorship done by AD as a party. Her complaint relates to a political question. This is strengthened by the consideration of the documentary pieces of evidence tendered by the parties. For instance the petitioner tendered exhibits A, B, F, G and I as evidence of the fact that the Alliance for Democracy, Oyo State Chapter nominated her for the election. The 1st respondent also tendered exhibits Q, R, S, T, TI and U as evidence of the fact that the National body of the Alliance for Democracy nominated and sponsored him for the same election, which he won.

As I have observed earlier, the relevant question which the court must first determine before even considering who contested the election and the validity of nomination is who can nominate and sponsor a candidate for the April election. Is it the National body of the AD or the Oyo State Chapter? This question no doubt is a political question which the court cannot answer. It touches on intra-party affairs.

I do not see how an election tribunal would be called upon to determine dispute over primary election within the political party for the selection or nomination of a candidate to contest election on the platform of political parties. This is what the appellant is asking the court to do as she felt she was unlawfully substituted by her party in favour of the 1st respondent. See NEC v. N.R.C. (1993) 1 NWLR (Pt. 267) 120; Owuru v. INEC (1999) 10 NWLR (Pt. 622) 210 and Bakamv. Abubakar (1991) 6 NWLR (Pt. 199) 564.

I have carefully followed appellant’s argument in her brief that once a person has been nominated by his political party he acquired a vested right which he cannot be wished away. Reliance was placed as the case of Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt9) 734. It would appear this is a chieftaincy case which may not bear much relevance to an election petition matter. Again it was strenuously argued by the appellant that once a candidate has been nominated, his nomination is beyond the political party. It would appear that this argument was proffered without regard to section 23 of the Electoral Act of 2002 which provides that:

“Any political party which wishes to change any of its candidates for any election under this Act may signify its intention in writing to the Commission not later than 30 days to the date of Election.”

The case of Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618 cited and relied on by the appellant is not relevant to the instant case. It was decided on its own peculiar situation. The reasoning in that case was predicated or the provisions of Local Government (Basic Constitutional and Transition) Decree No. 36 of 1998 paragraph 7(2) of the 4th Schedule which provides:

“No candidate who has been screened and cleared to contest an election shall be prevented from contesting the election except the candidate dies or voluntarily withdraws his candidature.”

The Electoral Act, 2002 does not contain similar provision save what has been reproduced from section 23 of the said Act of 2002 above.

This being so, under the present situation a political party has the right to change a candidate before the election in the exercise of that right. Alliance for Democracy issued exhibits Sand S 1 to say that 1st respondent was the party’s candidate for the election. Exhibits S and S 1 were issued 31 days to the election in compliance with section 23 of the Act.

For the reasons stated above and those more elaborately set out in the leading judgment, I must also dismiss this appeal. I make consequential orders inclusive of those as to costs as contained in the lead judgment.

MIKA’ILU, J.C.A.:

I do agree with lead judgment delivered by my learned brother, V. A. O. Omage, J.C.A. The issue of locus standi of the appellant is very crucial. Under section 133(1) of the Electoral Act, 2002 a party competent to present an election should either be (a) candidate at an election or (b) a political party which participated at the election. The appellant under paragraph 30 of her petition has herself made it clear that her name was not on the list of the candidates of the election up to the date of the election, 12th April, 2003. As her name was not on the list of candidates on the election day she cannot therefore be said to be a candidate at an election. She has therefore no capacity to sue. Moreso the petition itself discloses that the issue involves a dispute within her party not entertainable by the election tribunal.

I agree that the appeal has no merit. I dismiss it with the same order as to costs as in the leading judgment. Appeal dismissed

3PLR – BUKOLA IDAYAT ADEBUSUYI V. BABATUNDE ODUYOYE

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