Faleke v Bello: Summarised Points of Law on Locus Standi and Time To File Petition

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HONOURABLE JAMES ABIODUN FALEKE v. H.E. ALHAJI YAHAYA BELLO

 

(Summarised Points of Law)

 

  1. WHO CAN PRESENT A PETITION:

This raises the issue of locus standi, that is, the legal capacity of a person to institute an action in a Court of law. The question then is, who has the right to institute an action/present a Petition when a cause of action arises from the conduct of an election.

The trial Tribunal, in its decision delivered on 6/6/16 held that Hon. James Abiodun Faleke lacks requisite capacity to present a petition. This excites interest and we believe that the intervention of the appellate Court becomes necessary in a determination of whether the trial Tribunal was right or erred in law.

It is must be noted that the issue of locus standi in election causes are matters decided upon constitutional and statutory construction. For the purposes of agitating the mind and while awaiting appellate intervention a brief check into the state of the law in this regard will not be out of place.

In recent election history, persons who can present election petition includes a person who voted at an election or who had a right to so vote. Furthermore, a person who claims to have a right to be elected or returned at an election will also have the right to present a Petition (See Section 89 of the State Government (Basic Constitutional and Transition Provisions) Decree No. 50 of 1991).

The right to present an election petition against the conduct of election into the office of Governor as at 1991 thus enures not only in favour of a candidate at the election. Indeed, then a person who did vote at the said election or who was registered to vote at the said election had requisite locus and may present an election petition.

At the inception of the present democratic experience, the right to present an election Petition was amended. As such, the class of person who may present a petition includes a candidate at an election and a person claiming to have had a right to contest or be returned at an election (See Section 133 (1)(a)(b) of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999).

Pursuant to the foregoing, it does appear that in an election into the office of Governor of State in 1999, where any reason to so do arise, a candidate at the said election may file a Petition. Furthermore, any person claiming to have had a right to contest or be returned at the Governorship election had locus to institute legal action at the election tribunal.

To avoid boring you with too many details, a leap from the state of the law in 1999 into what was obtainable in the year 2006 seems appealing. The position as espoused in the Electoral Act, 2006 thus becomes needful.

In the year 2006, the class of persons statutorily deemed to be seised of requisite locus to present election petition includes a candidate in the election complained of and a political party which participated in the said election (See Section 144(1) (a) and (b) Electoral Act, 2006).

Furthermore, to exact on time the extant Electoral Law requires a check in relation to who has requisite locus to present a petition. The current position is in tandem with what was obtainable in the 2006 statute. As such, the class of persons who may file an election petition now includes a candidate at the election complained of as well as a political party which participated in the said election (Section 137(a) and (b) Electoral Act, 2010 (as amended)).

A quick recourse to the foregoing reveals that in Nigeria’s electoral jurisprudence there has been transition from assigning the right to sue generally to voters at an election (or registered to so do) to candidates and participating political parties. This becomes necessary in determining what mischief the legislature sought to cure in making the stated amendments.

A question which further begs answer in resolving what mischief the legislature sought to cure is whether any difference exists between a candidate at an election and the person who claims to have had a right to contest and be returned at the election.

One may be quick to respond that the mischief sought to be cured is to restrain the general public (registered voters) from flooding the tribunal with frivolous petitions. The need to restrain the class of persons who may present an election petition may however not account for asserting a difference between ‘candidate at an election’ and ‘persons claiming to have had a right to contest or be returned at an election’. As the use of the terms ‘candidate at an election’ and ‘person who claim to have a right to contest or be returned at an election’ may be a distinction without a difference!

It does appear that the mischief cured by removing ‘persons claiming to have a right to contest or be returned at an election’ and limiting same to ‘a candidate at an election’ is premised on the fact that a person who contested in an election and the person who claims to have a right to contest or be returned in an election may be deemed to be candidates at the election. The mischief cured may thus not be to restrain persons who claim to have had a right to contest or be returned at the election from filing a Petition but to actually merge the two terms and deemed both class of persons as candidate at the election.

In a judicial interpretation of Section 144(1) of the Electoral Act, 2006 which is in pari materia with the provisions of the extant Electoral Act, 2010 (as amended), a person who did not in fact contested on the day of poll/election on grounds of unlawful exclusion has been deemed to be a candidate at the election for the purpose of filing a Petition (P.P.A. v. Saraki (2007) 17 NWLR (Pt. 1064)453 @ 519-521, Paras. E-C). Such class of person had approached the Tribunal on grounds of having a right to contest at the election. Indeed, the Court had held that the issue of not being voted for at the election is not an impediment towards such class of persons from bringing a Petition (Idris v. A.N.P.P. (2008) 8 NWLR (Pt. 1088)1 @ 101-102, Paras. G-B). This buttresses the fact that what the legislature sought to achieve was to merge the said class of persons earlier recognised in electoral statutes as candidate at the election.

Having gone on this voyage to present a brief insight into the state of the law on the issue of who has the right to sue/present a Petition, it is imperative to state that in a just and judicious determination of who in law will have the right to present a Petition, the right will enure not only in favour of the person who was voted for on the day fixed for the election but the person who had a right to be voted for at the said election.

The question that now begs answer is whether a Deputy-Governorship Candidate can file an election petition in view of extant statutory provisions. Putting it more aptly, whether a Deputy-Governorship candidate is ‘a candidate in an election’ within the meaning of Section 137(1)(a) Electoral Act, 2010 (as amended).

It is settled law that a candidate at an election is a person who has been nominated by his party to the Independent National Electoral Commission (PPA v. Saraki (supra) @ 509, para. E). This raises the issue of nomination.

Pursuant to the provisions of Section 87(1) of the extant Electoral Act, candidate at an election shall be nominated at the party primary. One may then be quick to say that having not been nominated at the party primary, a Deputy-Governorship candidate is not a candidate at an election. This, in my view constitutes a narrow and exclusive interpretation. This view is hinged on the premise that the makers of the extant Electoral Act adopted this measure in view of the doctrine of covering the field. This is much more so where election into the office of Governor of a State is in issue. The field had already been covered by virtue of the provisions of the first part of Section 187(1) 1999 Constitution of the Federal Republic of Nigeria (as amended).

A candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor (Section 187 (1) of the Constitution (supra)).

 The trial tribunal, in its 6th June Judgment had held that the provision of Section 187(1) of the Constitution (supra) was not made in contemplation of a situation where there is no return or the election is inconclusive. With the great respect to their Lordships of the trial Tribunal, this strand of their decision fails to take cognisance of the essence of Section 187(1) of the Constitution (supra). It is my view that for the purpose of nomination and contest at an election into the office of Governor of a State in Nigeria, there can be no single candidacy! The essence of the said Section 187(1) is that for the purpose of nominating candidate to contest in a Governorship election, a political party must present a joint ticket comprising of two persons. The trial Tribunal in my view merely departed from following the doctrine of stare decisis on a point which has been settled by the apex Court in P.D.P v. INEC (1999) 11 NWLR (Pt. 626)200 @ 239-240, Paras. H-A. There, the apex Court makes it clear that for the purpose of contesting election into the office of Governor of a State the candidacy is joint and inseparable.

It is thus clear from the foregoing that a Deputy-Governorship candidate is a candidate at an election into the office of Governor of a State. This makes it easy to conclude that a Deputy-Governorship candidate is a candidate at an election within the meaning of section 137(1) of the extant Electoral Act.

Honourable James Abiodun Faleke, the Deputy-Governorship candidate of the All Progressive Congress at the election into the office of Governor of Kogi State conducted on the 21/11/2015 is thus a candidate at the said election within the meaning of section 137(1) of the extant Electoral Act. He is thus seised with requisite locus to present the Petition as he did.

  1. TIME WITHIN WHICH TO FILE A PETITION:

 

Election petitions are sui generis (that is, in a class of its own) and it is trite that the slightest default in complying with a procedural step, which otherwise could either be waived or cured in an ordinary case could result in fatal consequences to the Petition (Maitsidau v. Chidari (2008) 16 NWLR (Pt. 1114)558).

The issue of time within which to file an election Petition is such that must be adhered with in strict compliance, otherwise the petition becomes statute barred.

In its decision, the trial Tribunal was of the opinion that since the grievance of Honourable James Abiodun Faleke is hinged on the conduct of the 21/11/2015 election, his cause of action ought to have arisen on 22/11/2015. As such, he lacks reasonable cause of action.

It is settled law that in a determination of whether an action is statute-barred, recourse will be had to the originating process (Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490 @ 522, Paras. F-G). In this case, recourse will be had to the Petition.

A careful digest of the Petition filed by Honourable James Abiodun Faleke on 21/12/15 and particularly reliefs sought at paragraph 56(vi), (vii), (viii), (x) and (xii) thereof reveals that the crux of the said Petition borders not only on the election conducted into the office of Governor of Kogi State on 21/11/2015 but extends to challenge the purported election supposedly conducted into the office of Governor of Kogi State on 5/12/2015. A cause of action thus arose when the Independent National Electoral Commission (INEC) conducted a purported election into the office of Governor of Kogi State on 5/12/2015. Furthermore, the Petition from the foregoing raises a challenge to the Certificate of Return issued to Alhaji Yahaya Bello on 7/12/2015. Another cause of action thus arose on 7/12/2015. While these trend best suits an ordinary civil suit, the essence in an election petition is determined by a simple construct of the provisions of Section 285(5) of the extant Constitution.

In its decision, the trial Tribunal approbated that no right can accrue from an inconclusive election. It however then reprobated that the cause of action arose on 22/11/2015. It must however be said that the trial Tribunal’s position that that no right accrued on an election declared inconclusive simply means that no right accrued to anyone to sue from the election declared inconclusive on 21/11/2015.

It is settled law that in the construction of a Statute, the primary function of the Court is to interpret the words used by the legislature (A.-G., Federation v. Abubakar (2007)1 @ 92, Para. D). Premised on this, the provision of Section 285(5) of the extant Constitution calls for scrutiny:

           “285. (5)       An election Petition shall be filed within 21 days after the date of the declaration of the results.” (Underlined for emphasis)

A construct of the provisions of the Section 285(5) in issue makes it clear that in a determination of when a Petitioner may file its petition, recourse must be had to the date the result of the election was declared. It thus go without much ado that the Petition must be filed within 21 days after INEC has returned and declared a person as winner of the election conducted into the office of Governor of Kogi State (A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt. 743)706; Kumaila v. Sheriff (2009) 9 NWLR (Pt.1146)420 @437, Paras. E-H).

It follows therefore that for the purpose of determining when to file a Petition challenging the conduct of election into the office of Governor of Kogi State, time will begin to run from the date the Independent National Electoral Commission (INEC) issued the result of the election. It is only after the return and declaration of Alhaji Yahaya Bello by the INEC that he can be made a Respondent to the Petition.

The Petition, having been filed on 22/12/2015 cannot then be said to be statute-barred.

– Oluwole Oladimeji, Esq

 


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