General Muhammadu Buhari & Anor. V. Alhaji Mohammed Dikko Yusuf & Anor (2003)
LAWGLOBAL HUB Lead Judgment Report
O. UWAIFO, J.S.C.
This is an election petition in respect of the presidential election held on 19 April, 2003 pending at the Election Tribunal constituted by the Court of Appeal, Abuja Division, hereinafter referred to as “the Tribunal”. The petition was filed by Alhaji Mohammed Dikko Yusuf and the Movement for Democracy and Justice (MDJ), a registered political party. Alhaji Yusuf contested the presidential election under the MDJ party and lost.
Apart from making Chief Olusegun Aremu Okikiola Obasanjo who was elected or returned at the election as the 1st respondent, the petitioners also joined as 2nd, 3rd and 4th respondents respectively the Peoples Democratic Party (PDP), the party under which Chief Obasanjo contested, General Muhammadu Buhari who contested the election but was not returned and the All Nigeria People’s Party (ANPP), a party under which General Buhari contested. In addition, all the other 17 candidates who contested and lost together with their respective parties and the Alliance for Democracy (AD) which fielded no candidate at the presidential election were joined as the 5th-39th respondents respectively. Furthermore, the Independent National Commission (INEC), the Chairman of the Commission (Dr. Abel Guobadia, as Returning Officer) and the Resident Electoral Commissioners in 14 of the States of Nigeria were joined as the 40th-55th respondents. Finally one Dr. Ndidi Okereke-Onyiuke described as Co-Ordinator, Corporate Nigeria was joined as the 56th respondent.
General Buhari and the ANPP as, 3rd and 4th respondents in the proceedings at the tribunal applied to be struck off the petition on the ground that their joinder offended the provision of section 133(2) of the Electoral Act, 2002 (the Act). They argued that they were not necessary parties as envisaged by that provision. The record of proceedings shows that against that contention, the substance of the petitioners’ argument was stated thus, inter alia:
“We are opposing the application because in an election petition in which the entire election is sought to be voided, all the parties that score votes in the election are necessary parties to the petition … If we do not join the 3rd respondent in this petition in the event that election of 1st respondent is voided, then the court will look for the person who scored the highest votes next, which is the 3rd respondent. We cited the 3rd respondent in our petition in paragraph 17 … I urge the court to hold that the present election in which 19 candidates contested, each of them recording votes, a petition seeking to void the entire election is directed not solely at the winner, but also other candidates. They should therefore be made parties, particularly in this case there is a complaint against the 3rd respondent.”
The tribunal appeared to have found the petitioners’ argument valid. It held that since the petition contained allegations against the 3rd respondent, there was an issue of fair hearing involved, having regard, in particular to a prayer sought against him, which the tribunal thought would make the 3rd and 4th respondents proper parties to the petition, and which reads as follows:
“WHEREFORE your petitioners pray jointly and severally that –
(3) IT MAY BE DETERMINED THAT A FRESH ELECTION be held (excluding the 1st and 3rd respondents and their political parties who are disqualified from being fielded or from sponsoring candidates as the case may be by reason of their disqualification and contravention of the Electoral Act, (2003) in accordance with the provision of the Electoral Act, 2003”. (sic: 2002).
In the ruling by Abdullahi, PCA, the learned President held that “to respect the time honoured principle of audi alteram partem, the 3rd respondent ought to be given opportunity to defend the assertions made by the petitioner in paragraph 17 of the petition. In the same ratio, the 4th respondent ought to remain a party since it sponsored the 3rd respondent, particularly in view of the … prayer being sought by the petitioner in paragraph 3 of the petition.” The tribunal refused to strike out the said paragraph 17.
It is no warrant for bringing in a candidate who lost an election as a respondent because the petitioner has some allegation against him which he wishes to use in his petition as a weapon; or for retaining such candidate in the petition because of the principle of audi alteram partem, so that he would be heard in defence of the allegation. It is basic that the issue of a right to fair hearing for a party will not arise unless there has been compliance with section 133(2) of the Act which ensures that he is a necessary party. That means, of course, that no allegation can be allowed to be pleaded or made against a person if he is not a necessary party to the petition, or someone who will need to be called as a witness. But if he is a necessary party, it would offend against the rule of natural justice to dispose of the question involved in a manner to affect his interest without giving him an opportunity of being heard. That was the sense it was reasoned in election petitions, first by Obaseki, JSC in the case of Obih v. Mbakwe (1984) 1 SCNLR 192 at 204; and later by Belgore, JSC in the case of Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 397. In the former case, the question arose whether an incumbent Governor could be proceeded against as the respondent in an election petition since section 267 of the 1979 Constitution gave him immunity against civil or criminal proceedings. In reacting to a submission in that regard, after Obaseki, JSC recited section 121(2) of the Electoral Act, 1982 (similar to section 133(2) of the Act in question in this appeal), he said:
“It is clear from this section 121(2) of the Electoral Act, 1982 that the 1st respondent being the successful candidate is not the only statutory respondent. The Chief Federal Electoral Officer and the Returning Officer are also statutory respondents. As he is not the only party to the election petition, if his name is struck out of the petition enquiry, hearing of the question can still proceed
but as his right to hold the office is questioned, will it not offend against the rules of natural justice to dispose of the question without giving him an opportunity of being heard I think it will. The effect of the submission of Chief Williams being upheld is that section 121(2)(a) will be held to be in conflict with section 267(1)(a) of the Constitution and therefore void in so far as incumbent Governors whose re-elections are questioned are concerned.”
In the latter case, Belgore, JSC made reference to section 50(2) of the Presidential Election Decree, 1999 also similar to section 133 (2) of the Act, and said:
“Every person against whom an allegation is made must be confronted with that allegation so that he can offer his defence. That is the purport of section 50(2) of the Decree No.6 of 1999 (supra). The petitioner who complains that an electoral officer, a presiding officer, a returning officer or any other person involved in the election by conduct has initiated the election must presume that officer etc. as a necessary party and must make him a party. In paragraphs 9, 10, 12, 13, 14, 15, 16, 17, 18 and 19 of the petition (the petitioner) made many serious allegations including fraud and other electoral offences but the electoral officers, returning officers etc. have not been made parties i.e. respondents to the petition.”
Paragraph 17 of the petition in question which the tribunal held contained allegations upon which the 3rd respondent ought to be heard is as follows:
“17. DISQUALIFICATION OF 3rd RESPONDENT RENDERING THE VOTES CAST FOR HIM INVALID AND VOID.
(a) Your petitioner states that 3rd respondent was at all times material a public officer by virtue of being a member of the Council of States – an executive body created under section 153 of the Constitution of the Federal Republic of Nigeria.
(b) A past Head of State of Nigeria is entitled to automatic membership of Council of States for life under paragraph 5 (c) of Part I of the Third Schedule to the 1999 Constitution.
(c) At all times material to this petition and on or about 8th day of April, 2003, (the exact date of which your petitioners cannot immediately recollect, but which was a matter of public knowledge and lavish media coverage), the 3rd respondent, despite having been nominated and cleared as a presidential candidate in the election, the subject-matter of this petition, attended a meeting of the Council of States along with other ex-heads of state by virtue of being a member thereof and not otherwise; and not being a sitting president or former president entitled to seek re-election for a second term since the coming into force of the Constitution of the Federal Republic of Nigeria 29th May, 1999.
(d) The meeting was held in the Presidential Villa, in Abuja FCT at which 1st respondent presided as chairman; and the date was less than thirty days before the date on which the election was to hold; yet the 3rd respondent did not withdraw or renounce his membership of the said public office as required under section 137(1)(g) of the 1999 Constitution, in order to avoid disqualification as a candidate at the elections.”
The said 3rd and 4th respondents to the petition, now appellants have called upon this court to determine whether they were properly joined in the petition as respondents. A second issue, whether the petition itself was competent, was abandoned as a result of the concession made to that issue following the preliminary objection raised by the respondents to the appeal. The subsisting issue, “whether the appellants were properly joined in the petition,” was argued under two grounds of the objection stated thus:
“1. The notice of appeal herein and the subsequent processes were not endorsed for service on necessary parties who participated in the proceedings which is the subject-matter of this appeal contrary to Order 2 rule 1(3) of the Supreme Court Rules.
- Appellants did not raise an objection to and the lower court did not rule on the competence of paragraph 17 of the petition in the lower court; whereas ground three of their notice of appeal complains about failure of the lower court to strike out paragraph 17 of the petition.”
It is sufficient for me to deal only with ground 2 at this stage. Ground 1 will be resolved later. I find no merit in ground 2 for the simple reason that the tribunal having refused to strike out paragraph 17 of the petition, the appellants have in ground 3 of their grounds of appeal complained that the refusal was an error in law in that the allegations in paragraph 17 were irrelevant to any of the grounds upon which an election may be questioned under section 134(1) of the Act. That is a proper ground of appeal, in my view, upon the circumstances of the refusal of the tribunal to strike out appellants from the petition. The issue based on the said ground 3 is, in my view, unimpeachable.
In regard to the appeal itself which I now turn attention, the central argument of the appellants as advanced by their counsel Chief Ahamba, SAN, is that an election petition being sui generis I governed by a particular law enacted for that purpose with its peculiar provisions which must not be negated by some civil procedure rules. The petition should be between parties strictly within those prescribed in section 133 of the Act. The learned Senior Advocate has also argued that the ejusdem generis rule be applied in the interpretation of subsection (2) of the said section 133, citing Jamal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 8 NSCC 619; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, (1983) 14 NSCC 266.
I do not intend to spend much time on ejusdem generis rule. I have read the two authorities cited and would like to say that I do not find them useful on the question of how that rule may apply to this case. In the Bronik case (supra) the way the rule was applied in the Jamal’s case was discussed at length but nothing can be found from that discourse which might assist in the present case as to the appropriateness of that rule. Ejusdem generis rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words which follow special words as used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore, general terms following particular ones apply only to such persons or things as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms. In other words, the general words or terms are to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended: see Maxwell on the Interpretation of Statutes, 12th Edn, page 297; Fawehinmi v. Inspector-General of Police (2002) 7 NWLR (Pt.767) 606 at 683.
I am unable to accept the argument that the ejusdem generic rule will be of help in the interpretation and proper understanding of section 133(2) of Act. The entire section 133 provides as follows:
“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.
(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
It seems to me that if the ejusdem generis rule were to be applicable, then the expression “any other person who took part in the conduct of an election” would have to be restricted to the INEC officials who took part in the conduct of an election. In my view, such restriction could not be justified in the case, for example, of a police officer who was assigned the duty to ensure orderly, peaceful and free conduct of an election in a constituency but assisted instead to stuff ballot boxes with unlawful ballot papers. He is a necessary party who by his role in the conduct of the election can be made a respondent even though not an INEC official because he reasonably falls into the category of “any other person who took part in the conduct of an election” that category of persons can be identified from the mere understanding of that phrase without necessarily linking them with INEC officials, or without their being INEC officials through the ejusden generis rule application.
Notwithstanding my view that the ejusdem generis rule is uncalled for here, it is necessary to recall that the submission of Chief Ahamba is that an election petition can be brought against a person elected or returned who is then regarded as the respondent but if the petition complains of the conduct of certain INEC officials and any other person who took part in the conduct of an election, they are necessary parties to be joined in the petition.
Learned counsel for the respondents, Mr. Owonikoko, has argued that section 133(2) should be read along with paragraphs 4(1)(a) and 45 of the First Schedule to the Act. Upon such reading, he contends, the true intendment of section 133(2) will be that an election petition can be filed in which the winning candidate and other candidates who lost are made respondents. According to him, they are all interested parties in the petition, by virtue of paragraph 4(1)(a); and that two or more candidates may be made respondents to the same petition, by virtue of paragraph 45.
An election petition is heard and determined by an appropriate election tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under section 285 and the Sixth Schedule to the Constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case: see Onitiri v. Benson (1960) SCNLR 314 at 317. It is plain that the proceedings are special for which special provisions are made under the Constitution: see Oyekan v. Akinjide (1965) NMLR 381 at 383, a decision of this court. Election petitions are distinct from the ordinary civil proceedings: see Obih v. Mbakwe (supra) at p.200 per Bello, JSC; at p. 211 per Eso and Aniogolu, JJSC.It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Examples are: Benson v. Allison (1955-56) WRNLR 58; Eminue v. Nkereuwen (1966) 1 All NLR 63 which were decided on failure to give security before presenting a petition as required by the rules; Ige v. Olunloyo (1984) 1 SCNLR 158, decided on application to amend the prayers sought in a petition, which application was brought after the time allowed for filing the petition. So an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It can be regarded as a proceeding sui generis.
It is imperative that in 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 paragraph 49(1) of the First Schedule to the Act. Section 131(2) 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. In the same vein, those who shall be joined to defend the petition in accordance with subsection (2) are the person whose election (or return) is complained of, referred to as the respondent and any of the INEC officials mentioned in the subsection or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. All such persons are regarded as the statutory respondents, and who only, in my view, qualify as the necessary parties. I think even a cursory reading of Obih v. Mbakwe (supra) at p. 204 A-B and Egolum v. Obasanjo (supra) at 397B-C must reveal a total support for this view.
The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication: see Ogbunyiya v. Okudo (1976) 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139. Again, going by the principle of community construction of the provision of a statute, it is useful to consider some relevant provisions of the Act that may help in the proper understanding of those in contention: see Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377; Aqua Ltd v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) 622 at 641-647; Salami v. Chairman L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 at 550-551. It will therefore be necessary to consider related sections of the Act as well as paragraphs of the First Schedule thereto to ascertain whether the appellants were necessary parties to the petition as envisaged by section 133 of the Act.
The learned counsel for the respondents, Mr. Owonikoko, has placed reliance on paragraphs 4(1)(a) and 45 of the First Schedule to the Act to argue that all those who contested the election even though not elected are parties interested to be made respondents. Para.4 (1)(a) states –
“4(1) An election petition under this Act shall –
(a) Specify the parties interested in the election petition.”
In my view, the persons who can justifiably be regarded as parties interested in the election petition are the petitioner(s) and the statutory Respondent(s). It will make no sense to use the phrase “parties interested” loosely without regard to S. 133(2) of the Act as this may justify for instance, the inclusion of the family members of candidates who contested and even persons who voted by claiming to be close to such candidates and therefore interested in the petition.
As for para. 45 relied on by Mr. Owonikoko it reads:
“45. Where two or more candidates may be made respondents to the same petition and their case may, but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents.”
Again, this provision envisages that the inclusion of such multiple “respondents” in the same petition shall be deemed to have made the election petition a separate petition against each of the respondents. But by section 131(1) of the Act, it is only an election or, return of a candidate that can be questioned by a petition in which the person elected or returned is joined as a party. See also section 133(2) which talks of the person whose election is complained of; it is such a person that is referred to as the respondent. It is therefore clear that the deemed separate petition arising from the operation of para.45 of the First Schedule to the Act must be in regard to each of the respondents elected or returned in the election in question. Such will normally happen only where multiple candidates within the same electoral area are returned or elected in their respective constituencies, for example, National Assembly candidates. A petitioner, say, a political party which participated in the election may file a single petition against those elected or returned candidates but the election petition “shall be deemed to be a separate petition against each of the respondents”.
Otherwise how can an election petition be deemed to be against each or any of the respondents who lost the election What would the cause of action of the petitioner be based on if he were to file or be deemed to have filed a separate petition against a candidate who did not win an election
In further pressing the purpose of para.45, Mr. Owonikoko argued that multiple respondents, including candidates who lost an election, would need to be before the tribunal as parties so that in an appropriate case section 136(2) of the Act could be applied to adjudge the next candidate to the respondent whose election is voided and to declare him elected if he satisfied the necessary conditions. Section 136(2) reads:
“(2) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the
Constitution and this Act.”
I do not think para. 45 is intended for that purpose at all. It is under para. 4(1)(c) that the particulars of candidates and the votes they scored should be specified in the election petition. It says,
“4 (1) An election petition under this Act shall –
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election.”
A provision similar to para.45 of the First Schedule to the Act can be found in subsection (9) of section 13 of the now repealed Municipal Elections (Corrupt Practices) Act, 1872 of England. It has been given judicial consideration and interpretation. In Lovering v. Dawson, Walker and Poulton (No.1) (1875) 10 LR. CP 711, that provision was considered. At page 718, Lord Coleridge, C.J. with whom Brett, Grove and Lindley, JJ agreed, observed as follows:
“Subs. 9 of S.13, which provides that two or more candidates may be made respondents to the same petition, and their cases may be tried at the same time, but for all purposes of this Act such petition shall be deemed to be a separate petition against each respondent, confirms the argument arising from earlier provisions. It is plain, as it seems to me, that, when they are made respondents, it must mean in a petition complaining of the undue election of the persons against whom the petition is presented.”
That is exactly what I have demonstrated that para.45 can mean upon a proper understanding.
That same case, Lovering v. Dawson, Walker and Poulton (supra) supports my view that this appeal ought to succeed. The case dealt with a similar problem as the one in the present appeal. I need not state the facts since they are reflected in the observation of Lord Coleridge, CJ, other than say (1) that the election petition in that case was brought on a provision similar to section 133 under consideration in this appeal; (2) that a person who lost election was joined as a respondent in an election petition brought against those who were elected or returned; (3) that objection was taken at the hearing of the petition to his joinder by the person who lost but was overruled; (4) that an appeal was taken in respect of the joinder. At pages 716-718, which I shall set out, in extenso, as it is in the report of the judgment, Lord Coleridge said inter alia:
I am of opinion that our judgment in this case should be for the respondent. This a municipal election petition for the borough of Maidenhead. The petition was against three persons who had been candidates at the election, two only having been elected, the third having coalesced and canvassed with them, but not having succeeded. No question arises as to Dawson and Walker, who were properly found guilty of bribery. The only question is as to Poulton, who objected at the trial before the barrister appointed to try the petition that he had no seat to defend, and ought not to have been joined as a respondent. The barrister, however, allowed the case to go on in the form in which it was presented to him, and has stated the facts in a special case, reserving to us the question whether, under the Municipal Elections (Corrupt Practices) Act, 1872, Poulton was properly made a respondent in the petition: and he goes on to direct that, in the event of the court being of opinion that he was so properly joined, then he was to pay to the petitioner his proportion of the costs of and incidental to the petition, in common with Dawson and Walker; but that, in the event of the court being of opinion that Poulton was improperly joined as a respondent, he was to receive his costs of and incidental to his defence. The whole question arises upon the words of the statute. I am of opinion that Poulton could not properly be so joined ….. The Act of Parliament upon which this question turns has been very elaborately argued before us; every provision that could throw any light, however remotely, upon it has been brought to our notice and carefully considered. The second part of the Act, which deals with election petitions, commences at s.12, which enacts that “the election of any person at an election for a borough or ward may be questioned by petition before an election court constituted as herein after in this Act provided, and hereinafter in this Act referred to as the ‘court,’ on the ground that the election was as to the borough or ward wholly avoided by general bribery, treating, undue influence, or personation, or on the ground that the election of such person was avoided by corrupt practices or offences against this Act committed on the election, or on the ground that he was at the time of the election disqualified for election to the office for which the election was held, or on the ground that he was not duly elected by a majority of lawful votes.” Sect. 13 enacts a sort of procedure, “The following provisions shall have effect with reference to the presentation of a petition complaining of an undue election”, when the section speaks of a petition complaining of an undue election, it manifestly did not contemplate making any person a respondent except a person petitioned against. It begins by setting out who may present a petition, and states that the petition shall be in the prescribed form. The prescribed form does not contemplate making anyone a respondent except with reference to the due or undue return of the party petitioned against. The section goes on, “The terms ‘petitioner’ and ‘respondent,’ as hereinafter used in this Act include respectively anyone or more persons by whom a petition is presented, and anyone or more persons against whose election a petition is presented.” Poulton is not a person against whose election this petition was presented … There are other provisions in the Act which look the same way. Taking the whole of S. 13 together, I am of opinion that it is only a person whose seat is sought or whose election is disputed that can be made a respondent, apart, of course from the returning officer: S.13 subs.6.
This elaborately stated observation shows how in this appeal section 133(2) of the Act should be interpreted, and, in my opinion, tends towards a clear direction to take for the resolution of the central issue upon which the appeal may be properly decided.
I shall at this juncture revert to the consideration of ground 2 of the preliminary objection which I said earlier in this judgment I would leave till later. Mr. Owonikoko’s objection to the notice of appeal is that it was endorsed for service only in respect of 1st and 2nd respondents to the petition, whereas there were 5th to 56th respondents who ought to have been served. Reliance was placed on Order 2, r.1 (3) of the Supreme Court Rules which says:
“When under these rules any notice of other application to the court, or to the court below, is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such an address is endorsed on it.”
The argument is that since the 5th to 56th respondents were not included in the notice of appeal, and consequently it was not endorsed with their addresses for service, the notice of appeal cannot be deemed properly filed. Reference was made to Order 8 r.2 (1) which says inter alia that a notice of appeal shall state “the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties.”
Apart from the point whether it is open to learned counsel for the 3rd and 4th respondents to this appeal to raise this issue as if on behalf the said 5th to 56th respondents to the petition, it is plain to me that the appellants’ position is that the 5th to 56th respondents are in the same situation as the appellants, being unnecessary parties to the petition, and ought not to be bothered with this appeal. The appellants cannot therefore, be expected to regard them as parties directly affected by the appeal particularly as they are not seeking in this appeal to have the 5th to 56th struck off the petition. The parties directly affected by the appeal are the 3rd and 4th respondents to the petition (as appellants) and the petitioners (as respondents). That has been adequately explained in the course of the resolution of this appeal. I find the preliminary objection to be without merit and overrule it.
It is manifest that section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under subsection (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or Political Parties can neither be respondents nor are they necessary parties. Para.4(1)(a) and (c) and para.45 of the First Schedule to the Act do not warrant any other interpretation being given to section 133(2). In respect of para.4(1)(c), it is enough to supply the particulars in the body of the petition without joining the said candidates as parties to the petition. Such particulars shall be in respect of candidates who were validly nominated and who upon that basis contested the election, not any other candidates upon whom votes were wasted. It is from such proper candidates’ particulars that an order under section 136(2) may be made based on the valid votes cast at the election. However, if there is any doubt or controversy as to whether all the candidates necessary to be pleaded under para.4(1)(c)were pleaded, this is better resolved upon admissible evidence at the trial of the petition at which stage the tribunal would decide the competency of the petition if that still remained an issue. This has nothing to do with joinder of parties.
I have come to the conclusion that the appellants were improperly joined as 3rd and 4th respondents to the petition. The tribunal was therefore in error not to have struck them out. This appeal accordingly succeeds. I hereby make an order striking out the 3rd and 4th respondents from the petition. I award in this appeal to the appellants N2,500.00 as costs in the tribunal and N10,000.00 costs in this court against the respondents.
SC.116/2003
