Sadiq Ozovehe Umar V. Salihu Adinoyi Onikata & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A. 

On 5th December, 1998, the Independent National Electoral Commission (INEC) conducted elections for Chairmanship and Counsellorship positions in Local Government Councils and Area Councils in the Federal Republic of Nigeria.

The appellant was a candidate on the platform of the Peoples Democratic Party (PDP) for the Chairmanship of the Ajaokuta Local Government Council while the 1st respondent was a candidate who contested the election for the same post on the platform of the All Peoples Party (APP).

The Ajaokuta Local Government Area consisted of 14 wards. On the day of election, elections commenced in all units and wards of the Local Government Area but in the course of the elections, disturbances occurred which disrupted elections in two wards of the Local Government which had five units. In the event, election results were received in only 12 wards of the Ajaokuta Local Government. These were collared and 9,378 of the votes cast were found to have been cast in favour of the 1st respondent while 9,318 of the votes cast were in favour of the appellant. The 1st respondent was declared winner of the chairmanship election while bye-elections were ordered to be held on 12th December, 1998 by INEC for Councillorship posts in the two wards in which voting was disrupted by disturbances on 5th December, 1998.

Appellant considered that declaration of results by officials of INEC in respect of the Chairmanship post of the Ajaokuta Local Government was premature and that bye-elections should also have been held in those two wards for the Chairmanship post as they were held for Councillorship posts on 12th December, 1998.

Not being satisfied with the determination of INEC in respect of the chairmanship election in which he contested, he lodged a petition before the Local Government Election Tribunal for Kogi State, the State in which Ajaokuta Local Government Area is situate.

Petitioner sought the following reliefs:-

That 1st respondent was not duly elected or returned by a majority of the lawful votes cast at the election of 5th December, 1998 and so election of 1st respondent should be nullified; that the petitioner polled a majority of the lawful votes cast and should be declared and returned as Chairman, Ajaokuta Local Government Council.

In the alternative, a bye-election should be conducted in the two wards in which elections were disrupted by disturbances and the votes cast be collated for the purpose of declaring the winner of the said chairmanship election.

The tribunal commenced hearing evidence on the petition.

The petitioner called five witnesses and himself gave evidence as the 6th witness.

When called upon to give evidence, 1st respondent applied by motion to the Tribunal that the petition be struck out, inter alia, on the ground that the petition is incompetent as INEC has not been joined as a respondent by the petitioner, the Commission being a necessary party who was acting by its servants or agents, the 2nd and 3rd respondents.

The Tribunal heard the application and ruled that as the petitioner did not in his petition join the INEC, and that the omission was fundamental. The Tribunal therefore struck out the petition.

It is against that decision that the petitioner has now appealed to this court acting as the Constitutional Court.

Shorn of its particulars, the three grounds of appeal of the appellant are as follows:-

“A. The learned Chairman of the Local Government Election Tribunal erred in law in allowing the prayer in the applicant/1st respondent’s motion, to strike out petition (which was filed en 18/12/98 with a limited life span) on account of the non-joinder of INEC (Independent National Electoral Commission) when she stated in her ruling as follows:-

‘All the above show that the Electoral Officer. Presiding officer (Returning Officer) etc as officials of INEC are agents and cannot be sued on their own recognition as they are not legal bodies. In effect, they cannot sue on their own, but INEC, being a creation of statute can sue and be sued. It is worthy of note to state that INEC being a creation of statute has the same legal status that Federal agencies like Federal Universities, NEPA, NITEL, etc. have.’

B. The honourable Tribunal misdirected itself in law in construing relevant provisions of Decree No. 36 of 1998 such as sections 83(2) and 87(3) as well as Schedule 5 paragraphs 5(1)-(6) and 48(1) as regards the question of necessary/proper panics in an election petition when it held as follows:-

‘Going through the contents of the petition itself I am/we are of the view that failures of the petitioner to join INEC as a necessary parry in the petition is fatal, for whatever relief the petitioner prays for or seeks would revolve around his claim regarding the conduct of election of 5th December, 1998 – a democratic process brought about by INEC – a body created for that purpose by Decree No. 17 of 1998. In the enabling Decree, i.e. No. 36 of 1998, the only statutory body in it is the Commission – or INEC (Independent National Electoral Commission) and as such, it is our view that INEC ought to have been joined as necessary party. Non-joinder of INEC as stated supra is fatal to this petition. On this ground therefore, this application succeeds. Petition No. LGET/KG/2/98 is defective, incompetent and is hereby struck out’.

“The learned Chairman of the honourable Tribunal erred in law in failing to exercise judicially, her discretion under section 87(3) of Decree No. 36 of 1998 not to strike out the petition at that stage (10/2/99) and in misconstruing relevant statutory provisions since the petition accorded not only with the provisions of part X of Decree No. 36 of 1998 but with the provisions of Schedule 5 to the said Decree when she held as follows (after quoting a pan only of paragraph 50 of Schedule 5 to Decree No. 36 of 1998):-

‘It is therefore the view of the Tribunal that this application is properly before it and could also be heard and determined.’ ” All learned counsel for the parties duly submitted briefs of argument and also expatiated upon the respective briefs which each learned counsel adopted at the hearings.

In his brief of arguments, learned counsel for appellant formulated two issues for determination in this appeal. They are:

“1. Whether the Chairman of the L.G. Election Tribunal was right, in the exercise of her discretion if at all, to have upheld or granted the motion to strike out the petition when the motion was not presented in accordance with and did not satisfy the provisions of Decree No. 36 of 1998 which has stipulated/specified necessary parties to an election petition. (An issue covering Grounds 1 and 3).

2. Whether the Chairman of the honourable Tribunal was right to held that the petitioner’s petition was incompetent simply on account of non-joinder of INEC when every other necessary party under the statute (Onikata, Electoral Officer, Returning Officer) had been made and joined as parties in accordance with the express provisions of the enabling Decree. (An issue covering Ground 2)”.

For his part, learned counsel for the 1st respondent formulated two issues for determination. They are:

“1. Whether Independent National Electoral Commission (INEC) is a necessary party, whose non-joinder is fatal to the petition (Grounds 1 & 2).

2. Whether the Honourable Tribunal was right when it entertained the 1st respondent’s motion at the time it did having regard to the fundamental nature of the objection. (Ground 3).”

For his part, learned counsel for 2nd and 3rd respondents formulated three issues for determination thus:

“(a) Whether Independent National Electoral Commission is a necessary party in the petition;

(b) Whether the failure of the petitioner to join INEC in the petition was fatal; and

(c) Whether the application to strike out the petition was belated in all the circumstance of the case.”

I consider that the grounds of appeal in this case can be disposed off by a consideration of two issues. They are:

Having made:

(a) The person whose election is complained of;

(b) The two officials of INEC whose conduct petitioner complains of, that is,

(i) The Electoral Officer; and

(ii) The Returning Officer

The 1st, 2nd and 3rd respondents respectively in the petition, was it necessary that the petitioner should have joined INEC in the circumstance of this case?

2. If the answer to issue 1 is in the affirmative, was the Election Tribunal justified in striking out the petition?

The 1st issue herein deals with the second ground of appeal while the second issue deals with the 1st and 3rd grounds of appeal.

In respect of the 1st issue, it is the contention of learned counsel for the appellant that by the provisions of section 83(3) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, it is specifically provided that a motion of a respondent in an election petition to strike out an election petition can only be entertained if the motion seeks the order to strike out on the ground that the Ejection Petition is not in accordance with the provision of Part X that is, sections 80 to 90 (inclusive) of the Decree or the provisions of Schedule 5 to the Decree.

He contends that the provisions of section 83(2) are exhaustive of whom the respondent should be that is, (1) the person whose election is complained of (2) where the petition complains of the conduct of an electoral officer, a presiding officer or any other person who took part in the election, then such electoral officer, presiding officer, returning officer or that other person who are deemed to be that the petitioner’s petition was incompetent simply on account of non-joinder of INEC when every other necessary party under the statute (Onikata, Electoral Officer, Returning Officer) had been made and joined as parties in accordance with the express provisions of the enabling Decree. (An issue covering Ground 2)”.

For his part, learned counsel for the 1st respondent formulated two issues for determination. They are:

“1. Whether Independent National Electoral Commission (INEC) is a necessary party, whose non-joinder is fatal to the petition (Grounds 1 & 2).

2. Whether the Honourable Tribunal was right when it entertained the 1st respondent’s motion at the time it did having regard to the fundamental nature of the objection. (Ground 3).”

For his part, learned counsel for 2nd and 3rd respondents formulated three issues for determination thus:

“(a) Whether Independent National Electoral Commission is a necessary party in the petition;

(b) Whether the failure of the petitioner to join INEC in the petition was fatal; and

(c) Whether the application to strike out the petition was belated in all the circumstance of the case.”

I consider that the grounds of appeal in this case can be disposed off by a consideration of two issues. They are:

Having made:

(a) The person whose election is complained of;

(b) The two officials of INEC whose conduct petitioner complains of, that is,

(i) the Electoral Officer; and

(ii) The Returning Officer

The 1st, 2nd and 3rd respondents respectively in the petition, was it necessary that the petitioner should have joined INEC in the circumstance of this case?

2. If the answer to issue 1 is in the affirmative, was the Election Tribunal justified in striking out the petition?

The 1st issue herein deals with the second ground of appeal while the second issue deals with the 1st and 3rd grounds of appeal.

In respect of the 1st issue, it is the contention of learned counsel for the appellant that by the provisions of section 83(3) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, it is specifically provided that a motion of a respondent in an election petition to strike out an election petition can only be entertained if the motion seeks the order to strike out on the ground that the Ejection Petition is not in accordance with the provision of

Part X that is, sections 80 to 90 (inclusive) of the Decree or the provisions of Schedule 5 to the Decree.

He contends that the provisions of section 83(2) are exhaustive of whom the respondent should be that is, (1) the person whose election is complained of (2) where the petition complains of the conduct of an electoral officer, a presiding officer or any other person who took part in the election, then such electoral officer, presiding officer, returning officer or that other person who are deemed to be respondents for the purpose of the Decree and who are required to be joined in the Election Petition as necessary parties are the only persons who can be respondents in an election petition. He further submits that the “esjudem generis” rule must necessarily limit any other person to officials of INEC who are of the same category as those specifically named.

When his attention was invited to the provisions of section 92 of the Decree as well as paragraph 28 of the Schedule 4 to the Decree and asked to comment if a complaint in a petition about the determination of the Commission to postpone or not to postpone an election on account of disturbance at a Polling Station or Unit does not make the Commission some other person deemed to be a respondent and to be joined in an election petition as a necessary party, the response of learned counsel for the 1st respondent was that if the legislature had meant the Commission to be a party to an election petition, the Decree would have said so in so many words and that there are other provisions giving duties to other persons in the Decree. He relies on (i) Green v. Green (1987) 3 NWLR (Pt.61) p. 480; (ii) Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at Pp. 130-156.

For the 1st respondent, learned counsel argued that by section 46 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 the Commission (INEC) has responsibility for the conduct of the Local Government Election of 5th December, 1998 nationwide; that the Independent National Electoral Commission established by the Independent National Electoral Commission Decree, 1998 is a legal person and the 2nd and 3rd respondents were acting for and on behalf of the Commission when they declared 1st respondent winner of the election. He further submits that for all intents and purposes being a “legal” person !NEC comes within the term other than the Electoral Officer, Presiding Officer or Returning Officer listed in Sec. 83(2) of Decree no. 36 of 1998.

He further submits that the cause of action of the petitioner in this case is complaint as to the alleged non-conduct of a bye-election in respect of the inconclusive election in two wards of the 14 wards in the Ajaokuta Local Government Area; that from the wordings of sections 46 and 99 of the Decree the Independent National Electoral Commission has the direction, organization and supervision of the conduct of elections under the Decree under itself.

Furthermore, learned counsel refers to the evidence of the 4th witness called by the petitioner himself, the Electoral Officer (2nd respondent) to the effect that the report given to him by officials whom he sent to the five units of the two wards was that election did not hold there because there were threats of violence. He reported to the headquarters of the Commission. Its consequence was the bye-election of 12th December, 1998 for the Councillorship post but the Commission did not order a bye-election for the chairmanship. He contends that the challenge of petitioner in the petition was on the decision of INEC not to conduct a bye-election for the chairmanship and as such the Commission was a necessary party without whom the action would be improperly constituted and that failure to join the Commission is not a defect as to form but a fundamental defect which affects the competence of the petition and consequently the jurisdiction of the Tribunal.

He relies on:

(i) Green v. Green (1987) 3 NWLR (Pt.61) p. 480

(ii) Madukolu v. Nkemdilim (1961) 2 All NLR 578 1962 SCNLR 34; and

(iii) Paragraph 15(2)(a)(i) of Schedule 5 to Decree 36 of 1998. A

(iv) Ekpete & Ors. v. Aforije & Ors. 1 (1972) All NLR (Pt.1) 220.

For the 2nd and 3rd respondents, learned Chief Legal Officer in the Kogi

State Ministry of Justice, Mr. Salihu argued thus on this issue-

The complaint of the appellant in the main was the conduct of the election in the two wards of Orugbo/Unosi and Odonu/Ohuge. He contends that the power to order an election, to set the date and time of election, to postpone and/or cancel an election for threatened disturbance, are vested in INEC by the combined provisions of sections 46, 50 and 92 of Decree No. 36 of 1998. He therefore submits that the Commission is a necessary party as its presence is essential for the effectual and complete determination of the petition before the Tribunal. He relies on:

(i) Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 584 (1962) 2 SCNLR 341;

(ii) Oloba v. Akereja (1988) 3 NWLR (Pt.84) p. 508.

On the second issue posed in this judgment, i.e. if INEC is a necessary party, was the Election Tribunal justified in striking out the petition?

For the appellant, Dr. S.E. Mosugu of counsel submits that as there is no express provision in the Decree No. 36 of 1998 which requires INEC to be joined as a party to an Election Petition the principle of agency in contract law should not apply to bring in INEC as a party. Again, he stresses that no one of the provisions of the Decree should be looked into except Part X or in the alternative Schedule 5 whenever a motion to strike out a petition for non-compliance is being considered, that it is therefore improper to consider section 99(1) of the Decree which is in Part XI relating to the definition of “Commission”,

As for the provisionsofSchedule5 paragraph 50(a) of the Decree, he submits that the application was not made within a reasonable time of the knowledge of the defect by the petitioner/applicant and that the proceedings at the trial and the calling of evidence earlier at which the 1st respondent and his counsel took part amounted to “fresh steps taken after knowledge of the defect”.

In any case the defect was as to form which could be remedied by way of amendment, he contended.

He therefore urged this court to answer that the Tribunal was not justified in striking out the petition.

For the 1st respondent, U.O. Onoja Esq. submitted and argued that the objection to the petition was not merely one of form or procedural but goes to the root of the application and was fundamental to the competence of the petition. It could therefore be raised at any stage of the proceedings: he relies, inter alia, on the The State v. Dr. Onagoruwa (1992) 2 SCNJ 1. (1992) 2 NWLR (Pt.221) 33. He then argued that learned counsel only discovered the legal flaws in the petition the previous night when preparing for the trial to follow on the next day and that the application was brought at the earliest possible opportunity after the discovery by him. It was therefore his submission that the objection was raised within a reasonable time after the defect was noticed. Finally he urged this court to dismiss the appeal.

For the 2nd and 3rd respondents, learned counsel’s submission is that the averment in the counter-affidavit on behalf of 1st respondent in support of when his lawyers discovered the defect clearly showed that the objection was raised within a reasonable time and before any fresh step was taken after knowledge of the defect. He also urged this court to dismiss the appeal.

Now, I come to consider the issues. The first is whether INEC should not have been joined in the petition along with 1st, 2nd and 3rd respondents.

It is a cardinal rule of Interpretation of Statutes that a statute must be considered as a whole. Learned counsel has urged this court to limit its consideration of the necessary parties to the express provisions of Pan X of the Decree, that is, section 80 to 90.

Agreed; but section 80 of the Decree which begins Part X provides thus:-

“No election and no return at an election under this Decree shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Decree referred to as an “election petition”) presented to the Local Government Elections Tribunal in accordance with the provisions of this Decree, and in which the person elected or returned is joined as a party”. (Italics by me) for emphasis).

It would therefore be seen with respect, that the submission of learned counsel that the application to strikeout a petition as provided by s. 86(3) must only be looked at from the narrow confines of part X, that is sections 80-90 and excluding other provisions of the Decree. This would be contrary to the requirement of S. 80.

It is agreed by all the parties to the petition as constituted that the complaint of the petitioner from the petition and his evidence before the Tribunal against the Tribunal is the failure by the Commission (INEC) to order a bye-election in the two of the fourteen wards constituting his Local Government Area for the chairmanship election on account of disturbances to the election proceedings on the day of election as it ordered in respect of the two wards in respect of disturbances at the two wards in respect of elections for the Ward Councillors.

There would, it seems, be no quarrel by the learned counsel for the petitioner if the Commission could properly, under Part X be brought in as “any other person who took part in the conduct of the election”.

Now for a look at section 92(2) of the Decree (as contemplated by s. 80) provides thus;

“where an election has started on the appointed date but is, before conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the Commission shall appoint a new date for a fresh election”.

In the proceedings before the tribunal, petitioner himself as P.W.6 testified that no election held in two of the wards in his constituency because the proceedings were disrupted by disturbance. A look at paragraph 28(1) of the 4th Schedule reads;-

“Subject to the provisions of section 92(2) of this Decree, when the proceedings at a Polling Station or Unit are interrupted or obstructed by riot or violence or any other reason as may be determined by the Commission, the Presiding Officer may adjourn the proceedings till the following day, and shall give notice of the adjournments to the Electoral Officer”. (Italics by me)

It is the evidence of P.W.4 that the proceedings in the two wards were interrupted but the Commission did not order a bye-election in the two wards for the chairmanship election as it did for the Councillorship election.

It follows therefore that the cause of action of petitioner in this case was the alleged failure by the Commission to order bye-election in the two wards concerned for the chairmanship election in respect of the Ajaokuta Local Government Area. It seems to me in the circumstance that the Commission being a juristic person under the Decree which set it up is “any other person who took part in the elections” within the provisions of section 38(2) of the Decree No. 36 of 1998. I am not prepared to limit that term to only officials of the Commission.

In the circumstance, I hold that the Commission is a necessary party to the petition without whom the petition cannot be effectively and effectually determined. The Commission is a person deemed to be a respondent and ought to be joined by virtue of section 83(2) of the Decree.

On the second issue as to whether if the Commission is a necessary party, the Tribunal was justified in striking out the petition?

Paragraph 5(1) of schedule 510 Decree No. 36 of 1998 provides inter alia, that an election petition shall specify the parties interested in the election petition. It is the contention of learned counsel on behalf of the Petitioner that if the Commission ought to have been a party and was not made a party the Tribunal in exercise of its discretion under Order XXXII of the Federal High Court (Civil Procedure) Rules 1976 made applicable by paragraph 51 of the 5th Schedule to the Decree, ought to have ordered an amendment of the petition particularly since respondents have taken steps in the proceedings since discovery of the defect. On the other hand, it is contended on behalf of the respondents that the defect is not one of form but of substance and is not capable of amendment in law; that if it was a defect in form the 1st respondent took steps timeously to raise the objection after discovery of the defect. Now the combined effect of paragraphs 15(1) and 51 of Schedule 5 is that the provisions of the Federal High Court (Civil Procedure) Rules shall apply in respect of the practice and procedure of the Tribunal. As has been pointed out, Order XXXII of those rules permit an amendment of defects in proceedings at any stage of the proceedings subject to terms as to costs or otherwise as shall seem just. Therefore if the defect was merely as to form, the extreme penalty-of striking out the whole petition would not have been justified. But was the defect of not including the Commission as a party to the petition as required by paragraph 5(1) of the 5th Schedule to Decree No. 36 of 1998 a mere defect as to form? Sub-paragraph (2) of paragraph IS of the Schedule provides thus:-

“(2) After the expiry of the time limited by

(a) Section 82 of this Decree for presenting the election petition, no amendment shall be made –

(i) Introducing any of the requirements of sub-paragraph (1) of paragraph 5 of this Schedule not contained in the original petition filed, or

(ii)

(iii)

Now, it is a requirement of section 82 of the Decree (by the way, a section within Part X of the Decree), that an election petition under the Decree shall be presented within 14 days from the date on which the result of the election is declared. Exhibit 1 shows that the result of the election the subject of the petition was declared on 6th December, 1998. It follows that any amendment with relation to the parties to the petition must be made in accordance with procedural rule not later than 20th December, 1998. In this case on 3rd February, 1999 when the application to strike out the petition for incompetence was brought before the tribunal, no application had been made to amend the parties to the petition to include the Commission.

It was laid down by the Supreme Court in Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 (1962) All NLR 581; 589-90 that a court (in this case a Tribunal) is competent when (1) it is properly constituted with respect to the number and qualification of its member; (2) the subject matter of the action is within its jurisdiction; (3) the action is initiated by due process of law; and (4) any condition precedent to the exercise of jurisdiction has been fulfilled.

In this case, a condition precedent to the exercise of the tribunal’s jurisdiction over the petition was that the names of the parties to the petition, must within 14 days of the declaration of the result of the election which is being complained of, be contained in the petition. The petition did not comply with that condition precedent.

In the circumstance, I must answer issue No.2 framed in this judgment that the tribunal was justified to have dismissed the petition.

All three grounds of appeal having failed, the appeal is hereby dismissed. There shall be costs of N1,000.00 in favour of 1st respondent and of N1,000.00 in favour of 2nd and 3rd respondents.

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Other Citations: (1999)LCN/0511(CA)