Alhaji Shehu Usman Aliyu Yammedi & Anor. V. Alhaji Ahmed Audi Zarewa & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
THERESA N. ORJI-ABADUA, J.C.A.
In the Petition No. EPT/KNS/HR/37/07 presented by the Appellants before the Governorship and Legislative Houses Election Tribunal of Kano State sitting at Kano, and particularly, during the Pre-Hearing Session, the 1st and 2nd Respondents therein who are also, the 1st & 2nd Respondents in this appeal, filed an application on Notice praying the said Tribunal for the following orders:-
“1. An Order of the Honourable Tribunal striking out the Parties/Respondents numbered as 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 for not being proper parties known to law before this Honourable Tribunal.
2. An Order of the Honourable Tribunal striking out all the paragraphs of the petition where allegations of fictitious addition of results, stuffing of ballot boxes with already thumb printed ballot papers, statement of results and other forms of electoral malpractices were made in specified Units but the Presiding Officers of such Units were not made parties in the Petition particularly Gwangwan I, Gwangwan II and (A) Rogo Local Government, (F) Ruwan Bago, (H) Zoza, (1) Beli, (L) Karaye Magajin Gari, (M) Unguwar Hajji-Karaye and Kafin Gabga 4 in (N) Kafin Dagba all under grounds/particulars of petition.
3. An Order striking out paragraphs 2(A) (i), (ii), (B), (F), (H), (1), (K), (L) and (M) for having fallen short of the requirements of 4(1) & (d) of the First Schedule to the Electoral Act, 2006 and Order 26 Rule 4(1) of the Federal High Court (Civil Procedure) Rules 2000 assimilated by virtue of Paragraph 50 of the First Schedule to the Electoral Act, 2006.
4. An Order of the Honourable Tribunal striking out the Petition on the ground that the remaining grounds cannot sustain the petition.
5. For such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.”
The said application was predicated on six grounds, that is to say:
“(a) The misjoinder will allow the proper parties before the Honourable Tribunal and narrow down the issues for the early determination of the petition bearing in mind that the petition cannot be amended at this stage.
(b) The Electoral Act does not recognize any officer known as Collation Officer/Supervisory Presiding Officer which are none juristic personality and outside the contemplation of Section 144(2) of the Electoral Act 2006, which said proviso cannot be invoked except where the petition expressly states that the said officials, if known to law, were agents of INEC.
(c) That where INEC allows officers to carry dual functions where there are such stated offices designated and allowed by law, the petition or pleadings will specifically plead same and cannot be inferred where it is not stated.
(d) That the Presiding officers of the Polling Units of Gwangwan I, Gwangwan II under (A) Rogo Local Government, (F) Ruwan Bago, (H) Zoza, (I) Beli, (L) Karaye Magajin Gari, (M) Unguwar Hajji-Karaye and Kafin Gabga II in (N) Kafin Dagba, all under grounds/particulars of petition where allegations of fictitious addition of results, stuffing of ballot boxes with already thumb printed ballot papers, alteration of results and other forms of electoral malpractices, were made are not parties to the petition.
(e) The grounds listed as 2 (A) (i) (ii), (B), (F), (H), (I), (K), (L) and (M) have not complied with the requirements of 4(1) (d) of the First Schedule to the Electoral Act 2006 and Order 26 rule 4(1) of the Federal High Court (Civil Procedure) Rules 2000 applicable by virtue of Paragraph 50 of the First Schedule to the Electoral Act 2006, by stating clearly the facts of the petition and grounds upon which the petition is based and pleaded with clarity and precise details the issues for determination as to call upon the Respondents to respond.
(f) The Honourable Tribunal has on several occasions made pronouncements on the above issues and shall be urged to follow their decisions.”
The facts supporting the application were averred in an affidavit of four paragraphs deposed to by one Collins Ukachukwu, a litigation secretary in the Law Firm of Messrs Ibrahim M. Boyi & Co. counsel for the 1st and 2nd Respondents.
In their vehement opposition to the application, the Petitioners then filed a counter-affidavit of thirteen paragraphs.
Hearing was conducted on the application, and, at the conclusion, the Tribunal, struck out the petition basically on the ground that the Petitioners did not comply with the provisions of paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006 which cracked the foundation of the petition.
Following the Petitioners’ dissatisfaction with the said decision, they filed their appeal which was founded on three grounds from which three issues were propositioned by them in their Appellants’ Brief of Argument for consideration by this Court. The issues are:-
“1. Whether a litigant could be allowed by a trial Tribunal or Court to raise issues of jurisdiction based on averments in the petition piece meal.
2. Whether taking into consideration of paragraph one of the grounds of the petition it could be rightly said that the Petitioners did not state the grounds upon which the petition was brought.
3. Whether or not in the circumstances of this petition particularly in the light of Section 30(1) & (2) and 144(2) of the Electoral Act, 2006, the learned trial Tribunal was right when it struck out paragraphs A to N of the particulars of the petition on the grounds of non-joinder of necessary parties notwithstanding the joinder of Independent National Electoral Commission (INEC).”
Learned Counsel for the Appellants, Aliyu H.O. Yakubu, Esq. in the Appellants’ Brief prepared by him but adopted before this Court by C.O. Ndumnego Esq., argued in respect of issue NO.1 that the trial Tribunal had, on the 7th September, 2007 and 20th September, 2007 ruled on the Motions dated 7th August, 2007 and 11th September, 2007 respectively that it had jurisdiction to hear the petition, but, it was, therefore, wrong for the same Tribunal to now turn round to strike out the petition for want of jurisdiction in respect of the 3rd Motion filed by the same applicants on 22/10/07 on the same set of parties. By the Motion dated 7/8/07, jurisdiction of the Tribunal to hear the petition was questioned and in that of 11/9/07, the Tribunal was asked to strike out paragraphs 2(c), 2(e), (f), (g) and 2(j) of the petition in relation to lumping of different Presiding Officers as one respondent. He cited the case of Oloriegbe v. Omotesho (1993)1 S.C.N.J p.30 at 40 para 25 and submitted that the Respondents/Applicants having raised the issue of jurisdiction twice and lost, ought not to have been allowed to raise the same issue the third time, and, that all the grounds upon which the applications were based, arose from the same Petition. He urged that issue NO. 1 be resolved in favour of the Appellants.
On issue NO.2 he contended that in complete adherence to the provisions of paragraph 4 (1)(d) of the First Schedule to the Electoral Act, 2006 which required a Petitioner to state clearly the facts of the election and the ground or grounds on which the petition is based and the reliefs sought by the petitioner, the Petitioners, in paragraphs 1-7 of the Petition articulated the facts of the Election Petition, and, at paragraphs 7(1) – (2), A(i) (ii), B, C, D, E, F, G, .H, (1), (J), (K), (L), (M) and (N), they set out clearly the grounds upon which the Petition was based. He referred to pages 2-8 of the record of this appeal; and equally stated that the reliefs sought are contained at pages 9-10 of the record while the ruling striking out the Petition is at pages 697-726 of the record. He referred to the case of Onyemaizu v. Ojiako (2000) FWLR (Pt.2) 310 at 318 where the term ground of appeal, which he likened to ground of Petition was defined to mean “a concise statement of the head of complaint of an appellant in the appeal”, and, then, submitted that the Appellants’ facts and grounds of petition as contained at pages 1-8 of the record sufficiently complied with the stipulations of the law.
Learned Counsel argued that the purpose of paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006 is to give sufficient notice and information to the other side of the precise nature of the complaints of the Petitioner and of the issues that are likely to appear in the petition. He stated that if the Respondents had felt that sufficient facts had not been disclosed by the Petitioners, they would have asked for further and better statement of particulars of any statement of facts in a pleading or ground of claim if the pleading did not disclose particulars of the claim, rather than ask that the petition be struck out. Counsel cited the case of Nwabueze v. Nwora (2005) ALL FWLR (Pt.272) 297 at 316 paras C-D and submitted that once an election petition sets out the ground or grounds upon which it is brought, the petition shall not be struck out merely because it does not conform with any particular form. He further cited the case of The State v. Gwonto (1983)1 SCNLR 160 per Eso, J.S.C., where it was held that Court is more interested in substance than in mere form and, that, justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. Further, Counsel referred to the case of Michael v. Yuosuo & Anor 2 EPR p.1 at 3 paras F-G, where it was held that in election matters reliance should not be placed on undue technicalities.
He stated that any ground of petition which satisfied the purpose of fairness to the other side should not be struck out notwithstanding that it did not conform to a particular form, that what is important in a ground of petition, and, the test the Court should apply is, whether an impugned ground shows clearly what is complained of in the election, that, once the ground clearly states what the Petitioner is complaining about, the petition cannot be described as bad and incompetent. Counsel referred to the observations of the trial Tribunal at page 723 of the record and paragraph 1 of the petition which is contained at page 3 of the record, indicating that the Petition was brought on the ground of gross breaches of the Electoral Act, 2006 and wide spread acts of thuggery, vote snatching, violence, intimidation, etc, and, stated the trial Tribunal directed its mind more to the form rather to the content of the grounds of petition.
Counsel argued that the Electoral Act, 2006 did not specify that an election petition can be brought on only one ground, and, that by the wordings of paragraph 4(1) (d) (supra), a Petitioner is permitted to raise several grounds or only one ground in his petition. Therefore, where a Petitioner satisfied the condition by stating several grounds or only one ground, such petition should be considered valid.
He further argued that assuming but not conceding that the Appellants’ petition contained only one ground as in page 3 of the record, the Petition substantially complied with Section 145 (1) of the Electoral Act and Paragraph 4(1) (d) of the First Schedule to the Electoral Act. He stressed that that was sufficient to sustain the petition. He further stated that if the trial Tribunal had considered paragraphs of the grounds of petition dispassionately, it would not have placed undue reliance on the case of Hope Democratic Party (HDP) V. INEC & 4 Ors delivered on 25/8/07. Counsel then urged that issue No.2 be resolved in favour of the Appellants.
In relation to issue No.3, he submitted that the trial Tribunal was wrong to have struck out paragraphs A-N of the particulars of the petition when Independent National Electoral Commission is still a party in the petition after striking out the 7th, 8th, 9th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th and 21st Respondents. He queried, whether having joined the Independent National Electoral Commission (INEC), the Returning Officer of Karaye/Rogo Federal Constituency, Electoral Officer for Karaye Local Government Area and the respective Presiding Officers of the Federal Constituency, was the Petitioner under any obligation to join any other person as a necessary party? Counsel outlined the contents of paragraphs A-N and submitted that from the analysis, it is clear that the complaint in paragraphs A-N are complaints of non- supply of electoral materials to polling units, non-voting because of absence of electoral materials and election officials and poll office or alteration of results after the same had been entered in the relevant forms. He stated that the acts complained of were acts or conducts which were the statutory responsibilities of officers of Independent National Electoral Commission (INEC) and by extension, the duty and responsibility of the Independent National Electoral Commission (INEC), the body statutorily responsible for the conduct of election in Karaye/Rogo Federal Constituency of Nigeria and it did conduct election in Karaye/Rogo Federal Constituency of Nigeria on 21/4/07. He referred to Section 153(1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 and paragraph 15(a) to the Third Schedule of the 1999 Constitution in support.
Counsel contended that where there is a complaint against any officer who participated in the conduct of the election, it is a complaint against INEC and having joined INEC striking out the 7th, 8th, 9th, 12th, 13th, 15th, 16th – 21st Respondents should not have resulted to striking out paragraphs A-N of the petition.
He argued that by the proviso to Section 144(2) of the Electoral Act, 2006, the Petitioners did not have to join any officers of Independent National Electoral Commission having joined the Commission itself. He referred to the case of Fortune International Bank Plc v. Pegasus Trading Office (2004) ALL FWLR (Pt.199) 1312 at 1322 paras D- and submitted that the function of provisos in any enactment is to cut down or qualify the general provisions or give exceptions or more light on the ambiguous aspect of the enactment. He, then, submitted that the essence of the proviso in Section 144(2) of the Electoral Act, 2006 is that when an allegation is made in respect of the conduct of election, the person against whom the allegation is made if an agent of INEC, such a person need not be joined if INEC is joined as a party as was then in this case. His non-joinder will not void a petition if the Commission is made a party. He said that the Electoral Act, 2006 itself made the Presiding Officers, Returning Officers and Electoral Commissioners as agents of INEC and as that no further proof is required to establish that. He said that to insist as the trial Tribunal did that the Petitioners must specifically plead that the Presiding Officers, Returning Officers, Electoral Commissioners who were named in the Electoral Act, 2006 as officers of Independent National Electoral Commission are, therefore, agents of the Commission, will be doing violence to the principles of pleadings which is not permitted in the pleading of law or evidence. He cited the cases of Ekulo Farms Ltd V. U.B.N Plc. (2006) ALL FWLR (Pt.319)895 at 922-923 paras D-A; Ojokalobo v. Alamu (2004) ALL FWLR (Pt.237)579 at 620 paras G-H, and, City Engineering (Nig) Ltd V. Nigerian Airport Authority (1999)6 SCNJ 263 at 272 para 25 and submitted that in the interpretation of a Statute, words used therein should be given their ordinary meaning in order to discover the intention of the law maker. He urged this Court to reject the interpretation given to Section 144(2) of the Electoral Act, 2006 by the trial Tribunal. He finally urged that the appeal be allowed.
The Respondents in their Brief of Argument settled by Ibrahim M. Boyi Esq. but adopted before us by one Mr. N. Duru Esq; rephrased the three issues distilled by the Appellants thus:-
“1. Whether the trial Tribunal rightly exercised its discretion to hear and determine separate applications dated 7/8/07, 11/9/07 and 22/10/07 during Pre-Hearing session on issue relating to different aspects of its jurisdiction?
2. Whether or not the learned Tribunal was right when it held that the petition did not comply with paragraph 4(1) (d) of the First Schedule of the Electoral Act, 2006 by not stating the grounds upon which the Petition was brought in view of Sections 30 (1) & (2) and 144(2) of the Electoral Act?
3. Whether or not in view of Sections 30(1) & (2) and 144(2) of the Electoral Act, the learned trial Tribunal was right to have struck out paragraphs A-N of the particulars of the Petition on the grounds of non joinder of necessary parties notwithstanding the joinder of the Independent National Electoral Commission?”
Learned Counsel submitted in respect of issue No.1 that the prayers and grounds of the Motions dated 7/8/07, 11/9/07 and 22/10/07 were totally different and that the petition was still at the Pre-Hearing stage when the various applications were taken. He referred to pages 709 and 710 of the record relating to the Tribunal’s observation on the point, showing that the last application did not amount to an abuse of court process, especially, as the matter was still at the Pre-Hearing session stage. He cited the case of Inakoju v. Adedibu (2007) 29 NSCR (Pt.11) p.958; (2007) ALL FWLR (Pt.383) p.3 and submitted that issue estoppel cannot be invoked in the same case but in a different case.
He stated that the last application which led to the striking out of the Petition centered on mis-joinder of parties, i.e., making non-juristic personalities parties to the petition. He said it is a very fundamental issue that touches on the competence and powers of the Tribunal to adjudicate on the petition. He referred to the cases of Madukolu & Ors V. Nkemdilim (1962)2 SCNLR; Shitabey v. A-G Fed. (1998)10 NWLR (Pt.570)392; Leedo Presidential Hotel Ltd. V. BON Ltd (1998)10 NWLR (Pt.570)353; Weatherford (Nig) Ltd V. NDAH (2006) AFWLR (Pt.292)187 at 191 paras E-F p.192 paras C-D; Awuse v. Odili (2004) FWLR (Pt.193) 325 – 328; Maersk v. Addide Investment Ltd. (2002) FWLR (Pt.125)608 at 655 paras C-D and submitted that it is an issue that can be raised at any time and even on appeal for the very first time, and, that if it is successfully shown that a party to an action is not a legal person, that party should be struck out of the suit. He said it is clear on the face of the petition that the Respondents whose names were struck out were non-juristic persons, being persons not known to law.
Therefore, being non-juristic persons, the trial Tribunal was right to have struck out their names in the course of the Pre-Hearing session.
Dealing with issue No.2, learned Counsel submitted that what the Petitioners termed as grounds of the petition did not comply with the mandatory provisions of Section 145(1) and paragraph 4(1) (d) of the Electoral Act, 2006. He cited the cases of Nuhu Sani Ibrahim V. INEC (1999) 8 NWLR (Pt.614)334 at 352; Buhari V. Yusuf (2003) FWLR (Pt.174)329; Hope Democratic Party (HDP) V. INEC & Ors in Petition No. CA/A/EP/5/2007 delivered on 20/08/07 and submitted that whenever a Statute lays down the procedure for doing an act, that method, and, no other method must be followed. He said that the Electoral Act is clear and unambiguous on how and what a Petitioner must plead as grounds of facts of a petition. He contended that the Appellants in their petition muddled up the facts and their purported grounds thus leaving the Tribunal to decipher which is which, a situation that has been roundly condemned by the courts. He stressed that the authorities cited by learned Counsel for the Appellants are inapplicable. He also referred to the cases of – Uzodima v. Udenwa (2004) 1 NWLR (Pt.854)303; Rimi V. INEC (2002)6 NWLR (Pt.920)56; Effiong V. Ikpeme (1999)6 NWLR (Pt.606)260 and urged the Court to resolve this issue against the Appellants.
Turning to issue No.3, learned counsel cited the cases of Dr. Arthur A. Nwankwo & 2 Ors V. Alhaji Usman Maiga Yar’adua in Suit No. CA/A/EP/6/07 delivered on 3/9/07 and Bichi V. Haladu (2004) All FWLR (Pt.217) 694; Isuogu V. Udenwa (2004) All FWLR (Pt.206)408; Buahri V. Obasanjo (2005) All FWLR (Pt.273) 1 and submitted that failure to expressly plead in the petition that all officials like Electoral Officers, Returning officers, Presiding officers, Polls Clerk and other officers that took part in the conduct of the election are agents of INEC or join them by their official names in the petition is fatal to the petition. He said that the Tribunal was robbed of its jurisdiction to adjudicate on the matter, where necessary parties were not joined as parties and, too, the Tribunal was right to have held that the proviso to section 144(2) of the Electoral Act would not avail the Appellants as they made copious serious allegations bothering on the commission of crime against persons who are not parties to the petition. He then urged the Court to resolve the issue against the Appellants and then dismiss the appeal.
I have given an anxious consideration to the issues propounded by the parties in their respective Brief and the eloquent legal arguments of their respective Counsel and I think it right to reproduce hereunder the prayers sought by the 1st and 2nd Respondents in the said Motions dated 7/8/07 and 11/9/07 respectively. In the Motion dated 7/8/07 and filed on the same date, the 1st and 2nd Respondents prayed for the following orders:-
“1. AN ORDER striking out Petition No. EPT/KNS/37/07 for non-compliance with the mandatory provisions of the Electoral Act, 2006.
2. AN ORDER striking out the Petition for being Statute barred having been filed outside the statutory period for filing of same.
3. AN ORDER striking out the Petition for non-compliance with the mandatory provisions of the Election Tribunal and Court Practice Directions made pursuant to paragraph 50 of the Electoral Act 2006.
4. AN ORDER striking out the Petition for being incompetent.
5. For such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.”
Then in the Motion dated 11/9/07 but filed on 12/9/07, they prayed as follows:-
“1. AN ORDER for leave of the Honourable Tribunal to file, serve and argue the present application during the Pre-Hearing session extended by the Honourable Tribunal.
2. AN ORDER of the Honourable Tribunal striking out the Parties/Respondents numbered as 11, 39, 40, 41, 44 for not being proper parties known to law before the Honourable Tribunal.
3. For such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.”
The gravamen of the Appellants’ complaint in issue No.1 is that the trial Tribunal having determined a Motion previously filed by the same 1st and 2nd Respondents against the same Petitioners questioning the jurisdiction of the Tribunal to entertain the petition on ground of failure to comply with certain mandatory provisions of the Electoral Act, 2006, ought not to have heard and determined their latter Motion on Notice dated 22/10/07 raising the same issue of non-compliance that now culminated to filing of this appeal.
It is clear on the previous Motion on Notice dated and filed on 7/8/07 in respect of which the ruling of the trial Tribunal was delivered on the 7th September 2007 (see page 634 of the record) that the 1st and 2nd Respondents had in the past sought for striking out of the petition. However, a close study of the prayers contained thereon indicates that the facts or grounds upon which the earlier complaint was anchored differered completely from the grounds of the latter Motion that led to this appeal. In the former Motion, the 1st and 2nd Respondents’ complaints then, were-
(a) That the provisions of Paragraphs 4(1) of the First Schedule to the Electoral Act, 2006 were not complied with, that is to say, the names and scores of the candidates were not printed on the petition.
(b) That from the date of 22/4/07 when the results were declared to 22/5/07 when the petition was filed, the period given by the Act had elapsed.
(c) That the list of witnesses was not attached to the petition as required by Paragraphs 1(1) (a) of the Election Tribunal, and Courts Practice Directions, 2007.
(d) That one Alhaji Ibrahim Rogo, the Caretaker Chairman of Rogo Local Government who was involved in the electoral crimes mentioned in the petition was not joined as a party.
However, in the last Motion on Notice dated 22/10/07 but filed on 23/10/07, the orders sought by the 1st and 2nd Respondents, although they were still asking for the same striking out of the petition, were quite distinct. In this latter Motion, they complained about mis-joinder of parties on the ground of their non-existent in law. They also prayed for striking out of certain paragraphs of the petition that alleged commission of electoral offences without joinder of the Presiding Officers of those units. It was equally prayed that paragraphs 2A(i) & (ii), (B), (F), (H), (I), (K), (L) & (M) be struck out for non-compliance with the provisions of Paragraph 4(1) (d) of the First Schedule to the Electoral Act and Order 26 Rule 4(1) of the Federal High Court (Civil Procedure) Rules, 2000 and for striking out the entire petition because, it could not be sustained by the remaining grounds.
It is clear that the issues raised in the latter Motion on Notice dated 22/10/07 but filed on 23/10/07 were completely different in substance from those raised in the earlier Motion of 7/8/07. Whether the issues could be taken piecemeal as contended by the Appellants is a different situation altogether from the argument that they were foreclosed from raising the issue of competence of this Petition again, on different grounds if it were clear that because of want of competence, the trial Tribunal does not have the jurisdiction to hear and determine the petition.
It is a known principle of law that there must be an end to litigation as submitted by the Appellants’ Counsel meaning, therefore, that a party cannot be allowed to reopen or re-litigate on issue already determined by the Court simply because fresh or new evidence had been obtained.
Once an issue had been raised and distinctly determined between the parties to a suit, neither party can be allowed to litigate that issue all over again. See Ukachukwu V. Uba (2005)18 NWLR (Pt.956) p.1. Further in Ajiboye V. Ishola (2006)13 NWLR (Pt.998) p.628, the Supreme Court stated that it is normal to find within a single cause of action several issues which call for determination and are necessary for the determination of the whole case. As a general rule, once one or more of any such issues have been distinctly raised in a cause of action and determined between the same parties in a court of competent jurisdiction, neither party, his privies, agents or servants is allowed to re-open or relitigate any of such issues all over again in another action between the parties. The situation of precluding a party from contending or relitigating over-a matter will never arise if the same questions were not decided in both proceedings. As I earlier highlighted, the case of joinder was raised in the former application whereas that of misjoinder was one of the issues in the latter one. Equally, question bordering on paragraph 4(1)(c) of the First Schedule was raised in the former Motion while the issue introduced for determination of the court in the latter one leading to this appeal hinged on paragraph 4(1)(d).
As I observed earlier the question of issue estoppel or the trial Tribunal being functus officio on the questions raised for determination on the latter Motion dated 22/10/07 but filed on 23/10/07 did not arise, because the issues raised and the prayers sought for in the two Motions were quite distinct. The said last Motion was never caught up by the principle of issue estoppel. In view of the foregoing, issue No.1 is hereby resolved against the Appellants.
I will now consider the second issue framed for determination of this Court, that is to say, whether taking into consideration, paragraph one of the grounds of the petition, it could be rightly said that the Petitioner did not state the grounds upon which the petition was brought.
Undoubtedly, Section 145(1) of the Electoral Act, 2006, stipulated the grounds upon which an election may be questioned. It provides thus:-
“145(1): An election may be questioned on any of the following grounds:
(a) that a person whose election is questioned was, at the of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act’,
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly but was unlawfully excluded from the election.
The Act, in clear and unambiguous terms, provided for grounds upon which an election petition could be filed. It means, therefore, that any ground which did not fall within the purview or scope defined by the Electoral Act, 2006 will be unfounded.
A perusal of the two grounds stated by the Appellants in their petition portrays that the said petition was based on paragraph (b) of sub-section (1) of section 145 of the Act.
Ground one complained of corrupt practices while Ground two was to the effect that the conduct of the election was characterized by substantial non-compliance and breaches of the Electoral Act.
With due respect, I do not share the views expressed by the trial Tribunal because, even the decision in the unreported case of the Court of Appeal (Abuja Division) in Hope Democratic Party (HDP) V. INEC in Petition No. CA/A/EP/5/2009 delivered on 20/5/07 relied upon by the trial Tribunal had been upturned by the Supreme Court in HDP V. INEC reported in (2009)8 NWLR (Pt.1143) p.297. In the said Supreme Court case, Onnoghen, J.S.C. at pages 314, 315,316 & 317 had the following to say:-
“…It is clear that the grounds for questioning an election by way of an election petition mentioned in paragraph 4(1) (d) (supra) is as specified in section 145(1) of the Electoral Act, 2006.
The lower court in dealing with the issue under consideration stated thus, inter alia:
“I have taken time to read through the petition several times. I cannot see where the grounds for the petition have been stated, not to talk of stating it clearly. And the same cannot be left to conjecture. I need to also state that facts relied upon were often generalized.”
The court also stated inter alia:
“No ground is stated as forming the pivot of the petition as enjoined by the provision of paragraph 4(1) (d) of the First schedule to the Electoral Act, 2006 … there appears to be a failure of cause of action in toto … I strongly feel that the petitioner should be told that since he failed to comply with the rules set out in paragraph 4(1) (d) of the first schedule to the Act (sic) and did not state any cognizable ground for bringing his petition as mandated by the provisions of section 145(1) (a) to (d) of the Act she failed to initiate her petition by due process of the law. After all, where a statute provides for a particular method of performing a duty regulated by statute, that method and no other must have to be adopted.”
… It is not in dispute that a petitioner is required by law to state in his petition the ground or grounds on which the petition is predicated in addition to stating therein the facts relied upon to sustain the said ground or grounds and finally the relief(s) sought. The provisions are mandatory.
Did the appellant state any ground or grounds on which the petition is based? While the appellant argues that it did, the respondents and the lower court are of the view that it did not. Since the facts stated in the petition constitute the pleadings, it is necessary to take a close look at the petition of the appellant in the determination of the issue under consideration”.
His Lordship went further to say:
“I must confess that the petition is not well or elegantly drafted particularly as it did not separately state the grounds for presenting the petition under separate heads or sub-heads. This means that for one to determine whether the petition is based on any ground(s) as required by law, one has to read through the paragraphs of the petition to see what the petitioner pleaded.
… However, by looking at the paragraphs of the petition reproduced in this judgment, it is very clear that the petition contains a ground recognized by the relevant section of the Electoral Act, 2006 particularly section 145(1) (b) thereof which provides that:
“(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act”.
The facts on which the ground of non-compliance with the provisions of the Electoral Act, 2006 is based have also been pleaded – that the ballot papers were neither bound in booklet form nor numbered serially as required by the Electoral Act, 2006 – see paragraph 21 of the petition and section 45(2) of the Electoral Act, 2006, which clearly provides that:
“(2) The ballot papers shall be bound in booklets and numbered serially with differentiating colour for each office being contested”.
He further held thus:
“In the circumstance I am of the view that the lower court was in error when it held that the petition was not based on any ground known to law and that it did not disclose any cause of action. I therefore resolve the issue in favour of the appellant.”
Supporting the views expressed in the lead judgment, Tabai, J.S.C. at 329 paragraphs A-H opined as follows:-
“Section 145(1) of the Electoral Act 2006 contains the grounds upon which an election may be questioned. And paragraph 4(1) (d) of the 1st Schedule to the Electoral Act 2006 provides to the effect that “an election petition under this Act shall state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner”.
The court below upheld the view of the respondents that the petition contained no grounds. At Page 196 of the record, the court said:
“I have taken time to read through the petition several times. I cannot see where the grounds for the petition have been stated; not talk of stating it clearly. And same cannot be left to conjecture…”
I do not, with respect, agree with the finding of the court below. The 23 paragraph petition contains numerous grounds for questioning the election. Although there is no identifiable paragraph of the petition with the grounds specifically set out therein, a global reading of the petition shows clearly that there are grounds for questioning the election. The petitioner alleges and asserts that at the trial, it will prove that the election was held amidst violence, logistical problems, bizarre allocation of 24 million votes by the 2nd respondent in favour of the 4th respondent without recourse to the actual state of the election; announcement of results even before voting was concluded and in respect of area where no voting took place, use of result sheets that were not signed and counter-signed by accredited party agents, procuring the services of the 5th respondent for stuffing ballot papers and hijacking of ballot boxes, use of mere loose and unserialised and unbounded ballot papers contrary to the stipulations in the electoral laws etc. The above and many other grounds for questioning the election of the 21/4/07 are contained in the petition. If the petitioner can establish these allegations at the trial, the petition can be sustained. In view of the foregoing, the court below was wrong to find that no grounds are stated in the petition.”
I must say with all certainty that the grounds stated by the Appellants at paragraphs 1 & 2 of their Grounds of petition were succinctly printed and there is no second guessing about them constituting valid grounds upon which the election could be questioned. The trial Tribunal appeared to have been in a haste to terminate the life of the Petition which complained of gross breaches of the Electoral Act, 2006, widespread acts of thuggery, vote snatching, violence and intimidation, ballot stuffing of already thumb-printed ballot papers into ballot boxes. Snatching or hijacking of ballot boxes and ballot papers, massive rigging and diverse other forms of electoral malpractices against the supporters of the 2nd Respondent. Therefore, in the light of the Supreme Court decision in Hope Democratic Party (HDP) V. Independent National Electoral Commission (INEC) (supra), I hereby hold that the trial Tribunal was wrong in its ruling by holding that the Petitioners, i.e., the Appellants, were in breach of paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006. Accordingly, Issue No.2 is hereby resolved in favour of the Appellants.
Before I consider the salient points made by the parties’ respective Counsel with regard to issue No.3, there is an issue of law my mind has been provoking me to highlight, even though it was never raised by the Appellants in their Notice and Grounds of Appeal. I think it worth’s mentioning in passing. It has to do with the first prayer by the 1st & 2nd Respondents to strike out the names of the 7th, 8th, 9th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th & 21st Respondents in the Notice of Motion dated 22/10/07 but filed on 23/10/07 which gave rise to this appeal.
It needs to be stated that it was not the duty of the 1st & 2nd Respondents, who were Respondents in the said Petition filed by the Appellants, to have brought an application asking the trial Tribunal to strike out the aforestated names from the said Petition. It was squarely the duty of the Petitioners or the people concerned to have presented such an application for striking out their names.
The application filed by the 1st & 2nd Respondents was merely an act of a busy body, and, the trial Tribunal should not have granted such prayers. The position of the law on an issue such as this was well spelt out by the Supreme Court in the case of Obasanjo V. Yusuf (2004)9 NWLR (Pt.877)144 per Kutigi, J.S.C. (as he then was) at page 186 paragraph K-H where it was held thus:-
“If really a particular respondent feels that he or she is improperly joined, it is the prerogative of that party or person to move the court or tribunal to strike out his or its name. The petitioner can, also, move the tribunal to strike out a respondent that he/she feel is no longer wanted or required. The petitioner decides who to join with the statutory respondents under section 133(2) of the Act. I do not think it is the business of one respondent to apply that another respondent be struck out simply because he/she feels that the presence of that other respondent is unnecessary. The petitioner who joined him or her must know the reason why he or she made him/her a party in the petition.
Issue (3) therefore fails. The named respondents remain as such respondents until if and when any of them or the petitioner applies to the tribunal for any of them to be struck out as such”.
Based on the foregoing, I am not, in the least, in doubt, as to the erroneous discretion exercised by the trial Tribunal in striking out the aforementioned Respondents from the Petition. Be that as it may, I think issue NO.3 will be better appreciated if the provision of section 144(2) of the Electoral Act, 2006 is reproduced hereunder. It says:-
“144(2) – The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petitioner 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 PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the commission is made a party”.
What is deducible from the above stipulations of the law is that apart from the human being, such as the 1st Respondent in this appeal, who was also the 1st Respondent in the petition filed at the trial Tribunal namely; Alhaji Ahmad Audi Zarewa, whose election was being complained of, and who, section 144(2) of the Electoral Act, 2006 designated as the first statutory Respondent, the second set of Statutory Respondents, depending on whether the petitioner, complained of their conduct are; ‘Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of the election’. The law prescribed that it is only when the conduct of such officers or person was complained of by the petitioner, that such officer or person shall be joined in the election petition in his or her official status as a necessary party. What it connotes is that, if no complaint whatsoever was leveled against the conduct of any of the named officers in section 144(2) by the petitioner, it will be unnecessary or unwise to join him as a party.
Further, the proviso to section 144(2) of the Electoral Act gave an instance where, even if there was a complaint against the conduct of the officers, and it was indicated that the officer or person acted as an agent of the Commission, the fact of non-joining him will not on its own void the petition if the Commission is made a party.
It is important to state that the determinant factor in whether to join or not to join an Electoral Officer, a Presiding Officer, a Returning Officer or the person who took part in the conduct of an election is, whether there were any complaints by the Petitioner of his or her conduct during the election, and, too, whether the petitioner showed that such an officer acted as an agent of the Commission and the Commission was made a party to the petition.
In the instant case, the 1st Respondent whose election was being complained of and the Commission that conducted the election, i.e., Independent National Electoral Commission were designated or sued as the 1st & 3rd Respondents respectively, the other Presiding Officers in other polling units and wards were still joined as Respondents in their official status. So there are still existing, the first set and second set of the Statutory Respondents in the Petition.
In the case of Uzodinma V. Udenwa (2004)1 NWLR (Pt.854)303 relied upon by the trial Tribunal and referred to by the Respondents’ Counsel, it was held, per Aderemi, J.C.A., (as he then was), that where a necessary party is omitted from the body of a petition, that is fatal to the petition which itself, for that reason is incurably bad, and a Court or tribunal lacks jurisdiction to entertain the petition.
However in Ajibola V. Ajadi (2004)14 NWLR (Pt.852)14 it was held that:
“Where distinct allegations are made on different officials, the fatality of non-joinder goes only to the paragraphs in which the officials are not joined and not to the entire petition as in the present case.
Thus, where the necessary parties whose interest would be affected were not joined or all the officials whose conducts at the election were being complained of were not joined, after striking out the faulty paragraphs, the necessary respondent whose election is being challenged and the officials whose conducts are being complained of and have been made parties, become parties in the surviving paragraphs.
The offending paragraphs of a petition can be struck out without the action affecting the whole petition particularly where the surviving paragraphs can sustain the petition. In the instant case, where the cause of action survives the striking out of the paragraphs of the petition, the petition ought to go for a full trial as ordered by the trial Tribunal”.
Furthermore in Biyu V. Ibrahim (2006)8 NWLR (Pt.981)1 it was opined:
“…That non-joinder of some necessary parties does not by itself lead to striking out of the entire petition particularly where there are other grounds in the petition which have nothing to do with the conduct of other persons involved in the election. Where such an official or person whose conduct is complained of in the petition is not joined as a party to the petition, the paragraphs of the petition containing such complaints may be struck out, or discountenanced, any evidence led thereon is of no effect. The reason is that a person who is not a a party to a suit cannot be proceeded against by virtue of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, it will amount to a breach of his fundamental right of fair hearing should that be done. The proceeding against him will be a nullity. In the instant case, the Tribunal was right in refusing to treat the entire petition as incompetent and in declining to resolve complaints in paragraph 4 since the electoral officials touched by the complaints were not joined in the petition”.
The effect of this is that in an election petition, where no allegation is made against a specific presiding or electoral officer, he cannot be said to be a necessary party. Also an electoral officer who could not perform his duties for non-supply of election materials is not a necessary party in an election petition. See Ayogu V. Nnamani (2006)8 NWLR (Pt.981)160. In Obasanjo V. Yusuf (supra) it was stated that:-
“The only rationale for a party to be joined in an action is that he shall be bound by the verdict of the court and it is reasoned that the matter in controversy cannot effectively and completely be settled in the absence of the party who shall be bound by it. The defendants who are joined must however have identical interest or rights.
The plaintiff prosecutes his case against those who he perceives ought to be joined although the joined defendants may apply to the court to strike out their names for misjoinder”.
Also, in HDP V. INEC (supra) the Supreme Court further held that the name of the statutory respondent, that is the person whose election is complained of, to an election petition, is sufficient to sustain the petition even if all other respondents are non-juristic persons.
It is clear in the light of the aforestated principles that the trial Tribunal was wrong to have struck out paragraphs A-N in the Petition and the Petition itself when the 1st Respondent, that is the person whose election is complained of, the Independent National Electoral Commission and the other Presiding Officers were still parties after the names of the 7th-21st Respondents were purportedly struck out by the trial Tribunal, based on the application of the 1st & 2nd Respondents. I would, therefore, not hesitate in resolving issue No.3 in favour of the Appellants.
In the end and for all the reasons I have given above, I find this appeal meritorious and, as such, it ought to be allowed. It is hereby allowed. Accordingly, the orders of the Tribunal stating that the Petitioners did not plead the grounds of the Petition and particulars of the ground and striking out paragraphs A-N in the Petition and the Petition itself, are hereby set aside. The said Petition is hereby remitted back to the Tribunal for hearing on the merit.
There will be costs to the Appellants against the 1st & 2nd Respondents which I assessed and fixed at N30, 000.00. (Thirty Thousand Naira only).
Other Citations: (2009)LCN/3434(CA)
