Action Congress & Anor. V. Peoples Democratic Party & Ors. (2008)
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CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
This is an appeal which arose from the decision of the Governorship and Legislative Houses Election Petition Tribunal of Ondo State in which the Appellant had claimed the following reliefs:
That the said Election be declared null and void having been invalidated by Substantial irregularities and non-compliance with the provisions of the Electoral Act
2006 and further to direct that a new election that conforms with Electoral Act 2006 be conducted throughout the 6 Local Government in Ondo South Senatorial District to elect a Senator for the people of the Constituency to the national Assembly.
The Facts that led to this petition which appeal is now pending before this Court were that the Ist Respondent a Political Party Sponsored One Chief Olusola Oke for the election to the Ondo South Senatorial District Seat of the National Assembly on the 21st April, 2007.
The 2nd – 9th Respondents declared the 1st Respondent and its candidate as the winner of the Ondo South Senatorial District Election on the 25th of April, 2007.
The Ist Respondent (PDP) had sponsored a Candidate, one Olusola Oke whose Candidature was challenged before the Federal High Court Abuja by one Senator Hosea Oladapo Ehinlanwo. The Federal High Court found in favour of Hosea Oladapo Ehinlanwo, and declared in essence that he was the rightful Candidate of the Peoples Democratic Party for the Election on the 18th April, 2007. Consequent upon the Judgment of the said Court, Hosea 0ladapo Ehinlanwo was Sworn-in and inaugurated as the Senator for Ondo South Senatorial District on the Platform of the Peoples Democratic Party having been issued with Certificate of Return.
Following the above development, the Appellants challenged the Return of the 1st Respondent in a Petition filed on the 21st of May 2007. In the Petition at the lower Tribunal, the Appellants made allegations of irregularities, non – compliance with the provisions of the Electoral Act 2007, and urged the Tribunal to declare the said Election null and void.
At the Tribunal below, before hearing of the petition commenced, Senator Hosea Ehinlanwo applied as an interested party to be joined as a Respondent. While hearing the motion for joinder by Senator Ehinlanwo, the Tribunal ordered that parties should address the Court on the competence of the Petition in view of the non – joinder of Senator Ehinlanwo, the Candidate Returned at the election and Considering the fact that the time allowed under the Electoral Act to amend the petition had lapsed.
Both parties filed written addresses and elaborated on same on the 14th of August 2007. In its Ruling delivered on the same 14th August 2007, the lower Tribunal held that the failure, refusal and or neglect of the Petitioner to join Senator Hosea Ehinlanwo in his petition was fatal to the petition and rendered it incurably bad.
The application for joinder was therefore struck out, and the petition was Consequently dismissed.
Dissatisfied with the decision of the lower tribunal, the Appellants appealed to this Court on three grounds of Appeal, which, as contained in the notice and grounds of Appeal without their particulars read:
GROUND 1: The Honourable Tribunal erred in Law when it held as follows:
” … We hold that the willful, failure, refusal and or neglect of the Petitioners to join Senator Hosea O. Ehinlanwo to this Petition is fatal to the Petition, and makes the same incurably bad … Petition dismissed.”
GROUND 2: The Honourable Tribunal erred in law when instead of Sustaining the Petition of the Petitioner, it dismissed the said petition NO.EPT/OND/NA/13/07 on the ground of non – joinder of Hosea O. Ehinlanwo.
GROUND 3: The Honourable Tribunal erred in law when it dismissed the Petition of the Petitioner for non – joinder of Senator Hosea O. Ehinlanwo.
Both parties filed their briefs of argument. The Appellants raised two issues for determination as follows:
- Was Senator Hosea O. Ehinlanwo a necessary statutory party, such that his non – joinder rendered the Petition of the Petitioners incompetent?
- In the Circumstance of internal contest between the 1st Respondent’s claim that it sponsored one Olusola Oke and the interested party and one Hosea Oladapo Ehinlanwo’s claim that he was the person Returned at the relevant election, was:
i. The said interested party joinable? and if he was joinable,
ii. Could his non – joinder Vitiate the petitioners’ petition to warrant its dismissal as ordered by the Tribunal?
The 1st Respondent raised one issue for determination:
i. Whether the Tribunal was right to have held that the Petition was incurably bad and incompetent for non-joinder of the person Returned as Senator for Ondo South in the National Assembly election of 21st April 2007.
Before arguing, the merits of the appeal, the 1st Respondent in a motion dated the 22nd of November 2007, and filed on the 3rd of December 2007, raised a preliminary objection and urged the Court to strike out the Appellants’ brief of argument same having been filed out of time, and without leave of Court.
I do not intend to dwell on this preliminary objection, since it is on record that the Appellants in a motion dated and filed on the 26th of February 2008, brought an application for extension of time to file their brief of Argument out of time, and deeming the brief filed on the 13th of November 2007 as having been properly filed and served etc etc.
This Court granted the Said application on the 11th of March 2008.
Having granted the application for extension of time for the Appellants to file their brief of Argument out of time this preliminary objection is misplaced and hereby overruled.
On the merit of the appeal, the issues formulated by both counsel, are virtually the same in content, and therefore could be compressed into one main issue. To that extent, the sole issue as formulated by the 1st Respondent is more apposite, I therefore endorse it as the sole issue for determination in this appeal. i.e. Whether the tribunal was right to have held that the petition was incurably bad and incompetent for non-joinder of the person Returned as Senator for Ondo South in the National Assembly election of 21st April 2007.
On this Sole issue for determination, the Appellants had argued that the tribunal was wrong to have held the way it did that the non-joinder of Senator Hosea Ehinlanwo to the Petition rendered the petition incurably bad. He referred to Section 144(2) of the Electoral Act 2006, and argue that the Tribunal misdirected itself by Confusing a person declared a Candidate by a Court with a winner or loser of an election. That even though the Federal High Court declared Ehinlanwo as Candidate, it did not nor can it return him, he contended that Ehinlanwo could only be returned by the votes of the electorate counted and recorded for him as winner. That Hosea Ehinlanwo having not been sponsored by his Political Party or elected by the voters, is not a person whose election can be complained of. He submitted that Senator Ehinlanwo was therefore not a Statutory Respondent. He cited NNONYE v. ANYICHIE (1989) 2 NWLR (PT.101) page 110. BUHARI v. OBASANJO (2003) 14 NWLR (PT.844) page 446.
He argued further that Senator Ehinlanwo was unlawfully given the Certificate of Return, and that it was the duty of Ehinlanwo to establish his interest in the petition, and not that of the Petitioner to join him. He urged the Court to set aside the decision of the lower Tribunal.
In reply to the foregoing argument on the Sole issue, the 1st Respondent referred to Section 144 (2) of the 2006 Electoral Act and contended that the person whose Election is the Subject of Complaint or whose Return in the election is being challenged is a necessary party to the petition, without whom it is palpably incompetent. He referred to all Other Respondents as complementary or adjunct to the Respondent referred to in the said Section 144 (2).
He submitted that a Candidate who had been returned in an election has been judicially described as “the Statutory Respondent” by Uwaifo JSC in BUHARI v. OBASANJO & ORS. (2003) 14 NWLR (Pt. 584) Page 505.
In resolving the Sole issue for determination,it must be noted that Sections 140(1), 144(1) & 144 (2) of the Electoral Act 2006 clearly defines person or persons who can present a petition, as well as person or persons who are necessary parties to be joined in a petition. Section 144(2) of the 2006 Electoral Act provides:
“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 in his or her official status as a necessary party Provided that where such Officer or person is showing 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”.
Section 140(1) provides:
“No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “Election Petition” presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act and in which the person elected or returned is joined as a party”. (underlining mine).
I have taken time to state some relevant provisions as to who should be joined in an Election Petition.
The Judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/159/07 between Peoples Democratic Party and Senator Hosea O. Ehinlanwo delivered on the 18th of April 2007, leaves no one in doubt as to who according to law is the Candidate of the 1st Respondent (PDP) when the election was conducted on the 21st of April 2007 and result declared. There was a Candidate Returned. That candidate was Hosea Ehinlanwo. As stated above, the Section 140(1) of the 2006 Electoral Act not only makes him a necessary party to the Election Petition, but a Statutory Respondent because it is his election and return that is being questioned and challenged. See A.N.P.P. v. INEC (2004) 7 NWLR (PT.871) page 16. per Fabiyi JCA at pages 57 – 58.
Senator Hosea Ehinlanwo is therefore a Candidate or Contestant whose election is complained of, he is automatically a necessary party. He is a person whose presence before the tribunal is necessary in order to enable the tribunal effectually, competently and completely adjudicate, decide and settle all the issues and questions involved in the petition. He must therefore in my humble view be made a Respondent as any Judgment or order made against him behind his back cannot be permitted to stand in law.
Therefore whether as argued by the Appellants he was put there by the Court or the Electorate becomes irrelevant in the present circumstance. Having been Returned and Issued with a Certificate of Return, and since it was his very Seat that was being challenged and questioned in the petition, and non other, he ought to have been joined without which the Petition was rendered not only impotent, watery and worthless, but also an exercise in futility.
Senator Hosea Ehinlanwo was therefore likened to the substance, or base of the Petition without whom to pursue the Petition was like chasing shadow in view of the fact that without the base, the petition becomes completely baseless.
The argument by the Appellant that the said Senator Hosea Ehinlanwo was put there by the Court and not the electorate in my view does not hold water at all, considering that the Supreme Court in AMAECHI V. INEC ordered that Amaechi be Sworn in as Governor despite the fact that he never stood for any election.
I therefore agree with the submissions of learned Counsel for the 1st Respondent that failure to join Senator Hosea Ehinlanwo in the petition at the lower Tribunal rendered the Petition Palpably incompetent. In the premise therefore, the only issue for determination in this appeal is resolved in the affirmative in favour of the 1st Respondent. Let me state that the 2nd – 9th Respondents did not file any brief of argument. They therefore remained indifferent.
In the final result, and for all the reasons given above, this appeal is unmeritorious, and is hereby dismissed. The Ruling of the lower Tribunal delivered on the 14th of August 2007 is hereby affirmed.
I make no order as to costs.
Other Citations: (2008)LCN/3015(CA)
