Alh. Ideje Sa’idu Samamo V. Tusha’u Muhammad Anka & Ors (1999)
LawGlobal-Hub Lead Judgment Report
OMAGE, J.C.A.
The verdict of the Senatorial election which took place on 20th February, 1999 in the Zamfara West Senatorial District as declared by the 2nd Respondent in this appeal is as follows:-
“The 1st Respondent; 62,997 votes Appellant 62,044 votes the 1st Respondent was declared the winner, and the 2nd Respondent declared the 1st Respondent duly elected the Senator for Zamfara West.
The Petitioner, the appellant in this appeal was dissatisfied with the declaration made by the 2nd Respondent; and went to the Election Tribunal.”
He filed a petition dated 12th March, 1999 before the National Assembly Election Tribunal sitting in Guria Zamfara State of Nigeria. In the petition the petitioner averred the following which I have summarised as heads of complaint as follows:-
(a) That the 1st Respondent was not duly elected by majority of lawful votes cast at the said election.
(b) That the said election is voided and invalid by reason of corrupt practices, and non compliance with the provisions of Decree No 5 of 1999.
(c) That the 2nd Respondent and its named agents did not observe the electoral guidelines.
(d) That votes cast at the Sakura polling station in Sakura Local Government Area were not correctly added up or counted at the Polling Station, and that the candidates were merely awarded votes. Upon service of the petition on the 1st Respondent, he made a conditional appearance and filed notice of a preliminary objection on the following grounds.
(1) That the petition is incompetent for non disclosure of the address and name of the occupier of the premises where the petitioner resides within 5 five kilometers of the post office in the judicial division.
(2) For non joinder of necessary parties.
(3) That since the above is not in compliance with the provision of Decree No 5 of 1999, the lower court has no jurisdiction to hear the petition.
The 1st Respondent also filed reply to the petition see the record of proceeding in the lower court. The 2nd – 39th Respondent filed a reply to the petition. The lower Tribunal rightly took before the hearing of the petition, the preliminary objection made by the 1st Respondent on petition. The lower Tribunal after hearing arguments and submissions on the preliminary objection raised by the 1st Respondent recorded on page 43 of the record, that it considered following issues which arose for its determination.
(1) “Whether failure to state the “Occupier” in the present petition filed by the petitioners herein as, required by paragraph 5 (4) and sub paragraph 5 (5) of schedule 5 to Decree No 30(sic) 5 of 1999 is fatal.
(2) Whether non joinder of all the necessary parties against whom several allegations were made by the petitioner is a violation of the provisions of section 78 (2) of Decree No. 5 of 1999 as well as paragraph 48 (1) of schedule 5 thereto.
(3) What is the proper order to make in the light of the findings in (1) & (2) above. Now taking them in seriatim (1) whether failure to state the “occupier” in the present petition filed by the petitioner herein as required by paragraph 5 (4) and sub paragraph 5(5) of schedule 5 to Decree No.5 of 1999 is fatal.”
After reviewing the case and authorities cited the lower Tribunal made the following findings see page 44 of the record. On the issue of failure of the petitioner to state the address of the occupier of the premises of the petitioner within 5 kilometers, the lower Tribunal found as follows. “It follows therefore that although the petitioners counsel has stated the address of the petitioner for service within the judicial division nevertheless he has failed to name the occupier of the address as required by the provisions of paragraph 5 (4) of Decree No.5 of 1999.” …. Rules of Court are meant to be obeyed. etc.”
On the issue of non joinder of necessary parties the lower court found on page 46 as follows. “On the whole all the allegations in the petition affect and are against the Returning officers of the election, and they have all not been joined as necessary parties. In making this second finding, the lower court considered and relied on the requirements in paragraph 48 (1) of the schedule to the Decree No 5 and the provision of the said Decree in section 78 (2) which require total not half compliance with the provision of the said Decree No.5 of 1999.
The judgment of the lower court on its findings is as follows see p. 47 of record “consequently this petition is hereby struck out on the ground that it is not properly before this tribunal for non compliance with paragraph 5 (4) of schedule 5 to Decree 5 of 1999, and also on the ground of non compliance with section 78 (2) of the said Decree as well as paragraph 48 (1) of schedule 5, thereto.”
The judgment was delivered on 12/4/99. The petitioner was dissatisfied with the judgment of the lower court, and he filed in this court two grounds of appeal based on error of law of the lower court. The petitioner appellant seeks the following reliefs:-
(1) “To allow the appeal and set aside the ruling of the Tribunal made on 12th April, 1999.
(2) An order relisting or directing that the petition be relisted.
(3) And for such further orders or reliefs as the appellant may deem fit to seek for in the circumstances.”
In his brief of argument filed on 4/5/99 the appellant formulated two issues for determination. They are:-
(a) “whether the failure of the petitioner to state the occupier or his address for service in the petition is fatal (on ground one of the appeal).
(b) whether necessary parties have not been joined in the petition (ground two of appeal)”.
The issues formulated by the 1st Respondent are also in the same words of the same theme. The 2nd – 39th respondents associated themselves with submission of 1st respondent. I will take them together. In his argument, the appellant submitted that he had complied with the rules. He said he adopted the contents of form TF002 on page A372 and A373 of Decree No. 5 of 1999, by virtue of the provisions in paragraph 5(7) of Schedule 5 of Decree No.5 of 1999, and that, the said form TF002 makes no provision for the occupiers name and address to be stated at the foot of an election petition. He said the rules allow one which is substantially like form TF002. In the Appellants, view form TF002 states the counsel position and schedule 5 particularly the words in paragraph 5(7) of the said Schedule has determined and settled the issue.
He submits that as the said form does not contain provision for supply of the name of the occupier, and since the words of the provision in 5(7) also introduced a form substantially like TF002 and said it shall be sufficient, the requirement to state such address as provided in paragraph 5 sub 4 in schedule 5 of Decree No. 5 of 1999 is no longer necessary. In any case cannot defeat the petition. It is relevant at this point to state the provision of sub paragraph 5 of paragraph 5 of the said Decree No.5, it states: “If an address for service and its occupiers are not stated as specified in sub paragraph 4 of this paragraph, the petition shall be deemed not to have been filed unless the election tribunal otherwise orders. The question may be asked, what does sub paragraph 4 specify? It is this. “At the foot of the election petition there shall also be stated an address of the petitioner for service, within five kilometres of post office in the judicial division, and the name of its occupier at which address documents intended for the petitioner may be left” I state hereunder for the convenience of sequence, the address contained in the petitioner appellant’s petition. It is-
“S. O. Olado & Co.
c/o Barrister J. C. Eze,
Opposite Sambo Sec. School
Gusau”
Sub-paragraph 4 of paragraph 5, to Decree No.5 of 1999 requires a petition to contain at the-foot of the election petition certain items, and to emphasise the importance attached thereto the provision used a mandatory word shall also it is stated in addition to requirements in paragraph 5(1) contained therein, sub paragraph 6. If I may digress for a moment, paragraph 5(6) of Schedule 5 of Decree 5 of 1999 which provides the penalty, prescribes as follows:-
“An election petition which does not confirm with sub paragraph (1) of this paragraph or any provision of that sub paragraph is defective and may be struck out, by the Election Tribunal.”
I am of the view that the underlined word also used above in sub paragraph 5(1) of the said schedule 5 to Decree No.5, by its ordinary meaning is intended to include the subsequent requirement in sub paragraph 5(4) of the same schedule, in regard to the penalty, i.e. “shall be struck out” for noncompliance with the provision to state the address and name of the occupier of the premises. However for the avoidance of doubt the sub paragraph 5(5) prescribes penalty in the words “the petition shall be deemed not to have been filed.” A filed petition which is deemed not to have been filed is struck out. It is a nullity because it fails to comply with the rules. What are the rules, they are as prescribed in Decree No.5, schedule 5 paragraph 5 in sub paragraph 4(i) the address of the petitioner (ii) the name of the occupier of the premises (iii) the address supplied must be within 5 kilometres to a post office in the judicial division.
Where document intended for the petitioner may be left. The question to be answered is did the appellant comply with this requirements in his petition. Clearly not. There is contained at the left side, of the petitioner appellant only the address of the counsel. But the appellant has submitted that he employed for his petition form TF002, set out in schedule 5 to the Decree and the provision of paragraph 5(7) has provided that the said “form shall be sufficient for the purposes of this paragraph.”
I have given considerable thought to the provision contained in sub paragraph 5(7) the relevant part of which is quoted above, one question which seemed unanswered when the provision in 5(1) of Decree No.5 of 1999, says form TF002 shall be sufficient for the purpose of this paragraph when in the provision sub paragraph of paragraph 5 penalties are imposed for non compliance with the requirement in the sub paragraph, whereas form TF002 at page A372 of the Decree says adoption of the form is adequate. However sub paragraph 5(4) says non compliance is to be deemed that the petition was not filed unless the Tribunal orders otherwise.
Undoubtedly this is contradictory, I have sought assistance in the understanding of the seemingly contradictory provision of the statute. The provision of sub paragraphs 4 and 7 are contained in paragraph 5 of Schedule 5 to Decree NO.5 of 1999. I have found enlightenment in the paragraph on schedules on page 12 in Maxwell on Interpretation of Statutes 12 Edition by F. St. Langan, 1976 edition, it states thus “schedules to statutes are as much part of an Act as any other and may be used in construing provisions in a schedule Act. Similarly provisions in a schedule will be construed in the light of what is enacted in the sections. I.R.C. v. Littlewoods Mail Order Sores (1959) 2 WLR 310.
The relevant fact to this enlightenment is underlined above. Therefore if the provisions in sub paragraph 4 of paragraph 5 to schedule 5 in Decree No.5 of 1999 is construed in the light of what it contains, in addition with sub paragraph 5 following it, the provision in sub paragraph 5(7) cannot modify and reduce the enactment of sub paragraph 5, which prescribes penalty for non compliance with the provisions of sub paragraphs 5(4) of paragraph 5, to schedule 5 in Decree No. 5 of 1999.
The 1st Respondent counsel, with whose submissions the 2nd – 39th Respondent agree, have referred to the reasoning and conclusions of this Court in Kaliel & Ors. v. Aliero & 11 ors. per M.D. Muhammad J.C.A 1994 NWLR (Pt. 597) 139 and the contribution of the learned Justices thereto on the same issue of compliance with the requirements to state on the petition the name of the occupier of the premises where petitioner resides. Besides the number of the paragraph where the provisions are contained in Decree No.5, nothing new has been introduced into the law to alter the reasoning and conclusion in the case cited. It boils down to this. Did the petitioner comply with the provisions of sub paragraph 4, in paragraph 5 in schedule 5 to Decree No.5 of 1999, the answer is No. Was the lower court right to apply the provisions of sub paragraph 5, to paragraph 5 to schedule 5 of the said Decree, the answer is yes. The second ground on which the appellant formulated an issue is “whether necessary party have not been joined in the petition”. On this issue section 78(2) of Decree No.5 of 1999 provides thus:
“The person whose election is complained of is in this Decree 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 the election the Electoral Officer, Presiding Officer or Returning Officer or other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”
The question may be asked who is a necessary party to this petition. The answer is any of the officers mentioned in the Decree No. 5 of 1999 or any other person against whom the petitioner makes a complaint of irregularity, incompetence in the conduct of the election. The 1st respondent counsel, submitted, and the counsel for the 2 – 39th Respondents aligned himself with same, that in paragraphs 3(4) 3(7), 3, (7) 11 3 10, and 3(15) of the petition of the appellant specific allegations of misconduct was made by the appellant against each of the presiding officer, a teach of the polling stations at Bakura Local Government. The complaint in 3(7) of the petition was an example that the total number of votes cast at a number of the polling stations in Bakura, exceeded the number of persons accredited to vote there, and that the said officers wrongly added and counted the votes. Allegations of impropriety was made against officers in Guria Local Government. The names of these officers did not appear in the 39 Respondents named in the petition. In other words the allegations made against such officers by the petitioner was made in their absence, and against the provisions of the law section 78(2) of Decree No. 5 of 1999 quoted above. It is easy to discern the philosophy behind the provision of section 78(2) of Decree No.5 of 1999, which requires the joinder of a person against whom complaint is made. It is rooted in our rule of natural justice of “audi alteram partem”. In any judicial proceedings hear the other party. It is also contained in our 1979 Constitution. The proscriptive part of section 78(2) of Decree is the last sentence of the provision it says; “and he shall be joined in the election petition as a necessary party”,
The word shall used in the content is not optional, it is directive and obligatory. Indeed mandatory.
The relevant question which arises on the petition of the appellant is, did the petition filed on 18/3/99 by the petitioner Appellant contain all the names of the parties against whom the appellant made complaints over the election of 20th February, 1999 the answer must be, No. It is manifest from the explanations above that the law required that they all should be joined against whom the petitioner made complaint. Was the lower Tribunal wrong to observe the provisions of the law. My view is that the lower Tribunal was right and I so rule. In the appellants brief it is submitted that the effect of non joinder of a party should be as in an ordinary litigation, not be sufficient to remove the competence of the court to adjudicate thereon. It should only prevent the defaulting party from adducing evidence against the absent party in the proceedings. It has been said in a plethora of legal authorities, one of them is Ike v. Ofokaja (1992) 9 NWLR (Pt. 263) 42 at 68 where it was held that election petitions are not like ordinary Civil proceedings. Were it to be so, non-joinder of a party or even a misjoinder of a party in a suit does not usually affect the jurisdiction of the court on the suit. See Union Beverages Ltd. v. Pepsi Cola (1994) 4 NWLR (Pt. 330) 1; 1994 KLR 24. In an election petition, the rules creating the right to file the petition; the categories of complaints that can be made, and the language and format of the petition are contained in the statute which also creates the tribunal to preside over the petition are clearly set out in the Decree. It has been ruled and it remains true that non compliance with the rules creating the facility for the petition means there is no petition. Barry & ors. v. Eric & ors. (1998) 8 NWLR (Pt. 562) p. 404. It is a misconception of the provisions of the said Decree No.5 of 1999, to compare the proceedings created herein with ordinary Civil proceedings.
I have held above that the lower Tribunal was right to strike out the petitions of the appellant on a preliminary objection. I see no reason to upset their findings and judgments thereon. I affirm the said judgment that the petition filed on is incompetent and should be, and was struck out. The appeal is dismissed award N2,500 in favour of 1st Respondent.
Other Citations: (1999)LCN/0524(CA)
