Alhaji Abdulahi Aminu Tafida V. Alhaji Attahiru Dalhatu Bafarawa & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
The appellant was the petitioner at the Sokoto State House of Assembly and Gubernatorial Election Tribunal (hereinafter referred to as “the tribunal”). He was nominated by Alhaji Muhammadu Modi Yabo, the Peoples Democratic Party (PDP) gubernatorial candidate for Sokoto State as his (Yabo’s) running mate i.e. as deputy governorship candidate. The 1st and 2nd respondents were the gubernatorial candidate and the deputy gubernatorial candidate sponsored by the All Peoples Party (APP). The election took place on 9th January, 1999 and the 1st respondent was duly returned as elected having polled 249,205 votes against Alhaji Muhammadu Modi Yobo’s 182,655 votes.
The appellant was not satisfied with the declaration of the results of the election, he therefore filed a petition before the tribunal asking for the following reliefs:-
“1) That the 1st and 2nd respondents were not qualified to contest the election of 9th January, 1999 and that all votes cast in their favour at the said election are invalid, null, void and of no effect.
2) That the election of the 1st and 2nd respondents is vitiated by corrupt practices.
3) That the petitioner’s party gubernatorial candidate (Alhaji Muhammad Modi Yaba) and the petitioner and not the 1st and 2nd respondents are the persons duly elected by majority of lawful votes cast at the election and ought to be returned.
4) Alternatively, that the election was not conducted substantially in accordance with the enabling Decree which non-compliance has substantially affected the result of the election and therefore a nullity.
5) And such further orders as this honourable tribunal may deem fit to make in the circumstances.”
When the petition was served on the 1st and 2nd respondents, they filed a conditional memorandum of appearance. In the conditional memoradum of appearance filed it was stated:-
“And take notice that
(a) A preliminary objection will be raised on the locus and competence of the petitioner Alhaji Abdullahi Aminu Tafida to present the petition since he is neither a person claiming to have had a right to contesl or be returned or a candidate at the election as provided by s.133(1) of Decree No.3 of 1999.
(b) A preliminary objection shall be raised on the jurisdiction of the tribunal to hear this petition on the grounds:
(i) that a necessary party Alhaji Muhammadu Modi Yabo is not made a party, and
(ii) that the Independent National Electoral Commission was not made a party and it would be affected by the result of the petition.”
On the very day the 1st and 2nd respondents filed the conditional memorandum of appearance, they filed a motion on notice for an order striking out the petition on the grounds that:-
“(a) The petitioner is not one of the persons mentioned in section 133(1) of Decree No.3 of 1999 who are competent to file an election petition.
(b) Section 133(2) of Decree 3 of 1999 has not been complied with as (i) the necessary parties mentioned in paragraph 21 have not been joined.
(ii) Alhaji Muhammadu Modi Yabo, the PDP gubernatorial candidate and the Independent National Electoral Commission (INEC) necessary parties who may be affected by the result have not been joined.
(iii) There was a misjoinder in respect of the 4th and 5th – 6th – 7th – 8th – 10th – 19th – 20th – 21st – 22nd – 23rd and 24th.
- An order striking out the petition for lack of jurisdiction based on the grounds stated in prayer 1 above.”
After hearing counsel’s submissions in a reserved ruling, the tribunal held as follows:-
- A Deputy Governor is a candidate at an election and as such the appellant was a competent person to file an election petition under the Decree.
- The 51st respondent was described as Independent National Electoral Commissioner and not Independent National Electoral Commission and that Independent National Electoral Commissioner is not a legal person. It can neither sue nor be sued.
The tribunal therefore struck out the 51st respondent because it was not a juristic person.
- The Independent National Electoral Commission is a necessary party and it ought to have been joined.
- Alhaji Muhammadu Modi Yabo was a necessary party and ought to have been joined and failure to join him was fatal to the petition.
The tribunal then struck out the petition because it lacked merit.
The appellant was aggrieved with this decision, he therefore appealed to this court. He filed five grounds of appeal. The grounds of appeal, without their particulars, read:-
“1. The House of Assembly and Gubernatorial Election Tribunal erred in law when they held, ‘what appears in the petition as the 51st respondent is Independent National Electoral Commissioner and not Independent National Electoral Commission, Independent National Electoral Commissioner is not a legal person …not being a legal or juristic person should be struck out and we make the same order here.’
- The House of Assembly and Gubernatorial Election Tribunal erred in law when it held, ‘there is no doubt that the Independent National Electoral Commission is a necessary party which ought to have been joined.’
- The House of Assembly and Gubernatorial Election Tribunal erred in law when it held ‘Alhaji Muhammadu Modi Yabo, the PDP gubernatorial candidate being a necessary party as herein before defined ought to have been joined as a party.’
- The House of Assembly and Gubernatorial Election Tribunal erred in law when they held, ‘the non-joinder of Alhaji Muhammadu Modi Yabo, the PDP gubernatorial candidate is fatal to this petition … this petition therefore lacks merit and is hereby struck out.’
- The House of Assembly and Gubernatorial Election Tribunal lacks jurisdiction in entertaining the 1st and 2nd respondents’ application having filed their reply to the petitioner’s petition.”
Brief of argument were filed and exchanged. In the appellant’s brief four issues for determinations were formulated. The 1st and 2nd respondents, in their briefs adopted the issues formulated by the appellant. The 3rd to 51st respondents in their joint brief formulated three issues for the determination of the appeal. The three issues formulated in the brief of the 3rd to 51st respondents are more or less the same as the issues formulated in the appellant’s brief. I will therefore adopt the issues formulated in the appellant’s brief for the determination of this appeal. The issues formulated in the appellant’s brief are:-
“1 Whether the Election Tribunal has jurisdiction to entertain the application of the 1st and 2nd respondents having taken steps in the proceedings.
- Whether Independent National Electoral Commission and the PDP gubernatorial candidate are necessary parties to the petition.
- Whether non-joinder of both or either Independent National Electoral Commission (INEC) or PDP gubernatorial candidate is fatal to the petition.
- Whether the Electoral Tribunal has exercised their discretion judicially and judiciously by striking out the name of the 51st respondent instead of deleting letters “er” and/or granting leave to the petitioner to amend same.”
At the hearing of the appeal counsel for the appellant, 1st and 2nd respondents and 3rd to 51st respondents adopted their brief. They also proffered oral submissions to expatiate certain issues. In respect of the first issue, it was submitted on behalf of the appellant that the tribunal lacked jurisdiction to entertain the application because the respondents have taken step in the proceedings as held in Nigeria Produce Marketing Company Ltd. v. C.N.D. (1971) 1 NMLR 223 at 226;. It was also submitted that by virtue of paragraph 50(2) of Schedule 6 of Decree NO.3 of 1999, the tribunal should not have entertained the application. It was also submitted that it was wrong to raise the preliminary objection on the memorandum of appearance: see Idowu v. Oyesiji (1998) 8 NWLR (Pt.560) 141 at 146.
It was submitted on behalf of the 2nd and 3rd respondents that they were right to raise the preliminary objection on the memorandum of appearance because it is allowed by paragraph 10(5) of Schedule 6 of Decree No.3 of 1999. It was also submitted that on the authority of Barry and Ors. v. Eric and Ors. (1998) 8 NWLR (Pt.562) 404 at 419 that a defendant who conceives that he has a good ground of law, which, if raised, will determine the action in limine may raise the ground in his statement of defence or raise the ground as a point of law. It was also submitted that there was no delay in raising the preliminary objection since the conditional memorandum of appearance, the motion to strike out the petition and the joint reply which also contained the objection were all filed on the same day. In the 3rd to 51st respondents’ brief it was submitted that the tribunal was right to entertain the objections because the objection was taken at the earliest opportunity as provided under s.137(3) of the Decree and that the appellant did not raise any objection on the competence of the tribunal to hear the motion.
Paragraph 50(2) of State Government (Basic Constitutional and Transitional Provisions) Decree 1999 (hereinafter referred to as ‘Decree No.3 of 1999″ provides:-
“An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
I will now consider the facts in order to determine whether or not the application was brought within reasonable time and also to determine whether or not the 1st and 2nd respondents have taken any fresh step in the proceedings after they knew of the defect. The petition was dated 8th February, 1999. It was also filed on the same day. From the record of proceedings I cannot establish when the petition was served on the respondents. However, the conditional memorandum of appearance was filed on 11th February, 1999. The application to strike out the petition was also filed on the same day, so was the joint reply. Where a party filed an application to strike out the petition on the very day he entered a conditional appearance, it must be said he acted timeously and within a reasonable time. I therefore hold that the 1st and 2nd respondents made the application within reasonable time.
The next question was whether the 1st and 2nd respondents took any fresh step in the proceedings after knowledge of the defect. As I have earlier said the 1st and 2nd respondents filed a conditional memorandum of appearance on 11/2/99 in which it raised the objection. On the same 11/2/99 the filed an application to strike out the petition. It was also on the same day they filed their joint reply. In my opinion it cannot be said that the 1st and 2nd respondents took any fresh step after knowing the defect. They raised the preliminary objection at the earliest opportunity afforded to them i.e. on the very day they entered conditional appearance. Also, if we consider the provisions of paragraph 10(5) Schedule 6 of Decree No.3 of 1999, we can see that the 1st and 2nd respondents were right to have filed a conditional memorandum of appearance. The said paragraph 10(5) provides:-
“10(5) A respondent who has a preliminary objection against the hearing of the election petition on grounds of law may file a conditional memorandum of appearance …”
My answer to the first issue is that the tribunal was right to have entertained the application because the 1st and 2nd respondents have not taken any fresh step in the proceedings.
At this point, I think it is apposite to deal with the fourth issue. The issue is whether the tribunal has exercised its discretion judicially and judiciously by striking out the name of the 51st respondent instead of deleting letters “er” and/or granting leave to the petitioner to amend same. It was argued that the addition of the letters “er” was a printer’s devil. In the petition respondent No.51 was written as follows:-
“51 Independent National Electoral Commissioner (INEC)”
In paragraph 6 of the petition it was stated:-
“The 51st respondent is the body charged with and responsible for organizing elections into various elective offices in Nigeria.”
In my opinion the addition of the acronym “INEC” coupled with the description of the 51st respondent in paragraph 6 of the petition all lead to the fact that the appellant intended to make Independent National Electoral Commission and not the Independent National Electoral Commissioner as the 51st respondent. The 51st respondent was described as a body and not a person. I am satisfied that the addition of the letter “er” in front of the word “Commission” was typographical error. I therefore hold that the 51st respondent is the Independent National Electoral Commission.
I now come to the second and third issues. I will consider them together. The second issue is whether INEC and Alhaji Muhammadu Modi Yabo the PDP gubernatorial candidate are necessary parties to the petition, while the third issue is whether the non-joinder of both or either INEC or Alhaji Muhammadu Modi Yabo is fatal to the petition. The appellant’s counsel submitted that neither INEC nor the PDP gubernatorial candidate is a necessary party who should be joined to the petition. Counsel referred to section 132 of Decree No.3 of 1999 and the cases of Omoboriowo v. Ajasin (1984) 1 SCNLR 108 and Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari (1983) 2 SCNLR 176 in support of his submission. He further submitted that having regard to the complaints laid against the respondents and the prayers sought, Alhaji Muhammadu Modi Yabo is not a necessary party to the petition who ought to be joined in the petition. It was also submitted that the non-joinder of either INEC or the PDP gubernatorial candidate and/or both of them was not fatal to the petition. It was further submitted that since election is a special type of proceeding and once the petitioner has sued the person whose return is the subject matter of complaint, the petition is properly constituted and there is a cause of action. In support, the case of Adebayo and Anor v. Maiyaki & Ors. (1991) 1 L.R.E.C.N. I was referred to. It was the contention of the appellant’s counsel that the non-joinder of even a necessary party cannot defeat a claim which is otherwise competent. See Green v. Green (1987) 3 NWLR (Pt.61) 480 and Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501.
On the other hand counsel for the 1st and 2nd respondents submitted that since there were complaints and allegations against INEC, and the main prayer was for the return of the gubernatorial candidate, both were necessary parties to the petition. The case of Gbadamosi v. Azeez (1998)9 NWLR (Pt.566) 471 was referred to. It was further submitted that the non-joinder of either or both was fatal and deprived the tribunal of jurisdiction to entertain the petition and make appropriate orders. See: Maikori v. Lere (1992) 3 NWLR (Pt. 231) 525. Counsel for the 3rd to 51st respondents submitted that INEC and the PDP gubernatorial candidate were necessary parties to the petition because whatever order the tribunal decides to make will affect them. To buttress his argument he referred to the following cases:- Maiwa v. Abdu (1986) 1 NWLR (Pt.17) 437 and NEC v. Izuogu (1993) 2 NWLR (Pt.275) 270 and also section 33 of the Constitution of the Federal Republic of Nigeria 1979 as amended. He also submitted that the tribunal was right when it held that the non-joinder of the said parties was fatal to the petition. He submitted that to hear the petition in the absence of the parties would be an exercise in futility.
Section 133 of Decree No.3 of 1999 stipulates who could present a petition and who should be made a respondent to the petition. It provides:-
“133 – (1) An election petition may be presented by one or more of the following persons:-
a) a person claiming to have had a right to contest or be returned at an election; or
b) a candidate at an election.
(2) 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 look pan in the conduct of an election, the electoral officer, presiding officer, a returning officer or that 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.”
In the appellant’s petition, there were allegations of corrupt practices and election malpractices. It was also alleged that the election was not conducted substantially in accordance with the Decree. These allegations, in my opinion, are directed at INEC since it is the body charged with and responsible for organizing and conducting the election. Since there are complaints in the conduct of the election especially that (he election was not conducted Substantially in accordance with the Decree, by virtue of section 1332(2) of Decree No.3 of 1999, INEC becomes a necessary party.
A necessary party is a party who will be affected by the decision of a court. His right will be affected, either positively or negatively, by the outcome of the case. It therefore follows that a necessary party is a party whose right will be affected by the orders of the court. In our present case, Alhaji Muhammadu Modi Yaba was the Peoples Democratic Party’s gubernatorial candidate. From every angle one looks at the petition, one finds that he will be affected by the outcome of the petition. If prayers 1 and 3 of the petition succeed, he will be duly returned as the Governor of Sokoto State. If it is prayer 4 that succeeds, the election will be nullified and a new election ordered. It could be seen whatever order the tribunal makes, it will affect him. In my considered opinion, Alhaji Muhammadu Modi Yaba is a necessary party to the petition. My answer by the second issue is therefore in the affirmative. INEC and the PDP gubernatorial candidate are necessary parties to the petition.
What, then, is the effect of not joining INEC and Alhaji Muhammadu Modi Yabo to the petition? In the case of Maikori v. Lere (1992) 3 NWLR (Pt.231) 525 this court held that it is trite law that a court as well as a tribunal will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. In NEC v. Izuogu (1993) 2 NWLR (Pt.275)270 Sulu-Gambari J.C.A. (as he then was) stated at page 295:
“I still abide by my opinion in the case of Maikori v. Lere (1992) (supra) that a court as well as a tribunal will not make an order to give a judgment that would affect the interest or right of a person or body that is not a party and who has not been heard in the matter.
Any person to be directly affected by an order of the court ought to be heard by that court before such order is made and indeed section 33(2)(a) of the 1979 Constitution emphasized the need to provide any person whose rights and obligations may be affected an opportunity to make representations before a decision or order affecting him is made.” As I have earlier discussed in this judgment, any order made by the tribunal would affect the right or interest of INEC and Alhaji Muhammadu Modi Yabo. Since the tribunal has no jurisdiction to make any pronouncement affecting their interests or rights without affording them the opportunity of being heard, it follows that their non-joinder is fatal to the petition. I will therefore answer the third issue in the affirmative. The non-joinder of the PDP gubernatorial candidate Alhaji Muhammadu Modi Yabo is fatal to the petition. In the result this appeal fails and is hereby dismissed. The decision of the tribunal striking out the appellant’s petition is upheld. The appellant shall pay costs to the 1st and 2nd respondents jointly, which I assess at N2000.00.
Other Citations: (1999)LCN/0581(CA)
