Alhaji Baba Ahmed Jidda V. Alhaji Mala Kachallah & Ors (1999)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
The appellant together with the first respondent were contestants at the governorship elections conducted by the 2nd – 13th respondents on the 9th day of January, 1999 for the seat of the Governor of Borno State. The 1st respondent was returned by the 2nd respondent as the candidate who scored the majority of the votes cast at the election. Not satisfied with the return of the 1st respondent, the petitioner filed a petition at the Governorship and State House of Assembly Election Tribunal in Maiduguri. Pleadings were exchanged and issues joined. In the petition, the petitioner complained inter alia about corrupt practices, irregularities and offences against Decree No. 3 of 1999. The petitioner/appellant in his petition mentioned some names at page 34 of the petition and also stated at pages 84 – 85 that the persons mentioned thereat were arraigned by the police for taking part in malpractices. In the course of the hearing of the petition, the 2nd – 13th respondents filed a motion praying the tribunal to strike out the petition on the ground that it was incompetent since the petitioner failed to join the persons he mentioned in his petition against whose conduct he complained about. Consequently, the petition was struck out as being incompetent, having failed to join all the necessary parties.
It is against the order striking out the petition that the petitioner/appellant has appealed to this honourable court.
The issue to be resolved by this court is where there is a provision that all necessary parties shall be joined as parties, whether non-joinder of some of the parties where the petitioner has selected important parties and made them parties would vitiate and void a petition on grounds of non-compliance.
In the election petition, the appellant in his petition complained that the 1st respondent is not duly qualified educationally not having done primary school or its equivalent. He also alleged that the 1st respondent is not a citizen of Nigeria, nor did he produce evidence of tax payment as and when due for a period of 3 years immediately preceding the year of the election. Then he alleged the existence of corrupt practices and mentioned gross electoral malpractices, the 1st three allegations were against the 1st respondent. They are poignant allegations which must be answered by the respondents and no one else. The authority that cleared the 1st respondent was INEC, and therefore it is extrically bound with the case of the 1st respondent, the inference being that it did not do its job properly otherwise it would have detected the anomalies prevalent at the election. In his allegation of gross electoral malpractices he made mention of certain inferences of ignoble acts of certain officers like presiding officers whom he alleged did the dirty jobs. These allegation made against the presiding officers for which they have to answer, being an appendage of INEC, cannot be said to have anything to do with the fact that the 1st respondent was not qualified to stand for election.
For the proof of these allegation the necessary parties shall be the 1st respondent and INEC. A necessary party is a person, body or an institution who or which the plaintiff or petitioner must make a party in order to show cause of action and establish a nexus between him the complaint and the act complained of.
Presiding officers have nothing to do with the proof as to whether or not Alhaji Mala Kachallah the 1st respondent is a Nigerian. The 1st respondent is being called upon to prove to the tribunal that he is a Nigerian. And for the proof of this the presiding officers of the election are not necessary or relevant parties as far as this concerned. Equally too, their presence is not necessary for the proof that the 1st respondent have not paid his 3 years tax up to day. They are only necessary party in so far as it affect the allegations made against them personally.
Section 133(2) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 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 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 construing this provision it is evident that the Decree has stated that the person whose election is being complained of is the 1st respondent, which means from the word go he has to establish a cause of action against the 1st respondent.
If however he has a complaint against the conduct of an electoral officer or other officers hired by INEC, then in so far as it relates to allegation made, they are necessary parties, which is to say they have a case to answer.
The word ‘shall’ appearing in that provision is being bandied about by both parties, in such a way as each party regards it as the ‘magic wand’. The interpretation given to the word ‘shall’ in the case of Katto v. C.B.N. (1991)9 NWLR (Pt.214) 126 by Akpata JSC should be related to the circumstances and the provisions of the law, particularising that state of affair. It is my view that the interpretation of the word ‘shall’ there cannot be accepted as ruling in the interpretation in this matter because there are two elements involved in these provisions they are:
(1) Complaint against the 1st respondent.
(2) Complaint against electoral officers of INEC.
The word ‘shall’ cannot be taken to mean that for the proof of complaint against the 1st respondent, the presiding officers are necessary parties; I refuse to agree to that.
The tribunal below should have made a dissection in the interpretation of that provision as it ought to be fully aware of not connecting the complaint against the 1st respondent per se with the act of the presiding officers. It is on this ground that the tribunal below struck out the petition on the ground of incompetence.
That striking out was an error of law to which ordinarily this court would in normal cases remit the case for re-trial, but unfortunately we are not dealing with normal cases but cases which the statute makes time of the essence in their prosecution and determination.
The question for the court to answer now is since the tribunal below had very inelegantly and obviously erred in its approach, what can this court do in the circumstances.
In approaching this matter I will have to refer to the reliefs sought in the grounds of appeal:-
“(a) An order allowing the appeal by setting aside the decision of the lower tribunal.
(b) An order to hear and determine the petition on its merits by either the same panel or a different panel.”
The appellant asks that we set aside the decision of the lower court. I am satisfied that the decision of the lower tribunal is wrong by striking out the petition.
The second relief is for this court to hear and determine the appeal on its merits.
This is a Court of Appeal set up by the Constitution of the Federal Republic of Nigeria and also vested with the authority to pronounce finally on appeals from Election Tribunal in Local Government, State Assembly, Gubernatorial, the House of Representatives and Senate election petition. It is only a court of first instance in a Presidential election petition. Therefore, this court has no jurisdiction to hear the case on its merits as a court of first instance.
Secondly as to making an order that the same panel or a different panel rehear the matter, the tribunal constituted to hear the gubernatorial election has since lost its jurisdiction, it being remembered that it worked within a time frame work.
It must be borne in mind that in the determination of all election petition matters, public policy dictates that time is of the essence so that as much as possible parties affected and the generality of the public would readily know the status of the contestants.
While I sympathise very much with the appellant in this matter, I cannot but say that he is asking the court for impossible reliefs. It should be appreciated that the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999, is meant to be interpreted strictly with regards’ to the time frame allowed by the provision of the Decree.
The court cannot grant the relief sought as by the effluxion of time the case before us is now dead to all intents and purposes. The appellant cannot be granted the reliefs sought having regard to the above reasons. The election of the 1st respondent unavoidably stands.
Other Citations: (1999)LCN/0567(CA)
