All Nigeria Peoples Party & Anor. V. Hon. Engr. Abdullahi Umar Faruk & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHAM OREDOLA, J.C.A.

This appeal is against the judgment of the National Assembly/Governorship/Legislative Houses Election Tribunal, sitting at Birnin-Kebbi, Kebbi State, in Petition NO.KB/EPT/HR/5/07. The election in question was for the member to represent Bunza/Birnin-Kebbi/Kalgo Federal Constituency of Kebbi State in the National Assembly and precisely the House of Representatives. The election took place on 21st April, 2007. According to the Petitioners, the 3rd Respondent herein alongside other Respondents conducted the said election. The 1st Appellant – All Nigeria Peoples Party (ANPP) sponsored the 2nd Appellant – Abubakar Malami Esq. as its candidate. Similarly, the 1st Respondent – Hon. Engr. Abdullahi Umar Faruk was sponsored by the 2nd Respondent, Peoples Democratic Party (PDP). The 1st Respondent was declared and returned as the winner of the said election with 71,023 votes while the 2nd Appellant scored 28,274 votes.

By a petition dated and filed on 21st May, 2007, the 1st and 2nd Appellants as Petitioners challenged the declaration and return of the 1st Respondent as the winner of the said election. The petition, accompanied by written statements on oath of witnesses and list of documents to be relied upon can be found at pages 1-48 of the record..,

The grounds raised by the Appellants for the challenge mounted against the return of the 1st Respondent are three. They are reproduced thus:

1. The Respondent was at the time of the election not qualified to contest the election.
2. The election was invalid by reason of corrupt practices and or non compliance with the mandatory provisions of the Electoral Act, 2006.
3. The 1st Respondent was not duly elected by majority of lawful votes cast at the election. The reliefs prayed for by the Appellants before the Tribunal are reproduced below:
4. That the 1st Respondent was not duly elected or returned and that his election was void and that the said Abubakar Malami Esq. sponsored by the 1st Petitioner was elected and ought to have been returned or as the case may be and or in the alternative nullifying the election in its entirety.
5. That the election of the 1st Respondent be nullified as he was not eligible, qualified and competent to contest the said election, his nomination having been made in breach of the provisions of the Electoral Act, 2006.
6. That the election of the 1st Respondent is invalid as the merger in pursuance of which the 3rd Respondent was misled into accepting the substitution of the 1st Respondent was in fact not duly consummated.
7. And such further orders or reliefs as the Honourable Tribunal may deem fit to make or grant in the circumstances.

Upon being served with the petition, the 1st and 2nd Respondents caused a conditional memorandum of appearance with notice of preliminary objection, both dated 28th May, 2007 and filed on 30th May, 2007 to be presented on their behalf. (Pages 49-52 of the record.) Thereafter, on 4th June, 2007, the 1st and 2nd Respondents filed their joint reply to the petition. (Pages 55-67 of the record.) On their part, the 3rd – 42nd Respondents filed their reply to the petition on 14th June, 2007. During the pre-trial conference, the preliminary objection raised by the 1st and 2nd Respondents was rolled over for hearing along with the petition. It was agreed and as contained in the Tribunal’s report that five issues are to be determined in the petition.

The issues are as follows:

1. Whether in view of the facts and documentary evidence before the Honourable Tribunal, the 1st Respondent was qualified to contest the election into the House of Representatives held on 21st April, 2007 as the candidate of the 2nd Respondent.
2. Whether this Tribunal has jurisdiction to entertain the petition.
3. Whether the 1st Respondent was validly returned in the circumstances as the winner of the said election by the 3rd and 4th Respondents.
4. Whether the return of the 1st Respondent is valid regard being had to the effect of the result returned by the 3rd Respondent vide Form EC8B(ii) and the entries in the voters register vis-a-viz the provisions of the Electoral Act.
5. Whether having regard to the allegation of irregularities and infraction of the Electoral Act contained in paragraph O of the petition, the election conducted on 21st day of April, 2007 has been conducted in substantial compliance with the provisions of the Electoral Act?

At the hearing before the Tribunal, all the parties also agreed to dispense with all written statements on oath of witnesses inclusive of oral testimonies of such witnesses. It was the consensus that reliance would be placed solely on documentary evidence to be tendered by learned counsel for the parties from the Bar and admitted in evidence. (Pages 313-314 of the record.) The petition was also consolidated by an order of the Tribunal made on 13th July, 2007 with Petition NO.KB/EPT/HR/3/07. (Pages 305 of the record.) The following documents were tendered by the Appellants, admitted and marked accordingly as exhibits. They are:

1. Exhibit P1 – Letter of substitution dated 5th February, 2007 co-signed by Dr. Ahmadu Ali, National Chairman of the PDP and Ojo Maduekwe, National Secretary of PDP.
2. Exhibit P2 – INEC Form CF001, Affidavit in support of personal particulars of persons seeking election.
3. EXHIBIT P3- INEC Form CF4B (iv), Nomination Form for House of Representatives.
4. Exhibit P4 – INEC Form CF004A, Notice of Withdrawal/Substitution of candidate.
5. Exhibit P5 – Merger Agreement.
6. Exhibit P6 – Letter dated 19th February, 2007 titled “Withdrawal Letter”. Signed by Dr. Ahmadu Ali, National Chairman of the

PDP.

7. Exhibit P7 – Forms EC8A (ii) issued to agents of Petitioners by INEC bound together in one volume.
8. Exhibits P8 (A) and (8) – INEC Forms EC8A (ii) Certified by the 3rd Respondent, bound in two volumes. 1. Pages 1-255 and 2. Pages 256-337.
9. Exhibits P9(A1) – (A35) – Forms EC8B(ii) 35 Copies Certified by INEC.
10. Exhibits P10(A1) – (A4) -INEC Forms EC8C (ii) 4 in number.
11. Exhibit P11 – Electronic Register issued to the 1st Petitioner before the day of election.
12. Exhibit P12 -INEC Forms EC8E (ii) Certified by INEC.

In addition to placing reliance on the Exhibits tendered by the Appellants with the exception of Exhibit P7, the 1st and 2nd Respondents also tendered Exhibit R1 – “Replacement of candidates for the 2007 elections under the ANPP, Kebbi State dated 18th February, 2007, signed by Ibrahim Usman Abarshi, Secretary. (P.318 of the record.)

Similarly, the 3rd – 42nd Respondents adopted the Exhibits tendered by the Appellants with the exception of Exhibits P7 and P11. They further tendered Exhibit R2 – “Notification of my decamping from ANPP dated 12th February, 2007, signed by Engr. Abdullahi Umar Faruk. (Page 318 of the record.) The Tribunal’s judgment was delivered on 15th October, 2007. It struck out the petition on the ground of incompetence and want of jurisdiction. (Page 356 of the record.) The Petitioners were dissatisfied with the judgment. They filed the instant appeal. It was dated and filed on 5th November, 2007. It contained five grounds of appeal. (Pages 373 -385 of the record.) From the five grounds of appeal, the Petitioners hereinafter referred to as Appellants distilled three issues in their brief of arguments dated 17th January, 2008 and deemed filed and served with leave of this court granted on 31st March, 2008. The formulated issues are:

1. Whether the trial tribunal’s failure to address the Appellants’ objection to the competence of the process filed by the Respondents has not occasioned a miscarriage of justice.
2. Whether the jurisdiction of an election petition Tribunal in respect of an election based substantially on challenge to the return of election result and eligibility of a candidate to contest election cannot be properly invoked on account of non-joinder of Independent National Electoral Commission even where the returning officers and the candidate whose eligibility was challenged were appropriately joined.
3. Whether this Honourable Court is not entitled to pronounce on issues number 3, 4 and 5 that were canvassed by the Appellants but overlooked by the Tribunal at the hearing.

The 1st and 2nd Respondents brief is dated 4th April, 2008 and filed on 7th April, 2008. Four issues were couched therein for determination in this appeal. They are reproduced below:

1. Whether or not the competence of the processes filed by the 1st and 2nd Respondents was an issue for determination before the Trial Tribunal and if so whether the failure of the Trial Tribunal to consider it in its judgment occasioned a miscarriage of justice.
2. Considering the nature of the pleadings, whether or not the Trial Tribunal was right in declining jurisdiction on account of the Petitioners/Appellants failure to join INEC as party in the petition.
3. Whether or not the Trial Tribunal was right in treating the Petitioners/Appellants petition as a separate and distinct petition in spite of the fact that it was consolidated with Petition NO. KB/EPT/HR/3/2007.
4. Having declined jurisdiction whether it was any longer necessary for the Trial Tribunal to proceed to treat the remaining issues.

Also, the 3rd – 42nd Respondents in their brief of arguments dated 9th May, 2008 and deemed properly filed and served by order of Court made on 28th May, 2008, formulated just one issue for determination in this appeal. It goes thus:

Whether or not the Tribunal was in the circumstances of the petition right in holding that it lacked jurisdiction to entertain it.

At the hearing of this appeal, all the learned counsel for the parties adopted and relied on their respective brief of arguments. However, the learned counsel for the Appellants, 8uleiman Abdulkadir Esq., urged us to discountenance the brief filed by the 1st and 2nd Respondents on the ground that it was filed out of time. He referred to 8.15(5) of the Interpretation Act and the case of Ani V. Uzorka (1993) 8 N.W.L.R. (Pt.309) 118. He contended that they had five days within which to file their brief and not seven days.

Sam Kargbo Esq., the learned counsel for the 1st and 2nd Respondents maintained that their brief was duly filed within time. He urged us to disregard the objection raised thereto by the learned counsel for the Appellants.

I have had recourse to construe S.15 (5) of the Interpretation Act. I have also perused our records in respect of this appeal. I do not intend to belabour the point. I am satisfied that the 1st and 2nd Respondents brief was filed within time. They had five days to do the necessary. The fifth day fell on a Saturday. They filed on the next week day – being Monday. What else could they do. I am with them. The objection raised by the Appellants thereon is hereby discountenanced and overruled by me.

It is now firmly settled that although each party to an appeal is free to frame issue or issues for determination in the appeal, the issue or issues so framed must arise, from, emanate and relate to the ground or grounds of appeal settled in the matter and the judgment appealed against I have given due consideration to the issues formulated by the parties herein. I am of the viewpoint that the sole issue distilled in the brief filed by the 3rd – 42nd Respondents is apposite and adequate for the determination of this appeal. I accordingly adopt the said issue as formulated for the determination of this appeal.

On this issue, it was the submission of the learned counsel for the Appellants that the jurisdiction of the Tribunal in the given circumstances and facts of this case, to wit, qualification and eligibility of the 1st and 2nd Respondents to contest the election in question, can be properly invoked solely on that ground without the need whatsoever to involve INEC and thus the non- joinder of INEC could not thereby affect the competence and jurisdiction of the Tribunal to entertain and determine the petition on that ground. Host of cases were cited and relied upon in support of this submission and its variants. We were urged by the Appellants to resolve the issue in their favour and allow the appeal.

In his response to submissions of learned counsel for the Appellants which are relevant to the sole issue adopted by me, the learned counsel for the 1st and 2nd Respondents, Sam Kargbo Esq., contended that by virtue of the pleadings and issues joined thereon by the parties, INEC is a necessary party and without joining INEC as a respondent, the petition according to him is worthless. He opined that the issue of joinder of parties in an election petition is statutory and to which there must be strict compliance. Furthermore, that having complained and seriously too about the conduct of INEC in the manner stated in the petition, it behoves the Appellants as Petitioners under S.144(2) of the Electoral Act, 2006 to join INEC and failure to do so is fatal. Thus, the finding or holding of the Tribunal on this point cannot be faulted and should be left undisturbed.

The arguments canvassed by the learned counsel for the 3rd – 42nd Respondents on this issue flowed in similar direction and followed the same pattern as the ones advanced by the learned counsel for the 1st and 2nd Respondents. It was however argued in addition by the said learned counsel, that the 3rd Respondent herein, the Returning Officer, Birnin Kebbi Local Government is not synonymous with or an adjunct to INEC. According to him, this is moreso, in the face of series or legion of complaints and allegations levelled at and placed at the door step of INEC by the Appellants. All these and more were made against INEC, a non party to the petition. It was then surmised that INEC was a necessary statutory party who has been left out for the wholly unneeded and unnecessary ones. Reference was made to and reliance placed on Buhari v. Obasanjo (2003) 17 N.W.L.R. (Pt.850) 423/482.

It was his submission in conclusion that since INEC has not been made a party to the petition, other issues in the petition will have no foundation to sustain them. We were urged to resolve the issue against the Appellants, uphold the Tribunal’s decision and dismiss the appeal as lacking in merit.

The law is settled that when the question or issue of jurisdiction of any court or tribunal is raised, it transforms into one which borders or touches the competence of the court or tribunal against which it is raised, to entertain and determine the matter.

It is also trite that a court can only be competent to entertain and determine a matter if among other things all the conditions precedent for its having jurisdiction are fulfilled. For instance, the subject matter or cause of action must be within its jurisdiction and there should be no feature or factor in the case which prevents or militates against the court from assuming and exercising its jurisdiction. See Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587/594.

The issue of a Court’s jurisdiction is threshold. It is fundamental and deep rooted in the heart of any matter. Thus, if a court or tribunal is not competent to entertain a matter as a result of an incompetent cause of action, it is sheer waste of valuable and priceless time of both the court and the parties, to embark on a fruitless journey by proceeding, hearing and determining the matter one way or the other. It is therefore a purposeful exhibition of candour and wisdom to stay further action, once the issue of competence or jurisdiction has been determined against the claimant or petitioner.

Again, the issue of jurisdiction being a watershed can be raised at any stage of the proceedings, either in the court of first instance or on appeal. It can be raised by either of the parties or suo motu by the court itself. See Oloba v. Akereja (1988) 7 S.C.N.J. 56/63 – 64. Absence or lack of jurisdiction renders the entire proceedings a nullity, no matter how well conducted and decided. See Madukolu v. Nkemdilim (supra).

In the instant case, it is glaring that INEC has been left from the galaxy of respondents and ominously too from the larger picture. What readily comes to mind is how could the Appellants envisage that the petition could be heard and determined behind the back and without involvement of INEC. Indeed and invariably too, it cannot be gainsaid that INEC is a necessary party in any election petition. It is neater and safer.A necessary party to a case has been described as a person or party whose presence or involvement in the matter is not only necessary but crucial and unavoidable for the effective, effectual, exhaustive, complete and comprehensive adjudication of all questions raised in a cause or matter and in due deference to the principles of fair hearing See O.K. Contact Point Ltd. V. Progress Bank Plc (1999) 5 N.W.L.R. (Pt.604) 631; B.O.N. Ltd. V. Saleh (1999) 9 N.W.L.R. (Pt.618) 331.

It is also trite that where a necessary party is not joined in a case, the court or tribunal lacks jurisdiction to entertain and determine it. See Tafida v. Bafarawa (1999) 4 N.W.L.R. (Pt.597) 70; Kaliel v. Aliero (1999) 4 N.W.L.R. (Pt.597) 139, Bashir v. Audu (1999) 5 N.W.L.R. (Pt.603) 433. What is more S.144 (2) of the Electoral Act, 2006 removes the issue of joinder of INEC from the realms of heated arguments and unnecessary debates when it prescribes that INEC otherwise known as the Commission is a statutory respondent. It must be made a party to an election petition – as a matter of fact and law. To my mind and understanding, INEC is better positioned, more than anyone else in this matter, in the event of a favourable verdict for the petitioner, for instance, an order to conduct a fresh election, to carry out such an order of the Tribunal. Let’s take another instance. It is the statutory duty of INEC to issue certificate of return to every candidate who has won an election under the Electoral Act, 2006. Indeed, S.76 of the Act provides that where either the Court of Appeal or Supreme Court nullifies the certificate of return of any candidate, the Commission shall issue the adjudged successful candidate with a valid certificate of return within 48 hours after the receipt of the order of such court made thereon. What is more, sub-section (2) of S.76 of the Act, provides for the aftermath effect and way out, where the Commission for whatever reason, fails, refuses or neglects to issue a certificate of return. In the event of such a development, a certified true copy of the Court order, made by a Court of competent jurisdiction shall ipso facto be sufficient and adequate to be acted upon in similar manner as a certificate of return.

Thus, when looked at and from whatever angle, INEC is a necessary party in an election petition where the petitioner as in the instant case, sought an order that the 1st Respondent herein was not duly elected or returned and that the 1st Appellant herein was elected and ought to have been returned by the Tribunal or in the alternative, a nullification of the election in its entirety with a consequential order for a re-run or bye – election. In the absence of INEC being made a party to the petition, none of the Respondents herein is capable and vested with power to arrange, prepare, organize or conduct a fresh/bye election, all on his or her own without the presence and involvement of INEC. Thus, the active participation of INEC as a body in an election petition is highly warranted and absolutely necessary, in order that it would be bound by whatever order the Tribunal might make based on the facts and evidence tendered and admitted in the matter. In the instant case, unless INEC is made a party, there will be questions or issues in the petition which cannot be answered or resolved in an effective and exhaustive manner. To such questions, the answers will continue to blow in the wind and unanswered while the issues remain unresolved. Thus, INEC is obviously a necessary party who should not only be keen and interested in the subject matter of the proceedings, but also a party in whose absence the proceedings could not be fairly and justly dealt with. See Green V. Green (1987) 3 N.W.L.R. (Pt.61) 480. It is trite that in an election petition, failure to join any necessary party will vitiate or nullify the proceedings. Thus, as in the instant case, where a party claims a relief which when granted will be binding on a person or ought to be binding on such a person who is not a party to the action, the action becomes incompetent for failure to join an absolutely necessary party. See Tafida V. Bafarawa (1999) 4 N.W.L.R. (Pt.597) 70; Maikori V. Lere (1992) 3 N.W.L.R. (Pt.231) 525. Election petition is sui generis. It is somewhat in a world or class of its own. It brooks no default, particularly readily sanctionable ones. Invariably, certain mistakes, irregularities or defaults are categorized as being unpardonable and visited with harsh repercussions – though sad and painful. Non-joinder or inclusion of INEC as a party as rightly held by the Tribunal spelt the death knell for the petition. Appellants as Petitioners sued everybody sueable but conveniently forgot, omitted or refused to join the one party that mattered the most – INEC. It is the body constitutionally and statutorily charged with the conduct and organization of the election. It is legally incorrect for the Appellants to have left out INEC in the scheme of things in the instant case. The sole issue adopted by me is hereby resolved against the Appellants.

In the final analysis and in the premises of the foregone, I find and hold that there is no merit in this appeal. It is hereby dismissed. Accordingly, the judgment of the Tribunal, National Assembly/Governorship and Legislative Houses Election Tribunal, sitting at Birnin Kebbi, Kebbi State and delivered on 15th October, 2007 is hereby affirmed by me.

I assess costs in the sum of N20,000.00 for each set of Respondents herein, that is 1st and 2nd Respondents and 3rd – 42nd Respondents respectively.

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Other Citations: (2008)LCN/3026(CA)