Chief Ken Nnamani V. Chief Uche Nnaji & Ors (1999)
LawGlobal-Hub Lead Judgment Report
TOBI, J.C.A.
The appellant was the petitioner in the National Assembly Election Tribunal. He was a candidate in the senatorial election for the Enugu East Constituency held on 20th February, 1999.
He was declared a loser. He filed an election petition. The 1st respondent entered a memorandum of conditional appearance. Before the petition could be heard, the 1st respondent filed a motion praying for “an order dismissing, striking out or setting aside the above petition for being incurably bad and incompetent”, The motion was based on three grounds:-
(a) Absence of locus standi
(b) Lack/want of jurisdiction of the tribunal to hear and/or determine the petition.
(c) Absence of mandatory parties/persons. Similar motions was filed by 2nd to 9th respondents. The motion were filed on 1st April, 1999.
The appellant had earlier filed a motion to amend his petition by adding more respondents and giving further particulars of malpractices of the 1st respondent as shown in the amended petition exhibited to the affidavit in support of (the) motion and marked Exhibit A”. The motion dated 22nd March. 1999 was filed on the same day.
All the three motions came up on 9th April, 1999. Following an argument on which motion or motions to take first, the learned National Assembly Election Tribunal decided to take the motion on jurisdiction. After hearing arguments from counsel, the tribunal granted the motion and struck out the petition. The learned Chairman of the tribunal, Edet J. said:-
“On the whole we allow this motion on the grounds that the petitioner did not specify his right or the capacity as required by law and on a further ground that he failed to join necessary parties to the petition.”
Dissatisfied with the ruling, the appellant has come to this court. As usual, briefs were filed and exchanged. The 1st respondent filed a cross-appeal to which the appellant responded. The appellant filed the following two issues for determination:-
“(a) Was the tribunal right in law in holding that the appellant as petitioner did not specify his right to bring the petition as stipulated in the relevant Decree No.5 of 1999?
(b) Was the tribunal correct in law and in fact in holding that the petition was vitiated by non-joinder and necessary parties?” The 1st respondent/cross-appellant adopted the above issues and formulated the following additional issue for determination.
“Whether the resignation of the 1st respondent/cross-appellant from his party and upon which platform he contested and won the election did not operate to render the seat for Enugu East Senatorial District vacant’?”
On issue No. 1, learned Senior Advocate for the appellant, Mr. A. N. Anyamene, referred the court to section 78(1) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999 on the persons having a right to bring an election petition, paragraph 5(1) of Schedule 5 to the Decree which provides for what an election petition shall contain and paragraph 5(7) of Schedule 5 which relates to Form TF002. Learned Senior Advocate pointed out that in the case of Chief Egolum v. General Olusegun Obasanjo CA/A/EPPR/13/99 decided on 22nd March, 1999, relied upon by the tribunal, the petitioner was not a candidate. He referred the court to the contribution of Oguntade, J.C.A., and submitted as follows:-
“There is therefore no gainsaying the fact that the issue before the Court of Appeal, Abuja, in the said Chief Egolum’s petition is not the same as in the instant suit and the tribunal ought not to have befogged the issue by reference to a decision where the facts are totally different.”
Learned Senior Advocate contended that if a law provides for the modus operandi in approaching the court, a litigant who uses that modus will not be penalized even if it contained a deficiency or defect. He referred to Aremu v. Inspector-General of Police (1965) NMLR 327. Accordingly, learned Senior Advocate submitted that even if Form TF.002 is not as full as any court may wish it to be, it is not competent for the court to strike out the petition which follows the form. It is not competent for the court to give a ruling which would have the effect of amending the law, learned Senior Advocate argued. It is the sole function of the law maker to amend any form it prescribes for approaching the courts where the law maker finds it defective, counsel further argued.
On issue No.2, learned Senior Advocate contended that since no complaint was made against Presiding Officers, there was no need to join them as the law does not say that the petitioner must join Presiding Officers, where no complaint of their conduct is made in the election petition. He referred to section 78(2) of the Decree and paragraph 48(1) of Schedule 5 to the Decree.
It was the submission of learned Senior Advocate that the tribunal misdirected itself when it held that, “the petitioner failed to comply with section 78(2) of Decree No.5 of 1999 by failing to join necessary parties in respect of paragraphs 4, 9 to 13 of the petition”. Counsel contended that the case of Asabe Vilita Bashir v. Buba Audu and others (Appeal No. CA/J/70/99) decided on 19th March. 1999 [now reported in (1999) 5 NWLR (Pt.603) 433 is not relevant. He however said that the portion of the decision in P.D.P. v. A.P.P. and others (1999) 3 NWLR (Pt.594) 238 at 245 quoted by the tribunal, accords with the view of the Supreme Court in Chief Omoboriowo and Another v. Chief Michael Ajasin (1984) 1 SCNLR 108; (1984) 1 SC 206 at 245 – 246 and common sense.
Learned Senior Advocate referred to the submissions of both counsel on the case of Falae v. General Obasanjo, CA/A/EPPR/12/99 [now reported (1999) 4 NWLR (Pt.599) 435] and contended that where the submissions of the two counsel agree, a trial court ought not to depart from them suo motu. He urged the court to allow the appeal.
On issue No. 1, learned Senior Advocate for the respondent/cross-appellant, Mr. J. K. Gadzama. contended that the appellant as petitioner did not specify his right to bring the petition and that the failure is fatal to his case and renders the petition incompetent. Referring to section 78(1) of the National Assembly (Basic Constitutional Provisions) Decree No.5 of 1999 and paragraph 5(1)(a) of Schedule 5 to the Decree, learned Senior Advocate contended that the provisions, taken together, demand that the petitioner must go beyond repeating the said provisions and state unequivocally the attributes that qualify him to contest the election and thus bring the petition. In other words, he must state that he was qualified, going by the conditions spelt out in section 18 of the Decree and that he is not disqualified under section 19 of the same Decree, learned Senior Advocate submitted. Calling in aid the definition of “specify” in Black’s Law Dictionary. learned Senior Advocate submitted that the definition imports that the petitioner should mention that he is of the requisite age, that he is a Nigerian citizen, among others as is containeded in section 18 and that he is not under any disability as specified in section 19. Failure to do this undoubtedly renders the petition incompetent, counsel claimed. He referred to Chief Egolum v. General Obasanjo and others, CA/A/EPPR/99 delivered on 22/3/99.
Learned Senior Advocate maintained that it is fallacious to posit, as is done by the petitioner/appellant in his briefs that the requirement for specification applied to Chief Egolum because he was not a person who contested the presidential election and was therefore not provided for in section 78(1). He referred to the ruling of Musdapher. J.C.A. in the case and submitted that the requirement to specify does not discriminate between a person who contested the election and one who did not. To counsel, it applies with equal force to every petitioner, contestant or non-contestant. He referred to paragraph 1 of Form TF. 002 in the Decree.
Still on the Chief Egolum’s case, learned Senior Advocate referred to the contribution of Oguntade. J.C.A. and pointed out the obvious that it was not the leading ruling. He claimed that at best, the contribution could be regarded as a dissenting opinion of the court. Oguntade, J.C.A. learned Senior Advocate contended, merely considered the petitioners who were not candidates at the election. He submitted that the decision of the Court of Appeal in Egolum that a petitioner must specify or particularize his right to contest a petition is binding on our courts and tribunals, except set aside by the Supreme Court. He however said that the decision may not be binding on the Court of Appeal. Learned Senior Advocate claimed tnat the only and one reason why the Court of Appeal struck out the petition of Egolum was because the rights of the petitioner were not specified. He informed the court that the appeal to the Supreme Court was dismissed and that the full reasons for the dismissal of the appeal will be given on 14th May, 1999. He speculated that since the only reason why the Court of Appeal struck out the petition of Egolum was because of failure to specify his right, the reasons that the Supreme Court will give on 14th May. 1999 were most likely to be similar. Learned Senior Advocate claimed that the facts of Egolum’s case and those of the instant case are similar as in both cases the parties were asking for return as elected candidates.
On issue No.2, learned Senior Advocate submitted that the failure of the appellant to join necessary parties in the petition operated to vitiate the petition. He pointed out that since the appellant placed reliance on forms which are only made or filled by Presiding Officers who man the polling booths, all the complaints aggregate to questioning the conduct of the Presiding Officers. Accordingly, failure to join such officers violated section 78(2) of the Decree, learned Senior Advocate submitted.
Counsel called the attention of the court to the motion dated 22nd March, 1999 to amend the petition of the appellant and submitted that the conduct beyond peradventure is an admission that thirty-four Returning and Presiding Officers are necessary parties. Learned Senior Advocate further submitted that the glaring lacuna is fatal to the competence of the petition as it is impossible to lead evidence in proof of any of the allegations without the said officers. He referred to PDP v. APP (1999) 3 NWLR (Pt.594) 238; Asabe Bashir v. Bubo Audu suit No. CA/J/70/99 delivered on 19/3/99 [now reported in (1999) 5 NWLR (Pt. 603) 433; Ikraator v. Tyyar Jaibu, suit No.CA/J/41/99 delivered on 8/3/99 and Taftda v. Batilwara (1999) 4 NWLR (Pt.5Y7) 70 at 83 and urged the court to hold that for the non-joinder of necessary parties, the petition is incompetent and therefore properly struck out by the tribunal.
Dealing with issue No.3 on resignation, learned Senior Advocate would appear to have abandoned the submissions at pages 7 to 9 of his brief. He submitted orally that the tribunal wrongly delved into the issue by holding that as at 6th March, 1999 there was no seat which could have been vacated since the National Assembly was not inaugurated and that the purported resignation is thus both ineffective and in operative.
Learned Senior Advocate submitted further that the issue was not before the tribunal as it was not raised by the petitioner. It was therefore wrong for the tribunal to raise it suo motu. Counsel referred to pages 3 and 4 of the cross-respondent’s brief and particularly paragraph 10 of the cross-respondent’s brief in the cross-appeal and agreed with learned Senior Advocate for the appellant that the issue was not raised by either party. He referred to Kukuri v. Minah (1999) EPLR 18. Learned Senior Advocate urged the court to dismiss the appeal and allow the cross-appeal.
Responding to the cross-appeal, learned Senior Advocate for the appellant. Mr. Anyamene, in his brief formulated two issues for determination.
“(a) Whether the cross-appellant’s resignation from the AD party under which he contested the senatorial election was a proper matter to raise in his preliminary objection.
(b) And if it is (which is not conceded) whether the decision of the Election Tribunal that the cross-respondent had a cause of action notwithstanding the said resignation is correct’?”
Learned Senior Advocate pointed out, on issue No.1, that the cross-appellant did not raise the issue that the petitioner had no cause of action in his application as required by paragraph 50(3) of the Fifth Schedule of Decree No.5 of 1999. The objection of this ground was developed in the course of his counsel’s arguments on the second ground of objection under the heading “lack/want of jurisdiction of the tribunal to hear and/or determine the petition”, learned Senior Advocate further pointed out.
The essence of a preliminary objection, learned Senior Advocate argued, is that “the defendant shall be taken as admitting the truth of the plaintiff’s allegations and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed”. It was therefore not competent for the cross-appellant to introduce the fact of his resignation in his notice of preliminary objection let alone argue it, counsel contended. He further contended that “it is not competent for the cross-appellant to appeal the Election Tribunal’s decision on a fact introduced by himself and which is not found in the cross-appellant’s petition”.
Counsel urged the court to dismiss the 1st respondent’s cross-appeal.
Learned counsel for the 2nd to 9th respondents. Mr. H. C. Onaga. Senior Legal Officer. Ministry of Justice. Enugu State. associated himself with the submissions of Mr. Gadzama, SAN, for the 1st respondent.
Let me take the last issue and it is convenient to do so. There is not much controversy on the issue. But before I go into the merits, I should quickly deal with a procedural matter. As I indicated above, learned Senior Advocate for the 1st respondent would appear to have abandoned the submissions at pages 7 to 9 of his brief and embarked on oral submissions. The law is trite that parties are bound by their briefs in the sense that they cannot freely move in and out of their briefs by way of additions, subtractions or deviations, as the case may be.
In Dilibe and others v. Nwakozor (1985) 5 NWLR (Pt.41) 315, the Court of Appeal held that a point not raised in the brief of argument cannot be raised in oral argument. In Nwagwu and Another v. Okonkwo and others (1987) 3 NWLR (pt.60) 314, the Supreme Court held that arguments canvassed in a brief but not pressed during oral argument are deemed to have been abandoned. See also Nimameks Associates and Another v. Marco Construction Company Limited and Others (1991) 2 NWLR (Pt.174) 411: Menakaya v. Menakaya (1996) 9 NWLR (Pt.472) 256.
In the circumstances, I shall discountenance both the arguments as pages 7, 8 and part of page 9 as well as the oral arguments in respect of the resignation by the 1st respondent. I am therefore left with only the submissions on the issue by learned Senior Advocate for the appellant.
And here, I refer to the submission of learned Senior Advocate at paragraph 10, page 4 of the cross- respondent’s brief:-
“No party asked the Election Tribunal to declare the resignation of the 1st respondent/cross-appellant illegal, ineffective or inoperative, so the said finding of the Tribunal was made per incuriam. The election tribunal has no power to pronounce judgment on an issue not put before it for determination by any party before it.”
The function or role of a court of law is to adjudicate on disputes or issues joined by the parties. A court of law or tribunal has no jurisdiction to instigate or fement litigation between parties on issue or issues they are not prepared to litigate upon. Therefore where a court or tribunal suo motu raises matters which the parties are not prepared to join as issues, an appellate court will certainly intervene and I intervene here.
It is clear from the record that none of the parties asked for a relief declaring the resignation of the 1st respondent ineffective or inoperative, as the learned tribunal did. The order was made without jurisdiction and I hereby declare it null and void ab initio. The cross-appeal therefore fails and it is dismissed.
I am left with two issues. I should take the issue of locus standi first. Section 78 of Decree No.5 of 1999 provides for locus standi in election petitions. While section 78(1) provides for locus standi to sue, section 78(2) provides for the person or persons to be sued.
Section 78(1) provides as follows:-
“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 the election.”
As it is, the subsection provides for two categories of petitioners, as in (a) and (b).
This means that any of the persons within (a) or (b) have the locus standi to file an election petition under the Decree. The disjunctive “or” separating (a) and (b) clearly vindicates the above interpretation. This apart, section 78(1)(a) is also in two parts, again separated by the disjunctive “or” between the words “contest” and “be”. A person claiming to have had a right to contest may be different from a person to be returned at an election, although in both, the common denominator is that the person must obtain the qualifications provided for in section 18 of the Decree and not disqualified under section 19 of the Decree. A possible difference between the first and second arms of section 78(1)(a) is that the second arm could anticipate a person who is returned unopposed, in which case, there was no contest in the real sense of the word.
Learned Senior Advocate for the 1st respondent referred to paragraph 5(1) of Schedule 5 to the Decree. The sub-paragraph provides
“An election petition under this Decree shall:-
(a) specify the parties’ interest in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election and;
(d) state clearly the facts of the election petition and the ground or grounds on which the election petition is based and the relief sought by the petitioner:
Learned Senior Advocate for the appellant referred to paragraph 5(7) of the same schedule. The sub-paragraph provides:-
“The Form TF.002 set out in Schedule 6 to this Decree or one substantially like it, shall be sufficient for the purposes of this paragraph.”
Both section 78(1)(a) of the Decree and paragraph 5(1)(b) of Schedule 5 to the Decree contain the word “right”, a word of generally vague and nebulous jurisprudential meaning, content or purport. Although the word may not convey its highly complex, complicated and at times confused meaning in jurisprudence and legal theory, it is not even the easiest to define under the sub-section and the sub-paragraph.
In my view, the word must convey the same meaning in the two provisions, notwithstanding the fact that section 78(1)(a) provides for a right to contest an election and paragraph 5( 1) (b) provides for specifying the right of the petitioner to present the election petition. While section 78(1)(a) anticipates a pre-election situation, paragraph 5(1)(b) anticipates a post election situation. In either situation, the Decree requires the specification of the right.
What is then that right’? In the context of the two provisions, the word does not convey its popular or general meaning of straight, direct or perpendicular. It does not even mean truly judged, in accordance or identical with what is true. It does not mean the part of the body and what have you. In my humble view, the word contextually means a just or legal claim to something. It means something due to a person in law. And if I may go further, the right in both provisions is neither a moral nor a political right but a legal right. The latter is enforceable while the former is not, and that makes the difference.
It would appear to me that the legal right in either provision will be the capacity or qualification for contesting election as provided for in section 18 of the Decree. In other words, by the two provisions examined above, a person must specify his capacity or qualification in the presentation of his petition.
The Court of Appeal interpreted the provisions of section 50(1)(a) of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999 which are in pari materia with section 78(1)(a) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999. in Chief Chuba Egolum v. General Obasanjo and others, CA/A/EPPR/13/99, a case which learned Senior Advocate for the 1st respondent heavily relied on. In paragraph 1 of the petition, the petitioner averred as follows:.
“Your petitioner Chief Chuba Egolum is a person who had a right to contest at the above election.”
The issue before the court was whether that averment was sufficient compliance with section 50(1) of Decree No.6 of 1999. Musdapher, JCA. after setting out the above averment in his ruling, said at pages 65 of the record:-
“Seemingly therefore the petitioner will appear to have fallen within (section) 50(1)(a) of the Decree. More than that however, he must also comply with paragraph 5(1) of Schedule 4 which in subparagraph 1(b) requires him to specify the right of the petitioner to present the election petition. This in my view means that a petitioner must amplify on the capacity which he relies on to bring the petition, he cannot barely repeat s. 51(a) and no more. The question now is can this obvious lacuna be cured? I have looked closely at paragraph 5(6) which provides guide to the court on whether or not to strike out a petition. Also the provisions contained in paragraph 50(1) to Schedule 4 seems to give the court the discretion to save petitions, but regrettably I am unable to save this particular petition, the reason that the defects are fundamental in that the respondents cannot be expected to proceed to trial when they do not know the capacity in which the petitioner is pursuing the petition.”
Learned Senior Advocate submitted with great force that by the above Musdapher, J.C.A. did not discriminate between a person who contested the election and one who did not. With the greatest respect, I do not agree with learned Senior Advocate because the submission is not borne out from the clear position taken by my learned brother, Musdapber, J.C.A.
Let me analyse the above statement briefly. First, the learned Justice carefully confined his statement to section 50(1)(a) of Decree No.6 of 1999, which is similarly worded as section 78(1)(a) of Decree No.5 of 1999. Second, he called in aid paragraph 5(1)(a) of Schedule 4 to the Decree in the construction of section 50(1) (a) of the Decree. Again, the sub-paragraph is similarly worded as paragraph 5(1)(a) of Schedule 5 to Decree No.5 of 1999 as it relates to section 78(1) (a) of the Decree. It is clear to me that Musdapher, J.C.A. neither dealt with section 50(1)(b) of Decree No.6 of 1999 nor anticipated the subsection. He correctly avoided it because the case before him had nothing to do with the subsection.
I shall examine all the other contributions to see whether any of the Justices touched section 50(1)(b). Mukhtar, J.C.A., said at page 67 of the record:-
“The provision of s. 50(1) (a) of the governing law, that is the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999 is very clear on who is qualified to present a petition under the said law. The fact that the said provision says that a ‘person claiming to have had a right to contest…. may present a petition does not open the gate wide open for all and sundry to file a petition. Whoever claims such right must not only state so, but must show the court that he qualifies to do so, vide his capacity, which to my mind involves the interpretation of Schedule 4 paragraph 5(1)(b) and compliance with s. 2 of the Decree … In this wise the petitioner has not discharged the onus placed on him to qualify him under section 50( I) (a) of the Decree.”
Mukhtar, J,C.A., like Musdapher, J.C.A., dealt with only section 50(1) (a) of the Decree and paragraph 5( 1) of Schedule 4 to the Decree. There was no mention of section 50(1)(b) of the Decree because she rightly thought that the subsection was not applicable.
I take the contribution of Oguntade, J .C.A. The learned Justice said at page 68 of the record:-
‘There is no doubt that section 50 of Decree No.6 of 1999 is a clear departure from the common law practice as to locus standi and to the law on the point in Nigeria. Under section 50 of Decree No.6 of 1999, a person who was not a candidate at the election could come to court to challenge the election.
… However, it must be stated that section 50 of Decree No.6 of 1999 should be read along with paragraph 5 of Schedule 4 to the Decree. Thus, when a person who was not a candidate at the election has brought a petition, he must in compliance with paragraph 5 of Schedule 4 proceed further to state the basis of his right which qualifies him to bring the petition.”
Although Oguntade, J .C.A. generally dealt with section 50 and nor the subsections like the other two Justices. he was clearly referring to section 50(1)(a) when he referred to a person who was not a candidate at the election.
Learned Senior Advocate for the 1st respondent referred to the contribution of Oguntade, J.C.A., in his own words as, “at best … a dissenting opinion of the court”. With respect, I do not see any dissent. The learned Justice, in my view, only made the position clearer and clarity in judgment cannot be a dissent.
Akpabio. J.C.A., said at page 69 of the record:-
“I have read in advance the lead ruling of my learned brother, Musdapher J.C.A., just delivered and have no difficulty in agreeing with him that this application for striking out the petition be granted as the petitioner has no locus standi to bring the petition. In paragraph 1 of the petition, the petitioner merely stated as follows:-
‘Your petitioner Chief Chuba Egolum is a person who had a right to contest at the above election’,
without particularising any of the facts from which his right arose, I too therefore hereby strike out the petition under paragraph 5(6) of Schedule 4 of Decree No.6 of 1999.”
Here again, Akpabio. J.C.A. specifically referred to the petition of Chief Egolum and here I place emphasis on the definite article “the”, He, like his other brothers, was concerned with paragraph 1 of the petition of Chief Egolum and therefore did not deal with section 50(I)(b) of the Decree.
And finally Edozie. J.C.A. said at page 70:-
“The petition for failing to specify the capacity in which the petitioner is presented is grossly defective and is accordingly struck out.”
Like all his other brothers. Edozie, J.C.A. dealt specifically with the petition of Chief Egolum, He was quite clear on this by the definite article “the”. Normally the above exercise in terms of going through the contributions of each Justice is not necessary, but I had to go through the hog because of the construction placed on the ruling by learned Senior Advocate for the 1st respondent. From the ruling of this court at its Abuja Division, I am clearly of the view that the court’s decision did not relate to section 50(1) (b) of Decree No.6 of 1999, which provides for presentation of an election petition by a candidate at the election.
Learned Senior Advocate as indicated above, called the attention of the court to the ruling of the Supreme Court and that the reasons for the ruling will be given on 14th May. 1999. But for the fact that this appeal is very much liable to time, we should have adjourned to have the benefit of the decision of the Supreme Court on the appeal as to whether it will include section 50(1 )(b). We cannot afford an adjournment to that day and so we have to do our own thing in our own way.
However, following the rules of stare decisis it will be bad, too bad for the 1st respondent. if it turns out that the decision of the Supreme Court includes section 50(1)(b) of the Decree in the context of the petitioner specifying the right of the petitioner to present the election petition.
In my view, once a petitioner indicates in a petition that he was a candidate, that is enough to vest in him the locus standi to sue, And if I may add, that is his right to sue because, it is the capacity of the candidature, which to me is the highest.
I do not think a candidate who contested an election and failed need a further identification by way of descriptive words of a decorative or embellishing nature to sustain a cause of action in election petition. That he was a candidate at the election is enough right to sustain the action. The capacity or qualification which entitles him to sue is a matter of evidence which by paragraph 6 of Schedule 5 to the Decree should not be stated in the petition. Accordingly neither paragraph 5(1)(b) of Schedule 5 of the Decree nor Form TF.002 is of any relevance to the status conferred on the petitioner by section 78(1) (b) of the Decree.
There is a major difference between the facts of Chief Egolum v. General Obasanjo (supra) and this case. In Chief Egolum v. Obasanjo, the petitioner was not a candidate but in this case, the petitioner was a candidate and that makes all the difference. In the circumstances, the case is not relevant in this appeal.
Where a statute confers on a plaintiff, nay a petitioner locus standi, a court of law has not the jurisdiction to deny him of the standing to sue, as indeed urged by learned Senior Advocate. A statutory right of a plaintiff to sue abrogates a common law principle to the contrary, that is not to sue.
By section 78 of Decree No.5 of 1999, the law makers have expanded the frontiers of the common law right to sue and a court of law is bound to give teeth to the provision and not to inhibit it. Both litigants and the courts will be happy with a statute which expands the frontiers of locus standi because by such expansion the doors of the court will be much more open to the litigation public and that will certainly make the rule of law and indeed democracy to triumph. It is never the business of the courts to restrict the application of section 78 of Decree No. 5 of 1999 or tighten the frontiers already expanded because that will be inimical to the legal right of access to easy and smooth litigation.
In the light of the foregoing. I do not agree with the decision of the learned tribunal that failure on the part of the appellant to specify his right to present the election petition should be a ground to grant the motion filed on 1st April. 1999.
That takes me to the last issue which is the non-joinder of necessary parties. In Green v. Green (1987) 3 NWLR (Pt.61) 480, the Supreme Court classified parties to an action into three: proper parties, desirable parties and necessary parties. The court defined necessary parties as those who are not only interested in the subject-matter of the proceedings but also in their absence, the proceedings could not be fairly dealt with. In Anya and others v. Iyayi and others (1988).3 NWLR (Pt.82) 359, the Court of Appeal held that in order to hold that a person who is not a party ought to be added. The court must be able to find either that he ought to have been joined or that his presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.
In Tafida v. Bafarawa (1999) 4 NWLR (Pt.597) 70, the Court of Appeal dealt with the issue of necessary party omitted in a petition. In that case, Alhaji Muhammadu Modi Yabo, the gubernatorial candidate at the election was not joined, The court held that the non-joinder was fatal to the whole petition, See also Moikori v. Lere (1992) 3 NWLR (Pt.231) 525: NEC v. Izuogu (1993) 2 NWLR (Pt.275) 270: Olewuyi v. Adeyemi (1990) 4 NWLR (Pt.147)746: Oroh  v. Buraimoh (1990) 2 NWLR (Pt.134) 641.
That is the position of the case law. What is the position in Decree No.5 of 1999? The answer is in section 78(2) or the Decree. The subsection is in the following terms:-
“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 sub-section is so clear. By the provision, the category of respondents is not closed. The words “or other person”, vindicates the fluid nature of the provision. In the light of the mandatory expression, “shall”, it is my view that failure to join any necessary party in an election petition will vitiate or nullify the proceedings. This is consistent with the case law. The recent decision of Tafida v. Bafarawa (supra) is an example of the position taken by this court at its Kaduna Division.
Learned Senior Advocate for the appellant made serious efforts at pages 5 and 6 of his brief to the effect that no complaint was made against any Presiding Officer and therefore the need for joinder did not arise. This submission is contrary to an earlier effort on the part of the appellant to include Presiding Officers by his motion for amendment filed on 22nd March, 1999.
Since the law allows me to make use of document or documents in the case file, I shall reproduce the motion here for ease of reference:-
“Take notice that pursuant to paragraph 5, Schedule 5 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 9 (sic) of 1999, the tribunal will be moved on…..the……day of March, 1999, at 9 o’ clock of the forenoon or so soon thereafter as counsel can be heard on behalf of the above named petitioner/applicant for an order allowing the petitioner/applicant to amend its {sic} by adding more respondents and giving further particulars of malpractices of the 1st respondent as shown in the amended petition exhibited to the affidavit in support of this motion and marked Exhibit A.”
In paragraph 5 of the affidavit in support of the motion, the deponent, who is the appellant here, deposed as follows:-
“My counsel also informs me and I readily believe him that there is need to add more respondents to his petition to comply with the requirements of the law. A copy of the petition incorporating the amendments is attached hereto and marked Exhibit A.
Exhibit A has 43 respondents as opposed to the original 9, of the 43 respondents, 21 are Presiding Officers. There was no Presiding Officer in the original petition as respondent.
And so a few questions arise from the position taken by learned Senior Advocate in his brief. If his contention that the appellant had no complaint against any Presiding Officer is correct, why was his motion for amendment necessary? Why did he add 21 presiding officers to the list of respondent ,Why did the appellant depose to paragraph 5 of the affidavit in support of the motion? What is the meaning of the expression “to comply with the requirements of the law”? Does the expression not mean that the first petition, the one before this court did not comply with the requirements of the Law? Is that not the issue raised by the 1st respondent?
There are still a few more questions but I can stop here, hoping that I have made the point. I think learned Senior Advocate took the correct step by filing the motion for amendment but the learned tribunal decided not to take it in the light of the motion of the 1st respondent on jurisdiction. And so the appellant lost the opportunity of his motion being heard. That is the correct position and we should say it however bitter it may be.
Let me look at the matter from another angle and it is from more the angle of Decree No.5 of 1999. It is the enabling Decree. Schedule 4 to the Decree provides for the function or duties of a Presiding Officer. These are contained mainly in paragraphs 14, 20, 27, 28, 29, 30, 31, 34 and 35 of the Schedule. Paragraph 2(2) of Schedule 3 to the Decree empowers the commission to appoint officers for the conduct of elections, including Presiding Officers and Assistant Presiding Officers.
The main or blanket function of a Presiding Officer is provided in paragraph 14(2) of Schedule 4. It reads:-
”The Presiding Officer shall be in charge of a polling station or unit.”
I should only reproduce paragraph 4 of the petition here to make a point or two:
“And your petitioner states that the election was marred by:
(a) The 1st respondent was not properly nominated nor properly screened and cleared by the 9th respondent to contest the said election.
(b) The 1st respondent was not elected by a majority of lawful votes cast at the election.
(c) Falsification and inflation of figures allegedly scored by the petitioner and 1st respondent undeserved victory.
(d) Gross irregularities in the conduct of the election in various wards in the constituency.
(e) Preventing electors voting in their polling stations.
(f) Intimidating and harassing the agents of the petitioner and driving them away from the polling booths they were assigned to.”
A combined or community interpretation of paragraph 14 (2) of Schedule 4 to the Decree and paragraph 4 of the petition will not leave me in any doubt that a Presiding Officer will be touched in the course of proving some of the averments in paragraph 4, particularly 4(c) and (d). Can the appellant seriously contend that a Presiding Officer who is in charge of a whole polling station or unit not held responsible to the extent that he should explain the falsification and inflation of figures alleged in paragraph 4(c) and the gross irregularities alleged in paragraph 4(d) of the petition? I am not prepared to listen to that defence because it has no basis in law. I can say that much in respect of some of the other paragraphs in the petition vis-a-vis the provisions of Schedule 4 touching the functions or duties of a Presiding Officer. I do not think I should go further. I have made the point and so I should stop here on the issue.
Learned Senior Advocate for the appellant cited Chief Omoboriowo and Another v. Chief Michael Ajasin (1984) 1 SCNLR 108; (1984) I SC 206 at 245 and 246, a case which was referred to by the Court of Appeal, Abuja Division in Chief Falae v. General Olusegun Obasanjo and others, CA/A/EPPR/12/99 decided on 29th 3199 [now reported (1999) 4 NWLR (Pt. 599) 435]. It does not appear that Chief Omoboriowo is applicable in this appeal. I say so because that case had to do with a different statute – the Electoral Act of 1982. In this appeal, we are dealing with the specific mandatory provision of section 78(2) of Decree No.5 of 1999. Let me go further to reproduce the provision of the 1982 Act which was before the Supreme Court. It is section 121, which is wrongly printed as section 122. The relevant provision is section 121 (2), which states in part:
“(2) In any petition, the respondent to such petition shall be:
(a) the successful party; and …
(b) the Chief Federal Electoral Officer of the State where the election relates to the election of the Governor or Deputy Governor of that State…”
In Chief Omoboriowo and Another v. Chief Michael Ajasin (supra), the issue before the Supreme Court was the non-joinder of the Returning Officer who was not named in section 121 of the Electoral Act No.8 of 1982. Dealing with the issue. Obaseki, J.S.C. (as he then was) said at pages 245 and 246:
“The non-joinder of the returning officer, in my view, in no way detracts from the competence of the court, the election panel of the High Court to hear and determine the petition. There are only two compulsory necessary statutory respondents namely, (1) the successful candidate and (2) the Chief Federal Officer of Ondo State for the proper constitution of the election petition. See section 121(a) and (c) of the Electoral Act 1982. Where the petition complains of the conduct of a returning officer, he shall for all purposes be deemed to be a respondent. The effect of non-joinder of the returning officer where allegations of misconduct are made against him is that proof of the misconduct will not be entertained by the court in the absence of a joinder … Ground 2 of the grounds of appeal of 1st appellant fails.”
The situation in this appeal is quite different. By section 78(2) of Decree No.5 of 1999, a Presiding Officer is, using the words of Bello. J.S.C. (as he then was) “compulsory necessary statutory respondent” if the petition complains of his conduct. And I have held from the totality of the petition that the appellant has complained against the Presiding Officer. And that was the legal justification for including them as 22nd to 42nd respondents in the amended petition which did not see the light of day in the proceedings. (See Exhibit A, annexed to the motion of 23rd March, 1999 which was not moved).
I realise that the Court of Appeal, Abuja Division in its ruling in the case of Chief Falae v. General Olusegun Obasanjo and others (supra) followed the decision of Chief Omoboriowo. I shall not take the aspect further than what I have said in respect of the Chief Omoboriowo’s case.
Much as l am in sympathy with the appellant, that his petition cannot be heard on its merits, there is nothing I can do to assist him on the issue of non-joinder of necessary parties, a matter which is clearly beyond his comprehension as a layman, in the sense of not being a lawyer. Section 78(2) is mandatory with the peremptory “shall” built into it. This means that failure to comply with the subsection nullifies the petition and I so hold.
Although the appeal succeeds in respect of the first two issues, it fails on the issue of non-joinder of necessary parties. On the whole, the appeal is dismissed.
I award N1,500 costs to each set of respondents.
Other Citations: (1999)LCN/0601(CA)
