Chief Olusegun Obasanjo & Ors. V. Alhaji Mohammed Dikko Yusuf & Anor (2004)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
This is yet another interlocutory appeal against the decision
of the Presidential Election Petition Tribunal (hereinafter referred to as the tribunal) delivered on 17th July, 2003 refusing to strike out the petition and or its various paragraphs as demanded by the motions, applications and or notices of preliminary objection filed by some of the respondents in the petition.
I shall therefore, in this judgment be brief and straight to the points necessary for the disposal of the relevant issues in the appeal without attempting to prejudge any point or issue yet to be tried or decided by the tribunal (see for example Egbe v. Enogun (1972) 1 All NLR (Pt. 1) 95; Sylvanus Mortune v. Alhaji Muh. Gambo (1979) 3 – 4 SC 54.
The tribunal decided to hear all the motions, applications and objections together. And in a reserved and well considered ruling the tribunal in the lead ruling of Mahmud Mohammed, JCA (which was concurred by all the other 4 Justices) concluded as follows:
“In the result, the application filed by the 1st respondent on 12/6/2003 raising objection to the petition as contained in paragraphs 1 and 2 of his reply also filed on 12/6/2003, except for the striking out of paragraphs 13 and 17 of the petition has failed and the same is hereby dismissed with no order on costs.
Similarly, the application of the 2nd respondent filed on 13/6/2003 raising objection to the petition except for striking out paragraphs 13 and 17 of the petition has also failed and the same is dismissed with no order on costs.
Finally, the preliminary objection by the 40th to 55th respondents seeking for the striking out of the petition or dismissing it, has also failed except for the striking out of paragraphs 13 and 17 of the petition. Consequently, the preliminary objection is also hereby dismissed with no order on costs.”
It is abundantly clear from the above that each of the applications or objections succeeded in part and failed in part. Paragraphs 13 and 17 of the petition were struck-out while all the other prayers or reliefs including that of dismissal and or striking out. the petition were dismissed.
Aggrieved by the ruling of the tribunal, both the 1st and 2nd respondents have appealed separately to this court. The 1st and 2nd petitioners have also jointly cross-appealed against the ruling. For tidiness and for the purposes of eliminating any confusion, I intend to treat together the appeals by the 1st and 2nd respondents as one appeal even though filed separately, they being respectively the candidate at the election and the political party under whose platform the 1st respondent contested. I will thereafter, treat the cross-appeal of the petitioners.
The appeals
In the 1st respondent/appellant’s brief the following 5 issues have been submitted for determination:
1.Whether or not complaints against breaches of the Constitution and Companies and Allied Matters Act (1990) are cognisable in an election petition Grounds 1,2,3 and 4.
I think this issue as framed is too wide. This is not a court for academic exercise. The issue should be confined to the actual decision of the tribunal based on the petition in this case only. The tribunal recognised two classes of petitions. A petition under the Constitution and a petition under the Electoral Act, and held that under the former certain things are permissible but not under the latter as we shall soon find out. So the issue must be confined to petitions based on the Constitution only and not to petitions under the Act.
It was contended in the tribunal that the petition should be dismissed or struck out because the petitioner had failed to question the election on any of the grounds permitted by the Electoral Act. In the lead ruling Mahmud Mohammed, JCA, ruled thus:
“It is well settled point of law that the relief claimed in a suit determines the jurisdiction of the court to adjudicate on it. This principle of law had been long settled in many cases by the Supreme Court. …
The reliefs claimed by the petitioners in their paragraph 20(1) of the petition which is relevant at this stage read:
‘ WHEREFORE your petitioners pray jointly and or severally that:
It may be determined that the 1st respondent as not duly or validly elected and/or returned as the President of Federal Republic of Nigeria pursuant to the election held on the 19th April, 2003.’
The jurisdiction of this court to hear and determine any election petition arising out of the conduct of any presidential election conducted under the Constitution and the Electoral Act, 2002 is prescribed under section 239 of the 1999 Constitution …
Therefore, on the face of the petitioners petition filed on 9/6/2003 in this court challenging the election and return of the 1st respondent as the President of the Federal Republic of Nigeria on the sole and single ground that the 1st respondent was not duly or validly elected and/or returned as the President of the Federal Republic of Nigeria pursuant to the election held on the 19/4/2003, is entirely within the scope or ground specified under paragraph (a) of sub-paragraph (1) of section 239 of the 1999 Constitution and therefore within the original jurisdiction of this court.
Although this ground for bringing or filing a presidential election petition under section 239 of the 1999 Constitution is not repeated under section 134 of the Electoral Act, 2002 as one of the grounds for bringing or filing an election petition under the Act, that does not invalidate any petition filed on the single ground prescribed under the Constitution. Failure to include that ground under the Electoral Act 2002 is quite in line with the decision of the Supreme Court in the case of A.-G., Abia v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264 at 373-374.”
This is not therefore, an issue which covers any election petition under the Electoral Act, but only a petition under the Constitution and in this case under section 239(1 (a) of the Constitution:
I therefore reframe the issue (1) thus:
- Whether or not breaches of the Constitution and Companies and Allied Matters Act (1990) are cognizable in an election petition based, founded and rooted in the Constitution, in this case under section 239(1)(a) of the 1999 Constitution.
- Whether or not paragraphs 12, 14 and 16 of the petition in this case are not incompetent for non-joinder of necessary parties Grounds 5, 6 and 7.
- Whether or not 5th – 39th respondents and 42nd – 56th respondents are necessary parties to this suit Grounds 9, 10 and 11.
The issue properly put should also read:
Whether or not 5th – 39th and 42nd – 56th respondents should be struck out from the petition. Because that was the application before the tribunal.
- Whether or not reliefs in paragraphs 18, 19 and 20 can be sustained having regard to the circumstances of this case Ground 8.
- Whether or not order of dismissal of the appellant’s motion on notice by the lower court was a proper order in the circumstances of this case. This issue covers ground 12.
On the other hand in the 2nd respondent/appellant’s brief, 3 issues have been identified as arising for determination thus:
i. Whether an election tribunal is vested with jurisdiction to adjudicate on matters relating to alleged breaches or contravention of the provisions of the Constitution of the Federal Republic of Nigeria 1999 and the Companies and Allied Matters Act, Laws of the Federation, 1990 which are not relevant in an election petition.
ii. Whether the lower court rightly exercised its discretion when it failed to strike out the names of parties who lost the presidential election and from whom no claim was made.
iii. What is the effect in our adversary system of jurisprudence when proper and necessary parties against whom allegations are made are not joined in a suit. it is clear at once that when the two sets of issues are compared together, 1st respondent/appellant’s issues 1, 2 and 3 are covered by the 2nd respondent/appellant’s issue 1, 3 and 2 in that order.
I will therefore now proceed to consider the 5 issues identified in the 1st respondent/appellants’ brief which will also cover the 3 issues raised by the 2nd respondent/appellant.
Issue 1
This is about whether or not complaint against breaches of the 1999 Constitution and Companies and Allied Matters Act (1990) are cognizable in an election petition brought under section 239(1)(a) of the Constitution. Put bluntly, any complaint or grievance by the petitioner, according to the Ist respondent, must be founded or based on the provision of the Electoral Act No.4 of 2002 (hereinafter referred to as the Act) only. Anything outside the Electoral Act or anything not provided for under the Act is forever outside the Act and cannot validly be considered by the tribunal. In other words, you are either within the Electoral Act or you are perpetually and permanently outside it. Is this stand correct Relevant provisions of the Constitution and the Act will be examined to find out.
Section 239 of the Constitution provides:
“239(1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of law in Nigeria have original jurisdiction to hear and determine any questions as to whether –
(a) any person has been validly elected to the office of President or Vice-President under this Constitution; or
(b) ….omitted
(c) ….omitted
(2) In the hearing and determination of an election petition under paragraph (a) of subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal.”
To me, this is a clear recognition by the Constitution itself that an election petition can be brought under section 239(1)(a) above, and not necessarily under the Electoral Act as will be seen soon. The Electoral Act on the other hand provides as follows:
“131(1) No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an election petition) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
“(2) In this section “tribunal or court” means:
(a) in the case of Presidential election, the Court of Appeal; and
(b) in the case of any other election under this Act, the election tribunal established by the Constitution or by this Act.
“134(1) An election may be questioned on any of the following grounds, that is to say:
(a) that the person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was unlawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
It appears clear to me from the provisions of the Constitution and the Act set out above, (a) A presidential election petition can be presented based on the sole ground stated under section 239(1)( a) of the Constitution (see above).
(b) A presidential election petition can also be presented on any of the four (4) grounds as prescribed under section 134(1(a)-(d) of the Act (see above).
Section 131(1) of the Act (above) makes it abundantly clear that a petition may be brought or filed either in accordance with the provisions of the Constitution or of the Act.
I would like this to be noted at once and that is that there are the same or similar provisions under section 285(1)( a) of the Constitution for National Assembly Election Tribunals and under section 285(2) for the Governorship and Legislative Houses Election Tribunals. They read:
285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly election tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine as to whether –
(a) any person has been validly elected as a member of the National Assembly;
(b) omitted
(c) omitted
(d) omitted
(2) There shall be established in each State of the Federation one or more election tribunals to be known as Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.
Again these provisions of the Constitution are not covered by any of the provisions under section 134(1)(a) – (d) of the Act above. A petition can therefore validly be filed in accordance with the above provisions of the Constitution.
Now, let us examine the grounds or reliefs claimed by the petitioners in their petition. Paragraph 20 thereof shows 4 reliefs, the principal being relief (1) which reads –
“IT MAY BE DETERMINED that 1st respondent was not duly or validly elected and or returned as the President of the Federal Republic of Nigeria pursuant to the election held on 19th April, 2003.”
It is quite clear that the ground for the petition falls entirely within the scope of section 239(1)(a) of the Constitution and is completely outside the 4 grounds provided under section 134(1) of the Act. I think it is an act of good draftsmanship that the Electoral Act did not attempt to repeat the provision of section 239(1)(a) of the Constitution, because if it had done so, it would have been declared inoperative, null and void (see A.-G., Abia State & Ors. v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264.
In dealing with this issue., the tribunal in its lead ruling said:
“Indeed it is true that some of the matters complained of in the paragraphs relate to breaches of the Constitution and Companies and Allied Matters Act, but the fact that these breaches related to or arose out of the conduct of presidential election or properly linked to such election under the 1999 Constitution and the Electoral Act 2002, only this court to the exclusion of any other court in Nigeria that has the original jurisdiction to hear and determine such questions under section 239(1) of the 1999 Constitution in an election petition …
The cases relied upon by the respondents in support of their objections which were decided under identical provisions of the Electoral Act and not under the 1999 Constitution are not directly relevant. For the foregoing reasons therefore I hold that paragraph 10 of the petition is competent.
As paragraph 11 of the petition was challenged on the same grounds as paragraph 10 of the petition, for the same reasons given in sustaining paragraph 10, paragraph 11 of the petition is also hereby sustained as the matters complained therein are within the jurisdiction of this court under section 239(1) of the 1999 Constitution.”
There is no doubt at all that the tribunal has original jurisdiction to hear and determine presidential election petition vide section 239(1) of the Constitution and consequently to hear all matters related to the election. But the issue here is – would that include matters specifically assigned to other courts under the Constitution The tribunal says ‘yes’. I say ‘no’. Strictly speaking, I think matters or things which constitute infractions of the Constitution and Companies and Allied Matters Act or any Act for that matter, should go before the High Court and or Federal High Court as the case may be. The courts are vested with jurisdiction under the Constitution and the laws to listen to those infractions or complaints, and not the tribunal.
It is admitted that the Constitution being the supreme law of the country, is not subject to the Electoral Act or any law at all. Rather it is the Act that is made subject to the Constitution. The Constitution is only subject to itself.
As observed above there is no doubt at all that the petition herein is rooted in section 239(1)(a) of the Constitution and that some of the matters complained of related to breaches of the Constitution and Companies and Allied Matters Act which arose out of the conduct of the election. But are these facts sufficient to qualify the petition for rules, procedures and or regulations different from those that govern other petitions brought under the Act I think not. A petitioner is certainly free to choose whether to come under the Constitution or under the Act. Once that decision is made or taken, then I believe the rules, procedures, and or regulations to govern all petitions must be one and the same. We cannot certainly afford two different types of rules, procedures and or regulations governing petitions under the Constitution and petitions under the Act respectively. It will be a cumbersome procedure for the tribunals and the courts. It will certainly not be proper to permit one thing in one petition and disallow it in another for the simple reason that one is under the Constitution and the other is under the Act, even though both or all of them are seeking to achieve one and the same purpose.
A careful perusal of paragraphs 10 & 11 of the petition boldly headed “fundamental unconstitutionalities as to campaign finance,” and “fundamental unconstitutionalities as to illegal canvassing for votes,” respectively show that they constitute infractions of the Constitution and Companies and Allied Matters Act and collateral issues over which the tribunal has no jurisdiction by virtue of the provisions of sections 131 – 134 of the Act (see also Ezeobi v. Nzeka (1989) 1 NWLR (Pt. 98) 478; Sanyaolu v. INEC (1999) 7 NWLR (Pt. 612) 600; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530.
Paragraphs 10 & 11 of the petition are therefore in my view incompetent. They are hereby struck out.
Consequently issue (1) must be answered in the affirmative, that is, that complaint against breaches of the Constitution and Companies and Allied Matters Act are not cognisable in an election petition brought pursuant to the provisions of section 239(1)(a) of the Constitution.
This also answers the 2nd respondent/appellant’s issue (1).
Issue (2)
This is whether or not paragraphs 12, 14 and 16 of the petition are not incompetent for non-joinder of necessary parties.
I have read through paragraphs 12, 14 & 16 of the petition on pages 12-15, 17-19, and 20 – 22 of the record respectively.
Paragraph 12 is about “fundamental unconstitutionalities as to illegal deployment of Police and Armed forces personnel to supervise the conduct of the elections”, while paragraph 14 is headed “specific intimidation of voters,” and paragraph 16 is titled “undue and unlawful voting.”
The law clearly is that 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, such officer or person shall for the purpose of the Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party (see section 133(2) of the Electoral Act). Paragraphs 12 and 14 of the petition are clearly in my view complaints or allegations against the 1st respondent who is alleged to have continued to deploy Police and Army personnel not only to supervise the conduct of the election but to intimidate voters as well. The 1st respondent is already a respondent in the petition. I do not know how the unnamed, unidentified and unassigned Police and Army personnel as well as political party agents and or thugs can be made parties in the petition. I think the Court of Appeal was right to have refused to strike out the two paragraphs. Paragraph 12 & 14 are therefore competent.
As regards paragraph 16 of the petition, I think the tribunal rightly held that this paragraph is directed principally against the 1st, 40th and 41st respondents who are already parties to the petition.
The paragraph is therefore competent.
The answer to issue (2) therefore is that paragraphs 12, 14 and 16 of the petition are competent as they have not breached section 133(2) of the Electoral Act (see Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 423; Onoyom v. Egari (1999) 5 NWLR (Pt. 603) 416.
This also answers the 2nd respondent/appellant’s issue (3).
Issue (3)
The issue is whether or not the 5th – 39th respondents and the 42nd – 56th respondents should be struck out from the petition. The petitioners have joined in the petition 5th – 39th respondents and 42nd – 56th respondents representing various political parties and their presidential candidates who contested the election with the 1st respondent. The 3rd & 4th respondents have since been struck out from the petition by this court for being improperly joined in an earlier appeal of Buhari & Anor. v. Yusuf & Anor. (2003) 14 NWLR (Pt. 841) 446.
The tribunal had this to say on the issue:
“The objection for striking out of the names of 5th -39th respondents from the petition also has to fail as the case of Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 was not decided on the issue being raised in support of the objection. The respondents therefore remain as parties to the petition. There is no basis at all for the application to strike out the names of 42nd – 55th respondents from the petition in the objection raised by the 1st & 2nd respondents. This is because by the record of this court the same respondents are being ably represented by Sir Eghobamien SAN leading other counsel in this case who had filed not only a reply to the petition on their behalf but also the preliminary objection on 20/6/2003 which is now being determined in this ruling. Therefore in the absence of any complaint from their learned senior counsel, there is no basis whatsoever for striking out the names of 42nd – 55th respondents from the petition. As the 56th respondent had been absent and not properly represented by any counsel in these proceedings, in the absence of appropriate application from her in person or through her counsel, it is difficult to see any basis for striking out her name from the petition.”
I think the tribunal is right. If really a particular respondent feels that he or she is improperly joined, it is the prerogative of that party or person to move the court or tribunal to strike out his or its name. The petitioner can also move the tribunal to strike out a respondent that he/she feels is no longer wanted or required. The petitioner decides who to join with the statutory respondents under section 133(2) of the Act. I do not think it is the business of one respondent to apply that another respondent be struck out simply because he/she feels that the presence of that other respondent is unnecessary. The petitioner who joined him or her must know the reason why he or she made him/her a party in the petition.
Issue (3) therefore fails. The named respondents remain as such respondents until if and when any of them or the petitioner applies to the tribunal for any of them to be struck out as such. This also covers 2nd respondent/appellant’s issue (2).
Issue (4)
This is whether or not the reliefs in paragraphs 18, 19 & 20 of the petition can be sustained having regard to the circumstances of this case.
Paragraphs 18, 19 & 20 of the petition are on pages 23 – 27 of the record. I have read them. These paragraphs are substantially seeing for reliefs based on the averments in the petition. The petition is still in the process of being heard or determined by the tribunal. How could anybody then at this stage of hearing of the petition seriously or even casually be talking of granting, refusing or striking out a relief claimed It simply does not make sense. A relief may be granted, refused or struck out by a court of law or tribunal at the end of the trial in its judgment. And not before. There is however nothing stopping the petitioner from applying to the court to withdraw any of the reliefs claimed. That is not the case here.
In the lead ruling, the tribunal said as follows:
“As for paragraphs 18, 19 & 20 of the petition which are mainly assigned for reliefs based on the preceding paragraphs of the petition, the paragraphs shall remain as valid paragraphs to await the outcome of the petition as to the proof or otherwise of the paragraphs supporting the reliefs being sought.”
I believe the tribunal was right. The paragraphs will remain intact to await the end of the trial when pronouncement one way or the other will be made depending on the evidence led.
Issue (4) also fails.
Issue (5)
This issue is about whether or not the order of dismissal of the appellant’s motion on notice by the lower court was a proper order in the circumstances of this case.
The facts are simple. The 1st respondent/appellant by motion on notice leading to the ruling now on appeal, prayed the tribunal, inter alia to strike out a number of paragraphs in the petition. The tribunal in its ruling struck out paragraphs 13 & 17 of the petition only and refused to strike out the remaining paragraphs. In its ruling the tribunal said:
“In the result, the application filed by the 1st respondent on 12/612003 raising objection to the petition as contained in paragraphs 1 and 2 of the reply also filed on 12/612003 except for the striking out of paragraphs 13 and 17 of the petition has failed and the same is hereby dismissed with no order on costs.” (italics supplied by me)
It is glaring from the above that the tribunal did not dismiss the 1st respondent/appellant’s motion in its entirely. The tribunal clearly granted the 1st respondent/appellant’s objection to strike out paragraphs 13 & 17 of the petition. These two paragraphs were then struck-out. The objection to strike-out other paragraphs of the petition failed and was dismissed by the tribunal. The tribunal was therefore right in its ruling above. The court has the power to grant the objection in part and refuse it in part. That is the position here. The tribunal as I said never dismissed the objection which had succeeded in part.
Issue (5) is therefore clearly misconceived. It ought to fail.
All but one of the five (5) issues having thus been resolved against the 1st respondent/appellant, the appeal succeeds in part only. It is allowed in respect of issue (1) only, and dismissed in respect of all other issues.
All but one of the three (3) issues raised by the 2nd respondent/ appellant having been resolved against it, the appeal also succeeds in part only. It is allowed in respect of issue (1) and dismissed in respect of all other issues.
1st & 2nd petitioners/cross-appellants
The petitioners have also cross-appealed against the ruling of the tribunal. They have submitted only one (1) issue for determination in the cross-appeal. The issue reads:
“Whether paragraphs 13 & 17 of the amended petition were wrongly struck-out in limine thereby occasioning a miscarriage of justice.”
It was contended that the two paragraphs of the petition were prima facie competent in law as they constitute the backbone of the case. That paragraph 13 complains of statutory illegalities in the conduct of the election, while paragraph 17 complains of disqualification of 3rd respondent rendering the votes cast for him invalid and void. It was also contended that the facts pleaded in the two paragraphs struck-out were such that, the petition may likely succeed upon their proof alone and so the decision to strike them out has occasioned a miscarriage of justice. That the tribunal had refused to follow the decision of this court in Buhari & Anor. v. Yusuf & Anor. (supra) where it was held that the same paragraph 17 should be retained. The cross-respondents on the other hand contended that paragraph 13 which complains about “statutory illegality in the conduct of the election” is outside any of the grounds for challenging the election as set out in section 134(1) of the Act. That in paragraph 17, the cross-appellant pleaded the non qualification of the 3rd respondent, Mohammed Buhari, by reason of his membership of the Council of States. That since the 3rd and 4th respondents (Mohammed Buhari and the A.N.P.P) had earlier been struck-out by this court for misjoinder, paragraph 17 became a headless being, which serves no useful purpose in the petition. It was submitted that the issue for determination in Buhari & Anor. v. Yusuf &Anor. (supra) was the proprietary or otherwise of the joinder of Mohammed Buhari and AN.P.P.and not whether or not paragraph 17 ought to be struck out. I agree with this last submission completely having read the judgment myself. This court in fact only struck-out the 3rd and 4th respondents from the petition and said nothing about the retention or otherwise of paragraph 17. I hesitate to say that having struck out the 3rd respondent from the petition, this court could have easily struck out paragraph 17 if the issue was actually before it and it was not. The tribunal did not therefore refuse or fail to obey any earlier decision of this court. It was also submitted that the tribunal rightly struck out paragraphs 13 & 17 of the petition which are not relevant to the determination of the petition.
In the lead ruling of Mahmud Mohammed, J.C.A he said on page 100 of the record thus:
“Paragraph 13 of the petition is a complaint on statutory illegalities in the conduct of the election. It, relates to the provisions of the Act alone which does not make such complain a ground for questioning an election under section 134 of the Act. In the absence of any complaint of breach of any provision of the 1999 Constitution in the paragraph to sustain it, paragraph 13 of the petition is hereby struck out for non-compliance with the Electoral Act, 2002.”
I have had a close reading of paragraph 13 of the petition myself. I am clearly of the view that none of the sub-paragraphs of paragraph 13 can be accommodated under any of the grounds specified in section 134(1) of the Act as stated in the ruling above. The tribunal can only exercise jurisdiction when the allegations are cognizable under the Constitution or under section 134(1) of the Act. The tribunal was therefore right to have struck out para. 13 of the petition.
Also on paragraph 17 of the petition, Mahmud Mohammed, JCA, again said in the lead ruling:
“Paragraph 17 of the petition on the other hand contains complaints against persons who are no longer parties to the petition. The preliminary objection on the competence of the paragraph is therefore hereby sustained and paragraph 17 of the petition is hereby struck out.”
Again I have closely read through paragraph 17 of the petition. It pleaded the non-qualification of the 3rd respondent, (Muhammadu Buhari) by reason of his membership of the Council of States and attending meetings up to and beyond 8th April, 2003. There is no doubt that 3rd & 4th respondents (Muhammadu Buhari and A.N.P.P.) had earlier been struck out for misjoinder by the decision of this court in Buhari & Anor. v. Yusuf & Anor. (supra). I believe with the striking out of the 3rd respondent, paragraph 17 of the petition ceased to be material to the determination of the petition. The tribunal was therefore, right to have struck-out paragraph 17 herein. I also as said earlier agree that the tribunal did not fail or refuse to follow our decision in Buhari & Anor. v. Yusuf & Anor. (supra) which was concerned only with the propriety or otherwise of joining the 3rd and 4th respondents in the petition, and not whether or not paragraph 17 should be retained or struck out which issue was never before this court. I have no doubt that if paragraph 17 was an issue in Buhari & Anor. v. Yusuf & Anor. (supra), this court would have struck out paragraph 17 having ruled that the 3rd and 4th respondents were wrongly joined in the petition. When a party is not properly joined in a suit and is struck out, any allegations made against him become irrelevant and incompetent. It is very important for counsel to bear in mind always, that a case is the only authority for what is actually decided. In other words, it is only the “ratio decidendi” of a Supreme Court judgment that binds the court and the lower courts, and not “obiter dicta” in concurring judgments. (See for example Odiase & Anor. v.Agho & Ors. (1972) 1 All NLR 170.
The cross-appeal therefore fails. It is hereby dismissed.
Summary and Conclusion
- Complaints against breaches of the Constitution and Companies and Allied Matters Act (or any other law) are not cognizable in an election petition based, founded or rooted in section 239(1)(a) of the Constitution. Accordingly, paragraphs 10 & 11 of the petition are struck-out being incompetent.
- Paragraphs 12, 14 & 16 of the petition herein are competent for non-joinder of unassigned, unnamed or unidentified Police and Army personnel, politicians and or political party agents and or thugs, not being necessary parties in the petition. In fact, the 1st respondent against whom these allegations are directed is already a party in the petition.
- The 5th – 39th, and 42nd – 56th respondents cannot be struck-out on the application of the 1st respondent alone. These respondents are ably represented by counsel in court and none of them has applied to be struck-out. The petitioners have not also applied for any of them to be struck-out.
- The reliefs claimed in paras. 18, 19 & 20 of the petition can only be determined by the tribunal at the end of trial in its judgment.
- The dismissal of the 1st respondent/appellant’s motion on notice by the tribunal with the exception of the striking out of paragraphs 13 & 17 of the petition which succeeded was a proper order.
- Paragraphs 13 & 17 of the petition which respectively failed to comply with section 134 of the Electoral Act and directed against people who are no longer parties to the petition, were properly struck out and has not occasioned any miscarriage of justice.
- The appeal by the 1st respondent/appellant succeeds and allowed in part issue (1) only. It is dismissed in all other respects.
- The appeal by the 2nd respondent/appellant succeeds and allowed in part issue (1) only. It is dismissed in all other respects.
- The parties are to bear their own costs.
SC.193/2003
