Hajiya Rabi Moukhtar Mohammed & Anor. V. Alhaji Mohammed A. Bello & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, JCA,
The 1st appellant, Hajiya Rabi Moukhtar Mohammed was a candidate in the National Assembly election conducted on the 21st day of April, 2007, sponsored by the 2nd appellant, the Peoples Democratic Party (P.D.P.) while the 1st respondent, Alhaji Mohammed A. Bello, was also a candidate sponsored by the All Nigeria Peoples Party (A.N.P.P.) for the said election, along with other candidates sponsored by other political parties.
At the conclusion of the said election, the 1st respondent, who scored a total number of 542,447 votes in the election for the Kano Central Senatorial District was returned and declared the winner of the said election by the 3rd – 19th respondents.
Unhappy with the return and declaration of the 1st respondent, the 1st and 2nd appellants by their joint petition dated and filed on the 21st day of May, 2007, challenged the return and declaration of the 1st respondent before the Governorship and Legislative Houses Election Petition Tribunal, Kano State by their joint petition contained at pages 2 – 21 of the record. The main grounds of the petition are as follows:-
“8. Your Petitioners states that the 1st Respondent was not duly elected by majority of lawful votes at the election held on the 21st April, 2007 as Senator elect of Kano Central Senatorial District AND that the entire election was not conducted in compliance with the provisions of the Electoral Act, 2006.
- Your 1st Petitioner further avers that MOHAMMED ADAMU BELLO of All Nigeria Peoples Party (ANPP) was returned elected as the Senator of the Federal Republic of Nigeria representing Kano Central Senatorial District as proclaimed by the 3rd to 19th Respondents at the election of 21st April, 2007 having allegedly polled 542,447.
- Your 1st Petitioner was recorded to have scored the total votes of 220,180 votes to come second.
- Your 1st Petitioner hereby pleads and shall rely on Forms EC8A(1) and Forms EC8B(i) respectively for all the polling units in each of the wards of the 15 local government areas forming the entire Kano Central Senatorial District.”
The 1st and 2nd appellants, as petitioners in paragraph 59 of the joint petition, – statement of claim, claim as follows:-
“WHEREOF your petitioners pray as follows:
i. That it may be determined that the 1st respondent Mohammed Adamu Bello was not duly elected or returned by a majority of lawful votes cast at the Kano Central Senatorial District to be elected the Senator of the Federal Republic of Nigeria on Saturday the 21st April, 2007.
ii. That it may be determined that the said election was voided by acts which violate and breach the provisions of the Electoral Act 2006 as same was characterized by acts of violence and intimidation.
iii. That it may be determined that the 1st petitioner ought to have been returned as the elected Senator of the Federal Republic of Nigeria representing Kano Central Senatorial District having scored the majority of lawful votes.
OR IN THEALTERNATIVE
iv. The entire results in the Senatorial District be declared null and void and order for bye-election.”
By a motion on notice dated and filed on the 11th day of July, 2007, brought pursuant to paragraph 49(3) of the 1st Schedule to the Electoral Act, 2006, Section 144(2) of the Electoral Act 2006 and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, the 1st respondent, Alhaji Mohammed Adamu Bello, prayed for the following orders:-
“1. AN ORDER striking out Petition No. EPT/KNS/SEN/34/07 for being incompetent in that it failed to comply with the statutory requirement and in breach of Fundamental Rights of fair hearing under the 1999 Constitution.
OR
- AN ORDER striking out the paragraphs in the petition in which allegations were made against Presiding Officers of polling units and ward Returning Officers who were not joined in the Petition as parties.
- AN ORDER striking out paragraphs 9, 10 and 11 of the petition as they are not grounds provided under S.145 of the Electoral Act, 2006.
- An for such further Order or Order(s) as this Honourable Tribunal might deem fit to make in the circumstance of this petition.”
The application was supported by a thirteen paragraph affidavit deposed to by one Sunusi Musa, a Legal Practitioner in the chambers of Messrs A.A. Umar & Co., Counsel to the 1st respondent/applicant. Paragraphs 2 – 12 of the supporting affidavit are as follows:-
“2. That I have the authority of both my employer and the First Respondent to depose to this affidavit.
- That in the course of my employment as Solicitors in Messrs A. A. Umar & Co. I have seen and read the petition dated 21st May, 2007 and filed the same date.
- That in the said Petition, the Petitioner made allegations of falsification of results against the Presiding Officers who conducted the election at the various polling units and recorded the votes scored by each Senatorial candidate in Form EC8A(1) as contained in pages 4 – 20 of the petitioners Petition under “Particulars” and the presiding officers were not joined as parties to the petition.
- That the Petitioner made allegations of falsification of results in Form EC8B(1) by the Wards collation officers of various Ward as contained in pages 4 – 20 of the petition under the heading “particulars” and the ward Collation officers were not made parties to the petition.
- That I am a registered voter who voted during the 21st April, 2007 election at Race Course Primary School Polling Unit which is part of Kano Central Senatorial District.
- That the Presiding officers conducted elections at the polling stations and Ward Returning Officers collated it at the Ward.
- That the Petitioners have made Criminal allegations in their petition against Presiding Officers and Ward Returning Officers without joining them as parties to this petition.
- That the Petition cannot be efficiently and effectively determined in the absence of the Presiding Officers and Ward Returning Officers in the light of the Criminal allegations made against them.
- That the Petitioner did not state in a separate paragraph out side the paragraphs under the grounds of the Petition, the person returned as the winner of the election.
- That the Petitioners witnesses have made statements on oath in respect of the allegations made against the Presiding Officers and Ward Returning Officers.
- That there is no paragraph in the petition where damaging allegations were not made against the electoral officers either in polling units or Ward Collation Centre.”
Upon being served with the said motion, the appellant as petitioner reacted by filing a notice of preliminary objection dated and filed on the 4th day of September, 2007 which in part reads:
“1. That by virtue of the provisions of paragraph 49 sub-paragraph (2) and (5) the 1st Respondent’s motion is incompetent and that the Applicant has waived his right having taken fresh steps in the Petition after the knowledge of the alleged defects.
PARTICULARS OF THE GROUND OF OBJECTION
(a) The 1st Respondent/applicant by filing a Conditional Memorandum of Appearance dated 15th June, 2007 and filed on the same date must have the knowledge of the alleged defects.
(b) That the 1st Respondent/ Applicant did not file this application subsequent to the entry of conditional appearance.
(c) The 1st Respondent/Applicant through his Firm of Solicitors has been participating in series of proceedings in respect of this Petition.”
The preliminary objection was supported by a six paragraph affidavit deposed to by one Zainab Ameh, a Litigation Secretary in the Law Firm of Abubakar A. Othman &. Co. Solicitors and advocates to the petitioners/objectors to be found at pages 598 – 600 of the record.
Both the 1st and 2nd appellants as petitioners and the 1st respondent filed written address in support of the motion seeking for the petition to be struck out on the ground that the petition is incompetent and in support of the preliminary objection to the motion filed by the 1st respondent.
The Tribunal first took the preliminary objection in which it considered the written addresses of counsel to the parties and at page 703 the Tribunal held:-
“In view of all we have said above, our answer to the issue raised is that the applicants have not taken fresh steps in the proceeding that would bar him from challenging the competence of the petition as he intends to do vide his application of 31/8/07. The preliminary objection of the Petitioners lacks merit and same is hereby accordingly dismissed.”
The ruling on the preliminary objection is contained at pages 689 – 703 of the record.
The Tribunal then proceeded to hear the motion challenging the competence of the petition and it held inter alia at page 716 as follows:-
“It therefore boils down to reason that the allegation of falsification of result in Form EC8B(1) either by increasing or reducing the votes were directed at the Ward Collation or Returning Officers. It is thus our view that all the allegations in Paragraphs 12 to 33 of the petition were directed against the Ward Collation (Returning) Officers for either increasing or reducing the votes recorded by the Presiding Officers in Forms EC8S(1) during collation by them in Form EC8B(1). This is made manifest by the averments in paragraphs 33 of the petition.”
In our humble view, it does not matter that the petitioner merely avers by his complaints and the facts relied on but does not name the persons against whom they are directed. In other words, it does not follow that no person’s conduct is being impugned. For, some person, either by commission or omission, must be responsible for giving rise to irregularities or other infractions of the law, being complained of in the petition. See Jidda V. Kachalla (1999) 4 NWLR (Pt.599) 426; Lamido V. Turaki (1999) 4 NWLR (Pt.600) 578; Biyu V. Ibrahim (2005) All FWLR (Pt.274) 261 at 287 & 289.”
In conclusion of its ruling, the Tribunal at pages 723 – 725 concluded thus:
“It follows in our view, having regard to all that we have said above, that the relevant paragraphs of the petition touching on the complaints against the Presiding Officers and the Ward Collation/Returning Officers must be struck out. These are paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52 and 53 of the petition. They are contained on pages 4 to 19 of the petition. These paragraphs are hereby accordingly struck out………………………………………………….
As all the necessary facts supporting the ground of the petition had been struck out, it has no legs to stand. It must fall. The proper order therefore is to strike out the petition. See Kalu V. Uzor (2004) 12 NWLR (Pt.886) 1 at 31. Accordingly, this petition No. EPT/KNS/SEN/34/07 is hereby struck out.”
Dissatisfied with the ruling of the Tribunal, the petitioner now appellant appealed to the Court by their notice of appeal dated and filed on the 7th day of November, 2007 containing twelve grounds of appeal to be found at pages 728 – 738 of the record.
Briefs of argument were filed and exchanged between the parties in accordance with the rules of practice and procedure of this Court.
At pages 4 of the appellant’s brief dated and filed on 14th day of December, 2007, the appellant formulated four issues for determination in this appeal as follows:-
“ISSUE ONE
WHETHER having regards to the provisions of paragraph 49(2) of the First Schedule of the Electoral Act, 2006 and the facts contained in the appellants’ supporting affidavit to their notice of preliminary objection to the hearing of the 1st respondent’s motion dated and filed on the 31st day of August, 2007 the lower Tribunal was right in dismissing the notice of preliminary objection. (Grounds 1 and 2).
ISSUE TWO
WHETHER the lower Tribunal was right in holding that the 1st respondent’s motion dated and filed on 31st August, 2007 raised the issue of jurisdiction capable of defeating the appellants’ notice of preliminary objection filed against the said motion. (Grounds 3, 4 and 5).
ISSUE THREE
WHETHER by the proviso to Section 144(2) of the Electoral Act, 2006, it is necessary to join all officers or persons who participated in the conduct of election as necessary parties and whether the non-joinder of such officers or persons in an election petition affect the jurisdiction of the lower Tribunal to determine the appellants’ petition on merit. (Grounds 6, 7 and 8).
ISSUE FOUR
WHETHER the non-joinder of the Presiding Officers and the Ward Returning Officers is sufficient to determine the appellants’ petition in limine in view of the provision to Section 144(2) of the Electoral Act, 2006. (Grounds 9, 10 and 11).
WHETHER the lower Tribunal was right in striking out paragraphs 12 to 53 of the petition in view of the provisions of Section 144(2) of the Electoral Act, 2006.”
The 1st respondent on the other hand in the 1st respondent’s brief dated the 9th of January, 2008, deemed filed on the 11th day of June, 2008 formulated two issues for determination as follows:- “(1) Whether the steps the 1st respondent took in the proceedings of the Tribunal after entry of Conditional Appearance to the petition amounted to waiver of his right to object to the competence of the petition.
(2) Whether the Tribunal was justified in striking out the petition in view of the proviso to Section 144(2) of the Electoral Act 2006.”
The 2nd respondent in the 2nd respondent’s brief dated and filed on the 27th day of December, 2007 also formulated two issues for determination in this appeal at page 4 of the 2nd respondent’s brief as follows:-
“ISSUE ONE
WHETHER having regard to the provisions of paragraph 49(2), First Schedule to the Electoral Act 2006, the 1st respondent is debarred from moving his motion dated 31/8/07 for not bringing same within a reasonable time or for bringing it after having taken a fresh step.
ISSUE TWO
WHETHER by the proviso to section 144(2) of the Electoral Act 2006, it is necessary to join all officers against whom criminal allegations have been made and who participated in the conduct of elections as necessary parties AND whether the non-joinder of such officers or persons in an election petition affects the jurisdiction of the Tribunal to determine the appellant’s petition on its merit.”
The 3rd – 19th respondents also at page 3 of their brief dated the 11th day of January, 2008 deemed filed on that 11th day of June, 2008, formulated two issues for determination as follows:-
“ISSUE ONE
Whether the 1st respondent has viewed its right to object to the competence of the appellant’s petition having participated in the proceedings after filing a conditional appearance to the petition. (This issue is distilled from grounds 1 – 5 of the notice and grounds of appeal).
ISSUE TWO
Whether the Tribunal was right in striking out the appellants petition having regard to the proviso to S.144(2) of the Electoral Act 2006. (This issue is distilled from grounds 6 – 12 of the notice and grounds of appeal).”
After a careful study of the issues formulated by the parties in this appeal, I find issue No.2 formulated by the learned counsel for the 1st respondent apt and sufficient for the determination of this appeal. I therefore adopt the same issue.
Arguing the adopted issue for determination in the appellant’s brief, learned counsel for the appellants, Mohammed A. Suleiman, Esq., referred to the unreported case of this Court of DR. ARTHUR AGWUNGHA NWAKWO & ORS VS. ALHAJI UMARU YAR’ADUA & ORS. in petition, No. CA/A/EP/6/07 delivered on the 3rd day of September, 2007 and the provisions of Section 144(2) of the Electoral Act, 2006 and submitted that the petition of the appellant is saved by the provisions of Section 144(2) of the Electoral Act, 2006 as the said provision is radically different from the provision of Section 133(2) of the Electoral Act, 2002.
Reference was made to a portion of the ruling by learned counsel for the appellant who argued that the provisions of Section 144(2) of the Electoral Act, 2006 is different from Section 133(2) of the Electoral Act, 2002.
He stated that the Tribunal failed to apply the provisions of Section 144(2) even though the Tribunal quoted the said provision verbatim in its ruling.
According to the learned counsel for the appellant, the interpretation given to Section 144(2) of the Act by the Tribunal is wrong and does not conform with the known canon rules of interpretation. It is contended that all the cases cited and relied upon by the Tribunal in its ruling are not applicable to the facts and circumstances of the appellants’ petition, and referred to the provisions of Section 144(2) of the Electoral Act, 2006.
Relying on the authority of OJUKWU VS. OBASANJO (2004) 12 NWLR (PT.886) 169 at 197, Paragraphs B – E, he submitted that in the interpretation of statute, a court of law must look at the statute or constitution as a whole and that the provision of the statute must not be read in isolation of other parts before reaching a conclusion. See DAPIANLONG &. ORS VS. DARIYE &. ANR
(2007) 4 S.C. (PT.111) 118 at 211 paragraphs 14 – 35.
Learned counsel for the appellants cited a number of cases including GAFAR VS. GOVERNMENT OF KWARA STATE &. ORS (2007) 1 – 2 S.C. 189 at 224 Paragraphs 1 – 20 in support of his submission and urged the court to allow the appeal set aside the ruling of the Tribunal and remit the petition to the Tribunal for hearing in its merits.
In his response, learned counsel for the 1st respondent, M. K. Dabo, Esq, in the 1st respondent’s brief, submitted in agreement with the ruling of the Tribunal that the provision of Section 144(2) of the Electoral Act, 2006, is not carte blanche, that is out to save the petition in all and every circumstances. He argued that where a petitioner in an election petition makes an allegation against an Electoral Officer or any other person who took part in the conduct of the election, he is under a duty to join such person as a party as the law deems such persons as a party to the petition and referred to Section 144(2) of the Electoral Act, 2006. Pointing out that from a careful perusal of the said section, it is to the effect that where such Officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not operate to void the petition if the commission is made a party. He further stressed that the law is that the non-joinder will not on its own void the petition of the electoral officer or other persons is shown to have acted as an agent of the commission. It is however contended by the learned counsel for the 1st respondent that the mere fact that the officer concerned is an agent of the commission does not protect the offending paragraphs of the petition from being struck out.
It is further submitted by the learned counsel for the 1st respondent that paragraph or paragraphs of the petition can be struck out if an allegation is made against a necessary party who is not joined in the petition as a party. According to the learned counsel for the 1st respondent that non-joinder of necessary party will result in a far reaching legal implication as it is trite that evidence cannot be led against a person in his absence and the court cannot make any pronouncement on a person not joined as a party without giving him an opportunity to be heard, placing reliance on the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. See INEC VS. IZUOGU (1993) 2 NWLR (PT.275) 270 at 297.
In the view of the learned counsel for the 1st respondent, the Tribunal was justified in striking out paragraphs 12 – 53 of the petition because evidence cannot be led against person whom allegations in the petition were made as they were not joined as parties in the petition. He submitted that the Tribunal cannot make a decision against such persons not joined in the petition without giving them an opportunity of being heard.
It is further argued by the learned counsel for the 1st respondent that since triable and arguable paragraphs of the petition have been struck out, the proviso to Section 144(2) of the Electoral Act, 2006, could not have saved the offending paragraphs of the petition.
In conclusion, learned counsel for the 1st respondent urged the court to dismiss the appeal.
Learned counsel for the 2nd respondent, Halidu Idris Ibrahim, Esq, commenced his submission on the adopted issue by referring to the provision of Section 144(2) of the Electoral Act, 2006, which he reproduced in the 2nd respondent’s brief and stated that from a cursory look at the petition as found by the Tribunal shows that allegations were made against Ward Returning Officers in paragraphs 12 – 33 for increasing or reducing the votes recorded by the Presiding Officers. That also allegations were made against Presiding Officers for making false entries in Form EC8A(1) in paragraph 35 – 44 and 46 – 53 of the petition. He argued that in such situation, the provisions of Section 144(2) of the Electoral Act, 2006 requires the joinder of such persons as statutory respondents who ought to have been joined in the petition and relied on the authorities of BUHARI VS. YUSUF (2003) 14 NWLR (PT.841) 446 at 499; OBASANJO VS. BUHARI (2003) 17 NWLR (PT.850) 570 at 576 – 578 and PDP VS. ABUBAKAR (2004) 16 NWLR (PT.900) 455 at 467 in support of his submission.
Learned counsel for the 2nd respondent submitted that the law is settled that no person shall be pronounced guilty without being heard and the non-joinder of the officers complained against amounts a breach of their right to fair hearing citing the case of EGOLUM VS. OBASANJO (1999) 7 NWLR (PT.611) 423.
The learned counsel for the 2nd respondent concluded his submission by urging the court to dismiss the appeal.
It is the submission of the learned counsel for the 3rd – 19th respondents, O.G. Obande, Esq, that in paragraphs 12 – 52 of the petition, allegations were made against Returning Officers as well as Presiding Officers for falsification of votes recorded at the election but the appellant failed to join such persons in the petition and reproduced the provisions of Section 144(2) of the Electoral Act, 2006 at page 7 of the 3rd – 19th respondents’ brief.
He further submitted that the Tribunal was right in striking out paragraphs 12 – 53 of the petition inspite of the provisions of Section 144(2) of the Electoral Act, 2006. According to the learned counsel for the 3rd – 19th respondents, the Electoral Officers as well as the Presiding Officers whose conduct the petitioners complained about are necessary parties to the petition and failure to join them renders the petition defective.
Reference was made to the case of NWOKE VS EBEOGU(1999) 6 NWLR (PT.606) 247 at 258, a decision of this Court to the effect that malpractices, irregularities, falsification of votes and allocation of fictitious votes, non-voting and irregularities relating to casting of votes which are directed at polling units are in fact directed against the Presiding Officer who is in charge of the polling units under the Electoral Act and therefore must be made party to the petition.
Relying on NWOKE (supra) learned counsel for the 3rd – 19th respondents, agreed that the non-joinder of a necessary party or parties to an election petition where there are specific charges of misconduct levied against such parties or Presiding Officers as in the instant appeal makes the petition incompetent. See KALLAMU VS. GURIN (2005) ALL FWLR (PT.241) 325 at 355.
He concluded his submission by urging the court to dismiss the appeal and uphold the decision of the Tribunal.
As could be seen in this appeal the main issue in contention between the parties is the interpretation of Section 144(2) of the Electoral Act, 2006. It is the contention of the learned counsel for the appellant that the Tribunal was wrong relying on the provision of Section 144(2) of the Electoral Act, 2006, in striking out the petition for being incompetent having regard to the fact that the same provision has a proviso to the effect that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own void the petition if the commission is made a party. While it is the contention of the other set of respondents that the appellant, having complained of the conduct of Presiding Officers, Returning Officers or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this 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 and that in the instant appeal the failure of the appellant to join the necessary party having regard to the appellants’ averments in their petition, statement of claim renders the said petition incompetent.
It is therefore pertinent to reproduce the provisions of Section 144(2) of the Electoral Act, 2006 contended by the parties before the Tribunal and now under contention in this appeal.
Section 144(2) of the Electoral Act, 2006 provides:-
“144(2) The person whose election is complained of, is in this Act, referred to as the Respondent, but if the petitioner 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 this 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 PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this 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.”
The Supreme Court of Nigeria, had an occasion to interpret the provisions of Section 133(2) of the Electoral Act, 2002 and as this Court is bound by the decision of the Supreme Court of Nigeria, the highest Court in the land, I find the decision in the case of BUHARI & ORS VS. YUSUF (2003) 14 NWLR (PT.841) 446, referred to in the interpretation of the provisions of Section 133(2) per Uwaifo, J.S.C, held that in the same vein, those who shall be joined to defend the petition in accordance with sub-section 2 are the persons whose election or return is complained of, referred to as the respondent and any of the INEC Officials mentioned in person who took part in the conduct of the election, and in either case the petition complained of their conduct of the election. All such person are regarded as the statutory respondents, and who only, in my view, qualify as the necessary parties.
This Court in the case of BIYU VS. IBRAHIM (2005) ALL FWLR (PT.274) 261 at 286 – 287 adopted the same interpretation as that of the Supreme Court in respect of the provisions of Section 133(2) of the Electoral Act, 2002 taking into consideration the provisions of Section 47 of the 1st Schedule to the Electoral Act, 2002. Also, in the case of KALLAMU VS. GURIN (2003) 10 NWLR (PT.847) 493 at 521, it was held that as none of the Presiding Officers who conducted the election was joined as a party the non-joinder of the Presiding Officers involved in the election as co-respondents to the petition offends against the provisions of Section 133(2) of the Electoral Act, 2002 and paragraph 47(1) of the 1st Schedule to the Act.
It cannot be disputed that the provisions of section 144(2) of the Electoral Act, 2006 is in pari materia with the provisions of Section 133(2) of the Electoral Act, 2002. Also the Electoral Act, 2006, has similar provisions of paragraph 47 of 1st Schedule to the Act which provides:-
“47(1) Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party, but an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the Federation.”
The learned counsel for the appellant placed heavy reliance on the provisions of paragraph 49(1) of the 1st Schedule to the Electoral Act, 2006 which according to him has estopped 1st respondent from raising any objection to the petition having taking steps. It is therefore pertinent to reproduce the provisions of the said paragraph in determining this appeal. The paragraph reads: “49(1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deems fit and just.”
As rightly argued in my view by the learned counsel for the respondents that even though the non-joinder of the statutory respondent does not outrightly render a petition void, nevertheless, the striking out of the paragraphs of the petition containing allegations against the statutory respondents not joined in the petition has the effect of rendering the petition incompetent and liable to struck out. In effect, the striking out of the offending paragraphs as in this petition touches on the jurisdiction of the Tribunal. In the instant appeal, having regard to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, the Tribunal has no option in this appeal than to strike out the paragraphs alleging misconduct on the part of the statutory respondents not joined in the petition.
It would have been an exercise in futility for the Tribunal to proceed to hear the petition which has been rendered it incompetent as a result of the striking out of the offending paragraphs 12 -53. The issue raised by the 1st respondents regarding the non-joinder of the statutory respondents has affected the competence of the petition hence the provisions of paragraph 49(1) of the 1st Schedule to the Electoral Act, 2006, is not applicable in this appeal. Section 36(1) of the Constitution provides:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Having struck out most of the averments in the appellant’s petition, the Tribunal was perfectly right in my view, in striking out the petition, as the remaining averments could not have sustained the petition.
In view of the aforesaid, I hold that the appeal lacks merit and is hereby dismissed. The ruling of National Assembly Election Petition Tribunal in petition No. EPT/KNS/SEN/34/07 delivered on the 18th day of October, 2007, is hereby affirmed with costs assessed at N30,000.00 in favour of the 1st respondent against the 1st appellant.
It is now settled that the court will not engage or indulge in an academic exercise. I think it is elementary that the courts are to determine life issues. See A-G ANAMBRA STATE VS. A-G FEDERATION 2005) 9 NWLR (PT.931) 574 at 610.
Accordingly, the second appeal against the ruling delivered on the 24th day of August, 2007, challenging the extension of time granted to the respondents to file their respective replies, is in my view now academic having affirmed the ruling of the Tribunal dated the 18th day of October, 2007, is therefore struck out.
Other Citations: (2009)LCN/3423(CA)
