Peoples Democratic Party (Pdp) & Anor V. All Peoples Party (App) & Ors (1999)

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RABIU DANLAMI MUHAMMAD, J.C.A.

On the 5th of December, 1998 elections were held nationwide into all the Local Government Councils of Nigeria. The 2nd appellant contested the Chairmanship of Kubau Local Government Council of Kaduna State under the platform of the Peoples Democratic Party (PDP) while the 2nd respondent was sponsored by the All Peoples Party (APP) to contest the said chairmanship election. After the election, the third respondent i.e. the Independent National Electoral Commission (INEC) returned the 2nd respondent as duly elected.

The 1st and 2nd appellants were aggrieved with this decision. They filed a petition at the Local Government Council Election Tribunal, Kaduna challenging the election result. It was averred in the petition that the 2nd respondent was not duly elected by a majority of votes cast at the election and that the election was voided by non-compliance with the provisions of the Decree. The appellants also claimed that certain Forms EC 8A stating results of polls at polling stations, show a lot of irregularities and substantial non-compliance with the provisions of the Decree.

The appellants also claimed that such irregular and non-complying Forms EC 8A touched all the wards of the Local Government especially Pambeguwa and Zuntu. It was further claimed that the results stated on such irregular and non-complying Forms EC 8A ought to be excluded from the overall result of the election.

Before the hearing of the petition counsel for the 1st and 2nd respondents raised a preliminary objection on point of law on the ground that the electoral officer was not joined as a respondent. He argued that all the complaints about the conduct of the election and filling of forms were against the electoral officer. His contention was that, he should be joined as a necessary party. He said since the petitioners did not comply with S.83 (2) of the Decree, the petition was incompetent and urged the tribunal to strike out the petition.

Learned counsel for the petitioners opposed the objection. He said there was no need to join the electoral officer. He argued that in order to give the petitioners fair hearing, the petition should not be struck out. He urged the tribunal to discountenance the objection.

In a reserved ruling, the tribunal considered the submissions of all the counsel and came to the conclusion that:

“Again, having critically looked at the petition and the respondents therein, the tribunal observes that it is the truth that there is no electoral presiding or returning officer sued by the petitioners as required by section 83(2) of the Decree.

The facts stated on page 2 of the petition, headed Facts of the Petition’ under its paragraph 4, contains allegations about the way the election was conducted.

Irregularities were averred in the forms filled. It is a well known fact that it is the presiding or returning officers who conducted the elections that filled those forms. Going by the provision of section 83(2) of the Decree, the said officers or officer who filled the various forms EC8A specifically stated in the petition as well as Forms E.C.8B, E.C.8C and E.C.8E should have been made respondents or respondent as the case may be as required by the said provision in the petition. If this was not done, then the said petition is defective.’

The tribunal upheld the objection. It invoked the provisions of S.87 (3) and struck out the petition.

Dissatisfied with this decision, the petitioners appealed to this court. They filed five grounds of appeal. In compliance with the practice direction, briefs of arguments were filed and exchanged. The appellants formulated five issues for determination in their brief of argument. The respondents on the other hand formulated a single issue for determination in their brief.

Before considering the issues formulated. I will comment, albeit briefly, on the briefs of argument filed by the parties especially the appellants’ brief of argument. Counsel should note that the purpose of brief writing is to assist the administration of justice by making the work of both counsel and the court easier once the matter has reached the oral hearing stage. It is to promote justice, so that both counsel and the court may not embark on a wild goose chase, chasing a futile course. See: Ehot v. State (1993) 4 NWLR (Pt.290) 644. The appellant’s brief in this case is so inelegantly written and so unwieldy that instead of making things easier, it tends to confuse and makes things a lot more difficult. The issues formulated by the appellants are no issues at all. It should be remembered that issue for determination is not the same as a ground of appeal. An issue may be contained in one ground of appeal or traverse a number of grounds of appeal. See Bakare v. A.-G. of Federation (1990) 5 NWLR (PL 152) 516; and Akpan v. State (1992) 6 NWLR (Pt.248) 439.

The purpose of formulation of issues for determination in a brief of argument is to accentuate the real issues for determination before the court, i.e. the issues in the ground of appeal relevant to the determination of the appeal hence the issues must be within the purview of the grounds of appeal filed. See: Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 275.

The appellant’s brief clearly is defective. However, no matter how defective the brief is, the court should consider the brief and make out what it can, out of it. The appeal should be considered on its own merit, and turn a blind eye to the defective brief. See: Obih v. Mbakwe & ors. (1984) 1 SCNLR 192. See: also Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt.263) 24 at 33 where Kolawole J.C.A. stated:

“There are a host of decisions that when issues have been formulated in an appellant’s brief, those issues are to be argued which must relate to the grounds of appeal. But because election petitions are special proceedings completely divorced and separated from civil proceedings and sui juris, this court will turn a blind eye to the defective appellant’s brief and will consider the appeal as far as possible on its merit.”

After considering the grounds of appeal. I agree with the 1st and 2nd respondents that only one issue is sufficient to determine this appeal. i.e. “whether the lower tribunal was right in striking out the petition because it was defective.”

Section 83(2) of the Local Government (Basic Constitutional and Transitional Provisions) 1998 (hereinafter referred to as “Decree No.36”) provides:

“‘The person whose election is complained of is in this Decree referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, the electoral officer, presiding officer, a returning officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election petition as a necessary party.”

Considering the petition, it is clear that the appellants are complaining against the conduct of the election. They allege that there were a lot of irregularities and substantial non-compliance with the provisions of the Decree. They specifically complained of the filling of Forms EC8A. This is my opinion is a complaint against the conduct of at least the Electoral Officer and by virtue of section 83(2). He should be joined in the petition because he is a necessary party.

The appellant, in his brief, referred to the case of Chief Akin Omoboriowo & Another v. Chief Michael Ajasin (1984) 1 SCNLR 108 (1984) 1 SC 206 to support his submission that non-joinder of the returning officer does not make the petition incompetent. That is true where there is no allegation of misconduct against the returning officer. Where there is allegation of misconduct against the returning officer, he becomes a necessary party and must be joined. See Omoboriowo’s case (supra) at page S.130 and 246 respectively where Obaseki J.S.C Stated:

‘”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:’

Since there are allegations of malpractices in the conduct of the election and allegations of misconduct against those who conducted the election, it becomes necessary to join the officers who conducted the election. They are necessary parties because with out these, the allegations made against them cannot be proved. See also Maikori v. Lere (1992) 3 NWLR (Pt.231) 525 where it was held that it is trite law that a court as well as a tribunal will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. I am therefore in full agreement with the tribunal that the electoral officer is a necessary party to the petition and failure to join him renders the petition defective. The tribunal was therefore right to invoke the provisions of Section 87(3) of Decree No 36 and struck out the petition.

For the above reasons the appeal fails and is dismissed. The 1st and 2nd respondents are entitled to cost which I assess at N1,000.00.

Other Citations: (1999)LCN/0480(CA)