Salau Itopa Bello & Anor. V. Sadiq Asema Mohammed & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

In an application filed on 22/1/08 and argued on 31/1/08, the interlocutory appeal CA/A/EP/213/07 was consolidated with the substantive appeal CA/A/EP/313/07 with consent of the parties. It is observed that both appeals arose from the same petition and the issues for determination in both appeals can be conveniently and expeditiously disposed of in one common appeal.

The appeal is against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Lokoja delivered on the 8th of October, 2007. The election into the House of Representative Ajaokuta Federal Constituency took place on the 21st of April, 2007. The election was contested by different political parties. The 3rd-112th Respondents, Independent National Electoral Commission declared the following figures for the contestants at the election

(1) Action Congress- S. I. Bello – 2,363

(2) All Nigeria Peoples Party – Ahmed Iyanki Idris 596

(3) FreshDemocratic Party- Onoka Isah – 18

(4) Movement for Restoration & Defence of

Democratic Party Suleiman Salihu – 16

(5) People Democratic party – Sadiq Asema Muhammed -. 23,721

The 1st Petitioner – Salau Ilopa Bello and his party the Action Congress sought for the annulment of the election of the 1st Respondent by filing a petition on 21/5/07 before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Lokoja.

The petitioners challenged the election on two grounds:

“(1) That the election was invalidated by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act.

(2) The 1st Respondent was not duly elected by majority of the lawful votes cast at the election …

The Petitioners prayed for the following two reliefs-

“(1) That the election held on 21st April 2007 wherein the 1st Respondent- Muhammed Asema Sadiq was returned as winner of the said Ajaokuta Federal Constituency Election by the 4th – 21st Respondents be declared as invalid by reason of corrupt practices and the election be declared null and void and a fresh election be ordered by the Honourable Tribunal in all the fourteen wards and all the units of the Constituency.”

(2) That the election be cancelled for non-compliance with the provision of the Electoral Act that substantially affected the election.

On 19/7/07 the Tribunal heard, and granted the Petitioners’ Motion on Notice to correct or amend the omission of the word “National” in the title of the 3rd Respondent, INEC to read Independent National Electoral Commission instead of ‘Independent Electoral Commission”, Pleadings were filed and exchanged. The Petitioners’ Reply to 3rd – 112th Respondents’ Reply was struck out on the ground that it was filed out of time without leave and therefore statute barred.

Pre-trial conference was conducted on 18/8/07 in accordance with the Tribunal and Court Practice Directions 2007 as amended. Witnesses adopted their written depositions as their evidence in chief. Written addresses were ordered to be filed by the Tribunal by all the parties and were consequently adopted. The Tribunal delivered its judgment on the 8th of October 2007 and dismissed the petition.

Being aggrieved by the judgment the Petitioners/Appellants appealed to this court, filing thirteen grounds of appeal.

At the hearing of the appeal the Appellant settled six issues for determination from grounds one to eleven and ground thirteen of the grounds of appeal. The issues are as follows: –

“1. Whether the amendment granted is one that would be granted after the time limited for filing of petition had elapsed.

2. Whether upon a careful consideration of evidence vis-a-vis the pleadings of the parties the trial Tribunal was right when it framed two issues on which it based its judgment.
3. Whether the Tribunal was not in error when it refused to attach evidential weight and probative value to an admitted and relevant document tendered by the Appellants to wit the Police Report all the election i.e. Exhibit B and thus came to a wrong decision causing miscarriage of justice.
4. Whether the trial Tribunal adopted the correct approach to the evaluation of the evidence and or tendered by the parties before it.
5. Whether upon a careful and dispassionate evaluation of the totality of oral and documentary evidence adduced before the trial Tribunal the Appellants were not entitled to favourable judgment at the Tribunal.
6. Whether the Tribunal did act in error resulting in miscarriage of justice when it struck out the name of the 2nd Respondent PDP from the petition in its judgment. ”

Before the trial Tribunal on the 10th of July 2007 the Appellant in the interlocutory appeal filed a Motion – which is a Notice of Preliminary Objection that the petition is incompetent having failed to join a necessary party – Independent National Electoral Commission.

On 13th July 2007 the 1st and 2nd Respondents filed a motion for amendment dated 10th July 2007 which was opposed by the Appellants. After hearing counsel for the parties on 19th of July 2007 the Tribunal made an order that the word “National” be inserted in the name of 3rd Respondent to the petition to read Independent National Electoral Commission. Dissatisfied by the order, the 1st Respondent/Appellants also appealed to this court challenging the decision of the Tribunal on one ground as follows-

“Whether the amendment granted is one that could be granted after the time limited for filing of the petition had elapsed … This issue shall become the first issue raised Appellants in the main appeal.

The 1st Respondent adopted and relied on the brief filed on 28/11/07 wherein two issues were identified for the determination of this court as follows-

“(a) Whether the Election Tribunal Was right in dismissing the Appellants’ petition.

(b) Whether the Tribunal was right in not attaching any probative value to Exhibit B.”

On the issue of the interlocutory appeal the 1st and 2nd Respondents settled issue for determination as follows –

“Whether the Tribunal was right in its ruling of 19th July 2007 granting the order that the word “National” be inserted in the title of the 3rd Respondent between Independent and Electoral to read Independent National Electoral Commission.

This court shall rely on the issues distilled by the Appellants for the purpose of this appeal. Now I intend to consider first and foremost the issue distilled in the interlocutory appeal against the ruling of the lower Tribunal delivered on the 19th of July 2007.

Issue Number One

Whether the amendment granted is one that would be granted after the time limited for filing of petition had elapsed. The Appellants submitted that in the motion before the lower Tribunal, the 1st and 2nd Respondents were asking for the amendment of their petition as the law under which they brought the application – paragraphs 3 (6) (b) and 3 (3) of the Election Tribunal and Court Practice Direction 2007 as amended are paragraphs that deal with amendments, Paragraph 14 of the First Schedule to the Electoral Act 2006, is most relevant in this case. The Appellants restated the provisions of Paragraph 14(2) (a) (1) of the First Schedule and Paragraph (1) (4) of the Electoral Act 2006. The amendment sought by the 1st and 2nd Respondents relate to the renaming of a party and the relevant paragraph of the First Schedule is 14(2) (a) (1) but the Tribunal erroneously invoked paragraph 14(2) (a) (1) – which has occasioned a miscarriage of justice, That the 1st and 2nd Respondents admitted that they did not mistakenly join INEC as a party in the petition. They sued Independent Electoral Commission instead. By virtue of Section 141 of the Electoral Act 2006 the time limited for filing of election petition is 30 days from the date the result of the election was declared. The result of the election in this appeal was declared on 21st of April 2007. Application for amendment was made on 13/7/2007 more than two months after the declaration of result. The lower court granted an amendment two months and 28 days after filing of an election petition, and allowed a party not contained in the original petition to be introduced at that stage. The amendment made by the Tribunal being one that affects the introduction of a party into the petition and not being a typographical error, this court is urged to hold that it ought to be brought within 30 days from the date the result of the election was declared. This court is urged to allow this appeal.

The Appellants cited two cases in support of the submission: Dalhatu v. Dikko (2005) All FWLR Pt. 483 Pg. 501; Yusuf v. Obasanjo (2003) 16 NWLR Pt. 487 Pg.532.

The 1st and 2nd Respondents submitted by way of reply that the appeal was not properly constituted as some vital documents were left out of the record of appeal, and there is misrepresentation of fact before this court also in the record. The documents are:

(a) The memorandum of appearance entered by counsel for the 3rd – 112th Respondents, 3rd Respondents being INEC.

(b) The 3rd – 112th Respondents by implication waived their typographical omission of the word “National” in the title of the 3rd Respondent Independent National Electoral Commission in the amended Reply to the Petition.

(c) The Petitioners were not aware of the 1st Respondent’s Reply included in the record to have been filed on 11/6/07. It was served on the Petitioners after the record had been prepared on 8/8/07. These documents are required for the hearing and determination of this appeal.

The Respondents further explained that in their affidavit in support of the application for amendment gave cogent reasons for the typographical omission of the word “National” from the title of the 3rd Respondent. The Tribunal was right in law having been properly guided by the appropriate rules of the Tribunal and the election Tribunal and Court Practice Directions 2007 as amended. The Respondents cited the case of Onyia Nwagwu Ngwu & 6 Ors. v. Ani Ozongwu & 1 Or. (1999) 11 SCNJ Pg. 1 at Pg. 11.

An appellate court will not normally disturb the findings of facts of a trial court unless such findings are shown to be perverse or that it has not taken advantage of its having seen and heard the witnesses. The Respondents referred to cases Alhaji Abubakar Habu Halidu & 1 Or. v. Alhaji Danjuma Gaia & 16 Ors Vol.2 EPR Pg. 789; Akinloye v. Eyiyola (2006) LC 63; Fatoyinbo v. Williams 1 FSC Pg. 87.

The amendment ordered by the Honourable Tribunal on 19/7/2007 did not introduce any of the requirements under paragraph 4(1) of the First Schedule to the Electoral Act 2006 to the Petition of the Petitioners/Respondents as filed – rather it only corrected an omission in the title of the 3rd Respondent – Independent National Electoral Commission which was joined at the filing of the petition. It is clear that the prohibition or limitation in Paragraph 14 (2) (a) (1) as to amendment after 30 days filing is not applicable to the application of the Petitioners/Respondents at the Tribunal. This court is urged not to allow – technicalities to unduly fetter our jurisdiction in hearing of the petition or complaint brought before us for determination. The Respondents referred to the cases of Modibbo v. Boni Haruna & Or (2004) 1 EPR Pg. 64 at Pg. 77; Prince Nwoke v. Iwuagwu & Ors (2004) 1 EPR 681 at Pg. 698.

Issue Number Two

Whether upon a careful consideration of evidence vis-a-vis the pleadings of the parties the trial Tribunal was right when it framed two issues on which it based its judgment.

The Appellants submitted that the petition contained several averments indicating civil wrongs or acts of non-compliance with the Electoral Act committed by the 3rd- 112th Respondents based on the conduct of the election in all the fourteen wards and 79 out of 80 polling units of Ajaokuta Federal Constituency in respect of the election of the 21st of April 2007, Such acts complained of are non-supply of electoral materials to several polling units in certain wards of the Constituency. Other wrongful acts of non-compliance include the use of unqualified and untrained persons as ad-hoc staff like party members, total failure to conduct election in some areas, late arrival of electoral materials to polling units and other acts of anomalies and irregularities, The Appellants referred to the pleadings – particularly averments 1-14, 15-19, 21-24 and 27-29 of the petition, The Tribunal however proceeded to consider and determine the petition solely on the basis of alleged criminal acts of corrupt practices since the Tribunal wrongly subjected the success or otherwise of the Appellants’ petition entirely to its consideration of the alleged acts of corrupt practices against the 1st and 2nd Respondents thus placing wrongly on the Appellants the higher burden of proof beyond reasonable doubt. The Tribunal wrongly framed its first issue and resolved same wrongly and perversely against the Appellants, in complete neglect and without reference to the principle of the severability of pleadings.

The Appellants made reference to the case of Nwobodo v. Onoh (1984) 1 SCNLR. The finding and conclusion of the Tribunal based on the wrongly framed issue for determination must be set aside by this court, The Appellants cited two cases: Mbani v. Rosi (2006) 3 FWLR Pt. 330 Pg. 5334 at Pg. 5346; Akpata v. Ugo (2007) 1 FWLR Pt. 351 Pg.599-600.

The Appellants finally submitted on this issue that the two categories of allegations are averred distinctly or differently in relation to different wards or different polling units in the Constituency in such a manner that there is no over lapping or converging of the two categories of allegation in a particular polling unit in the Constituency. The court is urged to resolve this issue in favour of the Appellants.

The Respondents replied on this issue that for the Appellants to be entitled to judgment at the lower Tribunal they had the onus of proving by virtue of Sections 135 (1), 136 and 137 (1) of the Evidence Act Cap 112 Laws of the Federation 1990, all the allegations of corrupt practices and non-compliance with the provisions of the Electoral Act as contained in their petition so as to discharge the burden of proof. The Appellants called nine witnesses – most of them based their evidence on reports given to them by party agents, who were not called to testify. The Tribunal came to the conclusion that the evidence of PW.8 and P.W.9 did not help the case of the Appellants. The evidence given by the appellants’ witnesses was at variance with the pleadings while the Appellants pleaded that election held on Saturday the 21st of April 2007 and that the 1st

Respondent won the election. All their witnesses at the Tribunal testified that there was no voting in the whole of the 14 Wards in Ajaokuta Federal Constituency because no electoral materials were supplied. The 1st Respondent submitted further that it is settled law that where a Petitioner alleges that there was no election, he has a duty to put before the Tribunal the voters register used in the election, ballot papers used and all other materials to establish or prove that there was no election, The Appellants failed to tender any of these documents. There was no evidence of the names and the qualifications of those ad-hoc staff of the 3rd Respondent alleged to be unqualified and untrained. There was no evidence before the Tribunal as to how any person influenced the election in favour of the 1st Respondent. One of the grounds on which the Appellants sought that the election of 1st Respondent be invalidated is the ground of corrupt practices and non-compliance with the Electoral Act, 2006. An allegation of corrupt practices in an election is an allegation of crime – the proof required is that beyond reasonable doubt.

The 1st Respondent listed the allegations of the Appellants as follows-

(a) Influencing election infavour of the 1st Respondent.

(b) Snatching of electoral materials.

(c) Thuggery.

(d) Violence.

(e) Presiding officers not taking materials to the polling centres.

These are offences punishable under Sections 130, 135, 136 arid 138 of the Electoral Act 2006.

The Appellants did not show how computation of results from certain polling units substantially affected the election result so as to void the entire election, the 1st Respondent referred to cases – Biyu v. Ibrahim (2005) All FWLR Pt. 274 Pg. 261 at Pgs. 299.300; Yusuf v. Obasanjo (2006) All FWLR Pt. 294 Pg. 347; Obun v. Ebu (2006) All FWLR Pt. 327 Pg. 419 at 441.

In effect the Appellants were unable to discharge the burden of proof placed on them as they were unable to lead credible evidence in support of their allegations whether Civil or criminal. On the other hand the 1st and 3rd Respondents by credible oral and documentary evidence were able to establish that the 1st Respondent was duly returned as the winner of the election into the House of Representatives for Ajaokuta Federal Constituency. Documents like Declaration of result, Certificate of return, and results from some units where the Appellant alleged that there were no elections were tendered by the 3rd Respondent to disprove the Appellants’ allegations. The 1st Respondent also submitted that it was right in procedure for the Tribunal to formulate their issues for determination as the issues derived directly from the grounds upon which the Appellants brought their petition. This court is urged to resolve the issue in favour of the 1st Respondent.

Issue Number Three

Whether the Tribunal was not in error when it refused to attach evidential weight and probative value to an admitted and relevant document tendered by the Appellants to wit – the Police Report on the election i.e. Exhibit B and thus came to a wrong decision causing miscarriage of justice.

The Appellants submitted that Exh. B is the Nigeria Police Report on the Presidential and House of Representative Election of the 21st of April 2007 in Ajaokuta Federal Constituency, It was a documentary evidence on the alleged acts of corrupt practice and non-compliance. The Appellants remarked that the Tribunal in the judgment overruled itself in respect of this police report which it had earlier admitted are a relevant document and marked Exh, B. In its judgment on pages 813 lines 9-27, and page 815 lines 1-8 of the Record gave the reason for rejecting the police report Exh. B as being written by the Divisional Crime officer at the Ajaokuta Divisional Police Station. The report Exh. B was written six weeks after the election and 12 days after the petition where it was admitted in evidence was filed. The Tribunal concluded that it could not place any probative value on the report or attach any weight to it, even though it had admitted it in evidence, The report was seen by the Tribunal as a document portraying the bias and personal interest of the Divisional Crime Officer rather than being a police report simpliciter on the election. It is the submission of the learned counsel for the Appellant that the conclusion of the Tribunal was erroneous, perverse and highly prejudicial. As same had caused a miscarriage of justice -the right and proper step for this court is to set the decision aside. The Appellant cited case Macaulay v. NAL Merchant Bank Ltd (1990) 6 SC Pg. 206 at Pg. 244; Nweke v. Esime & 6 Ors (1990) 11 NWLR Pg. 625 at 39; Ogunleye v. Oni (1990) 2 NWLR Pt. 135 Pg. 745; Abisi v. Ekwealor (1993) 6 NWLR Pt. 302 at 643; Akpan v. Votana (1996) 10 NWLR Pt. 476 Pg.108.

The learned counsel gave reasons why the Tribunal should have attached probative value to Exh. B as follows-

(1) The document confirmed facts ‘pleaded in paragraph 6 of the Appellants’ Reply to the 1st Respondent.

(2) The Divisional Crime Officer who wrote the report was an eye witness of the incidents as he was around on the day of the result and he signed the Report Exh. B.

(3) The relevance of Exh. B to the petition was established by witnesses.

(4) The document is entitled to the presumption of regularity under the Evidence Act. It is the Certified True Copy of the Report, signed by the appropriate officer in the Police Command and stamped accordingly.

The court is urged to resolve this issue in favour of the Appellants.

The learned counsel for the 1st Respondent replied that Exh. B had defects as follows:

(1) It was made during the pendency of the petition.

(2) It was made in respect of the 1st Appellant and the 1st Respondent as if they were the only persons that contested the election into the House of Representatives from the Constituency and as if that was the only election that was conducted that day.

(3) It was specifically made to favour the 1st Appellant.

The learned counsel further explained that though the Tribunal admitted Exhibit B in evidence – it had to determine its probative value thereafter. Admissibility of a document and its probative value are two different things – which was incumbent to determine in the course of writing the judgment.

Exhibit B was based on hearsay evidence – complaints made to the Police which did not specify the complainants and whether the complaints were investigated. Exh. B was not tendered by its maker as a result of which its veracity could not be tested. He submitted that admission of a document in evidence cannot cure its objectiveness and that the Tribunal properly evaluated Exh. B,

The 1st Respondent cited cases in support of the foregoing submission. Ojo v. Ejharoro (2006) All FWLR Pt. 346 pg.248; Awuse v. Odili (2005) All FWLR pt.261 Pg. 248; Okoh v. Igwesi (2005) All FWLR Pt. 264 Pg. 891 at Pg. 906: Jinadu v. Esurombi-Aro (2005) All FWLR Pt.251 Pg. 349. The court is urged to answer this issue in the affirmative.

Issue Number Four

Whether the Tribunal in this case correctly directed itself as to the onus and standard of proof having regard to the pleadings and evidence adduced before it.

The learned counsel for the Appellants submitted that the Tribunal in its judgment did not properly direct itself having regards to the pleadings, oral evidence of witnesses and documentary evidence as to the onus of proof and standard of proof required going by the law, He made reference to Sections 135-138(1) of the Evidence Act. It is trite law that he who asserts must prove. The burden of proving non-compliance though rests on the Appellants is not static – whereas the Tribunal regarded non-compliance as corrupt practices alleged and unproved by the Petitioners and thereby placed upon the Petitioners, the stringent and heavy burden of proof beyond reasonable doubt. This has caused serious miscarriage of Justice to the appellants. This court is urged to intervene and reverse these erroneous and perverse conclusion reached by the lower Tribunal. It was the case of the Appellants that no election took place in virtually all the Wards and polling units of the Ajaokuta Constituency due to non-supply of electoral materials, and in few places where materials were supplied election in those areas were marred by violence and other acts of corrupt practices. The Respondents on the other hand asserted that there was election, and this they ought to prove by tendering all the results from the 80 polling units of the Constituency, This court is therefore invited to resolve this issue in favour of the Appellants.

The 1st Respondent emphasized under this issue that it is only when a Plaintiff has fully discharged the burden of proof placed on him that a Defendant will be called upon to proffer evidence to discharge the burden of proof that shifts unto him. In the instant appeal-the Appellants were unable to discharge the burden of proof placed on them as’ they were unable to lead credible evidence in support of their allegations whether civil or criminal. The court is urged to resolve this issue in favour of the Respondents.

Issues Numbers Four – Five

Whether the trial Tribunal adopted the correct approach to the evaluation of the evidence and or tendered by the parties before it.

Whether upon a careful and dispassionate evaluation of the totality of oral and documentary evidence adduced before the trial Tribunal the Appellants were not entitled to favourable judgment at the Tribunal.

The Appellants referred to the portions of the judgment of the lower Tribunal where it had clearly misdirected itself while evaluating the evidence of Appellants’ witnesses particularly PW8 and PW1. The two witnesses gave evidence of how they were going about on election day coordinating the election. They gave evidence of how they visited wards and found that there was no election – as election materials were not supplied to the polling units. Their evidence remained unrebuffed, persistent, cogent and highly credible but the Tribunal gave undue regards to minor details as to time as the reasons for rejecting their evidence. The evidence of PW1 corroborated that of PW.8 that election did not hold in two wards. The reason given by the Tribunal for rejecting P.W.1’s evidence is that it is hearsay evidence. PW1 gave evidence of various acts of corrupt practices and non compliance with the Electoral Act in the Constituency which marred the election. The Tribunal had no reason not to believe the evidence of PW1 and PW.8 – which is not only cogent and consistent but also compelling. The Appellants’ witness adduced cogent and credible evidence of wrongful acts of noncompliance against 3rd – 112th Respondents to establish failure on their part. There was evidence that the 3rd – 112th Respondents used interested party members as sympathizers for the conduct of the election. Documents like Exh. A – a campaign poster of one Abubakar Musa, Exh. B – a Certified True Copies of Police Report and Exh. J – the Report of the Local Government Electoral Officer on the election show that there were irregularities which led to the failure of the 3rd- 112th Respondents to conduct election in the Constituency. The Appellants further submitted that having discharged the onus on them to prove the alleged wrongful acts of non-compliance against 3rd -112th Respondents as required by law, the onus shifts to the 3rd- 112th Respondents to rebut the proof of the Petitioners and show that the wrongful acts of non-compliance did not substantially affect the result of the election. The Appellants referred to the case: Swam v. Dzungwo 1 Or Vol.3 ERR Pg. 241.

Section 137 of the Evidence Act (Cap.12) laws of the Federation of Nigeria 1990. The Appellants complained in respect of all the wards and units yet the 3rd – 112th Respondents failed to tender reasonable number of results from the 80 polling units of the Constituency in form of Form EC 80A (II) to show that election actually took place in the Constituency, The very few poll results tendered are riddled with unpardonable mistakes and irregularities for example they are not stamped by the Presiding Officers as required by Section 64 (1) (2) of the Evidence Act 2006 – Over-voting In some units and wrong recording of figure in some. The Tribunal ignored the objection raised by the Appellants to the use of the unstamped and defective poll results and utilized same in its judgment.

The Appellants cited the cases like Uzodinma v. Udenwa (2004) 2 FWLR Pt.192 Pg. 182; Fagbinwe v. Arogbadi (2006) 2 FWLR Pt. 316 pg. 3190 at pages 3218.3219; Bunge v. Governor Rivers State (2006) 12 NWLR Pt. 995 Pg. 573 at Pg. 629-630. This court is urged to resolve this issue in favour of the Appellants. The submission of the 1st Respondent in the first issue raised by him covered this issue, as to the evidence adduced by witnesses of the parties and the extent of which non-compliance with the Electoral Act by the 3rd-112th Respondents had substantially affected the entire election. The Tribunal concluded that the Appellants failed in that regard. The court is urged to hold that the Tribunal reviewed the evidence of the witnesses called by the Appellants especially PW.8 and PW9 and correctly held that they did not help the case of the Appellants, The Appellants did not tender ballot papers, voters register and all other materials used in the election to establish that there was no election. The court is urged to resolve this issue in favour of the 1st Respondent.

Issue Number Six

Whether the Tribunal did act in error resulting in miscarriage of justice when it struck out the name of the 2nd Respondent PDP from the petition in its judgment.

The Appellant submitted that the issue related to striking out of the PDP from the petition, Any person who took part in the conduct of the election is a necessary party which according to the Appellants should be interpreted to reveal that for a political party to be joined as a Respondent it must be shown that it participated in the conduct of an election by way of either managing or directing it. The Peoples Democratic Party joined as 2nd Respondent is a political party which can sue and be sued and it is vicariously liable for the wrongful acts of its members, leaders, agents or assigns. Many paragraphs of the Appellants pleadings contains allegations against PDP to the effect that many of its members were used as adhoc staff by INEC during the elections particularity the example of one Abubakar Musa the 37th Respondent who was a registered member of the PDP, a Chairmanship aspirant who was used as supervisor during the election. Furthermore that the party used its members as agents and thugs to perpetuate various acts that marred the election on 21/4/2007. Reference was made to paragraphs 2, 4, 5, 8, 10, 11, 12, 13 and 29 of the petition and paragraphs 6, 7, 8 and 9 of the Petitioners’ Reply to 1st Respondent’s Reply. The PDP would be affected as a party one way or the other by the decision of the Tribunal. It was therefore properly joined as a necessary party, 2nd Respondent in the petition. The learned counsel to the 2nd Respondent wrongly or misapplied the facts of the case of Obasanjo v. Buhari (2007)17 NWLR PI. 850 Pg. 510 and Buhari v. Yusuf 2003 14 NWLR pt 841 Pg 446, to the facts of the petition and consequently came to the conclusion that PDP is not a necessary party as Respondent in the petition. This court is urged to resolve all the issues raised in favour of the Appellants – allow the appeal and set aside the judgment of the lower Tribunal.

The 1st Respondent replied to the foregoing that there was no scintilla of evidence before the Tribunal to prove the allegation of non compliance with the Electoral Act.

There was no evidence from the Appellants or any of their witnesses regarding the names and the qualifications of those adhoc staff of the 3rd Respondent alleged to be unqualified and untrained, Appellants did not prove that any card-carrying member of the 2nd Respondent was used as a presiding officer, polling clerk or supervisor by the 3rd Respondent at the election of 21/4/07. The 37th Respondent Abubakar Musa whom the Appellants referred to as a registered PDP member and a Chairmanship aspirant but used as a supervisor only. While even the Appellants’ witnesses identified him as a civil servant in the Education Department of Ajaokuta Local Government. This court is urged to dismiss the appeal and affirm the judgment of the Election Tribunal.

I have painstakingly considered all the issues raised for the determination of this court in this appeal. The first issue for determination arose from the interlocutory appeal filed by Sadiq Asena Muhammed, who was first Respondent in the petition filed by the Petitioners/Appellants before the lower Tribunal. In his reply to the petition, he raised a preliminary objection that the petition was incompetent having failed to join the Independent National Electoral Commission as a necessary party. The Petitioners before the Tribunal- Saliu Itopa Bello and Action Congress filed their petition challenging the return of the Appellant as duly elected member of the Federal House of Representative for Ajaokuta Federal Constituency, and in the petition the body sued as 3rd Respondent was the Independent Electoral Commission. The Petitioners/Respondents to the preliminary objection now filed a motion for amendment of the petition to insert the word “National” in the name of the 3rd Respondent to the petition to read Independent National Electoral Commission. The lower Tribunal granted the application. The lone issue raised for the determination of this court is whether the amendment granted is one that could be granted after the time limited for filing of petition had elapsed. The Appellants referred to the enabling laws for bringing the application – Paragraphs 3(6) (b) and 3 (7) (a) of the Election Tribunal and Court Practice Direction, 2007 as amended and Paragraphs 14 of the First Schedule to the Electoral Act 2006.

Paragraph 14 of the First Schedule is captioned – Amendment of Election Petition and Reply and it reads-

“14(1) Subject to sub-paragraph (2) of the Paragraph the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted for the words the election petition or reply. ”

(2) After the expiration of the time limited by-

(a) Section 141 of this Act for presenting the election petition no amendment shall be made-

(i) Introducing any of the requirements of sub-paragraph (1) of Paragraph (1) of Paragraph 4 of this Schedule not in the original election petition filed; or

(ii) effecting a substantial alteration of the ground for or the prayer in the election petition..

Paragraph 3(1) of the Election Tribunal and Court Practice Direction 2007 as amended read as follow-

“Within 7 days after the filing and service of the Petitioners’ Reply on the respondent or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing Notice as in Form TF 007. ”

Paragraph 3(6) reads –

“At the pre-hearing session, the Tribunal or Court shall enter a scheduling order for-

(a) joining other parties to the petition.

(b) Amending petition or reply or any other processes. ”

The foregoing confirms the fact that an amendment to the petition is not limited by Section 141 of the Electoral Act 2006 – which reads that- “An election petition under this Act shall be presented within Thirty (30) days from the date the result of the election is declared. ”

Practice Direction and provisions of the Electoral Act – particularly the First Schedule to the act are supposed to be Rules of procedure to be followed at the hearing of the Election petition or appeal arising therefrom. The mere fact that they are referred to as Schedule in the Electoral Act does not give them any higher status. Both the Rules of Court and Practice Direction and the Rules in the First Schedule to the Electoral Act 2006 are Rules established for attaining justice with ease, certainty and dispatch. They must be understood to be consistent with the fundamental principle of justice, once strict adherence with the Practice Direction or the First Schedule will clash with the fundamental principles of justice, a court of justice and a court of equity must sidetrack the Rules. The lower Tribunal had invariably done substantial justice in granting the amendment at the pre-hearing stage of the petition. The name of National Independent Electoral Commission appeared as a third Respondent when the petition was presented by the Petitioners. The only lacuna is not giving it the proper appellation by which it is known and recognized under the law. The word National was omitted by error. The Tribunal allowed the amendment to give the 3rd Respondent a proper recognition under the law, which by all standard does not make it a new party or additional party in the petition. The name Independent Electoral Commission is not recognized as a body under the 1999 Constitution. The Tribunal had obviously acted in the interest of justice in the matter. See University of Lagos v. Aigoro (1985) 1 NWLR Pt. 1 Pg. 143; Haruna v. Moddibo (2004) 16 NWLR Pt. 900 Pg. 487.

It is the attitude of the superior courts to move away from undue reliance on technicalities to doing substantial justice evenly handed to the parties in a case, the trend in election petitions is to hear them without regard to technicalities which may unduly fetter the jurisdiction of the Tribunals. See Egolum v. Obasanjo (1999) 7 NWLR Pt. 611 pg. 355; Nwobodo v. Onoh (1984) 1 SCNLR Pg. 1; Ogbebor v. Danjuma (2003) 15 NWLR Pt. 803 Pg. 403; Bayo v. Njidda (2004) FWLR Pt.192 Pg.10.

A mistake or misnomer in the name of a party or a court or Tribunal will not vitiate proceedings duly initiated or properly filed. It will also be unjust to penalize a Petitioner for any default or mistake emanating from the Chambers of the learned counsel to the Petitioner, or registry of the Tribunal or for a matter beyond its control. See Ajadi v. Ajibola (2004) 16 NWLR Pl. 898 Pg. 91; Njoku v. UAC Foods (1999) 12 NWLR Pt.638 Pg. 557; Carlen v. University of Jos (1994) 1 NWLR Pt. 232 Pg. 231; Nkwocha v. Federal University of Technology (1996) 1 NWLR Pt. 422 Pg. 112. Issue Number One is resolved in favour of the Petitioners/Respondents/Appellants in the main appeal.

Issue Number Two

Whether upon a careful consideration of evidence vis-a-vis the pleadings of the parties the trial Tribunal was right when it framed two issues on which it based its judgment.

The judgment of the Tribunal covers pages 756 to 821 of the Record. In compliance with the Practice Direction and the order of the Tribunal, the Petitioners and Respondents filed their respective written addresses, and they were adopted by counsel on the 5th of October 2007. The 1st Respondent formulated four issues as follows before the Tribunal

“(1) Whether the evidence of the Petitioners and their witnesses are reliable.

(2) Whether Exh. B is a valid report and whether the Tribunal can attach any weight to it.

(3) Whether the election was invalidated by reason of corrupt practices and non-compliance with the Electoral Act.

(4) Whether the 1st Respondent was duly returned as the winner of the April 21st 2007 election into the House of Representative for Ajaokuta Federal Constituency having scored the majority of lawful voles.

The 2nd Respondent – the Peoples Democratic Party raised two issues for determination –

“(1) Whether the 2nd, 6th, 7th and 106th Respondents are necessary parties to this petition.

(2) In all other respects the 2nd Respondent respectfully adopts all the four issues formulated by the 1st Respondent in this petition.”

The 3rd – 112th Respondents formulated seven issues as follows-

“(i) Whether Petitioners have discharged the onus on them as to entitle them to the reliefs sought.

(ii) Whether there is abundant evidence on record that election took place on 21st April 2007 in Ajaokuta-Federal Constituency following which the 1st Respondent was validly returned by INEC as a winner of the election by majority of lawful votes cast at the said election.

(iii) Whether the non-holding of election in six units in both Ebiya North and South on account of violence and thuggery is sufficient to nullify the election results in 74 polling units within Ajaokuta Federal Constituency.

(iv) Whether Exh. B has evidential value capable of nullifying the election of the 1st Respondent.

(v) Whether the contradictions and conflicts in the evidence of the Petitioners and their witnesses in support of this petition are material to render it unreliable.

(vi) Whether the allegation against the 37th, 38th, 39th, 40th, 41st, 42nd, 43rd and 44th Respondents in the petition have been proved as required by the law.

(vii) Whether all allegations of the use of untrained and uneducated ad-hoc staff of INEC in the election on 21st April 2007 in the petition has been proved as required by law. ”

The Petitioners postulated five issues for determination as follows-

“(1) Whether the petition contain sufficient averments bordering on civic wrongs or acts of non-compliance with the Electoral Act devoid of criminal imputation against the 3rd – 112th Respondents on which the Petitioners can succeed and whether the Petitioners have proved those allegation within the balance of probability and that they substantially affected the election.

(2) Whether Exhibit B is entitled to high probative value and substantial evidential weight.

(3) Whether PDP is a necessary party to the petition and properly joined as 2nd Respondent.

(4) Whether the Petitioners have proved the alleged acts of corrupt practices against the 1st and 2nd Respondents and that these acts substantially affected the result of the election.

(5) Whether the 1st Respondent was elected by majority of lawful votes cast at the election. ”

The Tribunal having evaluated the evidence at its disposal and in view of the submission of counsel distilled issues for determination in the petition as follows –

“(1) Whether by the sum total the evidence placed before the Tribunal, it has been established that the election of the 1st Respondent is afflicted by corrupt practices and noncompliance with the principles of the Electoral Act.

(2) Whether the 1st Respondent was duly elected by majority of the lawful votes cast at the election.

Looking at the two issues formulated by the Tribunal, it is apparent that they derive directly from the petition of the Appellants, pleadings of the parties, written addresses of counsel representing the parties, I conclude that the lower Tribunal has the power to formulated Issues so long as they do not contradict the grounds relied upon by the Petitioners for bringing the petition.

Issue Number Three

Whether the Tribunal was in error when it refused to attach evidential weight and probative value to an admitted and relevant document tendered by the Appellants to wit – the Police Report on the election Exhibit B and thus came to a wrong decision causing miscarriage of justice.

The core of the submission of the Appellants on this issue is that the Tribunal wrongly overruled Itself and failed to consider nor attach probative value to an admitted relevant document tendered by the Appellants. The Tribunal’s verdict would have been different if it had utilized the document. The 1st Respondent however saw Exh. B -the Police Report as a defective document which cannot be cured by its admission, The content of Exh, B is not evidence, but a complaint made to the police by unnamed and undisclosed people. It was not tendered by the maker so as to determine its veracity. It was incumbent on the Tribunal to determine the weight to be attached to Exhibit B.

According to the Appellants, Exh. B is a police report on the Presidential and House Representative Election of 21st April 2007 in Ajaokuta Federal Constituency issued by the Nigeria Police Ajaokuta Division and signed by the Police Officer Abdulazeez Maliki. It was a document tendered by the appellants to prove facts of corrupt practices and non-compliance. The Tribunal gave reasons for not attaching probative value to Exh. B as follows-

(1) It was not made at the time of the election, which it was supposed to cover – but six weeks thereafter and 12 days after the petition was filed. The contents of Exh. B was not police report but based on the personal opinion of the maker one Abdulazeez Maliki – the Divisional Crime Officer. It is right and proper at this stage to amplify on admissibility of documents and weight to be attached to admissible or inadmissible documents.

Section 91 of the Evidence Act governs the admissibility of documents in civil proceedings. The Act in Section 91 (1) provides that statements made in a document in any proceedings where direct or oral evidence would be admissible, shall be admissible as evidence or production of the original document. The act in this Section however goes forward to establish the conditions upon which such document sought to be admitted must be predicated are as follows-

(a) That the maker must have personal knowledge of the matters dealt with therein.

(b) That the information contained therein being part of a continuous record was supplied to him by a person who had or was reasonably expected to have personal knowledge of such matters in the performance of his duty to record such information and such information not being within his own personal knowledge.

(c) That the maker of the statement must be called as a witness in the proceedings.

By virtue of Section 3 of Section 91, it is provided that any statement made by a person interested during the pendency of the proceedings or at a time when proceedings were anticipated which involves a dispute as to any fact which the statement might lend to establish would be inadmissible.

S.5 of 91 is to the effect that for the purpose of determining the admissibility or inadmissibility of a statement, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained or from any other circumstance.

Section 92(1) is on the issue of weight to be attached to a document. It is provided that in estimating the weight to be attached to a statement rendered admissible, regard shall be had to all circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement. Going by the foregoing, it may be said that the admissibility of a document and the weight to be attached to it are distinct and separate from each other. In the case of Dalek Nigeria Ltd. v. Oil Mineral Producing Areas Development Commission COMPADEC (2007) 7 NWLR Pg. 1033 Pg. 402 at Pg. 441 Paragraphs D – G the Supreme Court said that-

“The admission of an exhibit does not mean that the court must attach any weight to it willy-nilly. It is the relevance of a document and not the weight to be attached to it that is paramount. In other words, admissibility is one thing, while the probative value that may be placed thereon is another. Relevance and admissibility of document are separate matters in contradiction with the weight to be attached to it.”

In the case National Electric Power Authority v. John Ojo Adeyemi (2007) 3 NWLR Pg. 315 the Court of Appeal said that-

“It is not the law that once a document had been admitted in evidence, due weight must be placed on the document. The admissibility of a document and the weight to attach to the document are two different things, little or no weight can still be attached to a document in evidence. In such a case, the document is as worthless as if it had not been admitted in the first place.”

See Okonji v. Njokama (1999) 14 NWLR Pt. 638 Pg. 250; Union Bank of Nigeria Plc v. Sparkling Breweries Ltd (2000) 15 NWLR Pg. 689 Pg. 200; NAB. Ltd. v. Shuaib (1991) 4 NWLR Pt. 186 Pg. 450; Ayeni v. Dada (1978) 3 SC 35.

Consequently, it is apparent that there has been a clear distinction in the principle of admissibility, inadmissibility and weight to be attached to any particular piece of evidence. The distinction which flows from the judicial interpretation of the statute is as follows –

(a) Admissibility refers to what is legally receivable in evidence.

(b) Inadmissibility refers to what is not legally receivable in evidence; and

(c) Weight of evidence refers to the probative quality or value of evidence that is admitted that makes the court to believe and rely on it or otherwise.

The position is also aptly stated in Section 92 (1) of Evidence Act that-

“Where it is stated that in order to ascribe weight to any statement in a document, which has been admitted the court shall have regard to all circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. In effect it may be said that the admissibility of a document rides on its relevancy, however the weight to be attached to such a document does not depend on the fact that it has been admitted. The question of the weight has to be determined independently and at a later stage of the proceedings. ”

See Lambert v. Nigerian Navy (2006) 7 NWLR Pt. 980 Pg. 514 at 550; Gbafe v. Gbafe (1996) 6 NWLR Pt, 455 Pg. 417; Agbana v. Owa (1999) 5 NWLR Pt. 604 Pg. 516. The lower Tribunal had rightly ruled on the probative value of Exh. B from the surrounding facts available. Issue Number Three is resolved in favour of the Respondent.

Issue Number Four

Whether the Tribunal in this case, correctly directed itself as to the onus and standard of proof having regard to the pleadings and evidence adduced before it.

The conclusion of the Appellants is that the Respondents misconceived the nature of the Appellants’ case and placed wrong burden of proof upon the Appellants’ case on which it based its decision. Furthermore that the tribunal failed to properly evaluate the evidence of the Appellants’ witnesses resulting in miscarriage of justice, the Appellants’ petition before the lower Tribunal contained general averments bordering on civil wrongs or acts of non-compliance with the Electoral Act 2006. The allegation are based on the conduct of the election in all the wards and 79 polling units out of 80 in the Ajaokuta Federal Constituency in respect of the 21st of April 2007 elections, The Appellants laid emphasis on the issue of severability of pleadings. In an election petition – the complaints and allegations of the Petitioner must fall in line with Section 145 of the Electoral Act 2006 – which states the grounds on which an election may be questioned.

The Tribunal can only consider the petition of the Appellants along these grounds.

I have carefully read through the petition of the Appellants on pages 6 to 13 of the records of proceedings. The grounds relied upon for the election petitions are on page 7. They read as follows-

“(1) The election was invalidated by reasons of corrupt practices And non-compliance with the provisions of the Electoral Act.

(2) The 1st Respondent was not duly elected by majority of the lawful votes cast at the election.

Facts in support are on pages 7 – 12 of the Records of Proceedings. The complaints and allegations are as follows-

(a) Influencing election infavour of 1st Respondent

(b) Snatching of electoral materials

(c) Thuggery

(d) Violence

(e) Presiding Officer not supplying voting material at polling centres.

(f) Not holding election at polling units.

(g) Using untrained and unqualified ad-hoc staff by the 3rd – 112th Respondents.

As rightly observed by the Respondents the bulk of the allegations are offences under the Electoral Act, under Sections 130, 135, 136 and 138. The burden of proving them was on the Appellants and being criminal in nature they attract sanctions punishable with terms of imprisonment, the standard of proof is beyond reasonable doubt. The Appellants did not adduce cogent and convincing evidence before the Tribunal to prove any corrupt practices alleged by them or non-compliance with the Electoral Act 2006.

In an election petition the nature of burden of proof and standard of proof based on non-compliance with electoral rules, the petitioner must first establish the noncompliance, and that it substantially affected the result of the election or that he was prejudiced. Thereafter the onus shifts to the respondent to prove that the noncompliance, though established did not substantially affect the election and the result. The decision of whether or not at the end of the case of the petitioner the onus shifts to the respondent to prove that the non-compliance did not substantially affect the election and result of depends on the courts own perception of the effect of the non-compliance. In this case the petitioners were unable to adduce credible evidence in respect of some of their allegations of electoral irregularities. In the petition the Respondent had no burden to prove the regularity of the election in the Ajaokuta constituency. I have to however explain that the respective burden of proof on the petitioner and the respondent where non-compliance with the electoral rules is alleged is proof by preponderance of evidence and not proof beyond reasonable doubt Buhari vs Obasanjo (2005) 2 NWLR pt. 910 Pg.241; Omoborowo vs Ajasin (1984) 1 SCNLR pg.108; Mogaji vs Rabiatu (1978) 4 SC Pg. 91. This issue is resolved in favour of the Respondent.

Issue numbers Four and Five

Issue No.4

Whether the trial tribunal adopted the correct approach to the evaluation of the evidence adduced and or tendered by the parties before it.

Issue No.5

Whether upon a careful and dispassionate evaluation of the totality of oral and documentary evidence adduced before the trial Tribunal, the appellants were not entitled to favourable judgment at the Tribunal.

The allegations of non-compliance levied against the 3rd – 112 Respondents include use of unqualified and untrained party members as ad hoc staff, failure to conduct election in some areas, late arrival of electoral materials to polling units. The allegations were pleaded in paragraphs 1- 14 of the Appellants Reply. Several acts of corrupt practices were pleaded against the 1st Respondent in paragraph 16-22, 24-26 and 28-31 of the petition and paragraphs 6-9 of the petitioners reply at pages 9-12 of the Record of Proceedings. The appellants called more witness and tendered three exhibits A; B and J. at pages 151 – 225 of the Records, The 1st, 2nd and 3rd -112th Respondents denied the alleged acts of non-compliance with the Electoral Act 2006 in the conduct of the election.

On the 21st of April 2007, after conclusion of proceedings final address of counsel were adopted, The Tribunal delivered a considered judgment on 8/10/07, Vide pages 756-821 of the record. The evidence considered by the Tribunal includes oral evidence of witnesses and documentary, Ongoing through the petition and grounds of petition, replies of the Respondents, written deposition of parties, their evidence in chief and cross examination, ‘endorse that the proper and relevant issues for determination are as specified by the Tribunal in the judgment as follows:-

1. Whether based on the sum total of the evidence placed before the Tribunal, it has been established that the election of the 1st Respondent is afflicted by corrupt practices and non-compliance with the principles of the Electoral Act.
2. Whether the 1st Respondent was duly elected by majority of the lawful Votes cast at the election.

The Tribunal reviewed all the evidence at its disposal both oral and documentary. Where an election is not conducted in substantial conformity with the electoral Law, it ought to be nullified. Any breach of the electoral law and the guideline in the manual made pursuant to the Electoral law is a serious matter which can fundamentally affect the election conducted. In the instant case it was substantiated that due to non-provision of electoral materials, election did not take place in unit 003 Abodu/Patesi ward, in Ebiya North and South, Wards in polling units 004, 005 and 006 in Ebiya North and units 001, 002 and 003 in Ebiya South, In all the five units in Obangede/Upake ward. Whereas election took place on the 21st of April 2007 in respect of the Ajaokuta Federal Constituency save in the above mentioned units. Non-compliance with the rules which can render an election void must be so great as to amount to conducting of the election in a manner contrary to the principle of election by ballot and must be so great as to satisfy the court that it did affect or might have affected the majority of the voters and the result of the election, Though the petitioners were able to show that the election was not conducted according to the electoral rules in some polling units, the non-compliance proved did not substantially affect the result of the election, particularly having regard to the fact that the area affected by non-compliance is comparatively smaller to the area not affected by non-compliance.

Swen vs Sungwe (1966) NWLR Pg. 33; Imiere vs Salami (1960) SCBKR Pg. 414; Oputeh v. Ishida (1993) 3 NWLR pt, 279 Pg. 34; Eriobuna vs Ezeife (1992) 4 NWLR Pt.236 Pg.417.

Allegations of corrupt practices, thuggrey, violence are criminal hence the standard of proof required to establish them is proof beyond reasonable doubt. The evidence of the appellants before the trial Tribunal fell short of the standard.

The evaluation of evidence and ascription of probative value to such evidence is the primary duty and function of the trial count or Tribunal which had the opportunity of seeing, hearing and assessing the witnesses. Where a trial court unquestionably evaluated the evidence and justifiably appraises the facts it is not the business of an appellate court to substitute its own views for those of the trial court. What an appellate court is required to do is simply to find out from the record whether there is evidence on which the trial court could have acted or on which its findings are based. Once that is achieved the appellate cannot interfere with the decision of the trial court, Odofin vs Ayoola (1984) 11 SC 74, Amadi vs Nwosu (1992) 5 NWLR pt. 241 Pg. 223. Agbaje vs Ajibola (2004) 6 NWLR Pt.750 page 127, Olugbo Umeh 2004 6 NWLR pt 870 Pg. 621. The Tribunal properly evaluated the evidence before it and came to the right conclusion with which this court has no justifiable reason to interfere. These issues are resolved in favour of the Respondent.

Issue Number Six

Whether the Trial Tribunal did not act in error resulting in miscarriage of justice when it struck out the name of the 2nd Respondent (PDP) from the petition in its judgment.

The appellants challenged the decision of the Tribunal to strike out the People’s Democratic Party which was throughout the hearing of the petition a party – the 2nd Respondent. PDP joined as the 2nd Respondent is a political party which can sue and be sued, and is vicanously liable for the wrongful act of its member, leaders, Agents and assigns. The appellants referred to paragraphs of the petition with allegations against the PDP to the effect that many of its interested members were used as ad hoc staff by INEC during the election. There was no evidence from which the Tribunal could have made a finding of fact that any of the ad hoc staff used by INEC was mandated by the People’s Democratic Party. In actual fact all the ad hoc staff recruited by INEC for the conduct of the election into the Ajaokuta Federal Constituency held on 21/4/01 were trained for the assignment prior to the election. They were people who possessed the required educational qualification stipulated for the purposes of their recruitment by INEC. The 37th Respondents. Abubakar Musa who was alleged to be a registered member of PDP who was used as a supervisor during the election, evidence before the Tribunal revealed that he was an civil servant in the Education Department of Ajaokuta Local Govemment.

Parties to an election petition are as dictated by statute.

Section 144(1) of the Electoral Act 2001 states

“An election petition may be presented by one or more of the following person:-

(a) A candidate in an election.

(b) A Political Party which participated in the election.

144 (2)

“The person whose election is complained of, is in this Act, referred to as the Respondent, but if the petitioners complains of the conduct of an electoral officer, a presiding officer, A returning officer as 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 found 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 void the petition if the commission is made a party”.

A petitioner is not obliged under section 144 of the Electoral Act 2006 in an election petition to make a candidate who lost in the election or political party a Respondent as they are not necessary parties. But any person including a political party who qualifies under section 144 will be regarded as a statutory respondent and may be joined as a respondent in such petition. There is no authority for the proposition that a victorious political party whose candidate was successful at an election is a statutory or necessary Respondent. By operation of law the Tribunal was right to have struck out the PDP from the petition in its Judgment. Buhari vs Obasanjo (2003) 17 NWLR pt 850 Pg. 423; Obasanjo vs Buhari (2003) 17 NWLR pt 850 510; Buhari vs Yusuf (2003) 14 NWLR pt 841 page 446.

PDP in the case is at best an interested party as it sponsored the candidate of the 1st Respondent, it is however not a party which ought to have been joined and its presence before the court is not necessary in order to enable the court determine both effectively and completely all issues In controversy in the petition. The sixth issue is resolved in favour of the appellant.

In the final analysis this appeal lacks merit, and it hereby dismissed. The judgment of the Lower Tribunal delivered on the 8th day of October 2007 is hereby affirmed.

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Other Citations: (2008)LCN/2753(CA)