APC v. ADP & ORS (2021)

APC v. ADP & ORS

(2021)LCN/15162(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/B/EPT/GOV/04/2021

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

ALL PROGRESSIVES CONGRESS APPELANT(S)

And

1. ACTION DEMOCRATIC PARTY (ADP) 2. IBOI LUCKY EMMANUEL 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. PEOPLES DEMOCRATIC PARTY (PDP) 5. GODWIN NOGHEGHASE OBASEKI 6. ANDREW OSAGIE IZE-IYAMU RESPONDENT(S)

RATIO

WHO CAN BE A RESPONDENT IN AN ELECTORAL PETITION

The law, having expressly specified and legislated on who can be a respondent in an electoral petition, it appears conclusive that, whoever is contemplated to be a Respondent to defend an election petition, must fall into any of the two categories named in Section 137 (2) and (3) of the Electoral Act.

On whether a person who lost an election can be joined as a Respondent in a petition, my Lord, Kalgo, J.S.C. in the case of BUHARI & ORS V. OBASANJO & ORS (2003) LPELR – 24859 (SC) held thus:
“In the case of Gen. Muhammadu Buhari & amp; Another v. Alh. Moh. Dikko Yusuf & Another (2003) FWLR (Part 174) 329; (2003) 14 NWLR (Part 841) 446, this Court was asked to decide whether a person who lost at an election can properly be joined as a respondent in a petition in which the election of a successful candidate is being challenged. In answer to this question, this Court categorically said “no”. In the leading judgment by Uwaifo, J.S.C. in the case, he said: – “It is manifest that Section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not field any candidate for the particular seat, a respondent other than the statutory respondent envisaged under Subsection (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties.” (My emphasis). PER UMAR, J.C.A.

THE POSITION ON STARE DECISIS

The position of Stare Decisis is not for counsel to follow the decision he likes but, to follow the decision that is more recent. See the cases of OBIUWEUBI V. CBN (2011) LPELR – 2185 (SC); OBIAKOR & ORS V. OKAFOR (2017) LPELR 43309 (CA); CBN V. ZAKARI (2018) LPELR – 44751 (SC); KANU V. ASUZU & ANOR (2015) LPELR – 24376 (CA).
The Supreme Court made it clear in the case of APC V. PDP & ORS (supra) that “… The law expressly specified and legislated on who can be a respondent in an election petition. Whosoever is contemplated to be a respondent to defend an election petition must fall into any of the two categories named in said Section 137 (2) and (3) of the Electoral Act (Supra).” PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Governorship Election Petition Tribunal sitting at Benin delivered on 29th March, 2021, coram: Yunusa Musa J. (Chairman), S. Y. Abubakar J. (Member I) and O. O. Stanley J. (Member II) wherein judgment was entered against the 1st and 2nd Respondents who were Petitioners at the Tribunal and in favour of the 4th and 5th Respondents.

The 1st Respondent sponsored the 2nd Respondent in the said election. The 4th Respondent sponsored the 5th Respondent, while the Appellant herein sponsored the 6th Respondent. The 3rd Respondent conducted the election, declared and returned the 5th Respondent as the winner of the Governorship Election held in Edo State on 19/9/2020.

Miffed by the declaration and return of the 5th Respondent as the Governor of Edo State, the 1st and 2nd Respondent as Petitioners filed an Election Petition dated 5th October, 2020, challenging the aforesaid return of the 5th Respondent herein by the 3rd Respondent as the winner of the said election. (See pages 1 — 10 of Vol. 1 of the record of appeal).

The sole ground upon which the

1st and 2nd Respondent’s petition was predicated as contained in Paragraph 13 (a) of the Petition is as follows:
“The 3rd Respondent, GODWIN NOGHEGHASE OBASEKI, who was declared the winner of the election and returned elected was at the time of the election not qualified to contest the election. (Section 138 (1) (a) of the Electoral Act, 2010 (as amended)”.

The Appellant who was a Respondent filed its Reply to the Petition on 27th day of October, 2020.

In the course of hearing the Petition, the 3rd Respondent in this appeal, filed a Preliminary Objection praying amongst other reliefs, for an order striking out the names of the Appellant herein and the 6th Respondent i.e., the candidate sponsored by the Appellant from the Petition before the Tribunal on the premise that they were not statutory parties to the Petition and their presence violates the express provisions of the Electoral Act 2010 (as amended).

Upon the hearing of the 3rd Respondent’s motion during the pre-hearing section, the Tribunal delivered its ruling together with the final judgment on the 29th day of March, 2021, wherein the Petition was dismissed and the application of

the 3rd Respondent was granted. The names of the Appellant and the 6th Respondent were therefore struck out from the Petition including all processes filed by or on their behalf. (See pages 3258 — 3274 of the record of appeal).

The crux of this appeal is therefore centred on the Tribunal’s decision to strike out the name of the Appellant from the petition. The Appellant has approached this Court via a Notice of Appeal dated 16th April, 2021 challenging the decision of the Tribunal, striking out its name from the Petition. (See pages 3366 — 3370 of the Supplementary Records of Appeal upon which the Appellant’s brief of argument is filed.)

It is imperative at this stage to state that the Appellant and the 5th Respondent in this appeal both filed an application which was taken on 19th May, 2021, the date the substantive appeal was heard by this Court. On the aforementioned date, this Court reserved its rulings in respect of both applications and the said rulings to be taken together with decision of the Court on the merit. I shall therefore, at this stage proceed to deliver ruling in respect of the applications which have been reserved.

RULING ON THE MOTION ON NOTICE FILED BY BOTH THE APPELLANT AND THE 5TH RESPONDENT
The Appellant filed an application dated 30th April, 2021 and filed on 7th May, 2021. The Application was brought pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court. The Appellant/Applicant is praying this Court for the following reliefs to wit:
“1. AN ORDER of this Court allowing the Appellant to rely on the Supplementary records of Appeal compiled and transmitted by the 6th Respondent, Andrew Osagie Ize-Iyamu in his cross-appeal, in respect of this petition, having not compiled and transmitted.
2. AND for such order or further orders this Honourable Court may deem fit to make in the circumstance.

The grounds upon which the Application is made are that:
“1. By the provisions of Order 8(1) and 10 of the Court of Appeal Rules 2016, the Registrar of the lower Court in this case the Edo State Governorship Election Petition Tribunal ought to compile and transmit the records of Appeal to the Court of Appeal after a notice of appeal is filed.

Where the Registrar fails

to compile and transmit the records within the stipulated time, Rule 4 mandates the Appellant to so do.”

Attached to the said Application is an eight (8) paragraph Affidavit deposed to on behalf of the Applicant at the Registry of this Court on the 7th day of May, 2021, by one Okwesi Nkechi, Litigation Secretary and a Nigerian Citizen of No. 103B Boundary Road, Benin City.

The Applicant’s application was not accompanied by a written address.

In response to the said Application, the 5th Respondent filed a fourteen (14) paragraph Counter affidavit deposed to by one Odion Eric Namuna, Male, Christian, Nigerian Citizen and a Legal Practitioner of Ken. E. Mozia (SAN) & Co., Plot 87 A, Okoro — Otun Avenue, Off Ikpokpan Road, G.R.A., Benin City, Edo State. The 5th Respondent’s Counter-Affidavit was also not accompanied by a written address.

By way of reply to the Counter-Affidavit filed by the 5th Respondent, the Applicant, on the 18th day of May, 2021, in turn filed a six (6) paragraph Further Affidavit deposed to on behalf of the Applicant by one Nelson Erhabor, Male, Christian, Legal Executive and Nigerian citizen of No. 103B

Boundary Road, Benin City.

The 1st, 2nd 3rd and 6th Respondent did not file any process for or against the granting of the instant application.

Before delving into the consideration of the instant application, it is important to also restate that the 5th Respondent filed a similar application to the Applicant’s application under consideration. The application of the 5th Respondent is dated 15th May, 2021 and filed on 17th May, 2021. The 5th Respondent’s application is brought pursuant to Order 4 Rule 10, Order 8 Rule 18(1), Order 19 Rule 3(1) of the Court of Appeal Rules and under the inherent jurisdiction of this Court. The 5th Respondent/Applicant’s application is praying this Court for the following reliefs to wit:
“1. AN ORDER of this Honourable Court dismissing the appeal for failure of the Appellant to compile and transmit records of appeal in compliance with the rules of Court.
ALTERNATIVELY
2. AN ORDER of this Honourable Court striking out issue 3 (three) and the Arguments canvassed thereunder having not been distilled from any ground of appeal.
AND for such further or other orders as this Honourable Court may deem fit to

make in the circumstances of this case.

The grounds upon which the Application is made are that:
“1. The Appellant filed its Notice of Appeal on the 16th of April, 2021, wherein it raised only 2 (two) grounds of appeal.
2. The Appellant filed its brief of argument on the 7th of May, 2021, and distilled 3 (three) issues for determination.
3. It offends against basic tenets of appellate practice for more than one issue to be distilled from a ground of appeal as issues for determination are usually tied to one or more grounds.
4. It is not possible to have more than one issue gleaned from a ground of appeal.
5. Issue 3 (three) in the Appellant’s Brief of Argument is not tied or linked to any of the grounds of appeal and ought to be struck out.
6. The Appellant failed, refused or neglected to compile and transmit the records of appeal to vest the Court with jurisdiction to entertain this appeal in accordance with Order 4 Rule 10 of the Court of Appeal Rules, 2016.
7. A brief of Argument can only be founded on a duly compiled and transmitted record of appeal.
8. That having failed to compile and transmit records in

support of a substantive appeal, the appeal is incompetent and ought to be dismissed.

Also attached to the 5th Respondent/Applicant’s Application is a four (4) paragraph Affidavit deposed to on behalf of the 5th Respondent at the Registry of this Court on the 17th day of May, 2021 by one Faith Okosodo (Mrs.), Female, Christian, Nigerian Citizen, Secretary of Ken. E. Mozia (SAN) & Co., Plot 87A, Okoro — Otun Avenue, Off Ikpokpan Road, G.R.A„ Benin City, Edo State.

In response to the 5th Respondent/Applicant’s affidavit, the Appellant in the instant appeal, on the 18th May, 2021, filed an eight (8) paragraph Counter affidavit deposed to by one Nelson Erhabor, Male, Christian, Legal Executive and Nigerian citizen of No. 103B Boundary Road, Benin City.

Also, in the Application filed by the 5th Respondent, the 1st, 2nd, 3rd and 6th Respondents did not file any process for or against the granting of the application.

After a perusal of both applications and the reliefs sought therein, it is clear that while the Appellant’s seems to be a constructive application trying to save the appeal, while the Application of the 5th

Respondent, particularly the relief one (1) of the face of the motion paper is a destructive application which seeks to put an end to Appellant’s appeal.

The practice and procedure is that, when there is a constructive application to save an action and a destructive application to terminate the action, the former is taken and determined before the latter is considered, notwithstanding which one was earlier filed or was first in time in the sequence of filing them at the registry of the Court. See NALSA V. TEAM ASSOCIATES V. N.N.P.C. (1991) 8 NWLR (PT.212) 652 AT 626, A.-G., FEDERATION V. A.I.C. LTD. AND ORS. (1995) 2 NWLR (PT.378) 388 AT 397.

It is on the premise of the above principle of law, that I am fortified to consider the application filed by the Appellant before that of the 5th Respondent.

Having carefully considered the reliefs sought by the Appellant/Applicant on the face of its motion paper and also the facts deposed in the entire gamut of affidavit evidence before this Court for the determination of the instant application, I am of the view that the crucial issue is, whether in the circumstances of this case, this Court ought to grant

the Appellant’s application.

The purport of this application is grant leave to the Appellant to rely on “Supplementary records of appeal compiled and transmitted by the 6th Respondent, Andrew Osagie Ize-lyamu in his cross-appeal”. The 5th Respondent on the other hand has vehemently opposed the granting of this application.

A Record of Appeal is a reproduction of all that occurred in the Court from which the appeal emanates. It consists of the proceedings and relevant processes used for the proceedings. See NATIONAL INLAND WATERWAYS AUTHORITY vs. SPDC (2011) LPELR (1964) 1 at 21, SKYE BANK PLC vs. TUNS INT’L HOLDINGS LTD. (2014) LPELR (22690) 1 at 18 and ADESINA vs. ADENIRAN (2002) 6 NWLR (PT 762) 84. It has not been confuted that the Record of Appeal transmitted to an appellate Court contains all the necessary materials on which this Court can review the decision of the lower Court appealed against. The Record of Appeal is an indispensable and integral part of the hearing of an appeal.

The Applicant, in the Affidavit attached to the said application stated its reasons for not compiling the record of appeal in the instant appeal and why it is

seeking an order of this Court allowing it to rely on the Supplementary record of appeal filed by the 6th Respondent in his cross- appeal. The reasons given can be gleaned from the facts deposed to in paragraphs 5 — 6 of the affidavit that:
“5. That upon filing the notice of appeal, the Registrar of the Edo State Election Petition Tribunal failed to compile and transmit the records of appeal to the Court of Appeal within the time stipulated for compilation and transmission.
6. That I am informed by E. I. Usoh, counsel in chambers on 29/4/21 at about 3:00pm and I verily believe him as follows:
a. That the Appellant under the Court of Appeal Rules ought to compile and transmit the records of appeal where the registrar fails to do so.
b. That, in this case the Appellant could not compile and transmit the records because, he was not promptly informed of the Registrar’s failure to do same, having being assured that the records of appeal were already being compiled by the Registrar.
c. That, at the time the Appellant and his counsel became aware of the situation, it had become practically impossible to compile and transmit the records

before the expiration of the stipulated period, given the expediency of Election Petitions.
d. That the 6th Respondent in this appeal, filed a cross-petition on the 18th of April, 2021 against the judgment of the Edo State Governorship Election Petition Tribunal, Benin City, delivered in Petition No: EPT/ED/GOV/01/2020 Action Democratic Party & Anor V. Independent National Electoral Commission & Ors on the 29th of March, 2021, which is similar to this appeal in every material respect.
e. That the supplementary record of appeal in the above cross-appeal; has been compiled and transmitted to this Honourable Court and a notice served on all parties.
f. That the Appellant having gone through the supplementary records and the records of cross-appeal, intends to rely on same as it emanates from the same Election Petition which judgment he is appealing against and is therefore an accurate reflection of what the Appellant’s records of appeal ought to be.”

In opposition to the facts deposed to in the Appellant’s affidavit in support of the Application, the 5th Respondent in its Counter-Affidavit deposed to the following facts:

“5. The

averment in paragraph 5 is false and denied. I was informed upon inquiry from the Edo State Election Petition Tribunal Registry that the Appellant/Applicant failed to deposit the estimated cost of making up and forwarding the record of appeal pursuant to Order 8 Rule 2(b) of the Court of Appeal Rules, 2016.
6. That contrary to the Appellant/Applicant deposition in paragraph 6, it did not compile any record of appeal on its own. We reiterate that failure to compile and transmit record by the registrar was due to the Appellant’s failure to pay the estimated cost. We challenge the Appellant/Applicant to show evidence of such payment.
7. The Appellant and his counsel’s excuse for not compiling the record of appeal that they did not know until it was too late, is admission of indolence and lack of diligence in prosecuting this appeal.
8. That having admittedly failed to compile and transmit records in support of the substantive appeal, dismissal in line with Order 8 Rule 18(1) of the Court of Appeal Rules, 2016 is the order the Honourable Court should make.
9. That, the so called cross-petition by the 6th Respondent not being an appeal has no record of appeal.

That, the purported supplementary record of appeal is grossly inadequate and cannot by any stretch of imagination be regarded as a record of appeal. It is made up only of the 6th Respondent’s notice of appeal and the five (5) affidavit of service of same on the Respondents.
11. As a matter of fact, I know that the 6th Respondent did not file any cross appeal. What the 6th Respondent filed is actually an appeal for which he also failed to compile and transmit record of appeal.”

In the Appellant’s Further-Affidavit, the Appellant deposed to the following facts:
“3. …
a. That the 5th Respondent complained (sic) is not that the record of appeal is incomplete.
b. It is also not that there is no appeal by the Appellant herein upon a filing of a notice of appeal dated 16/4/2021.
c. The 5th Respondent has not shown that there is any miscarriage of justice in the circumstances of this appeal by the utilization of the records already transmitted along with the supplementary records duly transmitted.
d. The issues

raised by the Respondent in their counter affidavit are issues of technicalities.
e. That, this appeal can be effectively determined by the available records in the circumstances of this appeal having been initiated by the appropriate notice of appeal and compilation by the lower Tribunal.
f. That this honourable Court can rely on the records before it to determine this appeal.

From the entire gamut of affidavit evidence reproduced above, one fact that is not in dispute and which was admitted by the Appellant is that it did not compile the records of appeal in the instant appeal.

The reason for the non-compilation seems to be in dispute. While the Appellant blamed the registry of the Tribunal for not compiling within time, the 5th Respondent on the other hand deposed to the fact that the failure to compile was due to the refusal of the Appellant to pay the filing cost requested by the registry (See paragraph 5 & 6 of the 5th Respondent’s Counter-Affidavit).

Having carefully considered paragraph 5 of the 5th Respondent’s counter- affidavit, I am of the view that the said paragraph offends the provision of Section 115 of the Evidence Act.

For ease of reference, permit me to reproduce the said Section as follows:
“115.
(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
It is evident that the 5th Respondent failed to provide the name of his informant and his or her reasonable particulars, time, place and circumstances of the information. The principle of law is that, hearsay evidence, save for some

exceptions, is generally inadmissible. The object of the evidence in paragraphs 5 & 6 is to establish the truth that the Appellant did not pay the cost of compiling and transmitting the records of appeal from the Tribunal below to this Court. It is on this note, that I hereby proceed to expunge paragraphs 5 & 6 of the 5th Respondent’s Counter-Affidavit.

As a matter of fact, Order 8 Rule 18(2) of the Court of Appeal Rules provides that:
“(2) Where the Appellant has not deposited the amount fixed by the registrar to cover the cost of compilation and transmission of the records of Appeal as provided in Rule 2(b) of this Order, the registrar of the Court below shall certify such fact to the Court, which may suo motu order that the appeal be dismissed either with or without costs, and shall cause the parties to be notified of the terms of the order;
Provided that the Court shall only act on the certification by the registrar the expiration of the thirty days allowed for the appellant to compile records by Appeal, prescribed by Rule 4 of this Order.”

There was no such certification by the registrar in the instant appeal in accordance

with Order 8 Rule 18(2) of the Court of Appeal Rules, 2016. It is on the premise of this that I shall also not countenance the deposition of facts contained in paragraphs 5 & 6 of the 5th Respondent’s Counter-Affidavit.

However, the Appellant on its own volition admitted to the fact that the record of appeal in the instant appeal was not compiled and transmitted. The Appellant blamed the registrar of the Tribunal for its failure to do what is required under Order 8 of the Rules of this Court. My grouse with the reason furnished by the Appellant is that assuming but without agreeing that Registrar failed to compile within time after the Appellant had done everything incidental or consequential to the said compilation to wit: payment of the necessary cost for compilation and transmission, what will a diligent party or counsel do in the circumstance? The Rules of this Court allows an Appellant to compile the record of appeal in the event of the failure of a registrar to do same. See Order 8 Rule 4 of the Court of Appeal Rules 2016. This the Appellant failed to do.

The prayer sought by the Appellant is not a matter of course or right, having gone

through the affidavit evidence and the reasons furnished by the Appellant, I am of the considered view that the Appellant does not merit the granting of this application. The reasons furnished for leave to rely on the supplementary record of appeal transmitted by the 6th Respondent are not justifiable considering the nature of election petitions. I am in total agreement with the deposition of fact contained in paragraph 7 of the 5th Respondent’s Counter-Affidavit that the Appellant and its counsel’s excuse for not compiling the record of appeal, that they did not know until it was too late, is admission of indolence and lack of diligence in prosecuting this appeal. The compilation and transmission of Records of Appeal in the process of Appeal cannot be over emphasized. Where the Records are not compiled and transmitted as prescribed by the Rules, then an Appeal will not be deemed to have been entered in the appellate Court. All the hue and cry of technicalities raised in the Appellant’s Further-Affidavit does not amount to bending the Rules of Court in favour of one party but more appropriately in applying the Rules as they are. The parties will be gracious

nonetheless, to understand that in this case, we can only talk of meeting the ends of justice, only when the Appeal is duly entered and before the Court.

On the premise of the forgoing, I find no merit in the Appellant’s application. Same is hereby refused. The consequence of this is that there is no record of appeal upon which this appeal can be heard and determined. In an appeal of this nature, where only serious minded parties and counsel are expected to be involved, it negates the dictates of common sense for a party or its counsel to give reasons such as the ones furnished by the Appellant for failure to compile and transmit records of appeal.

Consequently, I hereby dismiss the appeal under Order 8 Rule 18(1) of the Rules of the Court for the failure of the appellant to compile and transmit the record of appeal to the Court.

Having refused the Appellant’s application to rely on the supplementary record of appeal compiled and transmitted by the 6th Respondent in the instant appeal, I find it unnecessary to consider the application of the 5th Respondent on the merits. As such, same has become otiose in this circumstance.

On the other

hand, Courts are however enjoined, ex debito justitiae, to pronounce on every issue placed before it. It is the Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. It is no longer in doubt that the Supreme Court, demands of, and admonishes the Lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.

It is on the basis of this that I shall proceed to consider the instant appeal on the merit.

CONSIDERATION OF THE APPEAL ON THE MERIT
In line with the Rules and Practice of this Court, parties filed and exchanged their respective briefs of argument. EMMANUEL I. USOH settled the Appellant’s brief of argument dated and filed 7th May, 2021. For the determination of the instant appeal, the Appellant formulated three issues to wit:
“1. Whether or not the Appellant who was the 4th Respondent at the lower Tribunal could be struck out from the Petition on an application of

a co-Respondent.
2. Whether or not the Appellant is not a necessary party to be affected by the final orders of the Honourable Tribunal.
3. Whether the Court of appeal can invoke Section 15 of the Court of Appeal Act to evaluate the arguments and evidence adduced by the Appellant who was the 4th Respondent which was excluded when the Tribunal reached its final decision.”

The 1st, 2nd, 4th and 6th Respondents did not file any brief of argument in respect of this appeal. The 3rd Respondent’s brief of argument is dated 14th May, 2021. The said Brief was settled by ASIWAJU ADEGBOYEGA AWOMOLO, SAN; CHIEF (MRS) VICTORIA O. AWOMOLO, SAN; TUNDE BABALOLA, SAN. The 3rd Respondent herein formulated two issues to wit:
“1. Whether the learned Justices of the election petition Tribunal were right in striking out the name of the Appellant from the Petition in view of the clear provisions of the Electoral Act, 2010 (as amended).
2. Whether considering the circumstances of this appeal, there is a need for this Court to invoke the provisions of Section 15 of the Court of Appeal Act.”

The 5th Respondent’s Brief of Argument is dated 14th May, 2021.

The said Brief of Argument was settled by KEN E. MOZIA, SAN; B. J. OWONIKOKO, SAN and OLUSEGUN O. JOLAAWO SAN. For the determination of the instant appeal, the 5th Respondent merely adopted the issues formulated by the Appellant.

This appeal will therefore be heard on the Appellant’s brief of argument, the 3rd Respondent’s brief of argument and lastly, the 5th Respondent’s brief of argument.

ARGUMENTS AND SUBMISSIONS OF COUNSEL
On issue no. 1, counsel for the Appellant submitted that by virtue of Section 137(1) of the Electoral Act, express provision as to who can bring a petition is stipulated, while Section 137(2) (3) deals with those who should be made Respondents in a petition. He submitted further that, a broad look into the above provisions will show that, while Section 137(1) states expressly who can present a petition, Subsection 2 fails to make similar provisions to state whether a political party may or shall be sued or joined as a Respondent in an election petition. It was the contention of the Appellant that in the absence of this express provision, what comes to bear is whether the party joined is a necessary/desired party in the

petition or; has locus standi in the petition or; seeks to be joined or do not mind being joined as party to the petition if he will be affected by the decision of the Tribunal.

Counsel submitted that in a finding as to whether a party is a necessary or desirable party in a petition, what must be addressed is whether the decision of the Tribunal will unavoidably affect the desired party for which failure to join same may render the petition incompetent. Reliance was made on the case of RE TURAKI (2008) ALL FWLR (PT. 430).

The Appellant’s counsel submitted further that not only did the Appellant participate in the Election, but it also scored the second highest votes cast in the election. That there is no way the Appellant will not be affected by the outcome of the petition should the decision reached nullify the participation of the 4th Respondent herein, thus, necessitating her being joined as Respondent in the petition. Counsel referred the Court to the case of OBASANJO V BUHARI (2003) 7 NWLR (Pt. 850) 510.

It was also the submission of counsel that where in an election petition, a particular Respondent feels that he or she is improperly joined,

it is the prerogative of the party or the person to move the Court or Tribunal to strike out his or its name. That the petitioner can also move the Tribunal to strike out the Respondent that he or she feels is no longer wanted or required and that it is not the business of a respondent to apply that another respondent be struck out simply because he or she feels that the presence of other respondent is unnecessary. Reliance was placed on the case of OBASANJO V. YUSUF (2004) 9 NWLR (Pt. 887) 14.

It was the submission of the Appellant that the same reason that qualifies the 2nd Respondent to be joined is what qualifies the 4th and 5th Respondents to be joined as Respondents in the petition. It was submitted further that it is not the law for a party not to be joined as a Respondent in an election petition because, he/she is not one of the statutory respondents in an election petition. Counsel referred the Court to the case of FALEKE V INEC (2016) 18 NWLR (PT. 1543) 61. Referral was also made to the book ELECTORAL LAW PRACTICE AND PROCEDURE, ELECTION PETITION VOL. 2, IZINYON & CHARLES, ACAVI LAW PUBLISHERS LTD. (2009) PG. 147, PARAS B – C. Counsel also

referred to Paragraph 49 of the 1st Schedule to the Electoral Act, 2010 (as amended).

In the final analysis of this issue, counsel submitted that the Tribunal acted wrongly premised on the application of the other Respondents to strike out the name of the Appellant who was the 4th Respondent in the petition. On the whole, he urged the Court to resolve issue one in favour of the Appellant.

On issue no. 2, counsel for the Appellant submitted that the Tribunal erred in law when it held that the Appellant is not a necessary party to be affected by the final orders of the Tribunal. That, it is the Petitioners that know the parties that are crucial to their case and the Petitioner in their interest having joined the Appellant in the said suit, it is not within the power of the co-respondent to ask the trial Court of strike out the name of the Appellant. It was the submission of counsel that the Petitioners cannot be compelled to proceed against a party whom they do not require, as it is within their discretion to choose parties who are crucial to their case. Reliance was placed on the case of GENERAL ELECTRIC CO. V. AKANDE (2017) ALL FWLR (PT. 893) pg. 1310.

On the principles guiding who a necessary party to a suit is, the Appellant referred to OJO V. OGBE (2007) NWLR (PT. 1040) 540; BWACHA V. IKENYA & ORS (2011) LPELR – 8103. Counsel therefore submitted that, the Appellant is a necessary party, whose presence is required for the allegation of double nomination to be proved. That, the Appellant as a political party, upon which the 5th Respondent herein sought to be nominated and was screened, is a necessary party whose presence is crucial to the case of the Petitioners. On the whole, this Court was urged to resolve this issue in favour of the Appellant.

In response to the Appellant’s issues 1 & 2, counsel for the 3rd Respondent submitted that the provisions of Section 137 of the Electoral Act excludes any other person or party from being joined as Respondent to an Election Petition. It was submitted further that it is clear that the law intends an Election Petition to be between a loser as Petitioner and a winner as Respondent and not between two losers. Counsel for the 3rd Respondent referred this Court to KALU V. UZOR (2004) 12 NWLR (PT. 886) @ 34, paras A – C; BUHARI V. INEC (2008) 4 NWLR

(PT. 1078) 546 @ 653 – 654; BUHARI & ORS V. YUSUF & ORS (2003) 14 NWLR (PT.841), 446; ETA V. DAZIE (2013) 9 NWLR (PT. 1359 248 @ 262, para A — C.

Counsel for the 3rd Respondent argued that it is trite and firmly established that, in the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. Reliance was placed on the case of OPIA V. INEC & ANOR (2014) LPELR – 22185 (SC).

It was submitted that the Appellant’s pleadings and seeking of a relief challenging the election of the 5th Respondent in this appeal on the ground that he was not qualified to contest the election, amounts to complaining of the election in a manner other than by filing an election petition and such, runs contrary to Section 133(1) of the Electoral Act (as amended). It was further submitted that the Appellant ought to have filed a Petition of its own challenging the return of the 5th Respondent, rather than complaining of the election as a Respondent to the Petition of the 1st and 2nd Respondents in the instant appeal.

In his final analysis

of this issue, this Court was urged to hold that the Tribunal was correct in striking out the names of the 4th and 5th Respondents from the petition.

Having carefully perused both the 3rd and 5th Respondent’s brief of argument, it is obvious that their arguments and submissions are same in substance. They cruise in the same ship and their common interest is to have this appeal dismissed. Therefore, it is on this premise that I find it unnecessary to reproduce the submissions and arguments of the 5th Respondent in this appeal. It suffices to state that the 5th Respondent’s counsel also urged this Court to resolve issues 1 & 2 distilled by the Appellant in favour of the 5th Respondent and against the Appellant.

RESOLUTION OF ISSUES 1 & 2 DISTILLED BY THE APPELLANT
The Edo State Governorship election was conducted by the 3rd Respondent (INEC) on the 19th day of September, 2020, wherein the 5th Respondent herein was declared the winner of the election. Dissatisfied with the result of the election and declaration of the 5th Respondent as the winner, the 1st and 2nd Respondent in this appeal approached the Edo State Governorship Election

Petition Tribunal sitting in Benin City by a Petition dated 5th October, 2020 for the following declaratory reliefs:
“a. A declaration that the 3rd Respondent’s participation in the Edo State Governorship election on the 19/9/2020 is null and void having sought and participated in the primary election process for two different political parties (namely PDP and APC) in respect of the same Governorship election in Edo State.
b. An order disqualifying the 3rd Respondent and nullifying the votes cast for him in the said Governorship Election held in Edo State on 19/9/2020 and ordering the 1st Respondent to conduct a fresh election between all other qualified candidates excluding 2nd and 3rd Respondents.”

The crucial issues in this appeal are, whether the Appellant herein is a necessary party to the hearing of the Petition and whether the Tribunal, on the application of the 1st, 2nd and 3rd Respondents (now 3rd, 4th and 5th Respondents in this appeal) at the hearing of the Petition, rightly struck out the name of the Appellant from the Petition.

As rightly submitted by counsel for the 5th Respondent at paragraph 4.01 of the 5th

Respondent’s brief, it is now firmly established that election petition is a special procedure and therefore sui generis. One of the incidences of this special nature of litigation is that rules and regulations guiding it enjoys strict adherence and are strictly interpreted. See the cases of BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR – 812 (SC); APC V. PDP & ORS (2015) LPELR – 24587 (SC); PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC); ABUBAKAR & ORS V. YAR’ADUA & ORS (2008) LPELR – 51 (SC); NYESOM V. PETERSIDE & ORS (2016) LPELR – 40036 (SC).

In resolving the issues formulated by the Appellant in the instant appeal, recourse must be made to the provision of Section 137 (1) & (2) of the Electoral Act, 2010 (as amended). The said Section provides as follows:
“137(1) An election petition may be presented by one or more of the following persons:
a. A candidate in an election,
b. A political party which participated in the election.
(2) A person whose election is complained of is, in this Act referred to as Respondent.
Subsection 3 of Section 137 of the Electoral Act (supra) goes further to

provide that:
“(3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons, notwithstanding the nature of the complaint and the Commission shall in the stance, be —
a. Made a respondent; and
b. Deemed to be defending the petition for itself and on behalf its officers or such other persons.
From the above statutory provision of the Electoral Act, it is evident that there are two sets of parties statutorily provided for, that may be joined as Respondents to an Election Petition. These parties are:
1. An individual, whose election is complained of i.e. the winner of the election;
2. The other is the Independent National Electoral Commission i.e., the body statutorily empowered with the conduct of elections in Nigeria.
As rightly submitted by counsel for the 3rd and 5th Respondents, the provision of Section 137 of the Electoral Act (supra) excludes any other person from being joined as Respondent to an Election Petition. On who can be a Respondent to an election Petition, the Supreme Court, per Galadima, J.S.C. in

the case of APC V. PDP & ORS (2015) LPELR – 24587 (SC) held as follows:
“… The law expressly specified and legislated on who can be a respondent in an election petition. Whosoever is contemplated to be a respondent to defend an election petition must fall into any of the two categories named in said Section 137 (2) and (3) of the Electoral Act (Supra).”
The law, having expressly specified and legislated on who can be a respondent in an electoral petition, it appears conclusive that, whoever is contemplated to be a Respondent to defend an election petition, must fall into any of the two categories named in Section 137 (2) and (3) of the Electoral Act.

which the election of a successful candidate is being challenged. In answer to this question, this Court categorically said “no”. In the leading judgment by Uwaifo, J.S.C. in the case, he said: – “It is manifest that Section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not field any candidate for the particular seat, a respondent other than the statutory respondent envisaged under Subsection (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties.” (My emphasis). What Uwaifo, J.S.C. was saying and this was the decision of this Court, is that a petitioner is not obliged under Section 133 of the Act in an election petition, to make a candidate who lost the election or any political party, a respondents, as they are not necessary parties. But any person, (including a political party) who qualifies under Subsection (2) of Section 133 of the Act, will be regarded as a statutory

respondent and may be joined as a respondent in such petition.” Per KALGO, J.S.C. (Pp. 15-16 paras. D) (Underlining mine for emphasis).
The Appellant in the instant appeal was a candidate who participated in the Edo State Governorship Election which was held on the 19th day of September, 2020. The Appellant undoubtedly lost the said election alongside its candidate, the 6th Respondent herein in the instant appeal.
I am bemused that, the Appellant in its wisdom chose not to file a Petition to challenge the declaration and return of the 4th and 5th Respondent. The Appellant was made a Respondent in the Election Petition filed by the 1st and 2nd Respondent who were Petitioners at the Tribunal. Notwithstanding, the clear and unambiguous provisions of Section 137 (1) & (2) of the Electoral Act (supra). I am of the firm view that the Appellant cannot be said to be a necessary party to the hearing of the Petition because, none of the reliefs sought in the Petition is against it. It is on this premise that the Tribunal rightly held at pages 3270 – 3271 of Vol. 5 of the record of appeal that:
“We have looked at the Petition itself and agree

completely with the submissions of the 1st, 2nd and 3rd Respondents that there is no claim or reliefs against the 4th and 5th Respondent in this Petition. We agree also that, there is no ground of complaint against the 4th and 5th Respondents in the Petition and also no facts have been alleged against them. Counsel to the 3rd Respondent in particular submitted that the 4th and 5th Respondents have violated the provisions of Paragraph 12(1) of the 1st Schedule to the Electoral Act. We agree with counsel on this.”

Having carefully perused the Appellant’s Reply to the Petition filed by the 1st and 2nd Respondents, particularly at paragraph 36 of the Appellant’s Reply to the Petition, I am of the unflinching view that there is a collusion between the Petitioners and the Appellant. For the avoidance of doubt, permit me to reproduce the averment contained in paragraph 36 of the Appellant’s Reply to the Petition wherein the Appellant stated that:
“In specific response to paragraph 31 (e and f) of the Petition, the 4th Respondent avers that the 5th Respondent being a candidate sponsored by the 4th Respondent as the election now subject of this Petition

of the Petitioners conducted on September 19th, 2020 scored majority of valid votes cast and satisfied the requirements of the law thereof and do hereby content and pray that it is the 5th Respondent sponsored by the 4th Respondent who is entitled to be declared as winner of the election conducted by the 1st Respondent on September 19th, 2020 and should be entitled to a certificate of return in the circumstance.”

While the 1st and 2nd Respondents as Petitioners at the Tribunal, prayed for an order disqualifying the 5th Respondent and nullifying the votes cast for him in the said Governorship election held in Edo State on 19/9/2020 and ordering the 3rd Respondent to conduct a fresh election between all other qualified candidates excluding 4th and 5th Respondents, the Appellant herein prayed the Tribunal to declare its candidate as winner of the election.
This procedure employed by the Appellant who was supposed to file its Election Petition is rather confusing and appalling. The Appellant had the right as to institute its own petition against the outcome of the election held on the 19th of September, 2020 but failed to do so. From the Appellant’s

prayers, it is clear as rightly submitted by learned senior counsel for the 3rd Respondent that the Appellant is camouflaging itself as Respondent when in actual fact, it is a Petitioner who is dissatisfied with the outcome of the election. My opinion in this regard is same as the position taken by the Tribunal at pages 3272 — 3273 of Vol. 5 of the record of appeal wherein the tribunal held that:
“In our view, the 4th and 5th Respondents in their reply to the Petition have raised what can be regarded as a miniature Petition. It is encapsulated within a reply which itself is making prayers that run counter to the prayers contained in the substantive Petition. We agree in totality with the submission of counsel for the 1st, 2nd and 3rd Respondents that this is novel to election jurisprudence and we so hold. It is our further view, contrary to the submission of the 4th Respondent, that Paragraph 49 of the 1st Schedule to the Electoral Act does not sanction the joining of the 4th and 5th Respondents. There is, in our view no apparent conflict between Section 137(2) of the Electoral Act and Paragraph 49 of the 1st Schedule of the Electoral Act.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

I agree with counsel for the 3rd Respondent that the Appellant’s pleadings and seeking of such relief as a Respondent to the Petition amounts to complaining of the election in a manner other than by filing an Election Petition and such, runs contrary to Section 133(1) of the Electoral Act (supra) which provides that:
“No election and return at an election under this Act shall be questioned in any manner other than by a Petition complaining of an undue election or undue return (in this Act referred to as an “election petition”), presented to the competent Tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which, the person elected or returned is joined as a party.”

Flowing from the heels of the above analysis, that Respondents in an election must be those conceived statutorily by Section 137 (2) and (3). Thus, there is no way the case of RE TURAKI (supra) relied on by the Appellant will stand. This is simply because, the principle of necessary parties that it is strongly hinged, bows in trepidation before the unambiguous provisions of Section 137 of the Electoral Act (supra). As stated in the preceding part

of this judgment, the presentation of election petition is very strict and technical being sui generis. It does not admit for the kind of liberty available under the regular civil litigation. A Petitioner is expected to adhere strictly to the rules guiding the presentation and prosecution of an election petition.
I have also carefully considered the case of OBASANJO & ORS V. YUSUF & ANOR (supra), relied on by the Appellant, in its brief and in the course of adumbration. The case is inapplicable to the instant appeal in the light of Section 137 of the Electoral Act. OBASANJO & ORS V. YUSUF & ANOR (supra) heavily relied on by the Appellant was delivered on the 7th day of May, 2004. In the said case, the Supreme Court held that:
“If really a particular respondent feels that he or she is improperly joined, it is the prerogative of that party or person to move the Court or Tribunal to strike out his or its name. The petitioner can also move the Tribunal to strike out a respondent that he/she feels is no longer wanted or required. The petitioner decides who to join with the statutory respondents under Section 133(2) of the Act. I do not think

it is the business of one respondent to apply that another respondent be struck out simply because he/she feels that the presence of that other respondent is unnecessary. The petitioner who joined him or her must know the reason why he or she made him/her a party in the petition.” Per IDRIS LEGBO KUTIGI, J.S.C. (Pp. 20-21, paras. F-B).
The above decision seems to confer on the Petitioner the sole discretion of deciding who to join with the statutory respondents in an election petition. Notwithstanding, this Court has considered and noted the decision of the Supreme Court in OBASANJO & ORS V. YUSUF & ANOR (supra) as urged on it by the Appellant’s counsel. However, in the light of the recent decision of the Supreme Court in APC V. PDP & ORS (supra) delivered on the 14th day of April, 2015, the unfettered discretion conferred on the 1st and 2nd Respondents as Petitioners to decide who to join with the statutory respondents in an election Petition has been eliminated. The case of APC V. PDP & ORS (supra) is later in time and this Court is enjoined to follow the recent decision of the Supreme Court.
The position of Stare Decisis is not for

counsel to follow the decision he likes but, to follow the decision that is more recent. See the cases of OBIUWEUBI V. CBN (2011) LPELR – 2185 (SC); OBIAKOR & ORS V. OKAFOR (2017) LPELR 43309 (CA); CBN V. ZAKARI (2018) LPELR – 44751 (SC); KANU V. ASUZU & ANOR (2015) LPELR – 24376 (CA).
The Supreme Court made it clear in the case of APC V. PDP & ORS (supra) that “… The law expressly specified and legislated on who can be a respondent in an election petition. Whosoever is contemplated to be a respondent to defend an election petition must fall into any of the two categories named in said Section 137 (2) and (3) of the Electoral Act (Supra).”

I am of the view that if the 1st and 2nd Respondents as Petitioners at the Tribunal ran fowl of the provision of Section 137 of the Electoral Act (supra), one cannot preclude the other statutory respondents from objecting to the 1st and 2nd Respondents’ non-compliance with the mandatory provision of the Act. On the premise of the above, the Tribunal was therefore on a right footing when it did strike out the names of the Appellant and the 6th Respondent herein in the instant appeal from the Petition.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

On this note, it is safe to conclude that this issue is resolved against the Appellant and in favour of the 3rd and 5th Respondents.

The Appellant in its issue no. 3, urged this Court to invoke the provisions of Section 15 of the Court of Appeal Act to evaluate the arguments and evidence adduced by the Appellant which was excluded when the Tribunal reached its final decision.

Having held that the Tribunal was right to have struck out the Appellant’s name from the Petition, it would amount to a futile exercise of trying to get water from an empty well if the Appellant’s arguments and submissions under issue no. 3 are considered. Since the Tribunal correctly and rightly struck out the name of the Appellant and the evidence adduced by the Appellant from the Petition, the arguments therefore become otiose with no meaningful judicial value to this appeal. This question as to whether this Court can invoke Section 15 of the Court of Appeal Act to evaluate the arguments and evidence adduced by the Appellant, which was excluded when the Tribunal reached its final decision cannot arise.

On the whole, I find no iota of merit in this appeal. Same is hereby

dismissed. The decision of the Governorship Election Petition Tribunal sitting at Benin delivered on 29th March, 2021, coram: Yunusa Musa J. (Chairman), S. Y. Abubakar J. (Member I) and O.O. Stanley J. (Member II) wherein the Appellant’s name was struck out from the hearing of the Petition is hereby affirmed. Parties are to bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, A.S. Umar J.C.A., that this Appeal lacks merit.

The 4th and 5th Respondents, to the Petition were not statutory Respondents, and so not necessary parties. See also Buhari & Ors vs Obasanjo & Ors (2003) LPELR – 24859 SC, which shows that other candidates in election who lost the election, are not necessary parties as Respondents, to defend the Petition brought by any of the losers, against the winner and the INEC the statutory respondents.
See APC vs PDP & Ors (2015) LPELR – 24587 SC:
“… The law expressly specified and legislated on who can be a respondent in an election Petition. Whosoever is contemplated to be a

respondent to defend an election Petition must fall into any of the two categories named in said Section 137(2) & (3) of the Electoral Act (supra).” Galadima J.S.C.
Section 137(1) reads:
An Election Petition maybe presented by one or more of the following persons:
(a) A Candidate in an election
(b) A Political Party which participated in the election
(2) A person whose election is complained of is in this Act, referred to as the respondent
(3) If the Petitioner complains of the conduct of an Electoral Officer, Presiding Officer or Returning Officer, it shall not be necessary to join such officers or persons, notwithstanding the nature of the complaint and the Commission shall, in this instance be –
(a) made a respondent and
(b) deemed to be defending the Petition for itself and on behalf of its officers or such other persons.”
The Petitioners were therefore wrong to have listed the Appellant in this Appeal as Respondent in the Petition. Even if the 3rd Respondent did not raise the objection, at the trial, the Tribunal was entitled to strike out Appellant’s name and that of its candidate, for being

strangers (unnecessary parties) to the Petition.

I too dismiss this Appeal and abide by the consequential orders in the lead judgment, richly articulated by my learned brother A.S. Umar J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR, J.C.A.

I agree with the decision of my learned brother that the Election Petition Tribunal was right to strike out the names of the Appellant and the 6th Respondent from the petition, on the ground that they offended the provisions of Section 137 of the Electoral Act.

I too, hold that the appeal lacks merit and the same is accordingly dismissed. I also affirm the decision of the Governorship Election Petition Tribunal sitting at Benin in Suit No: EPT/ED/GOV/01/2020, delivered on 29th March, 2021.
I abide by the Order made as to cost.

AMINA AUDI WAMBAI, J.C.A.: I agree.

Appearances:

EMMANUEL I. USOH, ESQ. – for Appellant. For Appellant(s)

IKHIDE EHIGHEWA, ESQ. – for 1st and 2nd Respondents.
ASIWAJU AWOMOLO, SAN with him, CHIKE NWOGBO – for 3rd Respondent.
O. OYEYIPO SAN with him, O. ROTIMI, SAN. – for 4th Respondent.
K. MOZIA, SAN. with him, JALOWO, SAN – for 5th Respondent.
I. A. OSARENKA – for 6th Respondent. For Respondent(s)

LawCare Nigeria

admin

YOU MAY HAVE MISSED

UNDERSTANDING THE NEW COMPANIES AND ALLIED MATTERS ACT (CAMA) 2020

BUSINESS NAME VS. INCORPORATED COMPANY: WHICH IS RIGHT FOR YOU IN NIGERIA?

HOW TO REGISTER A COMPANY IN NIGERIA WITH THE CAC: A STEP-BY-STEP GUIDE

THINGS TO CONSIDER BEFORE STARTING A BUSINESS IN NIGERIA

admin

Related Story

YOU MAY HAVE MISSED