MUHAMMADU BUHARI & ORS V. CHIEF OLUSEGUN A. OBASANJO & ORS
(2003)LCN/1460(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of July, 2003
CA/A/EP/3/2003
RATIO
JURISDICTION: WHETHER JURISDICTION IS FUNDAMENTAL
“It is so fundamental that the adjudicating court should determine the issue first before embarking on any proceedings. This is because if the court proceeded to hear the matter and it was later found that the court had no jurisdiction in the matter, all the proceedings however well conducted, amount to nothing and are a complete nullity as was decided by the Supreme Court in the cases of Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341; Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126 at 148 and Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 365. The law is also well settled that the issue of jurisdiction can be raised at any time by an aggrieved party not only at the trial court, which is what this court actually is in the present case, but even on appeal in the highest court of the land at the Supreme Court as was done in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 310 and the recent case of Jeric Nigeria Ltd. v. Union Bank of Nigeria Plc (2000) 15 NWLR (Pt. 691) 447 at 457.” PER UMARU ABDULLAHI J.C.A
JUSTICES
UMARU ABDULLAHI Justice of The Court of Appeal of Nigeria
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
Between
1.MUHAMMADU BUHARI
2. DR. CHUBA OKADIGBO
3. ALL NIGERIA PEOPLES PARTY (ANPP) Appellant(s)
AND
1.CHIEF OLUSEGUN A. OBASANJO
2. ALHAJI ATIKU ABUBAKAR
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. CHIEF ELECTORAL OFFICER AT THE PRESIDENTIAL ELECTION
5. CHIEF RETURNING OFFICER
+ AT THE PRESIDENTIAL ELECTION
6. RESIDENT ELECTORAL COMMISSIONER ABIA STATE
7. RESIDENT ELECTORAL COMMISSIONER ADAMAWA STATE
8. RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE
9. RESIDENT ELECTORAL COMMISSIONER BAUCHI STATE
10. RESIDENT ELECTORAL COMMISSIONER BAYELSA STATE
11. RESIDENT ELECTORAL COMMISSIONER BENUE STATE
12. RESIDENT ELECTORAL COMMISSIONER BORNO STATE
13. RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE
14. RESIDENT ELECTORAL COMMISSIONER DELTA STATE
15. RESIDENT ELECTORAL COMMISSIONER EBONYI STATE
16. RESIDENT ELECTORAL COMMISSIONER EDO STATE
17. RESIDENT ELECTORAL COMMISSIONER EKITI STATE
18. RESIDENT ELECTORAL COMMISSIONER ENUGU STATE
19. RESIDENT ELECTORAL COMMISSIONER GOMBE STATE
20. RESIDENT ELECTORAL COMMISSIONER IMO STATE
21. RESIDENT ELECTORAL COMMISSIONER JIGAWA STATE
22. RESIDENT ELECTORAL COMMISSIONER KADUNA STATE
23. RESIDENT ELECTORAL COMMISSIONER KANO STATE
24. RESIDENT ELECTORAL COMMISSIONER KATSINA STATE
25. RESIDENT ELECTORAL COMMISSIONER KEBBI STATE
26. RESIDENT ELECTORAL COMMISSIONER KOGI STATE
27. RESIDENT ELECTORAL COMMISSIONER KWARA STATE
28. RESIDENT ELECTORAL COMMISSIONER LAGOS STATE
29. RESIDENT ELECTORAL COMMISSIONER NASARAWA STATE
30. RESIDENT ELECTORAL COMMISSIONER NIGER STATE
31. RESIDENT ELECTORAL COMMISSIONER OGUN STATE
32. RESIDENT ELECTORAL COMMISSIONER ONDO STATE
33. RESIDENT ELECTORAL COMMISSIONER OSUN STATE
34. RESIDENT ELECTORAL COMMISSIONER OYO STATE
35. RESIDENT ELECTORAL COMMISSIONER PLATEAU STATE
36. RESIDENT ELECTORAL COMMISSIONER RIVERS STATE
37. RESIDENT ELECTORAL COMMISSIONER SOKOTO STATE
38. RESIDENT ELECTORAL COMMISSIONER TARABA STATE
39. RESIDENT ELECTORAL COMMISSIONER YOBE
STATE
40. RESIDENT ELECTORAL COMMISSIONER ZAMFARA STATE
41. RESIDENT ELECTORAL COMMISSIONER FEDERAL CAPITAL TERRITORY ABUJA
42. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION
43. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ABIA STATE
44. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ADAMAWA STATE
45. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ANAMBRA STATE
46. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION BAUCHI STATE
47. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION BAYELSA STATE
48. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION BENUE STATE
49. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION BORNO STATE
50. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION CROSS RIVER STATE
51. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION DELTA STATE
52. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION EBONYI STATE
53. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION EDO STATE
54. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION EKITI STATE
55. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ENUGU STATE
56. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION GOMBE STATE
57. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION IMO STATE
58. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION JIGAWA STATE
59. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KADUNA STATE
60. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KANO STATE
61. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KATSINA STATE
62. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KEBBI STATE
63. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KOGI STATE
64. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION KWARA STATE
65. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION LAGOS STATE
66. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION NASARAWA STATE
67. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION NIGER STATE
68. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION OGUN STATE
69. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION ONDO STATE
70. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION OSUN STATE
71. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION OYO STATE
72. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION PLATEAU STATE
73. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION RIVERS STATE
74. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION SOKOTO STATE
75. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION TARABA STATE
76. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION YOBE STATE
77. STATE RETURNING OFFICER AT PRESIDENTIAL ELECTION ZAMFARA STATE
78. STATE RETURNING OFFICERS AT PRESIDENTIAL ELECTION FEDERAL CAPITAL TERRITORY ABUJA
79. ELECTORAL OFFICER OGU/BOLO LOCAL GOVERNMENT AREA OF RIVERS STATE
80. ELECTORAL OFFICER IKWERE LOCAL GOVERNMENT AREA OF RIVERS STATE
81. WARD RETURNING OFFICER OMERELU WARD 5 IKWERE LOCAL GOVERNMENT AREA RIVERS STATE
82. ELECTORAL OFFICER OPOBO/NKORO LOCAL GOVERNMENT AREA RIVERS STATE
83. ELECTORAL OFFICER TAI L.G.A. RIVERS STATE
84. ELECTORAL OFFICER ABUA/ODUAL L.G.A. RIVERS STATE (MR. MGBERE)
85. ELECTORAL OFFICER PORT HARCOURT L.G.A. RIVERS STATE
86. ELECTORAL OFFICER OBIO/AKPOR L.G.A. RIVERS STATE
87. ELECTORAL OFFICER AHOADA-WEST L.G.A. RIVERS STATE
88. ELECTORAL OFFICER ETCHE L.G.A. RIVERS STATE (MR. SEKIBO)
89. ELECTORAL OFFICER DEGEMA L.G.A. RIVERS STATE
90. ELECTORAL OFFICER BONNY L.G.A. RIVERS STATE
91. ELECTORAL OFFICER EMOHUA L.G.A. RIVERS STATE
92. ELECTORAL OFFICER ANDONI L.G.A. RIVERS STATE
93. ELECTORAL OFFICER ONELGA L.G.A. RIVERS STATE
94. ELECTORAL OFFICER AKUKU-TORU L.G.A. RIVERS STATE
95. RETURNING OFFICER ASARI L.G.A. RIVERS STATE
96. ELECTORAL OFFICER GOKAMA L.G.A. RIVERS STATE
97. ELECTORAL OFFICER OGBIA L.G.A. BAYELSA STATE
98. ELECTORAL OFFICER SOUTH IJAW L.G.A. BAYELSA STATE
99. ELECTORAL OFFICER SAGBAMA L.G.A. BAYELSA STATE
100. ELECTORAL OFFICER EKEREMOR L.G.A. BAYELSA STATE
101. ELECTORAL OFFICER KOLOKUMA L.G.A. BAYELSA STATE
102. ELECTORAL OFFICER AKANKPA L.G.A. BAYELSA STATE
103. ELECTORAL OFFICER CALABAR MUNICIPALITY COUNCIL
104. ELECTORAL OFFICER ETIM EKPO L.G.A. AKWA IBOM STATE
105. ELECTORAL OFFICER ORUK ANAM L.G.A. AKWA IBOM STATE
106. ELECTORAL OFFICER NSIT UBIUM L.G.A. AKWA IBOM STATE
107. ELECTORAL OFFICER IKA L.G.A. AKWA IBOM STATE
108. ELECTORAL OFFICER IKOT ABASI L.G.A. AKWA IBOM STATE
109. ELECTORAL OFFICER MKPAT ENIN L.G.A. AKWA IBOM STATE
110. ELECTORAL OFFICER UYO L.G.A. AKW A IBOM STATE
111. ELECTORAL OFFICER URUAN L.G.A. AKWA IBOM STATE
112. ELECTORAL OFFICER IBSESIKPO/ASUTAN L.G.A. AKWA IBOM STATE
113. ELECTORAL OFFICER NSIT ATTAI L.G.A. AKWA IBOM STATE
114. ELECTORAL OFFICER MBO L.G.A. AKWA IBOM STATE
115. ELECTORAL OFFICER OKOBO L.G.A. AKWA IBOM STATE
116. ELECTORAL OFFICER URUE EFFIONGI ORUKO L.G.A. AKWA IBOM STATE
117. ELECTORAL OFFICER OVIA NORTH-EAST L.G.A. EDO STATE
118. ELECTORAL OFFICER SOUTH-EAST L.G.A. EDO STATE
119. ELECTORAL OFFICER ORHIONWON L.G.A. EDO STATE
120. ELECTORAL OFFICER ESAN- WEST L.G.A. EDOSTATE
121. ELECTORAL OFFICER ESAN-CENTRAL L.G.A. EDO STATE
122. ELECTORAL OFFICER IGUEBAN L.G.A. EDO STATE
123. ELECTORAL OFFICER ESAN-NORTH EAST L.G.A. EDO STATE
124. ELECTORAL OFFICER ESAN SOUTH-EAST L.G.A. EDO STATE
125. ELECTORAL OFFICER OWAN WEST L.G.A. EDO STATE
126. ELECTORAL OFFICER ETSAKO CENTRAL L.G.A. EDO STATE
127. ELECTORAL OFFICER AKOKO-EDO L.G.A. EDO L.G.A.
128. ELECTORAL OFFICER UKWANI L.G.A. DELTA STATE
129. ELECTORAL OFFICER NDOKAN WEST L.G.A. DELTA STATE
130. ELECTORAL OFFICER UGHELLI NORTH L.G.A. DELTA STATE
131. RETURNING OFFICER HONG L.G.A. ADAMAWA STATE
132. ELECTORAL OFFICER HONG L.G.A. ADAMAWA STATE
133. ELECTORAL OFFICER MICHIKA L.G.A. ADAMAWA STATE
134. RETURNING OFFICER MICHIKA L.G.A. ADAMAWA STATE
135. RETURNING OFFICER MUBI NORTH L.G.A. ADAMAWA STATE
136. RETURNING OFFICER FUFORE L.G.A. ADAMAWA STATE
137. PRESIDING OFFICER MALLAGUM WARD MAKARFI L.G.A. KADUNA STATE
138. ELECTORAL OFFICER JEMA’A L.G.A. KADUNA STATE
139. PRESIDING OFFICER ARABI WARD KAGARKO L.G.A. KADUNA STATE
140. ELECTORAL OFFICER KACHIKA L.G.A. KADUNA STATE
141. ELECTORAL OFFICER JABA L.G.A. KADUNA STATE
142. ELECTORAL OFFICER ZANGO-KATAF L.G.A. KADUNA STATE
143. ELECTORAL OFFICER OGRI-MAGONGO L.G.A. KOGI STATE
144. ELECTORAL OFFICER BUBUL.G.A. KOGI STATE
145. ELECTORAL OFFICER BASAL.G.A. KOGI STATE
146. RETURNING OFFICER OKENE L.G.A. KOGI STATE
147. RETURNING OFFICER YAGBA EAST L.G.A. KOGI STATE
148. RETURNING OFFICER IGBOEZE L.G.A. ENUGU STATE
149. ELECTORAL OFFICER EZE-AGU L.G.A. ENUGU STATE
150. ELECTORAL OFFICER ABA SOUTH L.G.A. ABIA STATE
151. RETURNING OFFICER ABA SOUTH L.G.A. ABIA STATE
152. RETURNING OFFICER ABA NORTH L.G.A. ABIA STATE
153. PRESIDING OFFICER ST. CATHERINES POLLING STATION NKWERE L.G.A. IMO STATE
154. PRESIDING OFFICER OKWARACHI POLLING STATION NKWERE L.G.A. IMO STATE
155. PRESIDING OFFICER UMUKDU POLLING STATION NKWERE L.G.A. IMO STATE
156. RETURNING OFFICER NKWERE L.G.A. IMO STATE
157. ELECTORAL OFFICER OGUTA L.G.A. IMO STATE
158. RETURNING OFFICER OGUTA L.G.A. IMO STATE
159. PRESIDING OFFICER NDIORINIBE SQUARE POLLING STATION OGUTA L.G.A. IMO STATE
160. PRESIDING OFFICER AMAKPONUDU PRIMARY SCHOOL OGUTA L.G.A. IMO STATE
161. ELECTORAL OFFICER ORSU L.G.A. IMO STATE
162. RETURNING OFFICER ORSU L.G.A. IMO STATE
163. ELECTORAL OFFICER IDIATOR NORTH L.G.A. IMO STATE
164. RETURNING OFFICER IDIATOR NORTH L.G.A. IMO STATE
165. PRESIDING OFFICER POLLING STATION 001 AMANZEIUMUNGWA WARD 11 OBOWO L.G.A. IMO STATE
166. PRESIDING OFFICER UNIT 004 AMANZEI UMUNGWA, WARD11 OBOWO L.G.A. IMO STATE
167. PRESIDING OFFICER UMUNWANDU HALL POLLING STATION OBOWO L.G.A. IMO STATE
168. ELECTORAL OFFICER OBOWO L.G.A. IMO STATE
169. RETURNING OFFICER OBOWO L.G.A. IMO STATE
170. ELECTORAL OFFICER ISIALA MBARO L.G.A. IMO STATE
171. RETURNING OFFICER ISIALA MBARO L.G.A. IMO STATE
172. ELECTORAL OFFICER ONUIMO L.G.A. IMO STATE
173. RETURNING OFFICER ONUIMO L.G.A. IMO STATE
174. ELECTORAL OFFICER OKIGWE L.G.A. IMO STATE
175. RETURNING OFFICER OKIGWE L.G.A. IMO STATE
176. PRESIDING OFFICER STATE PRIMARY SCHOOL POLLING STATION OKIGWE L.G.A. IMO STATE (MRS. MBAONU)
177. ELECTORAL OFFICER IHITTE-UBORRE L.G.A. IMO STATE
178. RETURNING OFFICER IHITTE-UBORRE L.G.A. IMO STATE
179. ELECTORAL OFFICER AHIAZU MBAISE L.G.A. IMO STATE
180. RETURNING OFFICER AHIAZU MBAISE L.G.A. IMO STATE
181. ELECTORAL OFFICER ABOH MBAISE L.G.A. IMO STATE
182. RETURNING OFFICER ABOH MBAISE L.G.A. IMO STATE
183. ELECTORAL OFFICER IKEDURU L.G.A. IMO STATE
184. RETURNING OFFICER IKEDURU L.G.A. IMO STATE
185. ELECTORAL OFFICER OWERRI MUNICIPAL WARD IMO STATE
186. RETURNING OFFICER OWERRI MUNICIPAL WARD IMO STATE
187. ELECTORAL OFFICER NGOR-OKPALA L.G.A. IMO STATE
188. RETURNING OFFICER NGOR-OKPALA L.G.A. IMO STATE
189. ELECTORAL OFFICER EZINIHITTE L.G.A. IMO STATE
190. RETURNING OFFICER EZINIHITTE L.G.A. IMO STATE
191. ELECTORAL OFFICER JALINGO L.G.A. TARABA STATE
192. ELECTORAL OFFICER SARDA UNA L.G.A. TARABA STATE
193. ELECTORAL OFFICER YORO L.G.A. TARABA STATE
194. RETURNING/COLLATION OFFICER KASA 1 WARD YORO L.G.A. TARABA STATE
195. RETURNING/COLLATION OFFICER AKWANA WARD WUKARI L.G.A. TARABA STATE
196. RETURNING/COLLATION OFFICER R/KADA WARD WUKARI L.G.A. TARABA STATE
197. RETURNING/COLLATION OFFICER MANYA WARD CODE OF TAKUM L.G.A. TARABA STATE
198. PRESIDING OFFICER WUKARI L.G.A. TARABA STATE
199. PRESIDING OFFICER K/WAKILI POLLING STATION TARABA STATE
200. PRESIDING OFFICER TIKERI TANJI HASKE POLLING STATION TARABA STATE
201. PRESIDING OFFICER KUNA TIRANI POLLING STATION TARABA STATE
202. PRESIDING OFFICER TIKARI POLLING STATION TARABA STATE
203. PRESIDING OFFICER BARINYA POLLING STATION TARABA STATE
204. PRESIDING OFFICER PATI POLLING STATION TARABA STATE
205. ELECTORAL OFFICER KURMI L.G.A. TARABA STATE
206. RETURNING OFFICER KURMI L.G.A. TARABA STATE
207. ELECTORAL OFFICER TAKUM L.G.A. TARABA STATE
208. RETURNING OFFICER TAKUM L.G.A. TARABA STATE
209. RETURNING OFFICER WUKARI L.G.A. TARABA STATE
210. PRESIDING OFFICER BYE- YORA POLLING STATION WUKARI L.G.A. TARABA STATE
211. PRESIDING OFFICER POLLING STATION CODE 001 YORO L.G.A. TARABA STATE
212. WARD RETURNING/COLLATION OFFICERAKWANA WARDWUKARI L.G.A. TARABA STATE
213. WARD RETURNING/COLLATION OFFICER MAJE WARD TAKUM L.G.A. TARABA STATE
214. RETURNING OFFICER LAU L.G.A. TARABA STATE
215. RETURNING OFFICER GASHAKA L.G.A. TARABA STATE
216. ELECTORAL OFFICER GUYUK L.G.A. ADAMAWA STATE
217. RETURNING/COLLATION OFFICER GUYUK L.G.A. ADAMAWA STATE
218. RETURNING OFFICER JADA L.G.A. ADAMAWA STATE
219. RETURNING OFFICER TOUNGO L.G.A. ADAMAWA STATE
220. PRESIDING OFFICER LANDE CHITTA POLLING STATION ADAMAWA STATE
221. RETURNING OFFICER YARIMA ISA L.G.A. ADAMAWA STATE
222. PRESIDING OFFICER GUNTI DEUTIPSAN MUMUYE POLLING STATION ADAMAWA STATE
223. RESIDING OFFICER LUGGER DANTA POLLING STATION ADAMAWA STATE
224. RETURNING OFFICER SARDA UNA L.G.A. TARABA STATE
225. RETURNING OFFICER MAYO BELWA L.G.A. ADAMAWA STATE
226. ELECTORAL OFFICER MADAGALI L.G.A. ADAMAWA STATE
227. RETURNING OFFICER MADAGALI L.G.A. ADAMAWA STATE
228. ELECTORAL OFFICER SONG L.G.A. ADAMAWA STATE
229. RETURNING OFFICER SONG L.G.A. ADAMAWA STATE
230. PRESIDING OFFICER BENJIRAN POLLING STATION GUYUK L.G.A. ADAMAWA STATE
231. PRESIDING OFFICER BOBINI POLLING STATION GUYUK L.G.A. ADAMAWA STATE
232. PRESIDING OFFICER CHIKILA POLLING STATION GUYUK L.G.A. ADAMAWA STATE
233. PRESIDING OFFICER PUNROKAYO POLLING STATION GUYUK L.G.A. ADAMAWA STATE
234. PRESIDING OFFICER DUMA POLLING STATION GUYUK L.G.A. ADAMAWA STATE
235. PRESIDING OFFICER BODENE POLLING STATION GUYUKADAMAWA STATE
236. PRESIDING OFFICER POLLING STATION PU 003 GARALE WARD HONG L.G.A. ADAMAWA STATE
237. PRESIDING OFFICER POLLING STATION PU 005 GARALE WARD L.G.A. ADAMAWA STATE
238. PRESIDING OFFICER POLLING STATION PU 012 GARALE WARD L.G.A. ADAMAWA STATE
239. PRESIDING OFFICER POLLING STATION PU 08 HILDI WARD L.G.A. ADAMAWA STATE
240. PRESIDING OFFICER POLLING STATION PU 0008 BANSHIKA L.G.A. ADAMAWA STATE
241. PRESIDING OFFICER POLLING STATION PU 001 BANSHIKA L.G.A. ADAMAWA STATE
242. PRESIDING OFFICER POLLING STATION PU 001 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE
243. PRESIDING OFFICER POLLING STATION PU 002 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE
244. STATE
245. PRESIDING OFFICER POLLING STATION PU 003 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE
246. STATE
247. PRESIDING OFFICER POLLING STATION PU 004 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE
248. PRESIDING OFFICER POLLING STATION PU 005 DAKSIRI WARD HONG L.G.A. ADAMAWA STATE
249. PRESIDING OFFICER POLLING STATION PU 012 DAKSIRI WARD HONG
250. RETURNING/COLLATION OFFICER GARHA WARD HONG L.G.A. ADAMAWA STATE
251. RETURNING/COLLATION OFFICER ADAMAWA WARD HONG L.G.A. ADAMAWA STATE
252. RETURNING/COLLATION OFFICER HILDI WARD HONG L.G.A. ADAMAWA STATE
253. PRESIDING OFFICER POLLING STATION UNIT 1 (009) GARHA WARD HONG L.G.A. ADAMAWA STATE (ABUBAKAR 8. GARBA)
254. ELECTORAL OFFICER HONG L.G.A. ADAMAWA STATE
255. RETURNING OFFICER HONG L.G.A. ADAMAWA STATE
256. RETURNING/COLLATION OFFICER MUBI SOUTH L.G.A. ADAMAWA STATE
257. RETURNING/COLLATION OFFICER MUBI NORTH L.G.A. ADAMAWA STATE
258. RETURNING OFFICER GANYE L.G.A. PRESIDING OFFICER POLLING STATION ADAMAWA STATE
259. RETURNING OFFICERICOLLATION OFFICER GAMU WARD GANYE L.G.A. ADAMAWA STATE
260. PRESIDING OFFICER BODENE POLLING STATION GUYUKADAMAWA STATE
261. RETURNING/COLLATION OFFICER KOGIN BABA 11 WARD TOUNG L.G.A. ADAMAWA STATE
262. RETURNING I. COLLATION OFFICER KOGIN BABA 1 WARD TOUNG L.G.A., ADAMAWA STATE
263. RETURNING/COLLATION OFFICER KIRI II WARD TOUNG L.G.A.,ADAMAWA STATE
264. RETURNING/COLLATION OFFICER KIRI I WARD TOUNG L.G.A., ADAMAWA STATE
265. RETURNING/COLLATION OFFICER GUMTI WARD TOUNG L.G.A., ADAMAWA STATE
266. RETURNING/COLLATION OFFICER DAWO WARD II TOUNG L.G.A., ADAMAWA STATE
267. RETURNING/COLLATION OFFICER DAWO I TOUNG L.G.A ADAMAWA STATE
268. L.G.A RETURNING CODE 19 ADAMAWA CODE 02, ADAMAWA STATE Respondent(s)
ABDULLAHI, P.C.A. (Delivering the Leading Ruling):
Following notices of preliminary objections filed by the 1st, 2nd and 3rd – 268th respondents on 19/6/2003 challenging the competence of the petitioners petition, the learned senior counsel to the petitioners on being served with the notices of the objections, reacted by filing on 7-7-2003, a notice of preliminary objection to the respondents’ objections in the following terms:
“TAKE NOTICE that the petitioners/respondents’ intend to object to the hearing of the notices of preliminary objection filed on behalf of the respondents and shall pray for the striking out of –
1. 1st and 2nd respondents’ notice of preliminary objection filed on 19th June, 2003, and
2. 3rd – 268th respondents’ notice filed on 19th June, 2003.
AND FURTHER TAKE NOTICE that the grounds upon which the objection is based is that the notices of preliminary objection are incompetent in that –
(a) the notices were filed after the two sets of respondents had joined issues with the petition by filing their replies thereby taking steps in the proceeding after they were served with the petition; contrary to paragraph 49(2) of the First Schedule to the Electoral Act, 2002.
(b) the notices filed by the two sets of respondents did not state clearly the legal grounds upon which their applications were based contrary to paragraph 49(3) of the First Schedule to the Electoral Act, 2002, and
(c) the content of the notices filed by the two sets of respondents offend the petitioners/applicants right to fair hearing.”
Moving this preliminary objection to the respondents’ preliminary objections to the petition, Chief Ahamba, learned senior counsel to the petitioners relied essentially on the provisions of paragraph 49(2)(3) and (5) of the First Schedule to the Electoral Act, 2002.
That the respondents having taken fresh steps in the proceeding in the petition after becoming aware of the defects alleged in the petition, have lost their right to raise the objections which must be regarded as incompetent and therefore must be struck out.
Learned senior counsel pointed out that by filing their replies and joining issues on the petition, the respondents have taken fresh steps in the proceeding within the meaning of paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002 and as such cannot now be allowed to question the competence of the petition.
Further more, that as no clear grounds of law are shown on the face of the respondents objections and that as the objections were not heard and determined by this court before the respondents took further steps in the proceedings contrary to paragraphs 49(3) and (5) of the 1st Schedule to the Electoral Act, 2002, the respondent’s objections are incompetent and must be struck out. The case of Ozize v. Nweke Obo (1974) 2 SC 23 -31 was cited and relied upon.
In his reaction to this application which he described as a strange procedure, Chief Afe Babalola, learned senior counsel for the 1st and 2nd respondents said the application or objection by the petitioners to the respondents’ preliminary objection is at best only a defence to their objection as the respondents by entering their appearance on protest and filing their replies, the respondents did not at all waive their right to raise preliminary objection.
Learned senior counsel stressed that the provisions of paragraph 49 of the 1st Schedule relied upon by the petitioners, cannot override the provisions of sections 133(2), 136 and 137 of the Electoral Act, 2002, and the right of the respondents under the law to challenge the jurisdiction of this court. That by filing their replies to the petition within the time prescribed by law, that alone is not enough for the court to regard the respondents as having taken fresh steps on the authority of the case of Ikeh v. Njoke (1999) 4 NWLR (Pt.598) 263 at 267.
Mr. Gadzama, senior counsel for the 3rd – 268th respondents contended that the respondents’ preliminary objection had clearly shown on its face the grounds of law being relied upon and having been filed within reasonable time as stated in paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002, the objection is competent as such this court has jurisdiction to hear it.
This application by the petitioners in the form of a preliminary objection to other preliminary objections filed by the respondents is rather unique. I entirely agree with Chief Afe Babalola, learned senior counsel to the 1st and 2nd respondents that the application can best be described as a defence to the preliminary objections filed by the respondents against the petition. The application could have served the same purpose if it had been presented in the form of response to the respondents’ preliminary objections to the competence of the petition.
This is because having regard to the terms of the preliminary objections by the respondents which I have earlier quoted in this ruling, it is not at all in doubt that the jurisdiction of this court to hear and determine the petitioners petition, the competence of which is the main subject of the preliminary objections, is plainly in issue. Therefore, where issue of jurisdiction is involved in a matter such as the respondents’ preliminary objections the question of whether or not the respondents have taken any fresh steps in the proceedings in the petition after becoming aware of the defects in the petition within the requirements of paragraph 49(2) of the 1st Schedule to the Electoral Act, which is the back bone of the petitioners’ objection, cannot provide any basis to prevent the respondents from raising the question of jurisdiction.
The provisions of the law in paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act, 2002 relied upon by the petitioners are: –
“49(1) …
(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
(4) …
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
It is trite, and there is no doubt whatsoever that in our adversary system of adjudication, the question of jurisdiction is very fundamental.
It is so fundamental that the adjudicating court should determine the issue first before embarking on any proceedings. This is because if the court proceeded to hear the matter and it was later found that the court had no jurisdiction in the matter, all the proceedings however well conducted, amount to nothing and are a complete nullity as was decided by the Supreme Court in the cases of Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341; Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126 at 148 and Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 365.
The law is also well settled that the issue of jurisdiction can be raised at any time by an aggrieved party not only at the trial court, which is what this court actually is in the present case, but even on appeal in the highest court of the land at the Supreme Court as was done in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 310 and the recent case of Jeric Nigeria Ltd. v. Union Bank of Nigeria Plc (2000) 15 NWLR (Pt. 691) 447 at 457.
“In the present case therefore, notwithstanding the provisions of paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act heavily relied upon by the learned senior counsel to the petitioners, the jurisdiction of this court to determine whether or not it has jurisdiction to hear and determine the petitioners petition in the form it is being questioned by the respondents as to its competence, cannot be curtailed on the grounds being relied upon by the petitioners in their application or preliminary objection. With this position of the law on the issue of jurisdiction, the need to decide now whether or not the respondents had taken fresh steps in the proceedings after
becoming aware of the defects in the petition, is not necessary as the respondents’ right to raise the issue of jurisdiction as contained in their preliminary objections now being objected to, cannot be defeated by those provisions of paragraph 49(2), (3) and (5) of 1st Schedule to the Electoral Act, 2002.”
In the result, the petitioners’ preliminary objection to the respondents’ preliminary objections to the petition is without any merit and the same is hereby refused. I am of the view that the 1st and 2nd respondents by filing a reply cannot be regarded as having taken a step in the proceedings within the meaning of paragraph 49(2) of the First Schedule to the Electoral Act, 2002. This is because, they made it manifest that whatever they were doing in the case was without prejudice to their rights to raise objection to the competence of the petition. I shall now proceed to determine the respondents’ preliminary objections on their merit.
The two sets of respondents, after filing their respective answers, prayed the court to strike out the petition. The first and second respondents came by way of motion on notice. The second set of respondents, comprising 3rd to 268th respondents, has given notice of intention to rely on a preliminary objection.
The first and second respondents are praying the court to strike out the petition on account of lack of competency. In addition they are asking for three other alternative reliefs. In the first alternative there is a prayer calling for striking out of certain respondents who are set out in the motion on notice on the ground that they are not proper parties to the petition. Another alternative relief is asking for striking out of some paragraphs of the petition which are set out in that relief while the last one is asking that the petitioners be prevented from leading evidence on the same paragraphs of the petition.
The grounds for seeking the four reliefs are as follows-
“1. The court lacks jurisdiction to entertain the petition on the grounds that proper and necessary parties are not before the court.
2. Mandatory provisions of section 133(2) of the Electoral Act, 2002 is violated, ignored and not complied with.
3. The court lacks competence and jurisdiction to consider and determine the allegations contained in the paragraphs complained of in the petition in so far as they relate to places mentioned.
4. Parties against whom no allegation are made are joined as parties to this petition.”
The 3rd to 268th respondents, in their notice of intention to rely on preliminary objection, equally asked for an order of the court striking out the petition in limine for incompetence and want of jurisdiction. The prayer seeking for the striking out of the petition is subjoined by two alternative reliefs praying for striking out of specific paragraphs of the petition or preventing the petitioner from leading evidence thereon.
The grounds upon which the preliminary objection is brought are as follows-
“(a) Non-joinder of interested parties contrary to paragraph 4(1)(a) of the 1st Schedule to the Electoral Act, 2002.
(b) Non-joinder of necessary parties contrary to S. 133(2) of the Electoral Act, 2002.
(c) Non-compliance with provisions of paragraph 3(1) of the First Schedule to the Electoral Act, 2002 and Form TF 002 in that the petition does not contain an attestation clause and/or the signature of the Secretary (sic) to the Tribunal.
(d) Non-compliance with the provisions of paragraph 4(1)(c) of 1st Schedule to the Electoral Act, 2002 in that the petition does not state the person returned as the winner of the election.
(e) Non-compliance with the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2002 in that the petition does not specify the right of the petitioners to present the election petition.
(f) The various paragraphs in the election petition do not contain separate and distinct grounds for the petition contrary to paragraph 4(1)(d) and (2) of the 1st Schedule to the Electoral Act, 2002.”
But, at the hearing of the two applications en bloc, learned senior counsel for first and second respondents appear to have withdrawn all the grounds of objection to the petition save the one complaining about non-joinder of Peoples ‘Democratic Party. The learned counsel for 3rd to 268th respondents also withdrew his objection to the petition on all grounds except grounds (b) and (c).
In the circumstance, I think the complaint of the 3rd to 268th respondents on non-joinder of proper and necessary parties could conveniently be considered along with the outstanding relief of the first and second respondents. The two objections coalesce. In the circumstance both will be taken together.
In view of my fusing the consideration of the question of non-joinder in the two objections together I propose to dispose of the other unsettled issue in the notice of intention to rely on a preliminary objection of 3rd to 268th respondents. It is for reasons of convenience necessary to repeat immediately hereunder the relevant ground –
“(c) Non-compliance with provisions of paragraph 3(1) of the 1st Schedule to the Electoral Act, 2002 and Form TF 002 in that the petition does not contain an attestation clause and/or the signature of the Secretary to the Tribunal.”
I believe learned senior counsel has in mind paragraph 7(1) and Form TF 003 and not paragraph 3(1) and Form TF 002 which deal merely with receipt to be issued to the petitioner. I therefore deal with the matter as if it were brought under the correct paragraphs.
Once a party is entitled to a remedy provided by law it does not matter that he has applied for it under a wrong law, the court will proceed to hear his application on merit: Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313; Falobi v. Falobi (1976) 1 NMLR 169 and Gibbings v. Strone (1884) 24 Ch. D 66, 69.
This complaint clearly arose out of misconception of the status of this court vis-a-vis election petition. The power of this court to entertain the presidential election petition is contained in section 239 of the 1999 Constitution and the power is vested directly in the court and not in a tribunal. In view of this, I take judicial notice, as I am bound to do, of the fact that all courts of record in Nigeria indeed throughout common law countries are serviced by various cadre of registrars and not secretary or secretaries. It is therefore anomalous to expect papers filed in this court to be endorsed, attested to and signed by secretaries.
Be that as it may, I am respectfully of the opinion that the issue of attestation is for the court and not the petitioners. It is for the petitioners to prepare their petition and present it with necessary filing fees. The endorsement is for the court and whether the petition was adequately endorsed or properly attested to be that of the court. There is evidence on record that when the petitioners presented their petition revenue collector’s receipt No. 20022605370 dated 20/5/2003, was issued to them. It can, therefore, be safely inferred that necessary filing fees was paid. The petitioners can be taken to have done their bit and have passed the bulk to the court and its officials.
They cannot, thereafter, be held responsible for default, omission or error on the part of the court. The Supreme Court in Alawode & Others v. Semoh (1959) SCNLR 91, (1959) 4 FSC 27, 29 – 30 stated per Ademola, F.C.J., while delivering the judgment of the court thus.
“It is to be observed that in England once a plaintiff buys his writ the action commences. In the Lagos High Court, as in this case, the provisions of Order 2 rule 1 require that an application for a writ be made by plaintiff to the Registrar of the court who, after issuing the summons will place it before a Judge, or other officer empowered to sign it. The test for the commencement of an action both according to the English rules and the Rules of Court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action? In England all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued), and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been “commenced”
Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penalized. It certainly would be a matter of grave injustice to a plaintiff who delivers his application for a writ and pays the necessary filing fees if he is deemed not to have commenced an action merely because for some reason, it was not possible for the court or the Judge to sign the writ…”
The same judgment was recited with approval by Agbaje, JSC, in the case Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 422.
The petitioners having prepared their petition and presented it along with the requisite fees, the processing is a matter that falls squarely within domestic affair of the court. The responsibility of the petitioners ceased with the presentation of the petition. The attestation is expressly a responsibility vested in the registrar; if for some inexplicable reason he fails to perform his duty it would be unjust to penalize the petitioners for it by saying they have not presented a petition.
In case, I am wrong and the failure to attest and sign the petition by the registrar constitutes a non-compliance with the provisions of subparagraph (1) of paragraph 3 of the First Schedule to the Electoral Act, 2002, I am respectfully of the view that there have been substantial compliance.
The petition shall not, therefore, be rendered void on account of the irregularity which is not the making of the petitioners: See sub-paragraph (1) of paragraph 49 of the same First Schedule which provides as follows-
“49(1) Non compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the tribunal or court may deem fit and just.”
The hearing of the election petition, in my respectful opinion, should not be scuttled in the pursuit of a mere technicality which attestation is. The inclusion of attestation or otherwise will not improve the quality of the petition nor will either parties be prejudiced. But striking out the election petition, on account of failure on the part of the court registrar to attest to it, would seriously erode fidelity in law and also result in a grievous miscarriage of justice. In the circumstance the prayer for striking out the petition on this ground fails and it is refused.
I now come to the issue of joinder or non-joinder of parties, particularly the Peoples’ Democratic Party. It will be recalled that at the hearing of the application or notice of objection, both learned counsel for petitioners and first and second respondents respectively submitted written addresses upon which learned senior counsel relied. In addition the two learned senior counsel made extensive submission in elaboration. Learned senior counsel for the 3rd – 268th respondents adopted the submissions of the learned counsel for first and second respondents on this point as his own, except that he too did not consider PDP as a necessary party to the petition because it did not take part in the conduct of election strictly so to speak. It only sponsored 1st and 2nd respondents as candidates. No doubt the issue was strenuously contested.
I have studied the submissions and will take them into consideration in the course of writing this ruling.
“Learned senior counsel is contending that because of the nature of the allegations made against the party, it should be made a party to the petition. This turn of events seems provoked by the allegation to the effect that PDP, on the day of the election “stuffed ballot boxes, forged results disrupted voting, carried away voting materials, abducted party agents, attacked, chased and murdered petitioners’ party agents”.
Notwithstanding these words and many more as well as the submissions of the learned counsel for petitioners “that by submissions of the respondents PDP had participated in the “conduct” of the election and therefore PDP was part of INEC”, the Peoples’ Democratic Party did not conduct the election as envisaged by section 133(2) of the Electoral Act No.4 of 2002. On the same token the words of mouth of the learned senior counsel for the petitioners did not and would not make PDP to become part of INEC. The allegations do not constitute PDP into a person who took part in the conduct of the election and therefore do not come under the umbrage of section 133(2) of the Electoral Act No.4 of 2002.
It is not correct that under the provisions of this sub-section anyone against whom allegation is made is deemed a party and should be joined as a respondent. Sub-section (2) of section 133 is recited immediately hereunder-
“(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petitioner complains of the conduct of an electoral officer, a presiding officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.” (italics mine)
The words “or any other person” cannot on the rule of ejusdem generis accommodate Peoples’ Democratic Party because it does not fall within the class of “an electoral officer, a presiding officer, or a returning office?” nor has it acquired an official status which shall fit into the class, such as that of a polling officer. It is not in doubt that Peoples’ Democratic Party participated in the election by sponsoring candidates including first and second respondents herein but certainly its participation did not include the conduct of the election.”
The person required to be joined in an election petition under this sub-section is an official of the Independent National Electoral Commission who participated in the conduct of the election and against whom imputation of malpractices is made. In the event PDP did what was being alleged against it, without so deciding, such allegations do not go into promotion or conduct of the election rather such conduct is more consistent with the disruption of the election hence my saying PDP did not conduct the election.
This view is further borne out by paragraph 47 of the First Schedule to the same Act, which is unequivocal on the person to be joined to an election petition. The provision leaves no one in doubt that when an election petition complains of the conduct of an electoral official he should be joined.
Paragraph 47 reads as follows-
“47. Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other official of the Commission he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party, but an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the Federation.”
It shows that it is the officials of the Commission and not any other person such as a political party that is accommodated or provided for under paragraph 4.7 of the Schedule and S. 133(2) of the Act when read communally. It therefore follows from these provisions that the only person who is a compulsory necessary party is the person whose election is being questioned unlike under sections 121(a) and (b) of the 1982 Act which made the winner and the electoral body compulsory and necessary party. See Omoboriowo v. Ajasin (1984) 1 SCNLR 108, 130.
The principle of civil procedure on joinder and non-joinder of the necessary parties applies to election petition even though it is sui generis.
It is, therefore, necessary to join the electoral body where imputations are made against them. Even where there are no accusations of impropriety leveled against it, it is apt to join it to secure its obedience to the final order the court may make. It is also important to join officers and agents of the electoral body who officiated as presiding officers’, electoral officers and returning officers and polling officers at various stages or area of polling station that the petitioner may be complaining of. In the case Green v. Green (1987) 3 NWLR (Pt. 61) 480, 493 the Supreme Court defined necessary parties thus-
“Those who are not only interested in the subject-matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In otherwords, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. Amon v. Raphael Tuck & Sons (1956) 1 QB 351; Settlement Corporation v. Hoshschild (No.2) (1959) 1 WLR 1664; Re Vandervells Trust (1971) AC 912; Re Vandervelle (1969) 3 All ER 496.
The Peoples’ Democratic Party clearly is an interested party as the sponsor of the candidacy of first and second respondents but it is 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 matter or suit. The joinder is being sought in my respectful opinion to assuage injured feeling. There is nothing the party can contribute to the success of the respondents, which it would not achieve as their witness.
This same principle applies to police officers and military officers not specifically assigned to participate in the conduct of the elections. These are what the learned senior counsel for the petitioners referred to as rampaging police and military officers. It is only fair to mention that the rampaging police and military officers is coined by the learned senior counsel for the petitioners and the word was not used in any of paragraphs pleaded in the petition. I mentioned it just to drive home the point that they are indeed not necessary parties, since the role they were alleged to have played was more in tune with disrupting the election rather than facilitate its smooth conduct.
Be that as it may, the learned senior counsel in his written submission dated 16/7/2003 made some concessions and pointed out some paragraphs in the petition that ought not to be there or partially should not be there. He however maintained that he would be entitled to adduce evidence against any remaining parties that were properly joined in the event that some were struck out.
In the final analysis, it is the stand of Chief Afe Babalola, SAN that in the light of massive mis joinders and non-joinder of parties, particularly the PDP which assumed a distinct status under the Nigerian Constitution 1999 and the Electoral Act, 2002 as a Political Party that can sue or be sued as well as the various security agencies particularly the police and military, the petition should not see the light of the day and should be terminated now.
Chief Afe Babalola, SAN has again re-emphasised the point that section 133(2) should be extended to cover the word “person” used therein to include the candidate and the political party which nominated and sponsored the candidate and that the political party which participated in the victorious election is a necessary party to any petition against the candidate sponsored by the party.
He made available a certified true copy of the ballot paper used for the Presidential Election of 19th April, 2003. He argued that the ballot paper did not contain the name of any candidate. That voters were required to affix their right hand thumb print against the political party of their choice, thereby making it imperative that where a petitioner complains of undue return, the proper parties are the victorious political party that was voted for and its sponsored candidate. Attractive as this argument sounds, I am still not persuaded that the provision of S. 133(2) of the Electoral Act, 2002 can accommodate, this proposition brilliantly formulated by Chief Afe Babalola, SAN.
I still hold the view that the conclusion I reached earlier on, that PDP even though a political party that sponsored the 1st and 2nd respondents who emerged victorious at the election do not come under the umbrage of section 133(2) of the Electoral Act, 2002, The words ‘any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party’ (italics provided) is very clear. I do not see the need of expanding it further beyond what in my view it said.
This is the same position taken by GADZAMA, SAN, even though the learned senior counsel did not put all his eggs in one basket, by accepting alternatives such as striking out some paragraphs or an order to stop the petitioners from calling evidence on some of the paragraphs.
In the final conclusion, all the three applications by the petitioners, 1st and 2nd respondents and 3rd – 268th respondents respectively are refused.
The petition will be heard on the merit. I make no order as to costs.
OGUNTADE, J.C.A.: I read before now a copy of the lead ruling just delivered by my Lord, Hon. Justice Umaru Abdullahi, (P.C.A). I agree with his reasoning and conclusion. I only wish to add a few comments of my own.
The preliminary objection by the petitioners was that the challenge to the competence of the petitioners being raised by the respondents should not be entertained on the ground that they had taken steps in the proceedings. Reliance was placed on paragraph 49(2) of the First Schedule to the Electoral Law, 2002.
The said paragraph provides:
“An application to set aside an election petition or proceeding resulting there from for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
“Now, all that the respondents have done is to file their replies and in those replies they served notice of the nature of complaints they have against the competence of the petition. They later moved us to set aside the petition by their present application. Can it be said that by merely filing a reply, the respondents have waived their objection? I think not.
I am aware that in arbitration matters based on disputed submission where parties by agreement have made their dispute referable to arbitration, it is open to a party to object to the jurisdiction of the court to which a suit is brought on the ground that the defendant has taken a step in the proceedings by filing a defence. The essence of such objection and the import of taking a step in the con is that a defendant, having filed a defence, could no longer object to the jurisdiction of the court.
But this is an election matter. The fact that a respondent has filed a defence could not in my view destroy the right of respondent to object to the competence of the appeal. Taking a step in the con in my view, would mean allowing the case to proceed to hearing or by doing such acts as would convey to the petitioner that the respondent is not raising objection; or where he has raised one, that he is not pursuing it.
In the instant matter, the respondents in my view did not at any stage give any such indication. They raised the objection in their replies; and have called on us to decide it before hearing the petition. It is therefore my view that the objection by the respondents has been properly raised.”
Now to the objection itself, the only matter remaining to be considered in the light of the indication given by Chief Afe Babalola, SAN on his objection is with respect to the non-joinder of the PDP. I have closely read section 133(2) of the Electoral Law. Nothing therein imposes a compelling necessity on the petitioner to join the PDP as the PDP did not take part in the conduct of the election.
Section 133(2) provides:
”The person whose election is complained of is, in this Act, referred to as the respondent but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
Although section 133(1) makes it possible for a candidate at an election; and a political party which participated at the election to present a petition, that does not reciprocally translate into an obligation on the part of a petitioner to join the political party of the candidate whose return he is challenging. It seems to me that a candidate whose return is being challenged by implication has an interest which is identical with or inseparable from that of the party that sponsored him.
Section 133(1) is therefore not of any assistance in the decision of who should be a respondent.
“Finally is the objection by 3rd to 268th through their counsel Mr. J.K. Gadzama, SAN that the petitioner did not comply with the attestation provision under paragraph 3(7) of the First Schedule to the Electoral Law. It seems to me that the substance of this objection is in fact a complaint against the Registrars of the Court of Appeal or Secretary of the Election Tribunal that they failed or neglected to properly treat the papers filed by the petitioner. I do not think that there is a basis in law to penalize the petitioner for an alleged omission of the staff of the court. In this connection, I also rely on Alawode & Ors. v. Semoh (1959) SCNLR 91, (1959) 4 FSC 27, 29-30 and Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 422.”
The Rules of Procedures are an adjunct to the dispensation of justice. They cannot be relied upon to stultify justice.
Technicalities cannot also be relied upon to defeat justice.
In the final conclusion, I would make the following orders:
1. The preliminary objection by the petitioners that the respondent’s application to strike out the petition be struck out is refused.
2. The application by the 1st and 2nd respondents that the petition be struck out is refused.
3. The preliminary objection by the 3rd – 268th respondents that the petition be struck out is refused.
I subscribe to the order on costs.
MOHAMMED, J.C.A.: By their petition filed in this court on 20/5/2003 on the presidential election conducted on 19/4/2003, in their paragraph 294 of the petition, the petitioners prayed for the following reliefs:-
“294 WHEREFORE, your petitioners pray as follows:
(a) An order of the court, that the election is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2002.
(b) An order of the court that the election is invalid for reason of corrupt practices.
(c) An order of the court that at the time of the election the 1st respondent was not qualified to contest.
In the alternative:
That the 1st respondent was not validly elected by a majority of lawful votes cast in the election and did not receive 25% of votes cast in two-third of the states of the Federation and the Federal Capital Territory, Abuja as required by the 1999 Constitution of the Federal Republic of Nigeria.”
However, by separate notices of preliminary objection filed on 19/6/2003, the 1st and 2nd respondents, and the 3rd – 268th respondents, raised objection to the petition on a number of grounds praying this court to strike out the petition for being incompetent. Before these notices of preliminary objection by the respondents came up for hearing, the petitioners reacted by filing a preliminary objection challenging the respondents’ notices of preliminary objection as being incompetent and praying this court to strike them out for having been filed contrary to the provisions of paragraph 49(2)(3) and (5) of the 1st Schedule to the Electoral Act, 2002 which state:
“49(1) …
(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
(4) …
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
Clearly, these provisions of paragraph 49 of the 1st Schedule to the Electoral Act, 2002 relied upon by the petitioners, cannot override the substantive provisions of the Electoral Act, 2002 itself in sections 133(2), 136 and 137 thereof and the right of the respondents under the law to challenge the jurisdiction of this court to entertain the petition at any stage of the proceedings. As the respondents’ notices of preliminary objection were filed and served before the petition proceeded to hearing, they were indeed filed within reasonable time as required by paragraph 49(2) of the 1st Schedule and therefore this court has the power to hear and determine the objections within the requirement of section 136(3) of the Electoral Act, 2002 which states:
“136(1) …
(2) …
(3) On the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, on the provisions of First Schedule of this Act.”
Therefore as far as the law is concerned, pm1icularly with regard to the absolute right of the respondents to challenge the jurisdiction of this court to entertain the petition at any stage of the proceedings in the hearing of the petition, I am of the firm view that the respondents’ notices of preliminary objection, both filed on 19/6/2003, are quite competent and consequently this court has jurisdiction to hear and determine them. The petitioners’ preliminary objection is accordingly hereby refused and the same is dismissed. Therefore the respondents’ notices of preliminary objection shall be heard and determined together.
Following the withdrawal of most of the grounds upon which the respondents challenged the competence of the petitioners petition at the hearing by the learned senior counsel for the respondents, the only ground left in support of the 1st and 2nd respondents’ preliminary objection is the failure of the petitioners to join the Peoples’ Democratic Party (PDP) as a necessary party to the petition under section 133(2) of the Electoral Act, 2002. On the other hand, the only complaints left in the notice of preliminary objection by the 3rd – 268th respondents are also the non-joinder of necessary parties contrary to section 133(2) of the Electoral Act and the absence of attestation clause and signature of the secretary of the Tribunal on the petition.
I shall start with the objection to the form of the petition by the 3rd – 268th respondents that the petition does not contain attestation clause and the signature of the Secretary to the Tribunal. This objection is misconceived having regard to the status of this court in the hearing and determination of an election petition challenging the election and return of any person as President or Vice President of the Federal Republic of Nigeria in a Presidential Election conducted under the 1999 Constitution and the Electoral Act, 2002. This court is not sitting as an Election Tribunal in the hearing of this petition. The court is sitting as the Court of Appeal created by section 237(1) of the 1999 Constitution which states:-
“237(1) There shall be a Court of Appeal.”
It is this Court of Appeal created for Nigeria by the Constitution that is sitting in exercise of its original jurisdiction under section 239(1) of the same 1999 Constitution to hear and determine the petitioners’ petition in respect of which, the preliminary objection is being raised. Thus, not being an Election Tribunal the court does not have a Secretary to endorse or sign an election petition. The absence of attestation clause and signature of the Secretary to the Tribunal therefore does not make the petition incompetent. The petition on the face of it was duly filed in the registry of this court on 20-5-2003 and received by a registrar of the court who received the fees for filing the petition and endorsed, stamped and signed the petition.
Therefore, the petition having been filed in accordance with the known procedure for filing originating processes by which Civil Actions are commenced under Order 2 of the Federal High Court (Civil Procedure) Rules, 2000, which are applicable in this Court by virtue of paragraph 50 of the 1st Schedule to the Electoral Act, 2002, the petitioners’ petition was properly filed and therefore competent.
“As for the alleged failure of the petitioners to join some necessary parties to their petition contrary to section 133(2) of the Electoral Act, 2002, I do not think the respondents are on strong ground here. That section of the Electoral Act states:
“133(1) …
(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding officer, a Returning Officer or any other person who took part in the conduct of the election, such officer or person shall for the purpose of this Act be a respondent and shall be joined in the election petition in his or her official status as a necessary parry. ”
From the provisions of the Act relied upon by the respondents quoted above, it is quite plain that the complaint of the respondents that the petition is incompetent for failure to join necessary parties is certainly not supported by law. This is because the PDP and other parties alleged to have been left out by the petitioners in their petition, not being persons who actually participated in the conduct of the Election on 19/4/2003, are not necessary parties in the petition. Failure to join them therefore is not fatal to the petition.”
Accordingly I entirely agree with the reasoning and conclusion of the President of this court, Abdullahi, PCA in his ruling just delivered that the respondents’ preliminary objections are hereby refused.
I also abide by the consequential orders in the lead ruling including the order on costs.
NSOFOR, J.C.A.: I have had the privilege of reading before now in draft the leading ruling by Abdullahi, PCA just delivered. I could, readily, speaking, puro pectore, say, for the purpose of brevity, I concur and, I am done. But I shall nonetheless add my voice by way of a footnote.
There are three (3) applications before us to wit:-
(1) A motion on notice filed on the 18th June, 2003 by the 1st respondent,
(2) A notice of preliminary objection filed on the 19th June, 2003 by the 2nd set of respondents and
(3) A notice of preliminary objection filed on the 7th July, 2003 by the petitioners.
The 18th of June, 2003 motion prayed for orders striking out: – (1) The petition for lack of competence, in the alternative (2) some respondents stated nominee on the ground that they are not proper parties to the petition. (3) some paragraphs of the petition on the ground of non-compliance with mandatory provisions of the Electoral Act and, in the alternative, (4) directing that the petitioner shall not lead evidence on matters, allegations and facts contained in those aforementioned paragraphs of the petition.
The motion was brought pursuant to section 136(3) of the Electoral Act, 2002 (hereinafter referred to as the Act). The grounds on which the motion was brought were:-
(1) The court lacks jurisdiction to entertain the petition on the grounds that the proper parties are not before the court.
(2) Mandatory provision of S.133(2) of the Electoral Act, 2002 is violated, ignored and not compiled with.
(3) The court lacks competence and jurisdiction to consider and determine all the allegations contained in the paragraphs complained of in the petition in so far as they relate to places mentioned.
(4) Patties against whom no allegations are made are joined as patties to the petition.
The motion was supported with an affidavit of six paragraphs.
The preliminary objection filed on the 19th June, 2003 by the 2nd set of respondents prayed for an order striking out:-
(1) The petition, in limine, for incompetence and lack of jurisdiction and in the alternative,
(2) Some paragraphs of the petition and, in the alternative
(3) Directing that the petitioners shall not lead evidence on matters, allegations and facts in those aforementioned paragraphs of the petition.
The grounds upon which the preliminary objection was brought as later amended, were
“(b) Non-joinder of necessary patties contrary to S. 133 (2) of the Electoral Act, 2002.
Non-compliance with the provision of paragraph 3(1) of the 1st Schedule to the Electoral Act, 2002 and Form TF002 in that the petition does not contain an attestation clause and/or the signature of the Secretary to the Tribunal.”
The petitioners’ notice of preliminary objection of the 7th July, 2003 prayed for the striking out of:-
(1) 1st stand 2nd respondents notice of preliminary objection filed on 18th June, 2003 and
(2) 3rd-268th respondents notice filed on 19th June 2003.
The 1st and 2nd respondents filed an affidavit of 14 paragraphs sworn by one Remi Awe of counsel in the Chambers of Chief Afe Babalola, SAN in opposition to the petitioners’ notice of preliminary objection.
Ahamba, Senior Advocate of Nigeria (S.A.N.) for the petitioners argued the preliminary objection filed on the 7th July, 2003 firstly. The substance of the learned counsels submission was that the petitioners election petition was served on the 1st and 2nd respondents on the 23rd May, 2003; they filed a reply (or defence) to the petition on the 13th June, 2003 and therein joined issues with the petitioners. Similarly, the 3rd – 268th respondents, after the service on them of the election petition of the petitioners on the 25th June, 2003, filed a reply on the 11th June, 2003 joining issues with the petitioners.
As Ahamba, SAN submitted, each set of the respondents had knowledge of the perceived defects in the election petition of the petitioners before each set filed its respective reply. Relying on Paragraph 49(1), (2), (3) and (5) of the 1st Schedule to the Act, 2002, counsel submitted that each set of the respondents had taken “a fresh step” in the proceedings and, eo ipso, was precluded from raising any of the preliminary objection to the election petition. And accordingly, the court lacked the jurisdiction to entertain the motion of the 18th of June, 2003 and/or the preliminary objection filed on the 19th June, 2003. The senior counsel cited and relied on the case of Casimir Odive v. Nweke Ohor & Anor. (1974) 2 SC 23 at page 31 per Elias, C.J.N.
Replying, Afe Babalola, SAN for the 1st respondent submitted, inter alias, that the 1st respondent acted timeously when he brought the motion on the 18th June, 2003 after filing his reply on the 13th June, 2003 and that the reply in its paragraph 154, similarly, raised the issue of the competence of the election petition as the motion on notice did. Counsel relied on the affidavit filed in opposition to the petitioners’ objection.
It was further submitted by the senior counsel that the doctrine of waiver never applied to oust the jurisdiction of the court. An issue of the court’s jurisdiction may be raised at any stage of the proceeding and the rule of court could not oust the jurisdiction of the court.
“A Fresh Step” would mean taking part in the trial or hearing in the suit. In conclusion the senior counsel urged court to dismiss the preliminary objection. On his part, Gadzama, SAN for the 2nd set of respondents associated himself with the submissions by Afe Babalola, SAN of counsel for the 1st respondent and adopted same, As hearing in the election has not commenced the respondents had not taken any “fresh step” in the proceeding. He submitted that the respondents were entitled to raise and argue a preliminary objection provided they did so within reasonable time.
A good starting point for my consideration would be to take a look at paragraph 49 of the 1st Schedule to the Electoral Act, 2002. Paragraph 49(2) of the 1st Schedule stipulates, inter alias, as follows:
“An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”.
I, now, advert to the affidavit evidence by the 1st respondent in opposition to the preliminary objection. Paragraphs 3, 4, 5, 6, 7 and 8 thereof are relevant. They read: –
“3. That 1st and 2nd respondents filed conditional memorandum of appearance on 30th May, 2003.
4. That the 1st and 2nd respondents also filed their reply on the 13th of June, 2003.
5. That the 1st and 2nd respondents gave notice of objection to fundamental defects in the petitioners petition paragraph 154 of the reply.
6. That the 1st and 2nd respondents’ motion on notice against the competence of the petitioners petition was filed timeously and within time.
7. That the 1st and 2nd respondents also raised the issue of jurisdiction in the motion filed on 12th of June, 2003.
8. That apart from raising the issue of jurisdiction as a preliminary point in the motion, the 1st and 2nd respondents also raised the issue of jurisdiction in paragraph 154 of their reply”.
What is “a reasonable time” is a matter of fact not law. The question arising, based on paragraph 49(2) of the 1st Schedule (supra), becomes this:
“Q. Did the 1st respondent raise the preliminary objection by way of the motion on notice filed on the 18th June, 2003 within a reasonable time after he had knowledge of the defects in the election petition”
I shall pause here for a while to consider the Casimir Odive v. Nweke Obar case (supra) for what assistance it may offer me in reaching my conclusion. The short facts of the case were:-
The plaintiff in the action claimed against the defendants – a man and a woman jointly and severally for:-
1. An order of court compelling the defendants to return to the plaintiff the plaintiff’s children (four (4) of them)
2. Some damages for loss of the services of the four children. The statement of claim averred that in 1949 he was married to the 2nd defendant in accordance with their Customary Law and in 1950 they got married under the Marriage Act, Cap. 115, Laws of Nigeria. The four children born to him by 2nd defendant were the issues of the marriage.
When the case came on for hearing, pleadings had been ordered by court and duly filed and delivered by both parties. Counsel of the defendants raised a preliminary objection in the following terms:
I wish to raise a preliminary objection with respect to the claim-
(a) Return of children: It ought to be by way of petition since Marriage Act is foundation of the claim.
(b) An action per quod servitium amissit cannot be joined to a claim for return of children”.
The court (Agbakoba, J.) heard the counsel and in a reserved ruling upheld the objection and struck out the case. The plaintiff appealed to the Supreme Court.
The Supreme Court allowed the appeal and observed per Elias, CJN at page 31 thus: –
“We think that the learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at that particular stage on the proceedings when the statement of defence had already been filed and issues joined between the two parties. The learned trial Judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after delivery to him of the statement of claim and before filing his statement of defence”
Now, “at that particular stage in the proceedings” when the defendants counsel in the Casimir Odive case (supra) made his preliminary objection is not the same with or as the particular stage in the election petition proceedings when the 1st respondent raised his by the motion on notice filed on the 18th June, 2003. No.
ii. The preliminary objection in the Casimir Odive case (supra) made orally was not previously raised in by the statement of defence as did the reply of the 1st respondent (See para. 154 thereof).
The objection made in the Casimir Odive case (supra) was clearly made belatedly. The case is, therefore, quite distinguishable from the motion before us. The Casimir Odive case (supra) offers me no assistance. It is, therefore, non-sequitur.
On the facts placed before us, (the testimonium per tabulas datum) – I am satisfied that the 1st respondent raised the objection by motion on notice timeously, i.e. within a reasonable time and has not waived his right to challenge the competence of the election petition.
The above, in my view, disposes of the petitioners’ preliminary filed on the 7th July, 2003. The preliminary objection is overruled accordingly by me.
The motion on notice filed on the 18th of June, 2003 (supra) was argued next by the senior counsel for the 1st and 2nd respondents. It is necessary to note here that the senior counsel did not pursue any further other limbs of the objection but rather pressed the objection in respect of the non-joinder of Peoples Democratic Party. (PDP) in view of the ruling by court in CA/A/EP/1/2003: Yusuf v. Chief Obasanjo (unreported) delivered on the 17/7/2003:
The gist of the learned counsel’s submission on this limb of the preliminary objection was that PDP ought to have been joined as a respondent, being a necessary party, to the petition. Several allegations of wrong doing; some of criminal nature; were made against it. The non-joinder of PDP as a necessary party to petition rendered the election petition defective and incompetent. The senior counsel relied on section 133(2) of the Electoral Act, 2002.
The learned senior counsel for the petitioners in reply submitted that PDP was not a necessary party to be joined to the petition notwithstanding that the election petition made complaints against it. The PDP, Ahamba, SAN submitted, did not conduct the election and did not take part in the conduct of the election. He relied on section 133(2) of the Act and cited Buhari v. Yusuf (unreported) delivered on the 27th June, 2003.
A good starting point for my consideration is to look at, firstly, for what S. 133(2) provides. Section 133(2) of the Act reads:
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer, or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party,”
Now, applying section 133(2) (supra)! The section is mandatory in its provision. It is free from any obscurity or ambiguity. Certainly, PDP is not an agent of the Independent National Electoral Commission (INEC) charged with conducting elections. And it has not been shown that it (or, he) was such on the 19- 4 – 2003. The PDP was not an officer of the INEC during the 19/4/2003 elections. No.
Although PDP sponsored the 1st respondent, it (or, he, DPD) was not “the candidate whose election is complained of’. No. He did not take part in the conduct of the election in any official capacity or as a person assigned to perform any function during the election on the 19/4/2003. No. In my judgment, not withstanding that the petition might have made some allegations against it (him), it (he) was not a person to be deemed a respondent to be joined in the election petition in his (or its) official status as a necessary party.
But does the fact that the petition made allegations, some of criminal nature, against it (or, him) make any difference? Certainly, not. “As Ahamba, SAN submitted, and I am in full agreement with the submission that, if at the trial the allegations of crime be established as required by Law i.e. beyond all reasonable doubt, (See section 138(1) of the Evidence Act, Cap. 112, Laws of Nigeria, 1990; Nwobodo v. Onoh (1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 SC 206,) section 144 of the Act would adequately take care of that”. The court or the tribunal may make a recommendation to the Attorney-General of the Federation or of a state with respect to the prosecution of the person(s) for the offence(s) disclosed in the petition. The above disposes of the preliminary objection. The objection is, therefore, overruled by me accordingly.
Arguing the preliminary objection filed on the 19th June, 2003, Gadzama, SAN had submitted that the election petition was defective and, eo ipso, incompetent for non-compliance with paragraph 3(1) of 1st Schedule to the Act. There was no attestation clause signed by the Secretary to the court or, tribunal and a receipt in Form TF002 signed by the Secretary endorsed on the petition. With respect, the objection does not merit my serious consideration and in my judgment is deserving of being overruled brevi manu. Needless for me setting out paragraph 3(1) of the 1st Schedule to the Act.
I have read over and over again paragraph 3(1) of the 1st Schedule to the Act. It does not provide for an attestation clause to be signed by anyone. I am, therefore, ad unum, with the submission by Ahamba, SAN on that head.
Not withstanding that Ahamba, SAN had shown in court the receipt substantially in conformity with Form TF 002 (not filed) in re-action to the submission of the objector-counsel, the election petition before me, exfacie, showed endorsed thereon that fees for the filing of the election petition, the service etc were paid on Revenue Collectors Receipt and signed by the Officer to whom they were paid. It must be presumed in the absence of evidence to the contrary that the endorsement was regularly made by the officer charged with the duty of making it.
“I shall pause here for a while for a comment, An election is a very important event in the national life of Nigeria and to all Nigerians. It would, in my respectful opinion, be rather unfortunate, and indeed it is doubtful, that the mere failure by a Secretary to an Electoral Tribunal or the court for any undisclosed reason(s), be it his inefficiency or, out of spite for the petitioning unsuccessful candidate or, for the political party sponsoring him, to discharge his official responsibility after all the fees for filing an election petition be visited on the petitioner to render the election petition defective or incompetent and thereby deprive the court or the Electoral Tribunal of the power or jurisdiction to pronounce on how the Nigerian people spoke their will at the polls.”
The preliminary objection by the 2nd set of respondents ought, ex necessitate, to be overruled. I do hereby overrule it accordingly.
In sum, for the avoidance of a doubt, the motion on notice filed on the 18th June, 2003, is refused.
The preliminary objections respectively filed on the 7th July, 2003 and 19th June, 2003 are, each, overruled by me.
It is for the reason above given and for the other reasons more fully detailed in the leading ruling that I do concur in the conclusions therein and do endorse the consequential order.
TABAI, J.C.A.: Three sets of processes are being considered in this ruling. The first is the preliminary objection filed on behalf of the 1st and 2nd respondents by Chief Afe Babalola, SAN. It was filed on the 18/6/2003 and has four prayers. The first prayer seeks an order of this court striking out the petition for lack of competency. The second is an alternative prayer and seeks an order striking out the names of specific respondents named therein on the ground that they are not proper parties to the petition.
The third relief seeks an order striking out the paragraphs specified therein on the ground of incompetence and non-compliance with the mandatory provisions of the Electoral Act, 2002.
And the further alternative 4th relief seeks an order directing that the petitioner shall not lead evidence on the matters, allegations and facts contained in the paragraphs specified therein. And the grounds of the objection are stated to be that:
1. The court lacks jurisdiction to entertain the petition on the ground that proper and necessary parties are not before the court.
2. Mandatory provisions of section 133(2) of the Electoral Act, 2002 is violated, ignored and not complied with.
3. The court lacks competence and jurisdiction to consider and determine the allegations contained in the paragraphs complained of in the petition in so far as they relate to places mentioned.
4. The parties against whom no allegations are made are joined as parties to this petition.
It is to be noted that in paragraph 154 of the 1st and 2nd respondents’ reply filed on the 13/6/03 the same objection for lack of competence and jurisdiction had been raised.
The second process is the preliminary objection filed on behalf of the 3rd – 268th respondents on the 19/6/03 by J. K. Gadzama, SAN. It contains three prayers. The first prayer seeks an order of the court striking out the petition in limine for incompetence and lack of jurisdiction. The second is an alternative prayer and it seeks an order striking out a number of paragraphs specified therein. There is yet a third further alternative relief which seeks an order directing that the petitioner shall not lead evidence on those paragraphs. The grounds for the objection are stated to be:
(a) Non-joinder of interested parties contrary to paragraph 4(1)(a) of the First Schedule to the Electoral Act, 2002.
(b) Non-joinder of necessary parties contrary to section 133(2) of the Electoral Act, 2002.
(c) Non-compliance with the provision of paragraph 3(1) of the First Schedule to the Electoral Act, 2002 and Form TF 002 in that the petition does not contain an attestation clause and/or signature of the Secretary to the Tribunal.
(d) Non-compliance with the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2002 in that the petition does not state the person returned as the winner of the election.
(e) Non-compliance with the provision of paragraph 4(1)(b) of the First Schedule to the Electoral Act, 2002 in that the petition does not specify the right of the petitioners to present the election petition.
(f) The various paragraphs in the election petition do not contain separate and distinct grounds for the petition contrary to paragraph 4(1)(d) and 2 of the First Schedule to the Electoral Act, 2002.
The third process is the notice of preliminary objection filed on behalf of the petitioners/respondents on the 7/7/2003 by Chief M. I. Ahamba, SAN. The said objection prays for an order of this court striking out the notices of preliminary objection filed by the respondents. The ground for the objection is that the notices of preliminary objection are incompetent in that:
(a) the notices were filed after the two sets of respondents had joined issues with the petition by filing their replies thereby taken steps in the proceeding after they were served with the petition contrary to paragraph 49(2) of the First Schedule to the Electoral Act, 2002.
(b) the notices filed by the two sets of the respondents did not state clearly the legal grounds upon which their applications were based contrary to paragraph 49(3) of the First Schedule to the Electoral Act, 2002.
(c) the content of the two notices filed by the two sets of respondents offend the petitioners/applicants right to fair hearing.
On the 10/7/03 we decided to take all three notices of preliminary objections together, starting with that of the petitioners/respondents/applicants of 7/7/03 which challenged the competence of those of the respondents/applicants.
With respect to the petitioners/applicants’ challenge of the respondents/applicants’ preliminary objections, the submission of Chief Ahamba, SAN was that before this court can exercise the jurisdiction to entertain the respondents’ objections under section 136(3) of the Electoral Act, 2002, they must meet the conditions precedent under paragraph 49(2) of the First Schedule to the Electoral Act by not taking steps.
The learned senior counsel referred to paragraph 154 of the 1st and 2nd respondents’ reply filed on the 13/6/03 wherein the same preliminary point of incompetence of the petition is raised and submitted that by filing the respondents replies, they had taken steps within the meaning of paragraph 49(2) of the First Schedule to the Act and cannot file the notices of preliminary objections to the competence of the petition. It was his further contention that the respondents had joined issues with the petitioners by filing the replies and therefore that the notices of preliminary objection cannot be entertained. He relied on Effiong v. Ikpeme (1999) 6 NWLR (Pt.606) 260 at 272-273; Odive v. Obor & Anor. (1974) 1All NLR 436, (1974) NSCC 103 at 107.
It was further submitted that the notices of preliminary objection were incompetent for failure to state clearly the legal grounds relied upon as required under paragraph 49(5) of the First Schedule to the Act. Ibrahim v. INEC (1999) 8NWLR (Pt. 614) 334 at 347 was cited in support at the argument. It was argued finally that the First Schedule to the Act cannot be regarded as mere rules of court since their breach touches the issues of jurisdiction and ought to be interpreted strictly. He urged in conclusion, that the notices of preliminary objection be struck out.
In his own address, Chief Afe Babalola, SAN, referred to the filing of the conditional entry of appearance and the filing of the 1st and 2nd respondents’ reply wherein the competence of the petition was raised and submitted that the notices of preliminary objection are competent, particularly in view of the jurisdiction that is being challenged. He relied on Supreme Court Practice of England, 1999 paragraph 2/2/4; Election Laws and Practice by Afe Babalola, SAN page 238; Tafida v. Bafarawa (1999) 4 NWLR (Pt. 597) 70; Ikeakor v. Elosiuba (1999) 8 NWLR (Pt. 613) 153; Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260.
Learned senior counsel submitted that the combined effect of sections 133(2) 136(3) and 137 of the Electoral Act, 2002 is that where proper parties are not joined, it is an issue of jurisdiction and an application to strike out such a petition can be taken at any time even without filing a memorandum of appearance. He relied on Ikeh v. Njoke (1999) 4 NWLR (Pt. 598) 263 at 267 and 272. He submitted that having joined issue in paragraph 154 of the reply, the issue can be taken either before or at the trial and relied on National Bank v. Shoyoye (1977) 5 SC 181 and Order 25 rule 2(2) of the Federal High Court Rules, 2000 Leventis (Nig.) Ltd. v. Petrojessica (Nig.) Ltd. (1992) 2 NWLR (Pt. 224) 675. He submitted that the grounds for the preliminary objection were lavishly stated at page 3 of the application. He urged a refusal of the application.
In his own submission J. K. Gadzama, SAN, adopted the submissions of Chief Afe Babalola, SAN. It was his submission that any objection to jurisdiction filed before hearing is proper before the court and can be taken before hearing. He relied on Olibie v. Okeke (1999) 8 NWLR (Pt. 613) 165; Ezeke v. Dede (1999) 5 NWLR (Pt.601) 80, He referred to what appears to be a conflict between section 136(3) of the Electoral Act and paragraph 49 of the First Schedule and submitted that the provisions of the Act prevailed. He also urged that the application be refused.
In his reply, Chief Ahamba, SAN, commented on Ezeke v. Dede (supra) & Effiong v. Ikpeme (supra) & Effiong v. Ikpeme (supra) and submitted that taking steps included the respondents’ filing of counter-affidavit proffering arguments on the interlocutory injunction and filing the replies.
I shall now consider the preliminary objection of Chief Ahamba, SAN. It is well settled that the issue of jurisdiction can be raised at any stage of the proceedings. It can even be raised by the court suo motu See Oredoyin v. Arowolo (1989) 4NWLR (Pt. 114) 172; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. And once raised, the court has a duty to resolve it first. See Agwuna v. A.-G., Federation (1995) 5 NWLR (Pt. 396) 418; A.-G., Federation v. Sode (1990) 1 NWLR (Pt. 128) 500; A.-G., Anambra State v. A-G, Federation (1993) 6 NWLR (Pt. 302) 692. See also Order 25 rule 2 (1) and (2) of the Federal High Court (Civil Procedure) Rules, 2000 which states:
2(1) “A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) “Apoint of law so raised may, by consent of the parties, or by order of the Court or a Judge in Chambers, on the application of either party, be set down for hearing and disposed of at any time before trial.” (italics mine).
The 1st and 2nd respondents’ reply was filed on the 13/6/03. They pleaded in paragraph 154 thereof that they would contend at or before the hearing of the petition that it is incompetent. The issue of jurisdiction has thus been raised. And on the principles in the authorities above and Order 25 rule 2(2), of the Federal High Court Rules, 2000, this court can either on its own motion or on the application of either party, take arguments on it and resolve it one way or the other. In my view, the 1st and 2nd respondents’ notice of preliminary objection of 18/6/03 is one such application to set down the issue, already raised in their reply, for hearing before the trial. It accords with the principles stated above that the issue of jurisdiction can be raised at any time and if raised in the pleadings, can be disposed of before the trial.
The issue having earlier been raised in the pleading/reply even an oral application would in my consideration, suffice to set it down for hearing before trial. Chief Ahamba, SAN, contended that the respondents’ filing of counter-affidavit, proffering arguments on the interlocutory injunction and filing of their replies amounted to taking fresh steps in the proceedings after knowledge of the defect within the meaning of paragraph 49(2) of the First Schedule to the Act. The records show that the 1st and 2nd respondents filed a conditional memorandum of appearance and had indicated from the inception, that they would raise the issue of jurisdiction and actually raised it in their reply. I am therefore not persuaded by the argument that 1st and 2nd respondents have taken such steps as to constitute a bar to their challenge of the competence of the petition.
As regards the 3rd-268th respondents, they filed their reply on 11/6/2003 but the issue of jurisdiction was not raised therein. They filed their notice of preliminary objection on the 19/6/03. The notice is not supported by any affidavit. And there is nothing in the records to show when they had knowledge of the defect in the petition.
There can therefore be no question of their having taken any fresh steps in the proceedings after knowledge of the defects under paragraph 49(2) of the First Schedule to the Act.
On the whole, the preliminary objection of the petitioners/respondents of 7/7/03 is misconceived and same is therefore struck out.
The two notices of preliminary objection challenging the competence of the petition will now be considered. With respect to the First of 18/6/03 Chief Afe Babalola, SAN stated their objection to be two fold namely:-
(a) That persons against whom no wrong is alleged are nevertheless made parties to the petition; and
(b) That parties against whom serious allegations are made are not joined.
With respect to the first category the learned senior counsel identified 97 persons against whom no allegations are made but who were nevertheless joined as parties. He urged that their names be struck out and relied on Wymer v. Dodds (1879) 11 CH.D. 436 at 437.
With respect to the second category he identified the specific paragraphs of the petition wherein allegations of serious malpractices, fraud, murder and other crimes are made against named persons, the police, military personnel, presiding officers ward and local government returning officers and the PDP but who are not joined.
It was his submission that these are necessary parties by reason of the provisions of section 133(2) of the Electoral Act, 2002 and that their non-joinder renders the petition incompetent and liable for striking out. The learned senior counsel emphasized the importance of the political parties in the entire electoral process and section 133(1)(b) of the Electoral Act, 2002 which, for the first time, provides for a political party to sue or be sued and submitted that the non-joinder of the PDP is fatal to petition. For the importance of a political party to the electoral process he referred further to sections 21,23,29,36,68,70,72,73,79,80,84 and 89 of the Electoral Act, 2002.
Learned senior counsel referred to part C of his written address at pages 24-26 on authorities on the court’s jurisdiction on incompetent petitions and urged that the petition be struck out.
On the second notice of preliminary objection, J.K. Gadzama, SAN, for the 3rd – 268th respondents adopted the entirety of the submissions of Chief Afe Babalola, SAN. He however abandoned grounds (a) (d) (e) and (f) of the preliminary objection and argued only (b) and (c). Learned senior counsel referred to paragraph 3(1)(2)(3) of the First Schedule to the Electoral Act and submitted that the provisions thereunder are mandatory and that non-compliance therewith renders the petition incompetent. He pointed out that the petition does not contain (1) the signature of the secretary of the tribunal and (ii) the attestation clause and submitted that the absence of these rendered the petition incompetent. For these submissions he cited Orizu v. Ozaegbu (1999) 6 NWLR (Pt. 605) 32 at 42. According to him the officer of the cout1 who ought to have attested the petition is an agent of the petitioners. He submitted that paragraph 49(i) of the First Schedule to the Electoral Act does not avail the petitioners.
In his address Chief Ahamba, SAN also referred to the 18 page written submissions on behalf of the petitioners wherein he sought to justify the joinder of each of the 268 respondents. He also proffered arguments to justify each of the paragraphs of the petition queried by the respondents. The document conceded some non-joinder in a number of paragraphs of the petition and indicated that no evidence shall be led in respect of the relevant portions of the paragraphs.
It was his submission that where allegation is made against two or more persons only on or some of whom are joined, the allegation survives but that evidence will not be allowed against the person or persons not joined. Learned senior counsel referred to section 133(2) of the Electoral Act, 2002 and argued that the PDP is not a necessary party since it cannot be one of those who took part in the conduct of the election, it was further submitted that the Police and others who were alleged to have created mischief cannot be respondents since they cannot be said to have been sent there to take part in the conduct of the election.
Chief Ahamba, SAN further submitted that the jurisdiction of the court or tribunal to strike out a petition under section 136(3) and paragraph 4(6) of the First Schedule of the Electoral Act is discretionary because of the use of the word “May” in both provisions and paragraph 49(1) of the same First Schedule. It was his contention that the word “Shall” in paragraph 4(1) is only a mandate to the petitioner and not to the court which, he submitted has the discretion whether or not to strike out a petition under 4(6). He further submitted that where the word “Shall” is used in procedural provision it be construed as “May” and relied on Katto v. CBN (1991) 9 NWLR (Pt. 214) 126. The learned senior counsel referred to a number of decided cases and submitted that judicial opinion is in favour of the principle that non-joinder of a necessary party does not necessarily render a petition incompetent. With respect to the courts discretionary power whether or not to strike out a petition for non-compliance he referred to Omoboriowo v. Ajasin (1984) 1 SCNLR 108, (1984) NSCC 81 at 97 & 101; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 387 & 413 and Buhari v. Yesufu & Ors. (supra) at 23.
He argued that the time for striking out petitions on technical grounds are over and relied on Nwobodo v. Onoh (1984) 1 SCNLR 1, (1984) 1 NSCC 13 at; Oduka v. Okwarajia (supra) at 440; Egolum v. Obasanjo (supra). It was finally submitted that if the non-joinder would affect a relief, it is only that relief that is liable to be struck out and not the petition.
In his reply Chief Afe Babalola, SAN argued that respondents in section 133(2) should not be restricted to INEC officials but also to all those whose conduct affected the conduct of the election. He submitted that the victorious political party and police alleged of massive electoral malpractices ought to be joined.
The first question for determination is whether the PDP is a necessary respondent under the provision of section 133(2) of the Act. Section 133(2) says:
“The person whose election in complained of is; in this Act, referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official Status as a necessary party”
Chief Afe Babalola, SAN urged a construction of “any other person who took part in the conduct of an election” in the provision to include the People’s Democratic Party PDP. The responsibility for the conduct of an election appears to me to be exclusively preserved for the Independent National Electoral Commission. See section 153(1)(f)(2) and Part I Third Schedule paragraph 15 of the 1999 Constitution. And section 158(1) provides for its independence. An Electoral Officer, a Presiding Officer and a Returning Officer are all Officials of the INEC. And having regard to the fact that the responsibility for the conduct of an election is exclusively preserved for the INEC “any other person who took part in the conduct of an election” in the provision ought, in my view, to be such person who has been given some responsibility to take part in the conduct of the election by INEC.
The PDP, like other political parties only participated in the election. It did not take part in the conduct of the election. I hold therefore that it is not a necessary respondent and its non-joinder does not affect the competence of the petition.
The next question is the effect of the non-joinder of the police and others against whom some allegations of fraud, murder etc. are made. In view of the decision in SC/116/2003 Buhari v. Yusuf of the 27/6/2003 the question of whether a police officer who was alleged to have been involved in some malpractices at the 19/4/2003 election is a necessary respondent within the meaning of section 133(2) of the Electoral Act, 2002 needs no further debate. The question is the consequence of such non-joinder. At page 13 of the Certified True Copy of the leading judgment Uwaifo, JSC, reiterated that election petitions are distinct from the ordinary civil cases and that in certain circumstances the slightest non-compliance with a procedural step, which otherwise could either be cured or waived in ordinary civil proceedings, could result in fatal consequences to a petition.
The court however did not rule on the consequences of not joining a respondent like the police.
Learned senior counsel for the respondents/applicants argued that the non-joinder rendered the petition incompetent and urged that same be struck out under section 136(3) paragraph 4(6) of the First Schedule to the Act. Learned senior counsel for the petitioners/respondents argued, on the other hand, that although joinder of a person against whom some allegations are made is mandatory under sections 133(2) and paragraph 4(1) of the First Schedule to the Act, the court still has the discretion whether or not to strike out for incompetence under section 136(3) and paragraphs 4(6) and 49(1) of the First Schedule to the Act. He referred to a number of authorities to support his contention.
Section 136(3) of the Act provides 136(3)
“On the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act, or the provisions of First Schedule of this Act.”
Paragraph 4(6) of the First Schedule to the Act says:
“An election petition which does not conform with sub-paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the Tribunal or Court”
And paragraph 49(1) of the First Schedule states:
“Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the tribunal or Court may deem fit and just”
It is true that there are many cases where non-compliance with a mandatory provision of either an Electoral Act or Schedules of an Electoral Act has been used to nullify a petition under provisions similar to section 136(3) paragraph 4(6) of the First Schedule to the Act.
It seems to me, however, that the discretionary powers of the Court or Tribunal whether or not to strike out a petition for non-compliance remains intact. I am persuaded by the argument of learned senior counsel for the petitioners Chief Ahamba that the Court or Tribunal has the jurisdiction to exercise its discretion whether or not to strike out a petition for non-compliance with mandatory provisions of the Electoral Act and Schedules of the Act. This is the combined effect of section 136(3) paragraphs 4(6) and 49(1) of the First Schedule. And the exercise of every discretion depends, by and large, on the peculiar facts and circumstances of each case. And it is because of this dependence of the exercise of any discretion on the peculiar facts and circumstances of each case that no one exercise of a discretion is binding authority for the exercise of another. See Anya v. A.N.N Ltd. (1992) 6 NWLR (Pt. 247) 319; Echaka Callie Ranch Ltd. v. N.A.C.B. Ltd. (1993) 8 NWLR (Pt.310) 223; Folorunsho v. Folorunsho (1996) 5 NWLR (Pt.450) 612; Oko v. Igweshi (1997) 4 NWLR (Pt.497) 48; Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524.
This petition which competence is being challenged has numerous allegations running into 294 paragraphs out of which some paragraphs contain allegations of malpractices and other crimes against the police. I do not think that in these circumstances of numerous and serious allegations, the non-joinder of the police which affects only some paragraphs of the petition would sway this court’s exercise of its discretion in favour of striking out the petition in its entirety. Although election petition proceedings are generally regarded as sui generis the Supreme Court per Uwaifo in Buhari v. Yesufu (supra) at page 13 approved some relaxation of the strict application of the provisions of the electoral law when he said:-
“It is imperative that in the present petition, the procedure laid down in the Act be strictly complied with, except to the extent that it is relaxed or waived under paragraph 49(1) of the First Schedule to the Act.” (Italics mine)
With respect to the related issue of the non-compliance with paragraphs 3 and 4 of the First Schedule to the Act raised by J.K. Gadzama, SAN the statement of the Supreme Court per Achike, JSC in Egolum v. Obasanjo (Supra) at413 appears opposite. It reads:-
“There is no doubt that the plenitude of the powers of the Court of Appeal under paragraph 50(1) of Schedule 4 accords it enough powers to overlook the shortcomings in a petition. This is a matter of discretion. In any event, the errors complained of are purely of technical nature and play no role in relation to the substantiality of the competence of the petition. The heydays of technicality are now over because the weight of judicial authorities has today shifted from undue reliance on technicalities to doing substantial justice evenhandedly to the parties in the case.”
Paragraph 50(1) of the 4th Schedule of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999 is similar to paragraph 49(1) of this Act. In my view there is no such non-compliance with the First Schedule of the Act as renders the petition incompetent.
“Finally I wish to reiterate that by virtue of the provisions of section 136(3) and paragraphs 4(6) and 49(1) of the First Schedule to the Electoral Act and the decisions in Buhari v. Yusuf (supra) and Egolum v. Obasanjo (supra) this court has the discretion not to strike out a petition for non-compliance with Part VII of the Electoral Act, 2002 or the provisions of the First Schedule of the Act. The discretion depends by and large on the facts and circumstances of the case. And having regard to the circumstances about the numerous and serious allegations in the petition spanning some 294 paragraphs and the relatively small number of paragraphs in respect of which there is non-joinder and the triviality of the non-compliance with paragraphs 3 and 4 of the First Schedule, I would prefer to exercise my discretion against striking out the petition so that the matters in dispute can be tried and determined on their merits and subject, of course, to the rules of pleadings and admissible legal evidence.”
For the foregoing considerations and the fuller reasons detailed in the leading judgment of Abdullahi, PCA, I also refuse the preliminary objections of the 1st and 2nd respondents and 3rd 268th respondents. I also make no order as to costs.
Applications dismissed
Appearances
I. Ahamba, SAN
B. A. Adamu,
Esq. S.A. Nasir, Esq.
V. I. Ikeonu, Esq.
A. A. Gulade,
Esq. C. H. Nwuke,
Esq. E. Etteh, Esq.
J. Y. Numen Yowika, Esq.
M. S. Shuaib, Esq.
A. Mohammed, Esq.
G. Onimowo, Esq.For Appellant
AND
Chief Afe Babalola, SAN,
A. S. Arowolo, SAN
O. Okunloye, Esq.
A. Adeniyi, Esq.
Dr. Maxwell Gidado,Esq.
Greg Okonkwo, Esq.
O. Amao, Esq.
A. Maikori, Esq.
J. K. Gadzama, SAN
N. I. Oghuma [Mrs.]
N. F. Gaffar [Mrs.]
T. N. Ndifor, Esq.For Respondent
