ENGINEER DR. EZEKIEL IZUOGU V. CHIEF ACHIKE U. U. UDENWA & ORS
(2003)LCN/1477(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2003
CA/PH/EPT/198/2003
RATIO
COURT AND PROCEDURE: PARTIES TO AN ELECTION SUIT
“It would appear to me that Section 133(2) by its wording makes it mandatory to join as parties all other persons who are officials involved in the conduct of the election and whose conduct(s) is the complained of in their official capacity, for example electoral officer, presiding officer, returning officer, etc. in the instant case only the returning officers and few electoral office were made parties to the petition and so I said earlier, not a single presiding officer was made party even though almost all the paragraphs complained against the conduct of presiding officers.” PER AMIRU SANUSI, J.C.A.
COURT AND PROCEDURE: NECESSARY PARTY TO A SUIT
“A necessary party is a party who will be affected by the decision of the tribunal. His right will be affected either positively or negatively by the judgment that would affect the interest or right of a person or body that is not a party and who has not been heard in the matter NEC v. Izuogu (1993) 2 NWLR (pt.275) at 295; Targide v. Bafarawa (1999) 4 NWLR (pt.597) page 70, 83 and 85; Lamido v. Turaki (1999) 4 NWLR (pt.600) page 578; Samarro v. Arke & Ors (2000) 1 NWLR (pt.640) page 283 at 292.” PER OLUFUNLOLA OYELOLA ADEKEYE J.C.A
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
Between
ENGINEER DR. EZEKIEL IZUOGU Appellant(s)
AND
1. CHIEF ACHIKE U. U. UDENWA
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RETURNING OFFICER FOR THE IMO STATE GOVERNORSHIP ELECTION HELD ON THE 19/04/2003 (RESIDENT ELECTORAL COMMISSIONER, (INEC) ALHAJI G. MOHAMMED BAWA
4. THE RETURNING OFFICER ABOH MBAISE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
5. THE RETURNING OFFICER AHIAZU MBAISE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
6. THE RETURNING OFFICER EZINIHITTE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
7. THE RETURNING OFFICER OWERRI MUNICIPAL COUNCIL FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
8. THE RETURNTNG OFFTCER OWERRI NORTH LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
9. THE RETURNING OFFICER MBAITOLU LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
10. THE RETURNING OFFICER IKEDURU LOCAI, GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
11. THE RETURNING OFFICER EHIME MBANO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003 ELECTION HELD ON 19/04//003
12. THE RETURNING OFFICER OKIGWE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
13. THE RETURNING OFFICER NJABA LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
14. THE RETURNING OFFICER ISU LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
15. THE RETURNING OFFICER IDEATO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
16. THE RETURNING OFFICER NKWERRE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
17. THE RETURNING OFFICER ORU WEST LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
18. THE RETURNING OFFICER ORSU LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
19. THE RETURNING OFFICER OGUTA LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
20. THE RETURNING OFFICER IDEATO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
21. THE RETURNING OFFICER ISIALA MBANO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
22. THE RETURNING OFFICER OBOWO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
23. THE RETURNING OFFICER ORLU LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
24. THE RETURNING OFFICER NGOR-OKPALA LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2004
25. THE RETURNING OFFICER OHAJI/EGBEMA ELECTION HELD ON 19/04/2003
26. THE RETURNING OFFICER NWAGELE LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2004
27. THE RETURNING OFFICER ONUIMO LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2004
28. THE RETURNING OFFICER ORU EAST LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
29. THE RETURNING OFFICER IHITTE UBOMA LOCAL GOVERNMENT AREA FOR THE GOVERNORSHIP ELECTION HELD ON 19/04/2003
30. THE RETURNING OFFICER OWERRI WEST LOCAL GOVERNMENT AREA FOR THE GOVERNORSFIIP ELECTION HELD ON 19/04/2003
31. THE ELECTORAL OFFICER ABOH MBAISE LOCAL GOVERNMENT AREA
32. THE ELECTORAL OFFICER AHIAZU MBAISE LOCAL GOVERNMENT AREA
33. THE ELECTORAL OFFICER EZINIHITTE LOCAL GOVERNMENT AREA
34. THE ELECTORAL OFFICER OWERRI MUNICIPAL LOCAL GOVERNMENT AREA
35. THE ELECTORAL OFFICER OWERRI NORTH LOCAL GOVERNMENT AREA
36. THE ELECTORAL OFFICER OWERRI WEST LOCAL GOVERNMENT AREA
37. THE ELECTORAL OFFICER MBAITOLU LOCAL GOVERNMENT AREA
38. THE ELECTORAL OFFICER IKEDURU LOCAL GOVERNMENT AREA
39. THE ELECTORAL OFFICER EHIME MBANO LOCAL GOVERNMENT AREA
40. THE ELECTORAL OFFICER ISIALA MBANO LOCAL GOVERNMENT AREA
41. THE ELECTORAL OFFICER OKIGWE LOCAL GOVERNMENT AREA
42. THE ELECTORAL OFFICER NJABA LOCAL GOVERNMENT AREA
43. THE ELECTORAL OFFICER ISU LOCAL GOVERNMENT AREA
44. THE ELECTORAL OFFICER IDEATO SOUTH LOCAL GOVERNMENT AREA
45. THE ELECTORAL OFFICER IDEATO NORTH LOCAL GOVERNMENT AREA
46. THE ELECTORAL OFFICER ORSU LOCAL GOVERVMENT AREA
47. THE ELECTORAL OFFICER ORU WEST LOCAL GOVERNMENT AREA
48. THE ELECTORAL OFFICER NKWERRE LOCAL GOVERNMENT AREA
49. THE ELECTORAL OFFICER ORU EAST LOCAL GOVERNMENT AREA
50. THE ELECTORAL OFFICER OGUTA LOCAL GOVERNMENT AREA
51. THE ELECTORAL OFFICER OBOWO LOCAL GOVERNMENT AREA
52. THE ELECTORAL OFFICER ORLU LOCAL GOVERNMENT AREA
53. THE ELECTORAL OFFICER NGOR-OKPALA LOCAL GOVERNMENT AREA
54. THE ELECTORAL OFFICER OHAJI/EGBEMA LOCAL GOVERNMENT AREA
55. THE ELECTORAL OFFICER NWANGELE LOCAL GOVERNMENT AREA
56. THE ELECTORAL OFFICER IHITTE UBOMA LOCAL GOVERNMENT AREA
57. THE ELECTORAL OFFICER ONUIMO LOCAL GOVERNMENT AREA
58. THE RETURNING OFFICER IMERIENWE WARD NGOR-OKPALA
59. THE RETURNTNG OFFICER HAFOR/OKPORO WARD)
60. THE RETURNING OFFICER OKAEKT OKPORO WARD
61. THE RETURNING OFFICER EBENSE/UMUEZI WARD
62. THE RETURNING OFFICER OKWUABALA/IHIOMA WARD
63. THE RETURNING OFFICER UMUNA WARD
64. THE RETURNING OFFICER UMUDIOKA WARD
65 THE RETURNING OFFICER IHITTEOWERRI WARD
66. THE RETURNING OFFICER MAIFEKE WARD
67. THE RETURNING OFFICER UMUZIKE/UMUMA WARD
68. THE RETURNING OFFICER EBEIRI WARD
69. THE RETURNING OFFICER EZIOIHI/AMAIKE WARD
70. THE RETURNTNG OFFICER OGBERURU/OBIBI WARD
71. THE RIITURNING OFFICER ORLU MGBEE WARD
72. THE RETURNING OFFICER UZOAGBA WARD I
73. THE RETURNING OFFICER UZOAGBA WARD II
74. THE RETURNING OFFICER EKWE WARD
75. THE RETURNING OFFICER AMURIE OMANZE WARD II
76. THE RETURNING OFFICER AMANDUGBA WARD
77. THE RETURNING OFFICER NGURU/UMUOWA WARD
78. THE RETURNING OFFICER OZUZU WARD
79. THE RETURNING OFFICER ELELEM/OBIKE WARD
80. THE RETURNING OFFICER IBEKU WARD
81. THE RETURNING OFFICER UVURU WARD I
82. THE RETURNING OFFICER UWRU WARD II
83. THE RETURNING OFFTCER AMANATOR/ UMUCHIMA WARD
84. THE RETURNING OFFICER DIKENAFAI WARD
85. THE RETURNING OFFICER ISIELENESI WARD I
86. THE RETURNING OFFICER ISIELENESI WARD II
87. THE RETURNING OFFICER NTUEKE WARD
88. THE RETURNING OFFICER UGBELLE WARD
89. THE RETURNING OFFICER OBIOHA WARD
90. THE RETURNING OFFICER OGBOKO WARD I
91. THE RETURNING OFFICER OGBOKO WAR I II
92. THE RETURNING OFFICER UMUAKAM/UMUAGO WARD
93. THE RETURNING OFFICER UMCHIMA WARD
94. THE RETURNING OFFICER UMUMA ISIAKU WARD
95. THE RETURNING OFFICER UMUOGBOM WARD
96. THE RETURNING OFFICER AKPULU WARD
97. THE RETURNING OFFICER ISIOKPO WARD
98. THE RETURNING OFFICER UMUOKWARA/UMUEZEAGBA WARD
99. THE RETURNING OFFICER AKWU/OWERRE WARD
100. THE RETURNING OFFICER UMUOPIA/UMUKEGWU
101. THE RETURNING OFFICER IHEME ARONDIZUOGU WARD
102. THE RETURNING OFFICER NDIMOKO WARD
103. THE RETURNING OFFTCER OBODOUKWU WARD
104. THE RETURNING OFFTCER OSINA WARD
105. THE RETURNING OFFICER UZIYUMUALOMA WARD
106. THE RETURNING OFFICER EZEMAZU/OZU WARD
107. THE FGTURNING OFFICER OZUAKOLI/UMUAGO WARD
108. THE RETURNING OFFICER IZUOGU WARD
109. THE RETURNING OFFICER ELELEM/OBIKE WARD
110. THE RETURNTNG OFFICER OZUZU WARD
111. THE RETURNING OFFICER NGURU/UMUARA WARD
112. THE RETURNING OFFICER EMEKUKU WARD I
113. THE RETURNING OFFICER EMEKUKU WARD II
114. THE RETURNTNG OFFICER OBIBI/URATTA II
115. THE RETURNING OFFICER ULAKWO/OBUBE WARD Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal, Imo State of Nigeria, (herein after referred to as the Tribunal) holden at Owerri in Imo State of Nigeria dated 27/06/2003. On the 19th day of April, 2003 elections were held into the Gubernatorial seats throughout the Nigerian Federation. Out of the 30 registered political parties, ten of them presented candidates to represent them at the said elections as governorship candidates. Among the candidates were the appellant Engineer Dr. Izuogu who was fielded by the All Progressive Grand Alliance (APGA) who was the petitioner at the lower Tribunal and the 1st respondent, Chief Achike Udenwa, who represented the peoples democratic Party (PDP). After the conduct of the elections, the 2nd respondent, INEC which was the statutory body saddled with the responsibility of conducting the elections declared the 1st respondent as the winner.
Aggrieved by such declaration by the INEC, the appellant petitioned to the Tribunal and approached it to grant him the under listed two reliefs:
“1) That it be determined that the return of the 1st respondent is not valid having not scored a majority of lawful votes cast at the election.
2. That the petitioner be returned as duly elected governor of Imo State having scored a majority of lawful votes cast at the election.”
In the alternative, the petitioner prayed the tribunal to hold:
“That the election be declared void and a fresh election ordered to determine the Governor of Imo State and in the event of a fresh election all appointees of the 1st respondent (e.g. Local Government Area Transition Committee Chairman) should have nothing to do with collation results. The Secretary to Government and Commissioners should be barred from their undue influence in such as (sic) fresh election.”
The two sets of respondents filed their memoranda of appearance timeously as required by the Electoral Act 2002. And by way of motion on Notice dated the 7th June 2003, by the 1st respondent prayed the lower tribunal to dismiss or strike out the petition of the petitioner as according to him, the petition was incompetent. The grounds upon which the reliefs were sought include the following:
“(a)That paragraphs 1, 2, 3, 4, 5, 6, 7 , 9(a) to (l) and 10 of the petition are incompetent.
(b) That paragraphs 1, 2, 3, 4, 5, 6, 7 , 9(a) to (l) and 10 of the petition are incompetent being that the officials whose conducts were complained against were not joined as parties to the petition.
(c) That the grounds relied upon are inconsistent with the reliefs ought.
(d) That the allegations made-in paragraphs 1,2,3,4,5,6,7,8,9(a) to (l) of the petition were not specifically referable to the parties on Record.
The 2nd to 115th respondents also filed an identical Motion on Notice wherein they prayed the Tribunal to strike out the petition in limine for incompetence and want of jurisdiction or in the alternative to strike out paragraph 2 of the petition dealing with an alleged violation of Section 18 of the Electoral Act 2002 or to strike out paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 of the petition on grounds of non-compliance with paragraphs 4(1)(a)(b)(c)(d); 4(2) of the First Schedule to the Electoral Act 2002.
The Tribunal took the two motions together and in the end delivered its considered ruling on 27/06/2003 striking out all the paragraphs complained against by the two sets of respondents and in the end struck out the entire petition because according to it, the rest of the paragraphs retained in the petition could no longer sustain the petition. It is that ruling that the appellant is now appealing against as I have earlier stated.
The appellant in his brief of argument filed on 4th August 2003 which he adopted before us formulated one issue for determination of the appeal which I will set out below:-
“Whether the trial Tribunal was right to have declined jurisdiction and struck out the petition on the grounds of non-joiner of necessary parties and that the allegation in the petition were not referable to the respondents on record.”
For his part the 1st respondent in his Brief of argument has identified two issues for determination which appear to me to be more exhaustive and all encompassing row which reasons I intend to be guided by them in determining the appeal.
The two issues are reproduced below will be dealt with together. The two issues are:-
“Whether the Tribunal was right in holding that paragraphs 1, 4, 6, 7 and 8, 9(a) 9(b), 9(d), 9(e), 9(f), 9(g), 9(h), 9(i) and 9(k) are in breach of section 133(2) of the Electoral Act 2002 and paragraph 47(1) of the First Schedule to the Act for failure to join all the officials whose conduct were complained in the conduct of the election and consequently striking out the said paragraphs? If the answer is in the affirmative was the Tribunal right in striking out the entire petition in that what was remaining thereof cannot sustain the petition? (Grounds 1 & 3).
(a) Whether the Tribunal was right in holding that allegation made in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9(a) to (l) of the petition are not referable to any of the parties and record but are referable to those not made parties? If the answers is in affirmative what is the effect in law? (Ground 2).”
It is the submission of the appellant that all the allegations he made on paragraph I relates to inflation of votes in favour of the 1st respondent in some wards, namely Imerienwe Polling booths in the Wards, Nguru/Umunowa Ward Ozuzu ward and Elelem/Oboke Wards and showed in two tables wherein the inflated figures were reflected. He argued that paragraphs 8 and 9 were not properly examined by the Tribunal because in paragraph 8 and 9(a) to (l) the complaint was bout (sic) the conduct of the Wards and Local Government Returning Officers. For example, it was part of his submission that the complaints in paragraph 8, 9(a) to (l) were all complaints against the conducts of the various Local Government Returning offices as men joined in the petition which were acts or omission made at the detriment of the petitioner/appellant.
According to the learned senior advocate of Nigeria for the appellant, all the allegations made in these paragraphs of the petition complained of were not made against the presiding officers of such various local government mentioned but were made against the returning officers which he had joined in his petition.
He also argued that if the Tribunal had not struck them out or had allowed him to lead evidence he could have proved the allegation he labeled without reference being made to the presiding officers. Relying on the provisions of section 133(2) of the Electoral Act the learned SAN conceded that it is only when a petition complains of the conduct of some officials mentioned that such officials must be joined. Where a conduct of any official is not complained of there is no obligation placed on a petitioner to join the official.
He also submitted that in the petition his complained merely concerned or was against the INEC, its State resident commissioner, the returning officers for all the local governments in Imo State and the returning officers for some of the wards in Imo State and they being the only necessary parties, were all joined as parties in the petition.
It is also part of the submissions of the learned appellant’s counsel that it is not in all cases where in an election petition, that presiding officers must be joined once the conduct of such presiding officers is not in contention as in this instant case.
Reliance was placed in the case of Nnadi v. Ezike (1999) 10 NWLR (pt. 622) 228 at 238. By way of amplification the learned senior counsel for the appellant when arguing the appeal repeated his submission summarised above and further relied on the cases of Buhari v. M. D. Yusuf (2003) 6 sc (pt. II) 156 at page 106/161 and the recent one reported judgment of the Court in the case in Yusuf v. Obasanjo in Suit No. CA/A/EPT/1/2003 delivered on 17/07/2001 in pages 22 25.
The 1st respondent in his brief submitted that the Tribunal was correct in striking out paragraphs 1, 4, 6,7, 8 and 9(a) to (10) because those paragraphs offend the provisions of Section 133(2) of the Electoral Act 2002, as well as Paragraphs 47(1) of the First Schedule to the electoral Act 2002. The learned senior advocate opined that the use of the word “shall” in both provisions of the Act mentioned above has mandatory effect because whenever a statute declares that a thing “shall” be done, the real and proper meaning is that of peremptory mandate. Achireku v. Ishegbe (1988) 4 NWLR (pt.89) 411 at 420, Odofin v. Agu (1992) 3 NWLR (pt.229) 350 at 368 paragraph C., Olarewaju v. Governor of Oyo State (1992) 9 NWLR (pt.265) 335 at 368.
Anibi v. Sholimechim (1993) 3 NWLR (pt.282) 461 at 472. The learned counsel also referred to blacks Law Dictionary 6th Edition page 1375.
The learned SAN further submitted on behalf of the 1st respondent that the complaints in the challenged paragraphs of the petition were directed at presiding officers who were in charge of the polling stations and are therefore responsible to the extent of explaining the non-accreditation of votes or could called upon to answer the allegations of malpractices or irregularities. With regard to the case of Nnamani v. Nnadi (supra) he also argued that the authority also supports his contention. In a further submission, the learned senior counsel also argued that the electoral Act made it clear that presiding officers who are in charge of the polling stations the petitioner complained of are necessary parties and failure to join them in the petition is fatal since their rights will be affected by the orders the tribunal might have granted having regard to the complaints against them in the petition.
The resolution of the issues raised in the appeal in my view, largely depends on construction of Section 133(2) of the Electoral Act 2002 and paragraph 47(1) of the First Schedule of the Electoral Act. The two provisions are reproduced below for ease of reference.
Section 133(2) of the Act provides this;-
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complaints of the conduct of an electoral officer a, presiding office, a returning officer or any other person who took part in the conduct of the an election, such officer or person shall for the purpose of the 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 supplied by me)
Then paragraph 47(1) of the First Schedule to the electoral Act 2002 reads as follows:
“Where an election petition complained of the conduct of an electoral Officer, a presiding office, returning office or any other of the commission, he shall for all purpose be deemed to be a respondent and joined in the election petition a necessary party, but an electoral officer, a presiding officer, returning officer, or any other official of the commission shall not be liberty to decline from opposing the petition except with written consent of the Attorney-General of the Federation” (emphasis mine)
Now let me venture to consider the paragraphs in the petition so as to determine whether each of them pertains or relates to or the complaint made in them. Having perused the petitioner’s petition I can gather that-
“a) Paragraph 1 – complained that there was no proper accreditation in many of the polling stations and that there was allegation of multiple voting, inflation of figures in favour of the 1st respondent.
b) Paragraph 2 – aforementioned or taking of oath were not made by the Electoral officer, presiding officers and returning officers.
c) Paragraph 3 – Election materials were not certified by the petitioner’s agents before been distributed.
d) Paragraph 4 – results sheets were nor completed at the polling stations and that the petitioner’s agents were not giving the result sheets, but the affected polling stations were not stated or ascribed to.
e) Paragraph 5 – relates of the 1st respondent and averment that Forms EC8A(1), EC8B(1), etc. would be tendered at the hearing of the petition. It does not therefore complain against any body.
f) Paragraph 6 also is not ascribed to any act or omission of any specified officials of INEC
g) Paragraph 7 complained that the election was marred by violence hijack of electoral materials for stuffing and entering of fictitious results.
h) Paragraph 8 complains of inflation of votes scored by the 1st respondent at the specified places where election was held.
i) Paragraph 9(a) talks of non-conduct of election even through the returning officer allocated votes to the 1st respondent, Here the allegation appears to be directed at the returning officer of Orlu who was also made a parry in the petition.
j) Paragraph 9(b) , (c), and (e) was complained against the INEC the 3rd respondent in the petition which had obviously been joined as a parry.
k) Paragraph 9(f),(g), (h), (i), (j), (k) and (l) complained of dumping of ballot papers issued at polling booths, results of votes in excess of registered voters wrong counting and entry of results, carrying away of ballot boxes, papers and materials meant for specified polling station and changing of scores in various named polling stations in specified local government areas in the State.
To my mind, a careful scrutiny of paragraphs 9(f),9(g),9(h),9(i),9(j),9(k)” and 9(l) clearly shows that complaints are largely directed at some presiding officers who were officers in charge of the named polling stations or booths who ought to be held responsible for the acts or omissions. It is instructive to note that in the petition, not a single presiding officer was made a party. Only returning officers and few electoral officers were made parties in the petition in the whole of the hundred and fifteen respondents in the said petition. There is no gainsaying that in the paragraphs listed above there were catalogue of complains which strictly speaking amount to acts or omission by the polling or presiding officers. I must however state here that paragraphs 5, 6, 9(a), 9(b), 9(c) are not complaint against particular officials or against some officials who were made parties.
It would appear to me that Section 133(2) by its wording makes it mandatory to join as parties all other persons who are officials involved in the conduct of the election and whose conduct(s) is the complained of in their official capacity, for example electoral officer, presiding officer, returning officer, etc. in the instant case only the returning officers and few electoral office were made parties to the petition and so I said earlier, not a single presiding officer was made party even though almost all the paragraphs complained against the conduct of presiding officers.
In Nnamani v. Nnaji (supra) this Court had thus to say per Tobi, JCA (as he then was) while interpreting a similar provision:
“A combined or community interpretation of paragraph 14(2) of schedule 4 to the Decree and paragraph 4 of the petition will not leave me in any doubt that presiding officer will be touched in the course of proving some of the averment in paragraph 4, particularly 4(c) and (d). Can the appellant seriously contend that a presiding officer who is in charge of a whole polling station or unit held responsible to the extent that he should explain the falsification and inflation of figures alleged in paragraph 4(c) and the gross irregularities alleged in paragraph, 4(d) of the petition..”
By its Section 54(1), the Electoral Act specified the duties and responsibilities of a presiding officer. It reads as follows:
“54(1) The presiding officer, shall after accounting the votes at the polling station or unit enter the votes scored by each candidate in the Form to be prescribed by the commission as the case may be (i.e. the result sheet Form EC8A).
(2) The form shall be signed and stamped by the presiding officer and countersigned by the candidates or their polling agents where available at the polling station.
(3) The presiding officer shall give to the polling agent and the police where available a copy of each of the completed forms after it has been duly signed as provided in sub-section (2) of this Section.
(4) The presiding officer shall count and announce the result at the polling station.”
From the above specified functions of Presiding officer, it goes without saying that presiding officer is in charge of the proceedings at the polling station and is saddled with all the responsibilities at the polling station. All the complaints mentioned in the relevant paragraphs are directed the presiding officers who were not joined in the petition even though they are necessary parties who ought to have been joined.
To my mind, the provision of Section 133(2) of the Electoral Act provides that of INEC officials who took part in the conduct of the election in their official capacity must be joined in much as there is complaint against them by its conduct. The Act by its Section 133(2) says they are statutory officials who conducted the election, unless they are joined, they cannot be said to have been given the opportunity to answer the allegations made against them. Not joining them, will, in my view, amount to violation of time honoured principle of audi alteram partem as enshrined in our Constitution. see Buhari v. M. D. Yusuf (supra) and now reported in (2003) 14 NWLR (pt.841) 446.
In the case of Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 397 the Supreme Court per Belgore, J.S.C. had this to say on page 397:
“The principle of our law is that no person shall be guilty without being given an opportunity to defend himself. Every person against whom an allegation is made must be confronted with the allegation so that he can offer his defence. That is the purport of Section 50(2) of the Decree No. 6 of 1999 (supra) the petitioner who complained that an electoral officer, a presiding officer, a returning officer or any other person involved in the election by conduct has initiated the election must presume that officer, etc. as a necessary party and must make him a party. In paragraph 14, 15, 16, 17, 18 and 19 of the petition, the petitioner made many serious allegations including fraud and other electoral offences but the electoral officers, etc. have not been made parties i.e. respondents to the petition. This short coming in the petition made those Paragraphs in competent.”
See also the case of Uzodinma v. Udenwa unreported Appeal No.CA/PH/EPT/163/03 of 31/07/2003.
Olawumi v. Adeyemi (1990) 3 NWLR (Pt. 147) 46 Maikori v. Lere & ors (1992) 3 NWLR (Pt.23l) 523; Oroh v. Buraimoh (1990) 2 NWLR (Pt. 134) 631; Anya v. Iyayi (1988) 3 NWLR (Pt. 82) 359; NEC v. Izuogu (1993) 2 WWLR (Pt. 22) 295; Ibrahim v. INEC (199)(sic) 8 NWLR (Pt. 614) 334; M. D. Yusuf v. Obasanjo (supra)
From the above listed decided authorities it has become trite that if a petition complains of the conduct of electoral officers, presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person must be joined as respondent. Also from the combined effect of the provisions of Section 132(2) and paragraph 47(1) of the First Schedule to the Electoral Act, failure to join the presiding officers who appeared to be officials of the election and whose conduct were complained of in the petition is fatal to the petition and such non-joiner renders the petition incompetent. I have in the body of this judgment listed some of the paragraphs which I consider to have made aspersions on the conduct of presiding officers who ought to have been joined but were not joined in the petition.
Even at the risk of being repetitive I would say that the relevant paragraphs are:-
paragraphs 1,2,3,4,7,8,9(d),9(f),9(g),9(h),9(i),9(i),9(k) and 9(1). The Tribunal is right in holding that allegation or complaints made in these paragraphs of the petition were referable against persons or officials who were not joined. The petition by not joining the presiding officers, who conducted the election and were alleged to have committed the malpractices or irregularities becomes incompetent as it runs riot and violent to the provisions of the Electoral Act to wit, sections 133(2) and paragraph 47(l) and are vague and for that reason the Tribunal was right in striking them out. The Tribunal is however wrong in striking out paragraphs 5, 6, 9(a), 9(b), 9(c) and 9(e). This is because they are referable either to parties, joined in the petition or were not complaints directed at any party at all in their true nature. They are therefore hereby restored.
Now the next question is – Can these latter paragraphs which I restored sustain the petition? I think not. These six paragraphs in the petition cannot sustain the petition even though some of them are referable to some named parties because some of them are certainly not complaints of malpractices or irregularities. I therefore see no how the petition can be sustained with the existence of the six paragraphs. The Tribunal is in my view, right in striking out the petition. The petition with only the 6 sustained paragraphs is rendered incompetent, as it is defective.
Thus, in the result of all that has been said above i adjudge the appeal unmeritorious. It must be dismissed and it is accordingly so dismissed. I make no order on cost, so each party should bear his own costs.
RABIU DANLAMI MUHAMMAD, J.C.A.: I have read before now the judgment just delivered by my learned brother Sanusi, JCA with which I agree. For the same reasons contained in the said judgment which I adopt as mine, I also dismiss the appeal. It is manifest from the Petition that allegations were made against persons who were not made parties to the Petition.
In other circumstances, the allegations were made against nobody, while some of the paragraphs were quite vague. The Tribunal was right in striking out the said paragraphs. The paragraphs that survived were incapable of sustaining the Petition. I abide by all the consequential orders made in the said judgment including the order as to costs.
PIUS OLAYIWOLA ADEREMI, J.C.A.: I have had the privilege of reading before now the judgment just read by my learned brother, Sanusi, J.C.A. I am in agreement with his reasoning and conclusion that the appeal is devoid of merit.
I have had a careful study of the paragraphs of the election petition; I am in full agreement that contained in those paragraphs are allegations against certain electoral officers who were never made parties in the position of respondents to the petition as enjoined by Section 133(2) of the Electoral Act, 2002. Failure to join necessary party to an election petition has been held to be fatal to adjudication. Indeed, it ousts the jurisdiction of the Tribunal to entertain the petition: see (i) TAFIDA VS. BAFARAWA (1999) 4 NWLR (PT 597) 70 and (2) OLAWUYI VS. BURAIMOH.
I also agree with the reasoning and conclusion of the trial tribunal that what was left of the paragraphs of the petition after properly striking out the offending paragraph cannot sustain the petition which was consequently and justifiably struck out.
For this little contribution, but most especially for the detailed reasons advanced in the lead judgment of my learned brother, SANUSI, JCA, I have no difficulty in reaching the conclusion as he did in his lead judgment that this appeal is unmeritorious. I also dismiss it.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother SANUSI J.C.A.
The sole issue for determination in this appeal is whether the trial Tribunal was right to have declined jurisdiction and struck out the petition on the grounds of non-joinder of necessary parties and that the allegation in the petition was not referable to the respondent on record.
The argument relied upon by the appellant are that:
(1) all necessary parties against whose conduct the appellant has complaint were joined in the petition
(2) The complaint of the appellant in the petition concerned the conduct of INEC, its resident electoral commissioners for Imo State, returning officers for all Local Government in Imo State, the electoral officers for all local governments and returning officers for the wards all of whom are joined in the petition as respondents.
(3) Non-joinder of presiding officers cannot be fatal in this petition since the petition was not impugning the conduct of the presiding officers.
(4) The allegations contained in the petition and the grounds relied upon therein are all referable to the respondents on record.
(5) A trial tribunal has a duty to read the petition in Union and not to read the paragraphs in isolation of one another.
(6) The objection raised are in the nature of technicality and having regard to the fact that the parties had joined issues in respect of the merit of the petition the matter should have been allowed to proceed to hearing in the interest of justice.
Reference made to the cases of Nnadi v. Ezike (1999) 10 N.W.L.R. (pt 622) page 228 at 238; Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at page 110; Egolum v. Obasanjo (1999) 7 N.W.L.R. (pt 611) page 335 at page 397.
The 1st respondent formulated two issues; for determination as follows:
(i) whether Tribunal was right in holding that paragraphs l, 4, 6, 7 and 8 at page 8, 9, 9(a), 9(b), 9(d), 9(e), 9(f), 9(g), 9(h), 9(i) and 9(ii) are in breach of section 133(2) of the Electoral Act 2002 and paragraph (47) (I) of the First schedule to the Act for failure to join all the officials whose conduct were complained of in the conduct of the election and consequently striking out the entire petition in that what was remaining thereof cannot sustain the petition.
(ii) Whether the Tribunal was right in holding that allegations made in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 A-L of the petition are not referable to any of the parties on record but are referable to those not made parties. If the answer is in the affirmative what is the effect.
The respondent considered the requirements to join all officials whose conduct were complained of in the conduct of the election.
Complaints of the petitioner in the petition.
(iii) The effect of failure to join the necessary officials
(iv) Whether what remains after striking out the offending paragraphs of the petition can sustain the petition.
The relevant paragraphs in respect of joinder of parties under the Electoral Act are sections 133(2)which stipulates that:
“The person whose election is complained of 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 officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
And 47(1) of the first Schedule. The foregoing provision is mandatory under the electoral law and practice failure to join necessary parties has been held to be fatal in several decided cases as affecting the competence of the petition. A necessary party is a party who will be affected by the decision of the tribunal. His right will be affected either positively or negatively by the judgment that would affect the interest or right of a person or body that is not a party and who has not been heard in the matter NEC v. Izuogu (1993) 2 NWLR (pt.275) at 295; Targide v. Bafarawa (1999) 4 NWLR (pt.597) page 70, 83 and 85; Lamido v. Turaki (1999) 4 NWLR (pt.600) page 578; Samarro v. Arke & Ors (2000) 1 NWLR (pt.640) page 283 at 292.
In the case of Oduke v. Okwaranya (1999) 4 NWLR (pt.597), it was held that even where allegations were made without specific mention of the officials, it is obligatory for the petitioner to join all officials responsible for that election.
The complaints of the petitioner in the petition were outlined. The Tribunal found that the allegation made in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, A -L of the petition are not referable to nay of the parties on record but are referable to those not made parties, this court meticulously went through the complaints in the petition and found the fact confirmed with the exception of a negligible number, which are not enough to sustain the petition. Obviously allegations made against parties not joined in an election petition go to no issue and are consequently incompetent. Jidda v. Kachalla (1999) N.W.L.R. (Pt 599) Page 426.
A Tribunal will not make an order against, or that which will affect the interest or right of a person or body that is not a party to the case. NEC v. Izeogu (1993) 2 NWLR at 275 page 295. in effect the Tribunal was right in holding that paragraphs 1, 2, 3, 4, 5, 6, 7 , 9 A-L of the petition are not referable to any of the parties on record – but they refer to those not made parties. I agree with the lead ruling that the preliminary objection sustained and the petition is struck out for being incompetent’ I abide by any consequential orders made in the lead judgment.
ALBERT GBADEBO ODUYEMI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my leaned brother SANUSI, JCA.
I am in entire agreement with the reasoning contained in the judgment as well as the decision that the appeal lacks merit and should be dismissed.
A- perusal of the petition would reveal that the objections of the Respondent against the competence of most of the paragraphs was justifiably upheld by the learned Election Tribunal.
For instance, paragraphs 1, 2, 3, 4, 7, 9(a),(f), (g),(h), (i),(k) and (R), clearly suffer from the defect of vagueness as the allegation therein are not directed to any of the listed statutory respondents. They must necessary be struck out.
When these paragraphs of the Petition are struck out, it is apparent that what is left, i.e. paragraphs 5, 6, 8 and 9(a), (b), (c) and (e) are insufficient to maintain the petition.
In the event, for these and the fuller reasons given in the lead judgment which I adopt as mine, I too dismiss the appeal.
I abide by the order as to costs in the lead judgment.
Appearances
Yusuf Ali, SAN, with K. K. Eleja and R, O. BalogunFor Appellant
AND
Bon Nwakanma, SAN, with Chief Amaechi Nwaiwu, SAN, O.I. Okpara Esq.For Respondent
