ABDULRAZAK ISMAIL BAGWAI & ANOR V. SAADU YUSIFGODA & ORS (2010)

ABDULRAZAK ISMAIL BAGWAI & ANOR V. SAADU YUSIFGODA & ORS

(2010)LCN/3556(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of February, 2010

CA/K/EP/SHA/4/08

RATIO

ACTION: WHO ARE THE PROPER PARTIES TO A SUIT

It is now well settled that for an action to be proper before a court or tribunal, one of the cardinal or principal conditions is that there must be proper parties in the suit. No action can be sustained by or against a party other than a natural person or persons unless such a party has been authorized by a statute either expressly or impliedly. See Madukolu V. Nkemdilim (1962) All NLR, (pt 2) 581, NFCA Vs Lalako (2003) FWLR (pt 144) 482. PER JOHN INYANG OKORO, J.C.A

ACTION: WHO CAN PROPERLY INSTITUTE AN ACTION

The law is that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or implicitly or by common law;

(a) a legal persona under the name by which it sues or is sued and

(b) The right to sue or be sued by that name.

See FAWEHINMI .V. N.B.A. (NO 2) (1992) 2 NWLR (105) 558, NIGERIAN NURSES ASSOCIATION .V. A. G .FEDERATION (1981)11 – 12 SC 1. PER JOHN INYANG OKORO, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI – ABADUA Justice of The Court of Appeal of Nigeria

Between

ABDULRAZAK ISMAIL BAGWAI
PEOPLES’ DEMOCRATIC PARTY Appellant(s)

AND

1. SAADU YUSIF GODA
2. ALL NIGERIA PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RESIDENT ELECTORAL COMMISSIONER KANO STATE
5. THE ELECTORAL OFFICER FOR INEC, BAGWAI L.G.A
6. THE ELECTORAL OFFICER FOR INEC SHANONO
7. THE COLLATION/SUPERVISORY PRESIDING OFFICER, INEC, BAGWAI L.G.A
8. THE COLLATION/SUPERVISORY PRESIDING OFFICER INEC SHANONO L.G.A
9. THE RETURNING OFFICER, INEC BAGWAI/SHANONO STATE CONSTITUENCY
10. THE COLLATION/SUPERVISORY PRESIDING OFFICER INEC DANGADA WARD
11. THE COLLATION/SUPERVISORY PRESIDING OFFICER SHAGOGI WARD
12. THE COLLATION/SUPERVISORY PRESIDING OFFICER INEC ALAJAWA WARD
13. THE COLLATION/SUPERVISORY PRESIDING OFFICER INEC KWAJALI WARD
14. THE COLLATION/SUPERVISORY PRESIDING OFFICER INEC DANGADA CIKIN GARI
15. THE PRESIDING OFFICER, INEC DANGADA CIKIN GARI 11
POLLING UNIT CODE 002
16 THE PRESIDING OFFICER, INEC, KARIYA CIKIN GARI UNIT, CODE
17 THE PRESIDING OFFICER, ZANGO 1 POLLING 004
18 THE PRESIDING OFFICER, ZABGO 11 POLLING UNIT CODE 005
19 THE RETURNING OFFICER, INCE, RIGAR ISAU 1 POLLING UNIT CODE 006
20 THE PRESIDING OFFICER, INCE RIGAR ISAU 11 004
21 THE PRESIDING OFFICERINCE JIBAGAR GABAS 005
22 THE PRESIDING OFFICER INCEJIBAGAR YAMMA 006
23 THE PRESIDING OFFICER INCE DINGA RIGAR DADI
24 THE PRESIDING OFFICER INCE KAFIN MAIKO 1
25 THE PRESIDING OFFICER INCE KAFIN MAIKO 11
26 THE PRESIDING OFFICER INCE MAITURE
27 THE PRESIDING OFFICER INCE RUWAN JIBA
28 THE PRESIDING OFFICER INCE KURDE Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): The 1st Appellant herein was a candidate of the Peoples Democratic Party in the 14th of April, 2007 elections for the seat of Bagwai/Shanono constituency in the Kano State House of Assembly.
The 1st Respondent contested on the platform of the 2nd Respondent, the All Nigeria Peoples Party. At the conclusion of the said election, the 3rd Respondent declared the 1st Respondent as winner of the election with a total vote of 23,835 as against 22,578 votes scored by the 1st Appellant. Not being satisfied with the declaration and return of the 1st Respondent as winner, the Appellants filed their petition at the Governorship and Legislative Houses Election Petition Tribunal, Kano against all the Respondents challenging the said return. The main point raised in the petition being a matter pertaining to the conduct of certain electoral officials, the issue of whether or not proper parties were sued by the Appellants was raised by the 1st Respondent at the lower Tribunal. The Court below, after hearing arguments from both sides on the matter, resolved
same in favour of the 1st and 2nd Respondents and struck out the petition.
The Ruling of the Tribunal which struck out the petition was delivered on the 10th day of November, 2007. Dissatisfied with the said ruling, the Appellants have appealed to this court. The notice of appeal is dated and filed on 30th November, 2007. Four grounds of appeal are contained therein. When this appeal came up for hearing on the 23rd day of November, 2009, the learned counsel for the 2nd Respondent was absent though duly served. Having filed his brief, the appeal was deemed duly argued in line with Order 17, Rule 9(4) of the Court of Appeal Rules, 2007.
From the four grounds of appeal, two issues have been formulated by the Appellants for the determination of this appeal. The issues are:-
1. Whether or not in the circumstances of this Petition especially in the light of the provisions of section 30 and 144(2) of the Electoral Act, 2006, the learned Trial Tribunal was right in striking out the Petition on the grounds of none joinder of necessary parties notwithstanding the joinder of the Independent National Electoral Commission, the Returning Officer and Presiding Officers for Bagwai State House of Assembly?.
2. Whether or not in the circumstances of the case especially in the light of the averments of the Petitioners in paragraphs 8(c) to (f) of the petition, the learned Trial Tribunal drew a completely wrong inference from the established facts of this case which led to a miscarriage of justice in the matter.
The learned counsel for the 1st Respondent also distilled two issues for determination as follows:
1. Was the Lower Tribunal in error by striking out the petition on the basis of lack of proper capacity to sue and omission to join the proper parties to the proceeding?
2. Whether having regard to the facts in this matter, it could be said that the conclusion reached by the lower Tribunal led to miscarriage of justice in this matter.
Two issues have also been decoded by the learned counsel for the 2nd Respondent which state as follows:-
1. Was the lower Tribunal in error in striking out the petition on the basis of omission to join necessary parties to the proceedings?
2. Whether having regard to the facts of this matter the answer could be that the decision reached by the lower Tribunal led to miscarriage of justice in this matter.
The 3rd – 28th Respondents through their counsel, however submitted one issue for the consideration of this appeal. The lone issue is:-
Whether or not in the circumstances of this petition, the learned Trial Tribunal was right in striking out the petition on the ground of non-joinder of necessary parties notwithstanding the joinder of Independent National Electoral Commission, Returning/Presiding Officer for Bagwai State House of Assembly.
As can be seen from the issues formulated by all the parties, they are the same though variously and differently couched. I shall therefore determine this appeal on the two issues formulated by both parties.
In the brief settled by M. N. Duru Esq, counsel for the Appellants, it is contended on the first issue that the Independent National Electoral Commission, having appointed and designated collation/supervisiory Presiding Officers for the election at Bagwai, it was exercising the powers conferred upon it by the provisions of section 30 (1) and (2) of the Electoral Act, 2006. That the learned Tribunal by holding that such appointment and designation must be in respect of offices created and designated by the Electoral Act 2006 and the manual for election Officials 2007, sought to and indeed, introduced into the section that which it does not contain. That the wordings of the section are clear and unambiguous and ought to be given its ordinary meaning relying on the case of Okonkwo V. Ngige (2007) All FWLR (pt 393) I. Further more, on this issue, it was submitted that if the law makers intended the meaning which the Tribunal gave to the section, they would have said that the Electoral Commission had power to appoint such officers only into offices as created and designated by the Electoral Act. It was their further submission that section 144 (2) of the Electoral Act, 2006, which the lower Tribunal relied upon in holding that the 7th, 8th 10th, 11th, 12th and 13th Respondents were not juristic persons, when read alongside section 30(1) of the same Act, shows on the contrary that the Law makers actually contemplated persons so appointed and designated by the INEC, hence the phrase “or any other person who took part in the conduct of an election ” in the said sub section.
On the second leg of that issue, it was submitted that having joined the Independent National Electoral Commission and the Returning Officer of the Bagwai Constituency as parties, the Petitioners were actually under no obligation to join any other party. That going by the Proviso to section 144(2) of the Electoral Act, 2006, the Petitioners/Appellants did not have to join any other official of INEC having joined the commission itself as provisos in any enactment are meant to cut down or qualify general provisions or create exceptions or relax limitations or throw more light on ambiguous aspect of an enactment. He cited the case of Fortune International Plc V. Pegaus Trading Office and ors (2004) 1 SCNJ 292.
Finally, that to insist that the petitioner must specifically plead that the Presiding Officer, Returning Officer, electoral Officers and Electoral Commissioner are agents of the commission will not only lead to absurdity, but will run contrary to all known principles of pleading. He cited and relied on the cases of Ehulo Farms Ltd V- Union Bank of Nig. PLC (2006) All FWLR (pt 319) 984, Olanrewaju V. Governor, Ovo State (1992) 11 – 12 SCNJ 92 and National Bank of Nigeria Ltd V. Weide & Co. Nig. Ltd (1996) 8 NWLR (pt 465) 150.
He urged the court to resolve this issue in favour of the Appellants.
It was however, the submission of the learned counsel for the first Respondent that having regard to sections 28(2), 144(2) of the Electoral Act 2006 and paragraph 47(1) of the first schedule to the said Act which sets out the status of the officers to be sued and functions assigned to them, it is manifestly clear that Respondent numbers seven, eight, ten to thirteen are not mentioned as persons to be joined in such proceedings as parties either expressly or impliedly as they are neither natural nor legal persons citing the case of NFCA V. Laloko (2003) FWLR (pt 144) 482. Also that the words or persons specified by the statute are very clear and must be given their natural and ordinary meaning, also citing the case of Action Congress V. INEC (2007) 12 NWLR (pt 1048) 222. Further more, that even though section 30 of the Electoral Act, 2006, gives INEC the powers to appoint officials or officers for the conduct of the elections and also to designate the officers so appointed, such appointment and designation must be in respect of offices created and designated by the Electoral Act and the manual for election officials, 2007. He further submitted that where officers appointed by INEC are outside those designated by the Act, the petitioner must plead in the position that they were agents of INEC and that such failure is fatal to their case. He cites and relies on the case of Dr. Arthur A. Nwankwo & 2 Ors Vs Alhaii Umaru Musa Yar’adua & Ors in Petition No. CA/A/EP/6/07, Court of Appeal, Abuja Division delivered on 3/9/07 (Unreported).
On the second leg of the complaint of the Appellants on issue one, it was the reply of the 1st Respondent that there are both misjoinder and non joinder of parties. That taking cognizance of paragraph 8 (c) – (f) of the petition, it will be seen that the compliant relates to the conduct of the officers in change of the two wards of Dangada and Bagwai and has nothing to do the polling both. For example, that in paragraph 8 (g), the complaint is against the Returning Officer of Shanono but he was not made a party to the proceedings and so on. Also that whereas the 17th Respondent was sued as “The Presiding Officer Zango 1 Polling Unit 004” for an allegation concerning malpractices in Shakogi Ward of Shanono Local Government Area but that Zango I Polling Station is in Dangada Ward of Bagwai Local Government and that the finding of the lower Tribunal on this has not been faulted. He urged this court to resolve this issue in favour of the Respondents.
The learned counsel for the other Respondents made similar submission as that of the 1st Respondent, both urging this court to resolve this issue in their favour; I do not intend to summarise their submission as that of the 1st Respondents will suffice except there is need to refer specifically to their brief in the course of this judgment.

The Electoral Act 2006, particularly in section 144 (2) thereof, provides for persons who are necessary parties in an election petition. It provides:-
“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 the 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 PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if, the commission is made a party”.
The rationale for the above provision is that a party whose presence is essential for the effectual and complete determination of the issues before the court ought to be made a party in the suit. He is referred to as a necessary party by the section and a necessary party is such that whose absence the whole claim cannot be effectually and completely determined. See NNN Ltd V. Ademola (1992) 6 NWLR (pt 507) 76.
In filing this petition, the Appellants as petitioners made complaints against and included in the petition parties who are neither natural persons nor statutory persons. These are the 7th, 8th, 10th – 13th respondents. They are listed as follows:-
(7). The Collation/Supervisory presiding Officer, INEC Batwai LG.A.
(8). The Collation/Supervisory Presiding Officer INEC, Shanono L.G.A.
(10).The Collation /Supervisory Presiding Officer INEC Dangada Ward
(11). The Collation/Supervisory Presiding Officer, INEC Shakogi Ward
(12). The Collation/Supervisory Presiding Officer, INEC, Alayawa Ward
(13). The Collation/Supervisory Presiding Officer, INEC Kwajali Ward
As was pointed out by the learned counsel for the 1st Respondent, the above officers played roles specified in paragraphs 8(a) – (k) of the petition as contained in pages 355 – 357 of the record. Nowhere in the Electoral Act, 2006 are the offices listed above created. Quite apart from section 144 (2) of the Act which prescribes parties to an election petition, section 28(2) of the Act provides:-
“Results of all the elections shall be announced by:
(a). The Presiding Officer at the Polling Station.
(b). The ward Returning Officer at the Ward collation centre
(c). The Returning Officer at the Local Government/Area Council.
(d). The Returning Officer at the State Constituency collation centre
(e). The Returning Officer at the Federal Constituency collation centre
(f). The Returning Officer at the Senatorial District collation centre
(g). The Resident Electoral Commissioner who shall be the Returning Officer at the Governorship election, and
(h). The Chief Electoral Commissioner who shall be the Returning Officer at the Presidential election”
No matter how one looks at it, the parties listed as Nos. 7, 8, 10 – 13 in the petition are not those mentioned in the Act which can be joined as Respondents in an election petition. They are neither natural persons nor legal persons. The persons created by the Act are clear and unambiguous and ought to be given their ordinary meaning. See Action Congress Vs INEC (Supra).
The lower Tribunal stated clearly on page 541 of the petition the position as follows:-
“From all that we have so far stated, we posit that even though section 30 of the Electoral Act, gave the INEC the powers to appoint officials or officers for the conduct of election and give them designations, we are of the view that such appointment and designation must be in respect of offices created and designated by the Electoral Act and the Manual for Election officials 2007”
I cannot agree more. It follows that any officer appointed by INEC and given a designation unknown to the Electoral Act and the manual is bereft of juristic personality. See Khalil V. Yar’Adua (2004) IEPR 746, Nnachi V- Ibom (2004) IEPR 786 and Dalhatu V. Dikko (2005) All FWLR (pt 242) 483.
The Appellant had Anchored their argument on section 30(1) and (2) of the Electoral Act 2006. It is however my view that while it is not in dispute that INEC is empowered by section 30 (1) and (2) of the Act to appoint officers and officials for the purpose of conducting elections, the designation or status to be given to such officers must comply and strictly agree with the position and/or names of designation enumerated by the Act. It is the Act which gives the persons so mentioned legal personality for which they can be sued. Any other name not mentioned therein is not juristic and cannot be sued as such.
One other issue which needs to be resolved relates to the proviso to section 144 (2) of the Act.
The proviso is to the effect that where a person or party who ought to have been joined as a necessary party is shown to have acted as an agent of INEC, his non joinder will not on its own operate to void the petition if the commission is made a party. My view is that the Petitioner has a choice in this matter. It is either he joins the relevant parties in their official name and designation or he pleads in the petition that they are agents of the commission where the commission has been made a party because this is the only way it can be shown that they are agents of the commission. It is not open to the petitioner to keep it in his heart that they acted for the commission. He must plead it to enable the Respondents know the case they would meet in court and also to eliminate any element of surprise. See Dr. Authur Nwankwo & 2 Ors V. Alhaii Umaru Musa Yar’Adua & 4 Ors (Supra), I agree with the lower court that this failure to plead this fact made the 7th, 8th, 10th – 13th Respondents not proper parties in the petition.
Again the court below held concerning the 17th Respondent referred to as “The Presiding Officer,
Zango I, polling unit 004” as follows:-
“By paragraph 8(c) and (d) of the petition, Zango I, Polling Unit is within Dangada Ward of Bagwai Local Government Area while in paragraph 8(ii) of the petition, Shakogi Ward is stated to be in Shanono Local Government Area. It follows therefore that the 17th Respondent could not have been a presiding officer of a polling unit in one Local Government Area and a ward Returning Officer in another Local Government Area in the same election held on the same date i.e 14th April, 2007. That could not be possible taking into consideration the duties of a presiding officer of a polling unit as provided in sections 49, 50, 52, 56 – 58 of the Electoral Act 2006 and chapter I page 2 of the manual for election officials 2007. By the nature of the duties of a presiding officer of a polling unit he cannot afford to leave the polling unit while voting has not been concluded and the votes counted and entered in form EC8A(1)”
We are in agreement with the submission of the learned counsel for the Applicant that the 17th Respondent had no business with the conduct of the elections in Shakogi Ward of Shanono Local Government Area of Kano State and we so hold. In so holding we took into consideration the fact that learned counsel for the petitioners in his written reply maintained a solid silence on the submission of the learned counsel for the Applicants in respect of the 17th Respondent”
By the above conclusion of the lower Tribunal, the 17th Respondent was also struck out. The fact that the Appellants have not contested the above findings and conclusion of the Tribunal is an admission that the said party was joined in error, which in the circumstance, left out the proper party which ought to have been joined. See Koya V. UBA (1997)1 SCNJ 1.
I hold the view that having held that the 7th, 8th, 10th-13th and 17th Respondents were not proper parties in the petition, there were no more respondents which evidence could be led in respect of paragraph 8 of the petition. I agree also that in view of section 145(1) (c) of the Electoral Act 2006, the absence of those Respondents meant the petition could not be proved as it stood. Accordingly, it was proper for the Tribunal to have struck out the petition at that stage. In the circumstance I resolve the 1st issue against the Appellants.
On the second issue in this appeal, the learned counsel for the Appellants submits that the lower tribunal drew a wrong inference from the accepted facts in this matter when it held on page 547 of the record that – “In respect of Dangada Ward of Bagwai Local Government Area, from paragraph 8(c) to (f) of the Petition, the complaint of the petitioners is that votes of 2019 from 6 polling units within the ward which were recorded in forms EC 8A(1) given to polling Agents of the Petitioners were not added to the result from the Ward” That in the first place there was no result whatsoever from Dangada Ward as the result from the entire ward was cancelled. That the wrong inference drawn by the learned trial Tribunal from the facts concerning the petitioners’ claim on the Dangada Ward led the Tribunal to wrongly hold that the Ward Returning Officer of the Ward was a necessary party to the petition.
Finally, that the wrong inference drawn by the Tribunal led to a miscarriage of justice. He urged this court to resolve this issue in favour of the Appellants.
In his reply, the learned counsel for the 1st Respondent submitted that the sum total of the complaint of the Appellants contained in paragraph 8 (c) – (f) are allegation of not recording scores made in form EC 8A (1) into EC 8B (1) and that under the Electoral Act, 2006 such functions are not that of presiding officers but that of the Ward Returning Officers. Also that the complaint contained in paragraph 8 (c) – (f) seem to refer to the presiding officer of the Ward. Finally, that the point for consideration as found by the lower Tribunal and clearly revealed by the facts that the complaints in those paragraphs of the petition are allegation rightly or wrongly made against the persons responsible for carrying out those duties and those persons were not the presiding officers.
The 2nd Respondent’s counsel made submission in line with that of the 1st Respondent whereas the learned counsel for the 3rd – 28th Respondents did not profer any argument on this issue. I note that this issue is formulated from the omnibus ground of appeal and the issue is to the effect that the inference drawn from accepted facts cannot be justified. When an Appellant complains that a judgment is against the weight of evidence, it means that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which should have been attached to the totality of the evidence before him. In other words, the totality of the evidence should be considered before in order to determine which has weight and which has no weight at all. See Odofin & Ors V. Mogaji (1978) 11 NSCC 275, Babayo V. Walama (2006) All FWLR (pt 293) 309.
The main complaint in this issue is that the lower Tribunal drew a wrong inference from the facts presented to it in paragraph 8 (c) to (f) of the petition. In view of the relevance of this paragraph to this issue, I shall endeavour to reproduce it here.
The paragraph states:-
“8(c)That in Dangada Ward of Bagwai Local Government Area being the strongest political hold for the petitioner in terms of support, the 1st and 2nd Respondents employed political thugs and destroyed the Ballot boxes and forms EC 8A (1) at the polling units in 9 out of the 15 polling units whereas the remaining six (6) Ballot Boxes were saved and duly counted and returned in forms EC 8A (1) and copies given to the polling agents of the petitioners.
(d). The 1st petitioner states that the six (6) polling units of Dangada Ward were saved from the Thugs of the 1st and 2nd Respondents and Ballot papers duly counted and results entered in forms EC 8A (1) for each of the polling units duly filed and returned copies of which were given to the polling Agents of the Petitioners and Respondents for Dangada Cikin – Gari, Dangada cikin Gari 2, Kariya Cikin Gari, Rigasau, Zango I and Zango 2 polling units.
(e) That from the copies of forms EC 8A (1) given to the polling Agents of the petitioners, the 1st petitioner scored two thousand and nineteen (2019) votes in the aforementioned six(6) polling units while the 1st Respondent received ninety three (93) votes.
(f) That if two thousand and nineteen (2019) votes received by the 1st petitioner from the six(6) polling units of Dangada Ward was as aforementioned, are recorded, the 1st petitioner would have 14,843 votes in Bagwai Local Government Area while the 1st Respondent would have 14,597 votes’:
From the above paragraph of the petition, it is crystal clear that the Presiding Officers of the six polling units had counted the votes and recorded same in form EC 8A (1) which were distributed to the agents of the parties. In other words, the Presiding Officers at the polling units had completed their job and had no query as it were. The real problem appears to be what happened at the Ward and Local Government level. The lower Tribunal observed on page 549 of the Record thus:
“Going through the paragraph of the petition it is crystal clear that the petitioners are alleging that the returns made by the presiding officers of the various polling units of the wards mentioned as per forms EC 8A (1) are different from the returns at the wards level as entered in forms EC 8B(1) of the Wards complained of.
I agree, and these are the raw facts of this petition. I agree with the submission of learned counsel for the Respondents and the decision of the lower Tribunal that both the Ward Returning Officers of Dangada Wards and the Local Government Returning Officer for Bagwai Local Government were necessary parties in this petition and I also agree that their non joinder was fatal to the petition. I need to emphasis that it is only when the proper parties are identified and brought before the court by the petitioners that their complaint of reducing of their votes or arithmetical miscalculation can be heard and determined and this was the inference correctly arrived at by the lower Tribunal. This issue, in my opinion does not avail the appellants.
On the whole, it is my well considered opinion that this appeal lacks merit and is hereby dismissed. I accordingly affirm the judgment of the lower Tribunal which struck out the petition of the Appellants. The Appellants should pay costs of N30,000.00 to the 1st and 2nd Respondents only.

MOHAMMED LAWAL GARBA, J.C.A: The two issues submitted for determination in this appeal have been extensively and admirably considered and resolved in line with the principles of law established in the judicial authorities cited in the lead judgment written by learned brother, OKORO JCA, an advance copy of which I read.
I just want to emphasize that in the absence of the necessary parties against whom the Appellants made allegations upon which the petition was predicated the proper parties are absent from the petition thereby rendering it incompetent. KALLAMU .V. BOBBO GURIN (2005) ALL FWR (241) 325, ONWUDINJO V. DIMOBI (2006) 1 NWLR (1996) 318, AMADIUME V. IBOK (2006) 6 NWLR (975) 158.
In addition, the 7th -14th Respondents against whom the allegations of facts were made grounding the petition are quite strange for not being among the offices specifically created by the Electoral Act and named in Section 144(2).
One of the cardinal principles of interpretation of statutes is to exclude what is not stated in the statute, expressed in latin as “expressio unious exclusio alterious” meaning what is not stated is deemed excluded. See AWOYE .V. OBASANJO (2006) ALL FWLR (334) 1967 @ 1979.
The said Respondents not being natural persons nor juristic under the relevant statute, are incompetent parties against whom the Appellants’ petition could not be maintained.

The law is that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or implicitly or by common law;
(a) a legal persona under the name by which it sues or is sued and
(b) The right to sue or be sued by that name.
See FAWEHINMI .V. N.B.A. (NO 2) (1992) 2 NWLR (105) 558, NIGERIAN NURSES ASSOCIATION .V. A. G .FEDERATION (1981)11 – 12 SC 1.
For the above and more detailed reasonings in the lead judgment which I adopt, this appeal should and accordingly fails for lacking in merit. It is dismissed with the costs awarded in the lead judgment in favour of the 1st and 2nd Respondents.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had read in advance the leading judgment just delivered by my learned brother, J.I. Okoro, J.C.A, but regret deeply, with humility, that I am unable to agree with his reasoning and conclusion reached therein. My stance is premised on the reasons I would expound hereunder.
I would, for brevity sake, not dwell on or recapitulate the facts of this case which had been brilliantly and in a detailed form articulated in the leading judgment of my learned brother. It suffices to state that this appeal is an off-shoot of the Election Petition No. EPT/KNS/HA/17/07 filed by the Appellants herein on 14/5/2007 at the National Assembly/Gubernatorial and Legislative Houses Election Tribunal at Kano in respect of the election into the Kano State House of Assembly conducted by the 3rd Respondent on the 14th April, 2007 in which the 1st Appellant and the 1st Respondent participated. At the conclusion of the election, the 1st Respondent was declared the winner. Following the petition filed by the Appellants, the 1st Respondent, through his Counsel, filed a Motion on Notice before the said Tribunal on 9/10/07 praying for the following orders:-
“1. An order of the Tribunal granting leave to the 1st Respondent/Applicant to file and serve this application and adopt a written address in support of the reliefs sought in this application during the pre-hearing session extended by the Honourable Tribunal.
2. An order of the Honourable Tribunal striking out the parties sued as 7 ,8 ,10 ,11 ,12th and 13th Respondents in the petition same being non-juristic parties.
3. An order of the Honourable Tribunal striking out the petition for non-joinder of necessary parties.
4. An order of the Honourable Tribunal dismissing the petition same being speculative.
5. Any such further or consequential order(s) as the Honourable Tribunal may deem fit to make in the circumstance of this petition.”
The application was premised on the grounds that:
1. “It is necessary to seek the leave for the Tribunal to bring the application during the time extended for the pre-hearing session.
2. That there is no person known to law as Collation/Supervisory Presiding Officer.
3. That parties who are necessary for determination of the petition have not been joined as Respondents.
4. That the election petition is speculative.”
The issues formulated for determination of this Court were fully reproduced in the leading judgment in this appeal, but for purposes of this judgment, I would limit my focus on the issues distilled by the Appellants’ Counsel which I find cogent and touching directly on the grouse of the Appellants stated in their Notice and grounds of appeal.
The issues are:-
“1. Whether or not in the circumstances of this Petition especially in the light of the provisions of section 30 and 144(2) of the Electoral Act, 2006, the learned trial Tribunal was right in striking out the petition on the grounds of non-joinder of the necessary parties notwithstanding the joinder of the Independent National Electoral Commission, the Returning Officer and Presiding Officer for Bagwai State House of Assembly?
2. Whether or not in the circumstances of the case especially in the light of the averments of the Petitioners in paragraphs 8(c) to (f) of the Petition, the learned trial Tribunal drew a completely wrong inference from the established facts of this case which led to a miscarriage of justice in the matter.”
I have taken into consideration all the submissions and legal authorities cited by respective Counsel for the parties which had been summarized in the leading judgment of my learned brother. Needless repeating them here. Before considering the issues raised herein, it is pertinent to observe, though in passing, that the application for striking out the parties sued as 7th , 8th , 10th, 11th, 12th and 13th Respondents in the Petition for being non juristic parties, was filed by Ibrahim Muaz, Counsel for the 1st Respondent in the Petition. On the said Motion on Notice, the address endorsed for service on the 3rd -25th Respondents, was C/O Ifeanyi Iroh, George Etomi & Partners, C/O Sylvester Eigbedion, Gidan Badamasi, 25, Niger Street, Kano. It is apparent from the record of appeal before this Court, that one Ifeanyi Iroh Esq. was Counsel for the 3rd-28th Respondents at the trial Tribunal. He did not file the said Motion on Notice on behalf of his clients, i.e., 7th, 8th, 10th, 11th, 12th and 13th Respondents, nor was it indicated that the said Motion was filed by Ibrahim Muaz Esq. with the instructions of the parties mentioned therein.
It is in this regard that it is worthy to mention, even though it is a pure academic exercise, but, somewhat important, in order to guard or sharpen the eyes of any Petitioner’s Counsel as to what to do when such situation arises, that it is the special right of the party or person who feels he or she is not properly joined as a respondent to move the Court or Tribunal to strike out his or her name. Equally, the Petitioner can move the Tribunal to strike out a respondent that he or she feels is no longer wanted or required. See the case of Obasanjo vs. Yusuf (2004) 9 NWLR (Pt.877) p.144 where the Supreme Court per Kutigi, J.S.C. (as he then was) held, that it is not the business of one respondent to apply that another respondent be struck out simply because he/she feels that the presence of that other respondent is unnecessary. By the above decision, it is clear that it did not lie with the Counsel for the 1st Respondent to bring such an application, because, as stated by the Supreme Court, the Petitioners who joined them must know the reason why they made them parties in the petition. In fact, in Obasanjo vs. Yusuf (supra) the Supreme Court allowed the names of the 42nd – 56th Respondents who, learned Counsel for the 1st and 2nd Respondents therein, had applied to the trial Tribunal to strike out to remain in the Petition. It was held by the Supreme Court that the named respondents remain as such respondents until if and when any of them or the petitioner applies to the Tribunal for any of them to be struck out as such. It seems clear, therefore, that learned Counsel for the Is Respondent, who was never engaged by the parties struck out, to represent them, had no right whatsoever to have brought that application before the trial Tribunal to strike out the said parties sued as the 7th, 8th, 10th, 11th, 12th and 13th Respondents. It is unfortunate that none of the parties adverted his mind to this issue, because that would have disposed of the said Motion at the onset.
Be that as it may, I will now turn to the issues that call for consideration in this appeal. In respect of issue No.1 which rests squarely on the provisions of section 144(2) of the Electoral Act, 2006, it is appropriate at this juncture to reproduce the same thus:-
“144(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 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 PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.”
The language of the said section is very clear, there is no obscurity in it as to who is a necessary respondent in an election petition. Firstly, the section talks about the person whose election is being complained of, he or she is generally regarded as the Respondent. However, if the petitioner has any complaint about 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 be deemed to be a Respondent and shall be joined in his/her official status as a necessary party.
The section went further to explain that if such an officer or person was shown in the petition to have acted as an agent of INEC, failure to join him or her will not render the petition invalid or a nullity. In the instant appeal, the application filed by the 1st Respondent’s Counsel sought, for striking out the 7th, 8th, 10th, 11th, 12th and 13th Respondents who were respectively described in the petition as (1) the Collation/Supervisory Presiding Officer, INEC, Bagwai LGA, (2) the Collation/Supervisory Presiding Officer INEC Shanono LGA, (3) The Collation/Supervisory Presiding Officer INEC Dangada Ward, (4)The Collation/Supervisory Presiding Officer INEC Shagogi Ward, (5) The Collation/Supervisory Presiding Officer INEC Alajawa Ward and (6) the Collation/Supervisory Presiding Officer INEC Kwajali Ward. It is evident on the provisions of section 144(2) of the Electoral Act, that the designations of the officers sued as the 7th, 8th, 10th, 11th, 12th and 13th were not inclusive, nor were they specifically listed as those that could be deemed as Respondents, or be joined as parties. In the absence of their so-called designations being specifically mentioned in the said section, they, cannot by any stretch of rule of interpretation be included or regarded as necessary parties to the petition.
It is also clear in the proviso to the said section 144(2) of the Electoral Act, that even if the officers enumerated therein whose conduct were being complained of, were not made parties to the petition, their non-joinder will not render the petition invalid if the Independent National Electoral Commission was joined as a party and those officers were shown in the petition to have acted as agents of INEC.
It is instructive to note that the Independent National Electoral Commission which conducted the said election was sued as the 3rd Respondent in the Petition. Also, the person whose election was being complained of was sued as the 1st Respondent, then the Electoral Officer for INEC in respect of Bagwai L.G.A. and Shanono L.G.A respectively were sued as the 5th and 6th Respondents, the Presiding Officers for various polling units were equally sued as Respondents. So, on the face of the petition, as regards the parties, some other juristic persons including INEC were indeed joined as necessary parties or Respondents.
The Petitioners’ averments at paragraph 8 of the petition centred mainly on the 1st Petitioner’s and the 1st Respondent’s scores in the 6 polling Units in Dangada Ward which were allegedly saved from the alleged thugs of the 1st and 2nd Respondents as posited at paragraph 8(c) of the Amended Petition, their overall scores in Bagwai and Shanono Local Governments respectively. The Petition further stated how the 1st Petitioner’s votes in Alajawa Ward in Shanono Local Government Area, Kwajali Ward in Bagwai Local Government Area were reduced and the 1st Respondent’s votes inflated. In all those subparagraphs of paragraph 8, no reference whatsoever was made to any of those Respondents, the 1st Respondent’s Counsel applied to be struck out of the Petition. What is, also, amazing in the ruling of the trial Tribunal is, the Tribunal’s reference to the 17th Respondent allegedly mentioned at paragraph 8(i) of the petition. What the Petitioners pleaded at paragraph 8(i) is;
“The Petitioners further state that in Shakogi ward of Shanono Local Government Area, the 17th Respondents committed arithmetical error in Form EC8B (1) by increasing the 1st Respondent’s votes, from 1012 to 1043.”
It is glaring on the said paragraph 8(i) of the petition that the description pleaded or averred by the Petitioners was “the 17th Respondents” and not the “17th Respondent.” It was not shown that the noun or phrase, ‘the 17 Respondents’ averred at the said paragraph was at any time amended to read ‘the 17th Respondent.”
Obviously, the description ’17th Respondent’ is completely different from that of “17th Respondents”. “The 17th Respondent” represents one Respondent numbered as No.17 i.e., it is used in a singular form, while “17 Respondents” is in the plural; it is referring to many Respondents from No.1 to No. 17 though it was not made clear whether it was actually from No.1 to No.17 or from No.12 to No.28. In any case, it refers to more than one Respondent. The Petitioners stated that 17 Respondents committed the arithmetical error in Form EC 8B(1). They were pointing fingers at 17 Respondents and not just at one Respondent i.e., the 17th Respondent. It is obvious that the said Tribunal totally misconceived the contents and meaning of paragraph 8(i), and, then, imported into it, words or letters that were never averred or articulated by the Petitioners in their Amended Petition. It is clear that the noun, ’17 Respondent’ applied by the Tribunal was purely an illusion and imaginary to only the trial Tribunal and Counsel for the 1st Respondent. Then, after what appeared to be a jaundiced analysis by the Tribunal, it proceeded to strike out paragraphs 8(f), (i), (j) and (k) of the Petition, and, further held that the non-joinder of the Returning Officers of the four Wards and striking out of paragraph 8(f), (i), (j) and (k) of the Petition are fatal to the Petition, and, that the remaining paragraphs cannot sustain the lone ground on which the Petitioners predicated their petition.
I must state, with greatest respect, that the views expressed by the Trial Tribunal were utterly wrong in law. In the first place, paragraph 8, sub-paragraph (c), directly accused the 1st and 2nd Respondents of employing political thugs who destroyed the ballot boxes and Form EC 8A(1) at nine (9) out of 15 polling units in Dangada Ward of Bagwai Local Government Area, the 1st Petitioner’s alleged strongest political hold.
The sub-paragraph was pleaded by the Petitioners in support of their lone ground that the 1st Respondent at the time of the election did not score the majority of the votes cast to win the election for the Bagwai/Shanono State Constituency. See also sub-paragraphs (d), (e), (g), and (h) of paragraph 8 and paragraphs 9 and 10 of the Amended Petition, which I believe were sufficient to sustain the lone ground of the Petition, which was not struck out by the trial Tribunal.
It is clear in paragraph 8(c) that evidence is required to prove the allegation averred thereat, and, that even though the names of the 7th, 8th, 10th, 11th, 12th and 13th Respondents had been struck out, the petition could have been sustained by the allegation of thuggery made against the 1st and 2m Respondents, moreso, when the 1st Respondent and the Independent National Electoral Commission were still parties to the petition. It was held in the case of Ajibola vs. Ajadi (2004) 14 NWLR (Pt.852) p.14that:
“Where distinct allegations are made on different officials, the fatality of non-joinder goes only to the paragraphs in which the officials are not joined and not to the entire petition as in the present case. Thus, where the necessary parties whose interest would be affected were not joined or all the officials whose conducts at the election were being complained of were not joined, after striking out the faulty paragraphs, the necessary respondent whose election is being challenged and the officials whose conducts are being complained of and have been made parties, become parties in the surviving paragraphs.
The offending paragraphs of the petition can be struck out without the action affecting the whole petition particularly where the surviving paragraphs can sustain the petition. In the instant case, where the cause of action survives the striking out of the paragraphs of the petition, the petition ought to go for a full trial as ordered by the trial Tribunal.”
Also in Biyu vs. Ibrahim (2006) 8 NWLR (Pt.981) p.1, it was held as follows:-
That non joinder of some necessary parties do not by itself lead to striking out of the entire petition particularly where there are other grounds in the petition which have nothing to do with the conduct of other persons involved in the election. Where such an official or person whose conduct is complained of in the petition is not joined as a party to the petition, the paragraphs of the petition containing such complaints may be struck out, or discountenanced, any evidence led thereon is of no effect. The reason is that a person who is not a party to a suit cannot be proceeded against by virtue of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, it will amount to a breach of his fundamental right of fair hearing should that be done. The proceeding against him will be a nullity. In the instant case, the Tribunal was right in refusing to treat the entire petition as incompetent and in declining to resolve complaints in paragraph 4 since the electoral officials touched by the complaints were not joined in the petition.”
See also, Obasanjo vs. Yusuf (2004)9 NWLR (Pt.877) p.144 where it was held that:-
“The only rationale for a party to be joined in an action is that he shall be bound by the verdict of the court and it is reasoned that the matter in controversy cannot effectively and completely be settled in the absence of the party who shall be bound by it. The defendants who are joined must however have identical interest or rights. The plaintiff prosecutes his case against those who he perceives ought to be joined although the joined defendants may apply to the court to strike out their names for misjoinder.”
Further, in HDP vs. INEC (2009)8 NWLR (Pt.1143) p.297, the Supreme Court held that the name of the statutory respondent, that is, the person whose election is complained of, to an election petition, is sufficient to sustain the petition even if all other respondents are non juristic persons.
It should be recalled that the Petitioners, based on their averments at paragraph 8(c), claimed two alternative reliefs thus:-
(a) “A declaration that because of the incident that took place in the Dangada Ward during the April 14th, 2007, the elections into the Kano State House of Assembly for Bagwai/Shanono Constituency was inconclusive, and the 1st Respondent ought not to have been declared the winner.
(b) An order directing the 3rd Respondent to conduct a bye election between the 1st Petitioner and the 1st Respondent in the Dangada Ward in Bagwai/Shanono State Constituency and the result be added to the earlier votes scored by the Petitioner and the 1st Respondent during the April 14th 2007 State House of Assembly election.”
In Yusuf vs. Obasanjo (2005) 18 NWLR (Pt.956) p.96, it was stated that allegations of intimidation, thuggery, violent disruption of election, that led to the votes being captured and not won or scored, made by a petitioner in an election petition, being of criminal nature, are required to be proved beyond reasonable doubt and not on balance of probability.
The above decision depicts that the allegations of thuggery, intimidation and destruction of ballot boxes made by the Petitioners against the 1st and 2nd Respondents which they claimed were responsible for the election into the Kano State House of Assembly for Bagwai/Shanono Constituency being inconclusive, clearly required proffering of oral evidence to prove the same beyond reasonable doubt. It is clear, therefore, that the said allegations made against the 1st and 2nd Respondents had nothing whatsoever to do with the 7th, 8th, 10th, 11th, 12th and 13th Respondents who were struck out by the trial Tribunal. It was never alleged that it was the conduct of the said 7th, 8th, 10th, 11th, 12th and 13th Respondents that made the elections into the Kano State House of Assembly for Bagwai/Shanono Constituency inconclusive. Therefore, since there are still some statutory Respondents in the petition, the trial Tribunal ought not to have struck out the petition, particularly in the light of the Supreme Court decision in HDP vs. INEC (supra). It is, therefore, my profound view that the trial Tribunal erred in law to have done that. Accordingly, issue No.1 is hereby resolved in favour of the Appellants.
In relation to the second issue, ‘whether or not in the circumstances of this case especially in the light of the averments of the Petitioners in paragraphs 8(c) to (f) of the Petition, the learned trial Tribunal drew a completely wrong inference from the established facts of this case which led to a miscarriage of justice in this matter/ there is no doubt that there was a total misconception of the facts pleaded by the Appellants in their Petition particularly from paragraph 8, sub-paragraphs (c) to (i) by the trial Tribunal.
As I earlier highlighted in my consideration of issue No.1, the allegation raised at paragraph 8(c) was leveled against the 1st and 2nd Respondents whose thugs allegedly engaged in the wanton destruction of Ballot Boxes and Forms EC 8A(1) at nine (9) out of the fifteen (15) polling units in Dangada ward. The above allegation completely differed from the ones of not entering accurate scores on Form EC 8B (1), stated at paragraph 8 sub-paragraphs (i), (j) and (k).
It should be noted that whether or not the Returning Officers of those wards, where the Petitioners alleged that the 1st Petitioner’s score were reduced, were joined or not, or there was an omission in pleading that they acted as agents of INEC, that can never be fatal to the Petition, if there were other pleaded facts concerning other statutory Respondents joined in the Petition. The question is, ‘suppose the Petition had proceeded to trial and, in the end, the Tribunal arrived at the conclusion that there were, indeed, 15 polling units in Dangada ward in which election took place on the 14th April, 2007, and that, the political thugs of the 1st and 2nd Respondents destroyed the ballot boxes and Forms EC 8A(1) in nine (9) polling units which actually made the election inconclusive, would the trial Tribunal not have found in favour of the Appellants and then pronounced the alternative relief No. (8) claimed by the Appellants? It is, therefore, my humble view that the trial Tribunal failed to comprehend the issues raised and the reliefs claimed by the Appellants when it held at page 557 thus:
“We wish to posit further that from the main reliefs and the alternative reliefs the Petitioners are seeking in this election petition, and considering the ground on which the petition is based, the non-joining of the Returning officers of the four wards complained of and also the absence of paragraph 8(f), 8(i), 8(j) and (k) in the petition makes the petition not to reveal a reasonable cause of action. Their absence from the petition means that there is no reasonable cause of action as per Section 145(1)(c) of the Electoral Act, on which the petition is predicated on.”
It is crystal clear that a wrong inference was made by the trial Tribunal from the facts pleaded, particularly, at paragraph 8(c) of the Petition which never complained of the conduct of any Returning officer but the thuggery conduct of the 1st and 2nd Respondents’ political thugs. Furthermore, it is imperative to note that none of the parties prayed for the striking out of the 17th Respondent. It was done by the trial Tribunal suo motu and it never gave the parties any opportunity to address the Tribunal on it.
Consequently, issue No.2 is hereby resolved in favour of the Appellants. As a result, this appeal succeeds, and, I hereby set aside the decision of the trial Tribunal striking out the Petition. The Motion on Notice filed by the 1st Respondent is hereby dismissed by me and the Petition is remitted back to the trial Tribunal for hearing on the merits.
There will be costs to the Appellants against the 1st and 2nd Respondents which I assessed and fixed at =N=30,000.00.