ADAMU MUHAMMED YAHAYA v. JUBRIL AMINU & ORS
(2003)LCN/1467(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of August, 2003
CA/J/141/2003
RATIO
PETITION: ISSUE OF NON- JOINDER IN AN ELECTION SUIT
“As to the issue of non-joinder of certain parties to the petition, which is the bone of contention in this appeal, the question is whether it is such that it is fatal to the competence of the petition. I think it is.In dealing with election petition matters, it is always essential to bear in mind that it is sui generis. Strict compliance to the Electoral Act is imperative in respect thereof. This issue of joinder or non-joinder of parties in an election petition, once more brings into the fore, the application of section 133(2) of the Electoral Act, 2002, paragraph 47(1) of the 1st Schedule to the Act.” PER IFEYINWA CECILIA NZEAKO J.C.A
JUSTICES
OLUDADE OLADAPO OBADINA Justice of The Court of Appeal of Nigeria
IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria
IKECHI FRANCIS OGBUAGU Justice of The Court of Appeal of Nigeria
Between
ENGR. ADAMU MUHAMMED YAHAYA – Appellant(s)
AND
PROF. JUBRIL AMINU & ORS – Respondent(s)
OLUDADE OLADAPO OBADINA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Yola in Adamawa State, delivered on the 6th day of June, 2003; Coram: their Lordships Hon. Justice Abdullahi, Yusuf, chairman; Hon. Justice Akon Kpeme, member; Hon. Justice Wahid Kolade Olaifa, member; Hon. Khalid Abdullahi Waiya, member; and Chief Registrar Adam Idris, member (hereinafter called the tribunal).
The appellant herein was the petitioner at the tribunal, while the respondents were the respondents.
By his petition at the tribunal, the petitioner challenged the election and return of the 1st respondent as the elected senator for Adamawa Central Senatorial District. The petitioner alleged rigging and electoral malpractices. The main complaints of the petitioner were alleged over-voting, alleged one hundred percent (100%) voting and alleged non- voting in various polling stations and units. The 1st respondent entered a conditional appearance and proceeded to raise a preliminary objection, seeking for an order either to dismiss or strike out the petition, or strike out substantial paragraphs of the petitioner’s petition; or in the alternative, an order directing the petitioner not to lead evidence on specific paragraphs of the petition.
The grounds of the objection by the 1st respondent were two, namely:
(1) That the petitioner did not specify parties interested in the petition and
(2) That the petitioner did not join as co-respondents, officers whose conducts were challenged.
The 5th respondent filed a similar objection. The tribunal heard arguments of all the counsel for the parties and in its considered ruling dated 6th of June, 2003, the tribunal upheld the objection and struck out the petitioner’s/appellant’s petition. The petitioner was not satisfied with the decision contained in the said ruling. He therefore appealed to this court on five (5) grounds of appeal.
From the five (5) grounds of appeal, the petitioner identified only one issue as follows:
“Was the Election Petition Tribunal right in striking out the appellant’s petition and holding same incompetent for non-joinder of necessary parties?”
From the same five (5) grounds of appeal filed by the petitioner, the 1st respondent also raised one issue in the following terms:
“Given the petitioner’s complaints of irregularities and malpractices at the polling units, was the tribunal right in striking out the petition on ground of non-joinder of presiding officers.”
Similarly, the 2nd, 3rd, 4th, 6th – 61st respondents also distilled one issue from the grounds of appeal filed by the appeal. The issue reads as follows:
“Whether the tribunal was legally justified to have struck out the petition on 6/6/2003 for being incompetent, by reason of non-joinder of necessary parties to the petition?.”
The 5th respondent similarly raised one issue. It reads:
“Whether the necessary parties who ought to have been joined are the presiding officers (or the collation officers or returning officers) in the light of the pleadings?.”
A careful examination of the issue identified by the respective learned counsel to each of the parties clearly shows that the issues are similar and the same in substance. The learned counsels are all saying the same thing in different words. I will therefore treat the issues together.
The crux of the matter is whether in view of the allegations of over-voting, 100% voting, non-voting at all, in various polling units in the senatorial district, raised in the pleadings by the petitioner/appellant, presiding officers are necessary parties that ought to have been joined in the petition.
In arguing the issue in his brief of argument, the learned counsel to the appellant referred to the findings of the tribunal wherein the tribunal held that non-joinder of presiding officers makes the whole petition incompetent because all the voting, non-voting, 100% voting emanated from polling units. He submitted that the allegation was not in itself a conclusion that conduct of presiding officers was complained of and therefore in issue. He referred to paragraphs 1 to 30 of the petition and submitted that it was the duty of the 2nd respondent INEC to nullify the result of the constituency or polling station where over-voting was complained of, with or without presiding officers as a party; the suit could be heard and determined on the merit. He referred to the allegations of over-voting at pages 7 to 17 of the petition and the allegations of non-voting at all, in paragraphs 12 to 22 thereof. He said that all the allegations had been answered by the respondents in their replies and issues had been joined for trial. He submitted that the tribunal was wrong when it held that the petition was incompetent for non-joinder of the presiding officers. He argued that for the petition to be incompetent, the tribunal ought to have made a finding justifiably that there were certain parties left out without which the petition could not be justly determined. He referred to section 44(2) of the Electoral Act, 2002 and submitted that it was only the 2nd respondent, INEC, that could nullify elections where there was over-voting.
On the allegations that elections did not take place, the learned counsel submitted that what the appellant was saying was that the 2nd respondent did not conduct election. He said that the burden is on the 2nd respondent to call evidence that election took place in those units. He said the allegations were not against presiding officers.
The learned counsel again referred to the findings of the tribunal wherein the tribunal stated as follows:
“Since we hold that presiding officers are also necessary parties to be joined in respect of the remaining paragraphs of the petition complained of, non-joinder of the presiding officers makes the whole petition incompetent because all the voting, non-voting, 100% voting emanated from polling units.”
He submitted that the conclusion that they all emanated from the polling units was not borne out of evidence but on assumption. He submitted that it was only when a complaint was made against a presiding officer that it would be necessary to join a presiding officer. He relied on Onoyom v. Egari (1999) 5 NWLR (Pt.603) 416 at 424; O.K. Contact-Point Holdings Ltd. v. Progress Bank (Nig.) Plc. (1999) 5 NWLR (Pt. 604) 631 at 634; Ubom v. Anaka (1999) 6 NWLR (Pt.605) 99. He submitted that the appellant had no complaint against presiding officers and their non-joinder would not affect the determination of the petition. He said the complaint of the petitioner/appellant was against the conduct of the collation officers who made returns vide Forms EC8 B(1) and EC8 C(1) in spite of the fact that election did not take place in the polling units. He urged the court to allow the appeal.
In arguing the issue raised in the appeal, the learned counsel to the 1st respondent, Mr. Eyitayo Jegede, argued in his brief of argument that the complaints of the petitioner/appellant as contained in the petition could be classified under the following headings:
“(i) Incidences of over-voting at the polling units;
(ii) Incidences of not being allowed to vote at the polling units;
(iii) Incidences of 100% voting at the polling units;
(iv) Incidences of stuffing Ballot Boxes with Ballot Papers at the polling units.”
He referred to the allegations set out in paragraphs 4 – 17; 20, 21, 24, 26, 28 – 31, 36 and 38 of the petition and submitted that the crux of the allegations was such that called to question the activities of the presiding officers where the alleged irregularities took place, since by statute, presiding officers were charged with the unique roles of conducting election in each of the polling units. He referred to section 133(2) of the Electoral Act, 2002 and submitted that the petitioner/appellant was enjoined to join as co-respondent such officers whose conduct was complained of as in this petition. He argued that section 133(2) of the Electoral Act, 2002 is mandatory. The learned counsel referred to the allegations contained in paragraphs 24, 25, 28, 30, 31 and 36 of the petition and submitted that all the allegations of misconduct were alleged to have taken place at the polling units, and further submitted that by virtue of section 52(1) of the Electoral Act, 2002, the presiding officer was in charge of each of the polling units. He argued that the presiding officer in each of the said polling units at which the alleged misconduct took place ought to be joined as co-respondent, and that the petitioner/appellant had failed to join them. He referred to section 136(3) of the Electoral Act, 2002, paragraphs 4(6) and 49(1), (3) and (5) of the First Schedule to the Act and submitted that the tribunal had power to strike out the petition as it did having failed to comply with the provision of section 133(2) of the Electoral Act, 2002. He urged court to dismiss the appeal.
In his own brief, the learned counsel to the 2nd, 3rd, 4th, 6th – 61st respondents referred to section 133(2) of the Electoral Act, 2002 and submitted that once the conduct of any of the statutory respondents is a subject of complaints in the petition, such statutory respondents are necessary parties and must be joined. He argued that the provision of section 133(2) of the Act, was mandatory and did not permit discretion. He relied on the case of Kaliel v. Aliero (1999) 4 NWLR (Pt. 597) 139 at 154. The learned counsel argued that allegations of over-voting and return of fictitious results could be gleaned from the entire paragraphs of the petition and that the allegations or complaints of misconduct were directed at various polling units where results were returned in the constituency. He submitted that the conduct of those in charge of those polling units (who were presiding officers) were directly in issue and were therefore necessary parties to the petition. He submitted that the non-joinder of presiding officers against whom allegations of over voting and returning of fictitious results were levelled was fatal to the competence of the petition and consequently robbed the tribunal of its jurisdiction. He relied on Tafida v. Bafarawa (1999) 4 NWLR (Pt. 597) 70. He urged the court to dismiss the appeal.
The learned counsel to the 5th respondent in his brief of argument referred to paragraph 38 of the petition and submitted that the appellant’s complaint was not against the return of election, but the alleged irregularities complained of in the polling units from which the returns were made. According to the learned counsel, the returns were merely incidental to the irregularities at the polling units complained of. The learned counsel referred specifically to the allegations contained in paragraphs 11 – 18 and 27 – 38 of the petition and submitted that the complaints were directed against the presiding officers and not against collation officers or ward or local government returning officers, and failure to join the presiding officers of the respective polling unit complained of was fatal to the petition. He relied on many cases including Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 372; Nwankwo v. Atta (1999) 5 NWLR (Pt. 601) 134 at 137.
The learned counsel referred to the petition and submitted that collation officers and returning officers joined as 4th, 6th – 61st respondents were not mentioned anywhere in the pleadings or statement of facts in support of the petition. He urged the court to dismiss the appeal.
A careful and critical examination of the petition filed by the petitioner/appellant shows in clear terms that the complaints of the petitioner relate to (1) over-voting (2) non-voting, (3) One hundred per cent (100%) voting and (4) stuffing of ballot papers in ballot boxes in various polling units in the senatorial district. The appellant further attacked the conduct of the election at the polling stations by alleging in several paragraphs of his petition that his agents and supporters were beaten up and in some cases, chased away. He also alleged that in some polling units the respondents stuffed ballot papers into the ballot boxes; that electoral materials were freely used and that money was distributed to the electorate at the polling units. Specifically, paragraphs 4 – 6 of the petition were devoted to irregularities in polling units in Song Local Government Area. See pages 6 – 11 of the record of appeal. Paragraph 7 of the petition was also devoted to irregularities in polling units in Girei Local Government Area. See pages 11 – 18 of the record of appeal. Similarly, paragraph 8 of the petition relates to irregularities at the polling units in Gombi Local Government Area. See pages 18 – 27 of the record. These are tables of tabulated polling units in those paragraphs. Paragraphs 10 – 38 of the petition set out specific instances of irregularities at the polling units. In paragraphs 11, 12, 13, 14, 16, 17 and 18 of the petition, the appellant specifically made it clear that he was complaining against the conduct of the election by the presiding officers at the respective polling units mentioned therein.
For the purposes of emphasis, some of the paragraphs of the petition are hereby reproduced and they read as follows:
“(24) The petitioner says that all polling clerks, presiding officers who were civil servants were intimidated into compromising their position otherwise loose (sic) their jobs if the 5th respondent was not returned as the party winning the election. Consequently, presiding officers were openly seen thumb printing ballot papers for PDP candidates. This wanton illegality was reported to the police and state security services but same was ignored with impunity.
(31) The petitioner avers that electoral materials were not secured and were freely issued by the presiding officers without any regard to laid down rules and procedure of conducting election.
(33) The petitioner avers that in Daksiri ward of Hong, one Eric Gandepa, a flagbearer of the PDP chairmanship organized a rigging team and the team started rigging with support of INEC and when sited the said Eric Gandepa brought thugs who assaulted the members of the ANPP and agent who sustained severe injuries as a result of the attack thereby facilitating rigging for 1st and 5th respondents.
(34) The petitioner avers that one Alh. Mustapha was distributing money to electorates at polling units to vote for 1st and 5th respondents.
(35) The petitioner avers that in Banshika 6 SSS Officers called ANPP agents and warned/ordered him to leave the Banshika ward and the chairman Caretaker Committee Mr. Vincent Musa called on the people to support the PDP. Voter cards were collected from the presiding officers without handing the temporary Voters slip. There was also multiple voting throughout the ward.”
It cannot rightly be disputed that allegations of over-voting; non-voting; one hundred per cent (100%) voting, stuffing of ballot papers into ballot boxes and beating of agents of the opposing party are complaints against the conduct of election at the polling units. In order to appreciate whether the complaints against the conduct of an election in the polling units are complaints against the conduct of presiding officers the duties of the presiding officers must be determined.
Sections 39 – 59 of the Electoral Act, 2002 prescribe the various functions assigned by the Act, to presiding officer. With respect to the functions of presiding officer at the polling stations, section 52 of the Electoral Act, 2002 provides as follows:
“52 (1) The presiding officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers, and the presiding officer shall keep order and comply with the requirements of this Act at the polling station.
(2) The presiding officer may order a person to be removed from a polling station or unit, who behaves in a disorderly manner or fails to obey a lawful order…”
Section 17(2)(a) of the Act empowers the presiding officer to announce the result of all elections at the polling station. It says:
“17(2) Results of all the elections shall be announced by:
(a) the presiding officer at the polling station.”
Section 54 of the Act deals with the counting of votes by the presiding officer, and the announcement thereof. It says:
“54(1) The presiding officer shall, after counting the votes at the polling station or unit, enter the votes scored by each candidate in a Form to be prescribed by the Commission as the case may be.
(2) The Form shall be signed and stamped by the presiding officer and counter-signed by the candidates or their polling agents where available at the polling station.
(3) The presiding officer shall give to the polling agents and the police officer where available a copy 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.”
With the statutory powers conferred on the presiding officer as regards the regulation and management of the polling station or unit, the counting and announcement of votes at the polling station or units presiding officer could be likened to Chief Executive Officer at each of the polling stations or units. He regulates admission of voters and ensures compliance with the provisions of the Electoral Act at the polling stations.
For further and better appreciation of the role and duties of presiding officer at the polling stations or units sections 39, 40 and 42 of the Electoral Act are very relevant.
Section 39 of the Act says:-
“39(1) At the hour fixed for opening of the poll, before the announcement of voting, the presiding officer shall open the empty ballot box and show same to such persons as may lawfully be present at the polling station and shall then close and seal the box in such manner as to prevent its being opened by unauthorized persons.
(2) The ballot box shall then be placed in full view of all present, and be so maintained until the close of poll.”
Section 40 says:
“40(1) Every person intending to vote shall present himself to a presiding officer at the polling unit in the constituency in which his name is registered with his voter’s card.
(2) The presiding officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper; and indicate on the Register that the person has voted.”
Section 42 of the act, also provides that:
“42. The Presiding Officer shall separate the queue between men and women if in that area of the country the culture is such that it does not permit the mingling of men and women in the same queue.”
With all the powers, duties and responsibilities conferred on presiding officers in respect of regulation and management of polling stations or units, I think it would not be right to say that a complaint of over voting, non-voting, one hundred per cent voting, unlawful stuffing of ballot papers into ballot boxes and other electoral malpractices at the polling stations or units is not a complaint directed against the conduct of the election by presiding officers. It is therefore beyond argument that presiding officers are the appropriate persons to answer the allegations raised in the petitioner’s/appellant’s petition.
In Nwoke v. Ebeogu (1999) 6 NWLR (Pt. 606) 247 at 258, this court, per AKAAHS, J.C.A., stated inter-alia as follows:
“An allegation of malpractices, irregularities, falsification of votes and allocation of fictitious votes directed at polling units are in fact directed against the presiding officers who are in charge of the polling units.”
Any allegation of over-voting is invariably an admission that, there was actual voting in the first place, because over-voting can only arise when more votes than the number of registered voters are cast at the polling station. In the same vein, to allege, as in this appeal, that voting did not take place at some polling units complained of, is to indict the presiding officers duly posted to the respective polling units with breach of official duty, and this makes such presiding officers necessary parties to the petition. See Lasebikan v. Dada (1960) WNLR 121 at 124; Jimoh v. Garuba (1998) 7 NWLR (Pt. 556) 100 at 103.
On a careful examination of paragraphs 11, 12, 13, 14, 16, 17, 18, 24, 25, 31, 33, 34 and 36 of the petition filed by the petitioner/appellant, I am of the view that the allegations contained therein were directed against the conduct of the election by the presiding officers in various polling stations or units, and therefore the complaints were directed against the presiding officer. Section 133(2) of the Electoral Act, 2002, prescribes who are necessary respondents to an election petition under the Act. It provides as follows:
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petition complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such an 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.”
In Chief Chuba Egolum v. General Olusegun Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 397, the Supreme Court in interpreting section 50(2) of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No.6 of 1999, which is in pari materia with section 133 (2) of the Electoral Act, 2002, defined, per Belgore, J.S.C., who are necessary parties to an election petition under the Decree. He said:
“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 that allegation so that he can offer his defence. That is the purport of section 50(2) of Decree No.6 of 1999 (supra). The petitioner who complains 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 paragraphs … of the petition the appellant made many serious allegations including fraud and other electoral offences but the electoral officers, returning officers, etc., have not been made parties, i.e., respondents in the petition. This shortcoming in the petition made those paragraphs incompetent.”
In the recent judgment of Supreme Court, General Muhammadu Buhari & Ors. v. Alhaji Mohammed Dikko Yusuf & Ors. (2003) 14 NWLR (Pt.841) 446 at 499, the Supreme Court per Uwaifo, J.S.C. said:
“It is imperative that in the present petition, the procedure laid down in the Act be strictly complied with except to the extent that it is relaxed or waived under paragraph 49(1) of the First Schedule to the Act. Section 133(2) of the Act requires that the person elected or returned be joined as party. Section 133 which I earlier reproduced provides in subsection (1) for persons who may present a petition. It is either one or both of (a) a candidate at an election; (b) a political party which participated at the election. No other person may do so. In the same vein, those who shall be joined to defend the petition in accordance with sub-section (2) are the person whose election (or return) is complained of, referred to as respondent and any of the INEC officials mentioned in the sub-section or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. All such persons are regarded as statutory respondents, and who only, in my view, qualify as the necessary parties.”
In the instant case, the petition complains of the presiding officers’ conduct of the election. It is, therefore, my view that all the presiding officers involved in the conduct of the election in question are necessary parties to the petition, and that they ought to have been joined as co-respondents.
What then is the consequence of non-joinder of necessary parties in an election petition?. Proceedings in an election petition are special proceedings completely divorced and separate from other civil proceedings and therefore, decisions on the issue of joinder in other civil cases may not necessarily be applicable in election petition cases on issue of non-joinder. See Oyekan v. Akinjide (1965) 1 All NLR 200; Obih v. Mbakwe (1984) 1 SCNLR 192.
Section 136(3) of the Electoral Act, 2002 prescribes a sanction that may be imposed where an election petition is not in accordance with the provisions of Part VII of the Act or the First Schedule to the Electoral Act. It says:
“136(3) On the motion of a respondent in an election petition, the election tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act.”
Section 133(2) of the Electoral Act, enjoins the petitioner/appellant to join statutory respondents including presiding officers in the election. Section 133(2) of the Act, falls under Part VII of the Act. The relevant words in section 133(2) of the Act are:
“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.”
The presiding officers were not joined as parties to the petition in this case. The non-joinder is fatal to the petition. See Sule Lamido v. Ibrahim Saminu Turaki & Ors. (1999) 4 NWLR (Pt.600) 578 at 585 – 586; Nwankwo v. Attah (1999) 5 NWLR (Pt.601) 134 at 137; Alhaji Bello v. Alhaji Jallo & Ors. (1999) 4 NWLR (Pt.598) 189; Barau v. Alh. Mohammed Dansadau & 27 Ors. (1999) 12 NWLR (Pt. 632) 653 at 661.
In Chief Chuba Egolum v. General Olusegun Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 397, the Supreme Court, per Belgore, J.S.C. stated inter-alia as follows:
“In paragraphs 9, 10, 12, 13, 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, returning officers etc have not been made parties, i.e., respondents to the petition. This shortcoming in the petition made those paragraphs incompetent. I, therefore, found no reason to interfere with the unanimous decision of the Court of Appeal on the petition and I dismiss the appeal.”
In the instant case, the petitioner/appellant made serious allegations of irregularities including over-voting; one hundred per cent (100%) voting, at the polling stations or units in paragraphs 4 – 9 of the petition. Specifically, the petitioner/appellant made it clear in paragraphs 11, 12, 13, 14, 16, 17, 18, 24, 25, 31, 33, 34, 36, and 38 of the petition that he was complaining against the conduct of the election by the presiding officers at the respective polling stations or units. None of the presiding officers involved in the election was joined as a party. I have no doubt in my mind that the non-joinder of the presiding officers involved in the election as co-respondents to the petition offends against the provisions of section 133(2) of the Electoral Act, 2002 and paragraph 47(1) of the First Schedule to the Act as well as section 36 of the Constitution of the Federal Republic of Nigeria, 1999. The collation officers joined by the petitioner/appellant are not known to the Electoral Act. No provision of the Act assigns any duty to the collation officers. The non-joinder of the said presiding officers also made the paragraphs of the petitions earlier on mentioned, where allegations were made, incompetent. The entire petition without the paragraphs aforesaid, leaves no life in the petition. In that regard, I am of the view that the tribunal was right in striking out the petition for being incompetent. In the circumstances, the question posed by the appellant in the only one issue formulated by him is answered in the affirmative.
In the final analysis therefore, I see no merit in the appeal and I accordingly dismiss it. There shall be no order as to costs.
IFEYINWA CECILIA NZEAKO, J.C.A.: I have had the opportunity of reading in draft the leading judgment of my learned brother, Obadina, J.C.A. He has considered the issues raised in the appeal, reasoned and concluded that the appeal lacks merit. I agree with him.
As to the issue of non-joinder of certain parties to the petition, which is the bone of contention in this appeal, the question is whether it is such that it is fatal to the competence of the petition. I think it is.
In dealing with election petition matters, it is always essential to bear in mind that it is sui generis. Strict compliance to the Electoral Act is imperative in respect thereof.
This issue of joinder or non-joinder of parties in an election petition, once more brings into the fore, the application of section 133(2) of the Electoral Act, 2002, paragraph 47(1) of the 1st Schedule to the Act.
Section 133 of the Act is one of the sections, which must be strictly complied with.
Section 133(2) of the Electoral Act, 2002 is vital to the decision in this appeal and its provision, employing the word shall is mandatory within its con.
It provides thus:
“The person whose election is complained of in this Act is referred to as the respondent, but if the petition complains of the conduct of the electoral officer, a presiding officer, or 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 a respondent and shall be joined in the election petition on his or her official status or as a necessary party.”
Where a petitioner mentions by official title name, the person or official against whom his complaint is directed, he must join the person or official as a party to the petition. See Nze v. Nwaeze (1999) 13 NWLR (Pt.635) 396 at 407 – 408 and 409.
On the other hand, where the petitioner fails to specifically mention the officials or persons his allegations refer to, the petition is to be examined to infer those responsible for the alleged malpractice. This is to be determined by the nature of the assignment placed on them by the Electoral Act. See Oduka v. Okwaranyia (1999) 4 NWLR (Pt.597) 35. See also Nze v. Nwaeze (supra) at 408 – para. D, per Akaahs, J.C.A.
In this appeal, the averments in the petition from which inference can be drawn appear in various paragraphs of the petition.
It would appear to me that where the alleged malpractices complained of in the petition herein could have occurred, is at the ward and polling unit level. This is where voting, or failure to vote or to conduct election, or over-voting would take place by virtue of the Electoral Act. Under the provisions of the Act, there are officials appointed and assigned the duty of the conduct of an election and performance of specified acts at various levels. If therefore, any question should arise in the area assigned to any official, in relation to such a duty under the Act, the statutory official ought to be the person answerable. Any charge or allegation in respect thereof made in an election petition, brought pursuant to the Act, makes it mandatory, by virtue of section 133(2) of the Act, for him to be made a party to the petition.
By virtue of section 39, it is the presiding officer who is charged with the conduct of election at polling stations. Section 39(1) requires that before the commencement of voting, he shall open the empty ballot box and show same to such persons as may lawfully be present at the polling station, and shall then close and seal the box in such manner as to prevent its being opened by unauthorised persons’.
Section 39(2): ‘The ballot box shall then be placed in full view of all present, and be so maintained until the close of poll’.
Section 42 – mandates the presiding officer to arrange separate queues for women and men in some areas.
By section 46, he is to issue another ballot paper to a voter where accidentally destroyed, spoilt or marked. By section 47, he provides assistance for blind or incapacitated voters to vote.
Other very relevant sections of the Act setting out the statutory functions of the presiding officer are: 50, 51, 52, 53, 54, 55, 56, 58.
The presiding officer is the one charged with regulating matters at the polling units and stations.
Most important are sections 52, 53(1) and 54 of the Act which exemplify this. They provide as follows:
“Section 52(1): The presiding officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers, and the presiding officer shall keep order and comply with the requirements of this Act at the polling station. (Italics for emphasis).
(2) The presiding officer may order a person to be removed from a polling station or unit, who behaves in a disorderly manner or fails to obey a lawful order.
(3) A person removed from a polling station or unit under this section shall not, without the permission of the presiding officer, again enter the polling station or unit during the day of the election, and if charged with the commission of an offence in that polling station or unit, the person shall be deemed to be a person taken into custody by a police officer for an offence in respect of which he may be arrested without a warrant.
(4) The provisions of subsection (3) of this section shall not be enforced so as to prevent a voter who is otherwise entitled to vote at a polling station or unit from having an opportunity of so voting.
Section 53(1):
At the prescribed hour for the close of poll, the presiding officer shall declare the poll closed and no more person(s) shall be admitted into the polling station and only those already inside the polling station shall be allowed to vote.
Section 54(1):
The presiding officer shall, after counting the votes at the polling station or unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.
(2) The Form shall be signed and stamped by the presiding officer and counter-signed by the candidates or their polling agents where available at the polling station.
(3) The presiding officer shall give to the polling agents and the police officer where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.
(4) The presiding officer shall count and announce the result at the polling station.”
All the foregoing sections place on the presiding officer the responsibility to regulate conduct and preside over matters at polling stations and polling units, the counting, recording and announcement of votes.
Thus, where a petitioner alleges, as did the petitioner/appellant in this matter, that there was no election in named wards and polling units in various wards and local government areas, or over-voting, stuffing of ballot paper in ballot boxes before the election and no voting as made in paragraphs 4, 5, 6, 7, 8, 9, 10 – 18, 20 – 22, the presiding officer is the statutory person whose function is called to question. In paragraphs 24, 30 and 31 of the petition, allegations were made against presiding officers generally and in Hildi Ward. In my view therefore, the presiding officers’ statutory functions are called to question in all the foregoing paragraphs of the petition.
Accusations were made against the police and security agents in paragraphs 26, 27, 32, 37 etc of the petition, for condoning electoral malpractices and intimidation and threat of serious bodily harm (see paragraphs 27 and 29).
I hold the view that the presiding officers and security agents so charged in the petition ought to have been made parties to the petition pursuant to section 133(2) of the Electoral Act (supra). Failure to make them parties is fatal to the appellant’s petition.
For the avoidance of doubt, it must be noted in this judgment that there were far reaching averments and accusations about rigging, electoral malpractices, which if proved, as required by law would affect the result of the election at the wards named in the petition and the overall result of the candidates. There is however, a fundamental legal issue and requirement which arise and must be met by a petitioner in an election petition by virtue of the provisions of the law. They relate not only to the fundamental right of fair hearing, entrenched in the Constitution of Nigeria, but in particular, the provisions of the Electoral Act which guides the conduct of elections and election petitions which are mandatory and must be complied with. Section 133(2) of the Electoral Act, 2002 is particularly relevant in this matter.
The petitioner in an election petition under the Act is mandatorily required to join as party in his petition, all persons who took part in the conduct of the elections against whom it makes allegations in his petition.
Having examined the averments in the petition before us, there is no doubt that the complaints are complaints regarding voting at the voting units. Where an allegation of election malpractice or other irregularities or deficiencies at an election at polling units or centres form the subject of averments in an election petition, the obvious inference is that they are directed to the presiding officer who is in-charge of such units or centres by virtue of his statutory assignments set out in sections 39, 42, 50-58 (supra). See the case of Nwoke v. Ebeogu (1999) 6 NWLR (Pt. 606) 228 at 258.
In the light of the foregoing, and the detailed reasons set out by my learned brother, Obadina, J.C.A., I would myself dismiss this appeal and I hereby dismiss it.
IKECHI FRANCIS OGBUAGU, J.C.A.: I had a preview of the lead Judgment of my learned brother, Obadina, J.C.A. just delivered. I entirely agree with his reasoning and conclusion. I adopt the same. By way of emphasis however, I hereunder, make a few contributions.
On 28th July, 2003, when this appeal came up for hearing, Buba I. N. Esq.- learned counsel for the appellant with him Odigie, I. B. Esq., told the court that all the briefs have been filed and exchanged. That the appellant filed his brief on 17th July, 2003 in Kaduna and was stamped in this court’s registry on 7th July, 2003. That there is also a reply brief filed on 21st July, 2003. He adopted the two briefs and stated that he had one decided authority to add which he said came to their notice after the briefs had been filed. He then referred to the brief of the 5th respondent at page 3 paragraph 4. He cited and relied on the case of Alhaji Mohammed Dikko Yusufu & Anor. v. Chief Olusegun Obasanjo & 56 Ors. in the unreported Judgment of the Court of Appeal No. CA/A/EP/1/2003 delivered on 17th July, 2003 (Abuja Division). He referred to pages 2 and 3 thereof being the concurring contributions respectively of Oguntade and Salami, JJCA., and the case of Buhari v. Yusufu (2003) 14 NWLR (Pt.841) 446 at 499 referred to in Oguntade, J.C.A.’s said contribution.
He submitted that the persons the 5th respondent complained that the appellant did not join as parties, are not necessary parties.
He urged the court to allow the appeal, set aside the judgment of the tribunal and order that the petition be restored for hearing on its merits.
Jegede, Esq. – learned counsel for the 1st respondent, told the court that his client was opposing this appeal. That they filed his brief on 14th July, 2003. He adopted the same and submitted that the authority cited and relied on by his learned friend for the appellant, is completely unhelpful to him – the appellant as regards the issue distilled from the grounds of appeal. That it is the issue of not joining the presiding officer whose conduct was in issue. That that was the basis of the said decision. He urged the court to dismiss the appeal and affirm the decision of the tribunal.
Daagba, I. D. Esq. – learned counsel for the 2nd, 3rd, 4th, 6th to 61st respondents, told the court that they are also opposing the appeal. That they filed their brief on 15th July, 2003. He adopted the same and said he had nothing more to add. He urged the court to dismiss the appeal.
Turaki, K.T. Esq. (SAN) – learned counsel for the 5th respondent with him Aondoakaa, M. K. Esq., Owe, J. E. Esq., Shehu, A. T. Esq. and Malami, A. Esq. told the court that they filed their brief on 15th July, 2003. He adopted the same. He stated that at page 2 thereof, they formulated one (1) issue for determination.
As regards Yusuf’s case (supra), cited and relied on by the learned counsel for the appellant, learned SAN stated that it is distinguishable from the instant case. That the issue in the instant case, are presiding officers and party agents who are necessary parties and who were involved in the conduct of the elections with defined statutory roles under the Electoral Act, 2002 and therefore, parties under section 133(1) of the Act. He urged the court to dismiss this appeal and affirm the decision of the tribunal.
Buba, Esqr., apologised for what he said are the mistakes and typographical errors in their said two briefs.
Thereafter, Judgment was reserved till today.
My learned brother, Obadina, J.C.A., has in the clearest and beautiful manner/way, set out the facts and the submissions of all the learned counsel for the parties in their respective briefs. I can hardly improve on these. The lone and single issue in this appeal as also identified and formulated by the appellant and the respondent, is whether the necessary parties who ought to have been joined, were joined in the petition especially, the presiding officers.
Therefore, whether the tribunal was right or justified in striking out the petition on the ground that it was incompetent for non-joinder of the necessary parties having regard to the pleadings/averments contained in the petition.
I have read the said contribution by Oguntade, JCA who identified the substance of the objections of the respondents as being that the paragraphs being objected to, relate to matters which did not constitute grounds for bringing a petition as set out under section 134(1) of the Electoral Act, 2002. That a close perusal of the paragraphs, reveals that the sting therein, is directed against the 1st respondent. That it is unarguable that the petition is deficient for non-joinder of the members of the Army and Police.
Said the learned Jurist, inter alia:
“Further, it is my view that apart from the statutory respondents under section 133(2) of the Electoral Act, only public officials actually concerned with the conduct of the election need be joined. See Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 at 499 of 27/6/2003. I therefore think that the non-joinder of the Army and Police does not vitiate the petition.” (Italics mine)
It could be seen that the learned Justice, with respect, recognized the need/importance of joining the statutory respondents under section 133(2) of the Act in which provision, the presiding officer, is mentioned as one of the statutory respondents.
In Buhari v. Yusuf (supra), the apex court – per Uwaifo, J.S.C., with respect, in unmistakable pronouncement, held that the persons who can justifiably be regarded as parties interested in the election petition are the petitioner(s) and the statutory Respondent(s). The learned jurist also stated that those who shall be joined to defend the petition in accordance with subsection (2), are the persons whose election (or return) is complained of, referred to as the respondents and any of the INEC officials mentioned in the subsection or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. That all such persons are regarded as statutory respondents and who only qualify as the necessary parties. These pronouncements, with profound respect and humility, are clear and unambiguous.
I have also read the said contribution of Salami, J.C.A. Although with respect, I do not agree or share his view that the words ‘or any person’ shall be construed to be of the same class, nature or kind with the preceding words ‘an electoral officer, a presiding officer, a returning officer’ in accordance with the principle of ejusdem generis. That the general words ‘any other person’ should be in relation to the official of the body conducting the election.
This is because, a collation officer, is not one of the statutory respondents but falls within the definition or words of ‘any other person who took part in the conduct of an election’.
However, in fairness to the learned jurist, he unequivocally stated (having regard to the substance of the objection), that the general words ‘any other person’ should not be construed widely, to include a police officer who is not at the polling station to conduct the election, but to maintain law and order nor a party agent who is equally not at the polling station to conduct the election rather, he is assigned there to supervise the conduct of the election on behalf of his party.
From the foregoing, Turaki, Esq., was right when he submitted orally, that the case of Alhaji Yusuf & Anor. v. Chief Obasanjo & Ors. (supra), is distinguishable from the instant case leading to this appeal.
The mandatory requirement of joining the statutory respondents of which presiding officers are one of them, under section 133(2) of the Act, has now been firmly established in a string of decided authorities. It needs no cosmetic embellishments. See the cases of Alhaji Jidda v. Alhaji Kachalla & 12 Ors. (1999) 4 NWLR (Pt.599) 426 at 433 CA; Lamido v. Turaki & 3 Ors. (1999) 4 NWLR (Pt.600) 578 at 580 CA; Mr. Nwankwo v.Alhaji Atta & 3 Ors. (1999) 5 NWLR (Pt.601) 134 at 137 CA; Alhaji Barau v. Alhaji Dansadau & 27 Ors. (1999) 12 NWLR (Pt.632) 653 at 660, 661 CA; A.P.P v. P.D.P (1999) 3 NWLR (Pt.594) 238 at 241 CA and Nwoke, Esq. v. Ebeogu & 2 Ors. (1999) 6 NWLR (Pt.606) 247 at 258 CA, etc just to mention but a few.
Going by the contents of the petition, the complaint in paragraphs 4 to 38 of the petition, in my respectful view, are against statutory officers and other persons not named in the petition as respondents or even necessary parties interested in the petition.
The tribunal was right when it held that presiding officers are necessary parties pursuant to section 133(2) of the Act. Surely, presiding officers whose conduct was complained of in almost all the paragraphs of the petition, should have also been joined. The non-joinder of the presiding officers, renders the said petition, incompetent. I so hold. This is because, all the voting, non-voting and 100% (one hundred per cent) voting, all emanated from the polling units in which the presiding officers are/were in-charge. See also paragraphs 4(1)(d), 47(1) and 49(2) of the First Schedule to the Act.
There is also the crucial or important issue of breach of fair hearing. The principle of law, is that no person shall be condemned or found guilty of an alleged offence or misconduct, without according or giving that person, the opportunity of defending himself/herself. See at least, the pronouncement of Belgore, J.S.C. in the case of Chief Egolum v. General Obasanjo & Ors. (1999) 7 NWLR (Pt.611) 355 at 397; (1999) 5 SCNJ 92.
It is in the light of the foregoing and the more detailed treatment of and the conclusion arrived at by my learned brother, Obadina, J.C.A., that I too find the appeal unmeritorious. I also dismiss the appeal and I abide by the consequential orders including costs as appear in the said lead judgment.
Appeal dismissed.
Appearances
Ibrahim N. Buba, Esq. (with him, I. B. Odigie, Esq.)For Appellant
AND
Eyitayo Jegede, Esq.
- D. Daagba, Esq..
- T. Turaki, SAN (with him, M. K. Aondakaa, Esq.,.
Esq., A. Malami, Esq., and A. T. Shehu, Esq.).For Respondent
