ALABI A. KAZEEM v. OYEJIDE GBADEBO KOLA & ORS
(2011)LCN/4317(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/I/EPT/HA/72/2008
RATIO
CONSEQUENCE OF THE ABSENCE OF THE RESPONDENTS AT THE HEARING OF THE APPEAL
The 74th and 75th respondents were absent at the hearing of the appeal. The 74th and 75th respondents were duly notified of the hearing of this case. Therefore, by virtue of the provisions of Order 17 rule 9(4) of the Court of Appeal Rules (2007), the 74th and 75th respondents are deemed to have duly adopted their brief and argued their case. Under the said Order and rule, this Court can safely conclude that the appeal has been duly argued and proceed to deliver judgment. See ODEJIDE V. FAGBO (2004) 8 NWLR (Pt.874) 1 and BOB-MANUEL v. BRIGGS (1995) 7 NWLR (pt.409) 537. PER MOORE A. A. ADUMEIN, J.C.A.
CONSEQUENCE OF THE NON-COMPLIANCE WITH THE PROVISIONS OF THE PARAGRAPH 4 (1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2006
The formal contents of a competent election petition are statutorily set out in paragraph 4 (1) (c) of the First Schedule to the Electoral Act, 2006. It is mandatory for the contents of a competent petition to include “the scores of the candidates and the person returned as the winner of the election.” In the case of ABIMBOLA V. ADEROJU (1999) 6 NWLR (Pt. 601) 100, the court while interpreting the provisions of paragraph 5(1) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, in pari moteria with paragraph 4 (1) of the First Schedule to the Electoral Act, 2006 held that a petition which failed to comply with the said provisions was incompetent and liable to be struck out. See also OFFOMAH V. AJEGBO (2000) 1 NWLR (Pt. 641) 498. PER MOORE A. A. ADUMEIN, J.C.A.
NON-JOINDER: WHETHER THE NON-JOINDER OF THE CANDIDATE, ELECTED AT AN ELECTION, TO THE ELECTION PETITION WILL RENDER THE ELECTION INCOMPETENT AB INTIO
It is clear, therefore, that OLAJIDE ADEYEYE ought to have been joined to the election petition as a mandatory statutory respondent. The non-joinder of such a principal statutory respondent made the appellant’s election petition incompetent ab intio and it ought to have been struck out. See TAFIDA V. BAFARAWA (19ss) 4 NWLR (Pt. 597) 70. and OJONG v. DUKE (2003) 14 NWLR (Pt.841) 581 at 589. The joinder of a statutory respondent, such as the candidate declared and returned elected in an election, is not a trivial matter to be consigned to the discretion of a petitioner. Apart from the mandatory statutory provisions of section 144(2) of the Electoral Act, 2005, common sense and the principles of natural justice, relating to fair hearing, demand that it is very unfair for a candidate, elected at an election, to have his election contested in a tribunal, and possibly have his return upturned, without making him a party or respondent to the petition. See NEC V. IZUOGU (1993) 2 NWLR (Pt. 295) 270 at 295, per SULU-GAMBARI, JCA. The law is very trite that the person declared by the electoral umpire as the winner of an election must be made a respondent to an election petition questioning his election. It is compulsory or mandatory for such a person to be made a respondent to the petition. See OKONKWO V. NGIGE (2006) 8 NWLR Pt. 981) 119. PER MOORE A. A. ADUMEIN, J.C.A.
COMPETENCE OF A COURT: WHETHER AN INCOMPETENT SUIT WILL AFFECT THE COMPETENCE OF A COURT
It is trite that if a suit is incompetent the court’s jurisdiction is affected thereby. Where the suit is not competent, the court lacks competence to entertain it. And an election petition is a suit. See DR. ALPHONSUS OJO V. INEC & ANOR. (2008) 13 NWLR (Pt. 1105) 577 at 513, per NWOSU-IHEME, JCA where His Lordship stated the law as follows: “The incompetence of a suit affects the competence of a court to try it, and lack of competence in a court affects the jurisdiction of the court. A court has jurisdiction to try a matter when the subject matter is within its jurisdiction, when the suit is initiated by due process and there is no feature therein which robs the court of its jurisdiction, and all the conditions precedent to the exercise of jurisdiction has been fulfilled. See MADUKOLU v. NKEMDILIM (1962) ALL NLR (pt. 2) 581 at 583; (1962) 2 SCNLR 341.” PER MOORE A. A. ADUMEIN, J.C.A.
JUSTICE
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ALABI A. KAZEEM – Appellant(s)
AND
OYEJIDE GBADEBO KOLA & ORS – Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): On the 14th day of April, 2007 the Independent National Electoral Commission (INEC) – the 3rd respondent in this case, conducted election to Irewole/Isokan Constituency of Osun State House of Assembly.
Alabi A. Kazeem, the appellant in this court was not satisfied with the result declared by INEC and he filed an election petition in the Election Petition Tribunal set up for Osun State. There were 75 respondents to the petition. The 1st and 2nd respondents to the said election petition were Oyejide Gbadebo Kola and Peoples Democratic Party (PDP), respectively. They are also the 1st and 2nd respondents in this Court.
The appellant’s petition was heard and dismissed on the 13th day of May, 2008 by the Election Petition Tribunal under the Chairmanship of HON. JUSTICE T. D. NARON (pages 385 – 410 of the record of appeal). The appellant was not satisfied and filed an appeal against the judgment of the tribunal (pages 411 – 422 of the record of appeal).
The appellant’s brief of argument, prepared by Ajibola Basiru, Esq. of counsel to the appellant, was filed on the 21st day of August, 2008. The brief of argument prepared on behalf of the 1st and 2nd respondents, by their learned lawyer – Olaitan Olabode Esq., was filed on the 15th day of September, 2008. The 74th and 75th respondents’ brief, settled by Leke Fadeju, Esq. (Senior State Counsel, Osun State) was filed on the 29th day of September, 2009.
At the hearing of the appeal, Mr, Basiru, learned counsel for the appellant, who distilled 8 (eight) issues in his brief, withdrew the 5th and 6th issues and they were accordingly struck out. He adopted and relied on his abridged brief and his reply brief and urged the Court to allow the appeal and set aside the judgment of the tribunal. The 1st and 2nd respondents also adopted their brief and urged the court to dismiss the appeal and affirm the judgment of the tribunal. The 74th and 75th respondents were absent at the hearing of the appeal.
The 74th and 75th respondents were duly notified of the hearing of this case. Therefore, by virtue of the provisions of Order 17 rule 9(4) of the Court of Appeal Rules (2007), the 74th and 75th respondents are deemed to have duly adopted their brief and argued their case. Under the said Order and rule, this Court can safely conclude that the appeal has been duly argued and proceed to deliver judgment. See ODEJIDE V. FAGBO (2004) 8 NWLR (Pt.874) 1 and BOB-MANUEL v. BRIGGS (1995) 7 NWLR (pt.409) 537.
In the tribunal, the 1st and 2nd respondents objected to the competence of the petition and it was also the 1st issue formulated by the tribunal: “Whether the petition before the Tribunal is competent” (page 395 0f the record of appeal). This issue was resolved by the tribunal at pages 396 – 398 of the record of appeal. The tribunal resolved that the petition was competent and, in so doing, the tribunal stated, inter alia, as follows:
“It is not under dispute that the petition under consideration is the one in which the 1st Respondent run as a candidate on the platform of the PDP and also called 5 witnesses. In as much as the petitioner ought to have brought an application to amend paragraph 5 of the petition to reflect the proper parties and Paragraphs 8 and 11 to reflect the name of the 1st Respondent as shown on page 1 of the petition, – we do not believe that such irregularity is Fatal enough to vitiate the entire proceedings thereby affecting the competence of the petition.”
(Page 398 of the record of appeal)
The tribunal arrived at its verdict because the 1st and 2nd respondents “admitted paragraphs 3 and 9 of the petition” in which the petitioner/appellant averred as follows:
“3. The 1st respondent was sponsored for the aforesaid election by the Peoples Democratic Party (PDP), the 2nd Respondent herein and was returned elected as the member of the Osun State House of Assembly for Irewole/Isoka constituency. The 2nd Respondent is one of the registered political parties in Nigeria.”
“9. The 4th Respondent has returned the 1st respondent as being duly elected and the winners (sic) of the House of Assembly election for Irewole/Isokan constituency in the Osun State House of Assembly in the said election.”
(Pages 2 and 3 of the record of appeal)
The interpretation one can give to paragraphs 3, 8, 9, and 11 of the petition is that PDP sponsored two candidates. In paragraphs 3 and 9 of the petition the candidate sponsored by PDP was the 1st respondent – OYEJIDE GBADEBO KOLA who was returned elected but without any votes specified. On the other hand, in paragraphs 8 and 11 of the petition, the person sponsored by PDP was OLAJIDE ADEYEYE who scored 33, 190 votes and was declared elected. If PDP sponsored two candidates for one and the same election, as it is apparent on the face of the election petition, it was incumbent upon the petitioner/appellant to join the one who scored a majority of the votes allegedly cast at the election and was declared winner.
Another strange and confusing aspect of the appellant’s petition is paragraph 5 thereof where the appellant pleaded thus:
“5. The 5th to 342nd Respondents are the agents or representatives of the 2nd Respondent who conducted the elections on behalf of the said Respondent as its field officers.”
(Page 3 of the record of appeal)
It is clear from the parties specified as respondents that the 4th to 75th respondents are officers, officials or members of staff of Independent National Electoral commission (INEC) – the 3rd respondent in the petition.
A community reading of paragraphs 3, 5, 8, 9 and 11 of the petition makes the petition very incongruous and only an amendment could have cured such incongruities.
By paragraphs 3 and 9 of the petition, it appears that the petitioner/appellant’s claim is that the 1st respondent, without mentioning his name in the body of the petition, was the person sponsored by PDP for the said election and returned as elected by the 4th respondent – Resident Electoral Commissioner, Osun State without stating the scores of the candidates. On the other hand, the averments in paragraphs 8 and 11 of the petition, specifically mentioned OLAJIDE ADEYEYE as the candidate of PDP who was returned elected at the disputed election and particulars of the votes scored by the said OLAJIDE ADEYEYE were given.
The facts pleaded in paragraphs 8 and 11 of the petition are that the candidates at that election were Alabi A. Kazeem of the Action Congress (AC), Olusegun Oyawusi of Alliance for Democracy (AD) and Olajide Adeyeye of Peoples Democratic Party (PDP). At the end of the election, Olajide Adeyeye of PDP was returned elected with 33, 190 votes while 10,469 votes were credited to Alabi A. Kazeem – the appellant. (Page 3 of the record of appeal). Without an amendment the issues joined in the body of the petition by the petitioner/appellant were clear – that the candidate of PDP was OLAJIDE ADEYEYE who scored 33, 190 votes against the 10, 469 votes scored by the petitioner/appellant and that the said OLAJIDE ADEYEYE was returned as the candidate elected at the said election. Any evidence to the contrary relates to facts not pleaded or is at variance with the pleadings and goes to no issue. See MUHAMMADU BUHARI & ANOR V. CHIEF OLUSEGUN AREMU OBASANJO & ORS (2005) 13 NWLR (Pt. 941) 1 at L93 where the Supreme Court, per BELGORE, JSC (as he then was, later CJN) held as follows:
“The appellants adverted to 14 states of the Federation where electoral malpractices took place but hardly offered evidence on them but went on to adduce evidence on states not pleaded and thus evidence on those unpleaded states went to no issue. Purpose of pleading is to afford the opponent the opportunity of knowing the case he faces, a matter not pleaded and offered only in evidence is an embarrassment to the opponent who was unprepared for it.”
It should be noted that paragraphs 8 and 11 of the petition conform with the contents of an election petition as mandated by statute. The formal contents of a competent election petition are statutorily set out in paragraph 4 (1) (c) of the First Schedule to the Electoral Act, 2006. It is mandatory for the contents of a competent petition to include “the scores of the candidates and the person returned as the winner of the election.” In the case of ABIMBOLA V. ADEROJU (1999) 6 NWLR (Pt. 601) 100, the court while interpreting the provisions of paragraph 5(1) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, in pari moteria with paragraph 4 (1) of the First Schedule to the Electoral Act, 2006 held that a petition which failed to comply with the said provisions was incompetent and liable to be struck out. See also OFFOMAH V. AJEGBO (2000) 1 NWLR (Pt. 641) 498.
In the absence of an amendment to the contents of the petition, the facts pleaded and issues joined remain as set out in paragraphs 8 and 11 thereof, in conformity with the requirements of paragraph (1)(c) of the First Schedule to the Electoral Act, 2006.
I have carefully read the record of appeal and all the processes filed in this case. The candidate of Peoples Democratic Party (PDP) allegedly declared winner of the contested election was one OLAJIDE ADEYEYE. In this respect, the appellant pleaded in paragraphs 8 and 11 of his petition (page 3 of the record of appeal) as follows:
“8. Your Petitioner state that the election was held on Saturday the 14th day of April, 2007 when Alabi A. Kazeem was the candidate to the Action congress and Olajide Adeyeye was the candidate of the 2nd Respondent.”
“11. Your Petitioner state that the results of the House of Assembly in the said election as announced by the 4th Respondent through the 5th Respondents are as follows:
Party Candidate Total No of Votes
Action Congress Alabi A. Kazeem 10,469
Alliance for Democracy Olusegun Oyawusi 1831
Peoples Democratic Party Olajide Adeyeye 33,190”.
As stated earlier, there were 75 (seventy – five) respondents to the petition but, curiously, OLAJIDE ADEYEYE was not listed or included as one of the 75 respondents. No amendment was made to the contents of the petition. The only biological person joined in the petition, as a respondent, is the 1st respondent – OYEJIDE GBADEBO KOLA. The alleged winner of the said election was, therefore, not a party to the appellant’s election petition and this is contrary to the provisions of section 144 (2) of this Election Act, 2005 which provides, inter alia, that “The person whose election is complained of is, in the Act, referred to as the Respondent…should be made a respondent to a petition questioning his election.
In the case of BUHARI V. YUSUF (2003) 14 NWLR (pt.841) 446, the Supreme Court while interpreting the provisions of section 133(2) of the Electoral Act, 2003 which is in pari materio with section 144(2) of the Electoral Act, 2006 held that two categories of respondents are provided for under this section. At pages 509 – 510 of the Law Report, the Supreme Court, per KASTINA- ALU, JSC (as he then was, now CJN) stated the position of the law as follows:
“I think the law is now settled. It is cardinal rule of interpretation of a statutory provision that it must be given its clear and ordinary meaning. Subsection 2 of section 133 of the Electoral Act which I have reproduced above provides for persons who may be respondents in an election petition. The first set of respondents is the person whose election is complained of. The second set is made up of an electoral officer, a presiding officer, a returning officer whose conduct the petition complains of and any other person who took part in the conduct of election. These are collectively referred as ‘statutory respondents.’ When subsection 2 speaks of the person whose election is complained of, it clearly did dot contemplate making any person a respondent except a (sic)
See also the case of IBRAHIM IDRIS V. ALL NIGERIA PEOPLES PARTY (ANPP) (2008) 8 NWLR (Pt. 1088) 1 at 89, per SANUSI, JCA.
For purpose of clarity, section 144(2) of the Electoral Act, 2006 is hereby reproduced as follows:
“The person whose election is complained of is, in this Act, referred to as the respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party: 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 avoid the petition if the Commission is made a party.” (Underlining mine).
It is very obvious that the intention of the legislature, under section 144 (2) of the Electoral Act 2006, is that non-joinder, as a respondent to an election petition, of the person declared elected in an election makes the election petition void and it should be avoided, accordingly.
It is clear, therefore, that OLAJIDE ADEYEYE ought to have been joined to the election petition as a mandatory statutory respondent. The non-joinder of such a principal statutory respondent made the appellant’s election petition incompetent ab intio and it ought to have been struck out. See TAFIDA V. BAFARAWA (19ss) 4 NWLR (Pt. 597) 70. and OJONG v. DUKE (2003) 14 NWLR (Pt.841) 581 at 589.
The joinder of a statutory respondent, such as the candidate declared and returned elected in an election, is not a trivial matter to be consigned to the discretion of a petitioner. Apart from the mandatory statutory provisions of section 144(2) of the Electoral Act, 2005, common sense and the principles of natural justice, relating to fair hearing, demand that it is very unfair for a candidate, elected at an election, to have his election contested in a tribunal, and possibly have his return upturned, without making him a party or respondent to the petition. See NEC V. IZUOGU (1993) 2 NWLR (Pt. 295) 270 at 295, per SULU-GAMBARI, JCA.
The law is very trite that the person declared by the electoral umpire as the winner of an election must be made a respondent to an election petition questioning his election. It is compulsory or mandatory for such a person to be made a respondent to the petition. See OKONKWO V. NGIGE (2006) 8 NWLR Pt. 981) 119.
It is trite that if a suit is incompetent the court’s jurisdiction is affected thereby. Where the suit is not competent, the court lacks competence to entertain it. And an election petition is a suit. See DR. ALPHONSUS OJO V. INEC & ANOR. (2008) 13 NWLR (Pt. 1105) 577 at 513, per NWOSU-IHEME, JCA where His Lordship stated the law as follows:
“The incompetence of a suit affects the competence of a court to try it, and lack of competence in a court affects the jurisdiction of the court. A court has jurisdiction to try a matter when the subject matter is within its jurisdiction, when the suit is initiated by due process and there is no feature therein which robs the court of its jurisdiction, and all the conditions precedent to the exercise of jurisdiction has been fulfilled. See MADUKOLU v. NKEMDILIM (1962) ALL NLR (pt. 2) 581 at 583; (1962) 2 SCNLR 341.”
The feature in the appellant’s election petition, which robbed the tribunal of its jurisdiction, is the failure to join OLAJIDE ADEYEYE – the candidate he claimed was declared winner of the election with 33, 190 votes. The appearance by the 1st respondent – OYEJIDE GBADEBO KOLA and his participation in the proceedings in the tribunal would not and did not, in the absence of amendment to the petition, confer competence on the incompetent election petition thereby conferring jurisdiction on the tribunal. See FIRST AMALGAMATED BUILDING SOCIETY LTD. & ANOR V. ALHAJA KUDIRAT IBIYEYE (2008) 14 NWLR (pt. 1107) 375 at 406 and CHIEF (DR.) PERE AJUWA & ANOR V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2008) 10 NWLR (pt. 1094) 64 at 96.
The failure by the appellant to join OLAJIDE ADEYEYE, the candidate claimed by him to have won the disputed election, is a fundamental flaw which goes to the competence of the petition. It is a jurisdictional issue which I cannot gloss over. For purpose of emphasis, I hold that the entire proceedings in the trial tribunal were incompetent, null and void. The tribunal was robbed of its jurisdiction to entertain the petition which was liable to be struck out. Therefore, this appeal is equally afflicted by the same incurable disease – lack of jurisdiction. In the case of NIGERIAN ROMANIAN WOOD INDUSTRIES LTD. V. J. O. AKINGBULUGBE (APPEAL No. CA/B/73/2009) decided on Tuesday the 7th day of December, 2010, the Akure Division of this Court held, per NGWUTA, JCA, as follows:
“The proceedings in the Court below are a nullity and this Court has no jurisdiction to determine the merit of appeal based on the void proceedings. It is my order that both the suit in the Court below and the appeal that arose from it be struck out as incompetent”
See also the case of DR. N. E. OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (pt. 1110) 335 at 353, where the Supreme Court, per TOBI, JSC, held as follows:
“I agree that a trial Judge has the jurisdiction to determine whether it has jurisdiction to try the case of a plaintiff based on the claim before it, and an appellate court has the jurisdiction to determine whether the trial court really has jurisdiction to hear the case. Where an appellate court comes to the conclusion that the trial court has no such jurisdiction, it will strike out the matter, thus removing it from the cause list of the trial court.”
In this appeal, I hold that the election petition being incompetent was liable to be struck out in the tribunal and it is hereby struck. This appeal is hereby, accordingly struck out.
I make no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A: I read before now the lead Judgment just delivered by my learned brother Adumein JCA and I agree with his Lordship’s resolution of the issues in the appeal.
In paragraph 11 of his petition the appellant stated:
“Your petitioner state (sic) that the results of the House of Assembly in the said election as announced by the 4th Respondent through the 5th Respondent are as follows:
Party Candidate No. of Votes
Action Congress Alabi A. Kazeem 10,469
Alliance for Democracy Olusegun Oyewusi 1,831
People Democratic Party Olajide Adeyeye 33,190
In paragraph 9 the appellant pleaded that:
“9 – The 4th respondent has returned the 1st Respondent as being duly elected and the winners (sic) of the House of Assembly election for Irewole/Isokan Constituency in the Osun State House of Assembly in the said election.”
The 1st Respondent is Oyejide Gbadebo Kola whose score, if any, was not stated in paragraph 11 of the petition and Olajide Adeyeye who scored a plurality of 33,190 votes and who must have been returned as elected was not listed as a respondent. Olujide Adeyeye should have been the one whose election is complained of and therefore a respondent in the petition under S.144 (2) of the electoral Act 2006. His non-inclusion as a respondent renders the petition incompetent. See A.A. Maikori v. Dabo Mohammed Lere & Ors. (1992)2 LREGN 125 at 126.
The Tribunal or Court cannot validly make an order or give a Judgment that will affect the interest of a person that is not a party to the case and who was never heard in the matter. See Anya V. Iyagi (1988) 3 NWLR (Pt. 82) 359 CA.
For the above and the fuller reasons in the lead Judgment, I also strike out the Appeal as incompetent.
I make no order for costs.
CHINWE E. IYIZOBA, J.C.A: I have read before now the judgment just delivered by my learned brother, Adumien J.C.A and I agree with the reasoning and conclusions reached in the judgment.
Elections petitions are sui generis. Any slight error in complying with the provisions of the Electoral Act could be fatal to the petition. See the case of Awuse v. Odili (2004) 8 NWIR (Pt. 876) 481 @ 519.
This election petition is indeed a very strange one. The person said to have won the election in the body of the election, precisely in paragraphs 8 & 11 of the petition – Olajide Adeyeye, the PDP candidate who scored 33,190 votes as against the petitioner’s 10,469 votes was not made a party to the election petition. The person named as 1st respondent in the petition is Oyejide Gbadebo Kola. In the face of this grave error, the lower tribunal refused to declare the petition incompetent on the ground that the 1st respondent Oyejide Gbadebo Kola admitted in his reply that he was the one sponsored by PDP to contest the election and was returned as duly elected. Notwithstanding this admission, in so far as no amendment was effected to substitute Olajide Adeyeye with Oyejide Gbadebo Kola, the fact remained that in the petition, the winner and duly elected candidate of PDP Olajide Adeyeye was not made a party in the election petition. There is no getting around the problem. While it is true that the current trend of this court has been to construe the provisions of the Electoral Act in a manner that reflects the need to do substantial justice, the problem created by the omission to effect the necessary amendment has created a problem that is insurmountable. The petition is incompetent and the trial tribunal had no jurisdiction to entertain the petition. I abide by adding judgment.
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Appearances
AJIBOLA BASIRU, ESQ.For Appellant
AND
OLAITAN OLABODE, ESQ.
LEKE FADEJU, ESQ.For Respondent
