BABANGIDA IBRAHIM V. BATURE UMAR & ORS
(2011)LCN/4820(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of October, 2011
CA/K/EPT/NA/8/2011
RATIO
INTERESTED PARTY TO AN ELECTION PETITION: THE OPTIONS AVAILABLE TO A PERSON WHO IS NOT A PARTY TO AN ELECTION PETITION BUT WHOSE INTEREST IS DIRECTLY IN ISSUE
… the Supreme court in Bello v. INEC (2010) 8 NWLR Pt.1196 p.342 held that a person who was not a party to an action but whose interest is directly in issue has two options open to him: ”1. It may stay put and decided to abide by the judgment of the trial court particularly being responsible in the first place for forwarding the name of the Appellant to contest the election as it candidate or 2. Apply to the same trial court for leave to appeal to the Court of Appeal within the time prescribed for appealing against the judgment or after the expiration of that time, apply to the Court of Appeal for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the judgment as a person having an interest in the matter”. It is crystal clear that the Appellant did not appeal against the ruling of the Tribunal delivered on 5/7/11, yet one of the reliefs he sought for in this appeal is for an order setting aside the Ruling of the Court below dated 5th July, 2011. Needless reiterating the long aged principle of law that leave of court ought to be obtained where the person whose interest was affected by the decision of the court ought to be obtained before joining as a party, and, appealing as a party interested. Leave is also required in circumstances where the rights of the parties were not finally determined in a proceeding i.e. interlocutory. There was no manifestation of procurement of the leave of either the lower Tribunal or this court to file this appeal, and that alone endangered the sustenance of the Appeal. The only natural consequence of such neglect is striking out if the process by the court for being incompetent. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
INTERESTED PARTY: WHETHER A PERSON AFFECTED BY ORDER OR JUDGMENT OF A COURT OR TRIBUNAL IN A CASE WHICH HE WAS NOT A PARTY TO, MAY APPLY TO THE SAME TRIAL COURT OR TRIBUNAL TO BE ALLOWED TO APPLY SET ASIDE THE SAID JUDGMENT OR ORDER
It is a long agreed principle of law that where a court made an order or gave a judgment against a person who was not a party in the case, the person so affected may apply to the same trial Court or Tribunal to be allowed to apply set aside the said judgment or order of the court entered in the case. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
JURISDICTION OF THE ELECTION TRIBUNAL: WHETHER THE JURISDICTION OF THE NATIONAL AND STATE HOUSE OF ASSEMBLY ELECTION TRIBUNAL IS CIRCUMSCRIBED BY THE PROVISIONS OF THE SECTION 285 OF THE 1999 CONSTITUTION (AS AMENDED)
The Original jurisdiction of the National and State House of Assembly Election Tribunal, Katsina State is circumscribed by section 285 of the 1999 Constitution (as Amended), meaning, therefore, that nobody was adorned with any minutest power to enlarge the said jurisdiction except as prescribed by the same constitution. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
ELECTION TRIBUNAL: WHETHER AN ELECTION TRIBUNAL HAS JURISDICTION OVER ISSUES ARISING OUT OF THE NOMINATION AND SUBSTITUTION EXERCISE OF A POLITICAL PARTY
The appeal, at hand, suggest tersely, that a substitution was allegedly made, which arose out of the exercise by the 6th Respondent of its power of nomination/substitution. As distinctly asserted by the Supreme Court in PDP v. Onwe (2011) 4 NWLR Pt.1236 p.166, the nomination/substitution exercise of a party is clearly an intra-party/pre-election issue which has nothing to do with an election and, over which, an Election Tribunal has no jurisdiction. Being a pre-election matter, only the Federal High court or State High Court had jurisdiction. It was further stressed that any judgment delivered by Election Tribunal on a pre-election matter is a nullity and that appeal on issues of substitution, terminates in the Supreme Court as the Supreme Court has the jurisdiction to make the pronouncement on pre-election matters, i.e. substitution. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
BABANGIDA IBRAHIM Appellant(s)
AND
1. BATURE UMAR
2. PEOPLES DEMOCRATIC PARTY
3. ABDULAZIZ LABO
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
6. CONGRESS FOR PROGRESSIVE CHANGE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment): In the Election Petition filed by the 1st and 2nd Respondents on the 29th April, 2011 before the National and State House of Assembly Election Tribunal, sitting at Katsina, the following reliefs were sought, that is to say; (i) the 1st Respondent, i.e. the 3rd Respondent in this Appeal, was not duly elected by majority of lawful votes cast at the election; (ii) the 1st Petitioner, that is to say; the 1st Respondent herein who scored the majority of lawful votes at the election be declared validly elected and returned the winner of the election; or, In the Alternative to (i) and (ii) above; that (iii) the 1st Respondent, i.e. the 3rd Respondent hereat was not duly elected or returned and (iv) the election of the 1st Respondent was null and void and a fresh or bye-election ordered to be conducted by the 2nd Respondent, i.e., the 4th Respondent in the appeal, for the Malumfashi/Kafur Federal Constituency.”
It is evident on the record of appeal before this court, that the Appellant, originally, was not a party to the said Petition filed by the 1st and 2nd Respondent at the Lower Tribunal on the 29th April, 2011.
Interestingly, and, on the 13th June, 2011, the 1st and 2nd Respondent herein, lodged with the trial Tribunal against the Appellant, a Motion on Notice seeking thus:
”1. An order setting aside the Certificate of Return issues by INEC on the 11th day of May, 2011 to one Babangida Ibrahim a purported candidate of the 4th Respondent and any action taken pursuant to the said Certificate.
2. An injunction restraining INEC by itself, its servants, agents, officers and any other person whomsoever from issuing a Certificate of return to any person in respect of the election to the House of representatives for the Malumfashi/Kafur Federal Constituency held on the 9th day of April, 2011 pending the hearing and determination of the Petition.
3. An order that the status quo among the parties as at 29th day of April, 2011 the date when the petition was filed be maintained by the parties pending the hearing and determination of the Petition.
The said motion was anchored on the grounds that;
”1. The Petitioner filed this Election petition dated 29th April, 2011 on the same date against the 1st Respondent, ABDULAZIZ LABO (whom INEC declared as the winner of the election on Form EC8E (i) and the other Respondents.
2. Subsequent to the filing of the Election Petition, INEC on the 11th day of May, 2011 without any judgment or order from the Election Tribunal or any other court of competent jurisdiction, issued the Certificate of Return in respect of the Election to a completely different person, one Babangida Ibrahim, a purported candidate of the 4th Respondent who did not feature in the Form EC 8E(i) for th election .
3. The 2nd and 3rd Respondents’ action aforesaid is tantamount to ”executive lawlessness” intended to overreach the Tribunal, present it with a fait acompli and render its judgment or orders in the Petition nugatory and futile.
4. The Honourable Tribunal has inherent powers to preserve its jurisdiction and the res and ensure that no person or authority undermines or frustrates lawful proceedings before it”.
The facts supporting the said Motion on Notice were deposed to by one Ahmed M. Danbaba, the Katsina State Legal Adviser to the 2nd Respondent in the fourteen paragraph affidavit filed along with the same, and, a further affidavit of four paragraphs. Counter-affidavits were respectively filed by the 2nd and 3rd Respondents. After consideration of the facts presented by the parties and determination of the prayers and issues raised, the trial Tribunal, narrowed the issues therein to; ”whether the Appellant was a candidate in respect of the election to the House of Representatives for Malumfashi/Kafur Federal Constituency held on the 9th April, 2011”. The Tribunal expressed that the said 2nd and 3rd Respondents, i.e. the 4th and 5th Respondents in this appeal did not furnish it with any documentary evidence establishing that the Appellant participated in all the processes of the election, and, was issued with Certificate of Return. It remarked that issuing a Certificate of return to a person who never won an election is a contravention and flagrant violation of section 75 of the electoral Act, 2010 As Amended. The Tribunal then ordered thus:
”1. The Certificate of Return issued by INEC to one Babangida Ibrahim as purported candidate of the 4th Respondent and any action taken pursuant to the said Certificate is hereby set aside, having not been the candidate or winner at the election held on the 9th of April, 2011 for Malumfashi/Kafur Federal Constituency.
2. In compliance with section 75 of the Electoral Act 2010 (as amended), the 2nd and 3rd Respondent are hereby directed to issue the Certificate of Return to Abdulaziz Labbo who was declared as winner of the Malumfashi/Kafur Federal Constituency in the election held on 9th April, 2011 by virtue of Exhibit B1, that is, the declaration of result form, pending the hearing and determination of this Petition.”
Finding the said pronouncement so outrageous, the 2nd, 3rd and 4th Respondents in the said Petition, instantly, lodged their respective appeals against the same.
It is instructive to note that the present Appellant was equally not a party to the said motion filed on the 13th June, 2011 and determined on the 5th July, 2011, allegedly affecting his interest. In consequence thereof, he filed a Motion on Notice dated the same 5th July, 2009, on the 6th July, 2011. In the said Motion he prayed for the following reliefs:
”1. AN ORDER of the Honourable Tribunal setting aside its RULING/ORDERS delivered on the 5thday of July, 2011 in this petition in the absence of the applicant.
ALTERNATIVELY
1. AN ORDER of the Honourable Tribunal granting leave to the applicant to appeal as an interested party against the RULING/ORDERS of the Honourable Tribunal delivered on 5th day of July, 2011 in this petition.
2. AN ORDER of the Honourable Tribunal staying the execution of the orders given in its ruling delivered on the 5th day of July, 2011 in this petition”.
The Appellant x-rayed the facts upon which the reliefs were hinged in the affidavit of five paragraphs deposed to by one Folashade Lawal, the secretary in the Law Firm of Usman Kabiru & Co, the Appellant’s Solicitor. The said application was strongly opposed by the Petitioners/Respondents therein. During its deliberation, the trial Tribunal carefully considered the provisions of section 137 of the Electoral Act, 2010 (as Amended), which in clear terms, stated, on the one hand, the person who may present an election Petition, that is to say, a candidate at the election, a political party which participated in the election, and, on the other hand, the statutory respondent to the election, i.e. the person whose election is complained of. The Tribunal further, took cognizance of the Supreme Court decision in Buhari v. Dikko Yusuff & anor (2004) 1 EPR p.1 at 24 which declared that parties interest in the election Petition are the Petitioners and Statutory Respondents. It equally, considered the consequences of filling an application for (1) leave to appeal against the ruling of the Tribunal outside the 14 day period prescribed by section 24 of the Court of Appeal Act and (2) stay of execution of the said order of the Tribunal in the absence of filing a Notice of Appeal, and then dismissed the said Motion on notice filed by the Appellant herein.
In consequence thereof, the Appellant filed this appeal which he, arguably, rooted in the seven grounds of appeal adumbrated in the Notice of Appeal dated 12/8/2011 and filed on the same date.
It must be mentioned that at the hearing of this appeal, no reference whatsoever was made to the other Notice of Appeal filed by the 4th, 5th and 6th Respondents in this appeal. The only appeal heard on 21/9/2011 by this court was the one filed by the Appellant.
In the Amended Appellants’ Brief of Argument dated the 19th September, 2011, settled by Suleiman Usman Esq. And adopted before this court by the same counsel on 21/9/2011, only two issue out of the Appellants’ seven grounds of appeal were propositioned for he determination of this court, that is to say;
”1. Whether in the circumstances of the Petition and Motion dated 13th June, 2011 particularly the prayers sought in the Motion, the Honourable Tribunal has the requisite jurisdiction to entertain the motion dated 13th day of June, 2011 and grant same without hearing Babangida Ibrahin who was not joined in the Petition nor served with the said Motion.
2. Whether the Appellant has shown sufficient interest to be entitled to the reliefs sought on Motion dated 5th day of July, 2011 and filed 6th July, 2011 seeking for inter alia an order setting aside the Ruling Orders/orders of the Tribunal delivered on 5th day of July 2011 from the Tribunal and the ruling is not against the weight of evidence.
Upon receipt of the Appellants’ Brief of Argument, the 1st and 2nd Respondents filed a Notice of Preliminary Objection challenging the competency of the appeal filed by the Appellant which they pivoted on five grounds thus;
i. The Appellant has no legal grievance to ground, sustain or maintain the appeal.
ii. The Appellant who was not a party to the proceedings before the Election Tribunal failed to obtain the leave of the court to appeal as a person having an interest in the matter.
iii. The Appellant framed two issues out of Ground 2 which is tantamount to proliferation of issue which renders the two issues for determination framed by the Appellant incompetent.
iv. The Appellant did not frame any issue from Grounds 3, 5 and 6 of the Notice of Appeal.
v. The said Grounds are therefore deemed abandoned and liable to be struck out.
In the alternative, and in the event of their preliminary objection being overruled, the 1st and 2nd Respondents raised one issue to be determined in his appeal, i.e.;
”whether the election Tribunal was right when it refused to set aside its ruling date 5th July, 2011, setting aside the Certificate of Return issued by the 4th and 5th Respondents to the Appellant Babangida Ibrahim on 11th may, 2011 during the pendency of the Election Petition filed on 24th April, 2011”.
Further, the 3rd Respondent filed a Notice of Preliminary Objection which was incorporated in his Brief of Argument. The Preliminary Objection challenged the competency of the appeal on the ground that;
”1. Grounds 3, 4, 5 and 6 of the Appellant’s grounds of Appeal do not derive inspiration from the ruling of the Honourable Tribunal delivered on the 11th day of August, 2011, which is the subject of this Appeal.
2. The Appellant has not framed any issue for determination from grounds 1, 3, 4 5 & 6 of the grounds of Appeal contained in the Notice of Appeal dated 12th August, 2011.
3. Issue one framed by the Appellant is not predicated on any ground of appeal contained in the Notice of Appeal filed by the Appellant dated 12th August, 2011.
4. The Honourable Court is urged to strike out grounds 1, 3, 4, 5 and 6 of the grounds of Appeal as well as issue one formulated by the Appellant.
5. Grounds 3, 4, 5 and 6 of the Appellants grounds of Appeal contained in the Notice of Appeal dated 12th August, 2011 are not..?”.
Nevertheless, the 3rd Respondent postulated two issues for consideration by this court in the event of his preliminary objection being overruled, they are:
”a. Whether the National and State House of Assembly Election Petition Tribunal in Katsina State was right when it held that based on the processes before it and in line with authorities, the Appellant did not demonstrate sufficient interest worthy of protection.
b. Whether the Honourable tribunal showed proper appreciation of the issues and arrived at a decision that meets the justice of the case”.
Then the 4th and 5th and 5th Respondents in their Brief of Argument propositioned two issues for determination thus:
”1. Whether the Honourable Tribunal was right in law to make an order against Ho. Babangida Ibrahim, a holder of Certificate of return, the present member of the House of representatives for the Constituency in question who was not on notice to an application before it?
1. Whether the Tribunal was right to have refused the Appellant’s application at the trial in the circumstances of the petition?”
It is imperative to note that the 6th Respondent did not file any Brief of Argument. The Rule of this Court, by order 18 Rule 10(1) says that where a Respondent failed to file his Brief, he will not be heard in oral argument, therefore, the issue whether the 6th Respondent aligned itself with the argument of the Appellant or not, is immaterial.
Then, submitting in respect of both the 1st and 2nd Respondent’s first ground of preliminary objection, their learned Counsel, Uyi Iguma Esq; invoked the decisions in the cases of F.B.N. (Nig.) Plc v. Akparabong Community (2006) All FWLR PART 319 p.927 at 965, C-F, Bellview Airlines Ltd. v. Aluminum City Ltd. (2008) All FWLR Pt.434 P.1599 at 1611 paragraphs G – H, section 75 of the Electoral Act, 2010 (as Amended) and Ngige v. Obi (2006) LRECN P.1 at 60B – 62A; and, strongly contended that the Appellant, not being the person declared the winner of the election by the 4th Respondent as evidenced by INEC FORM EC8E(i) (declaration of result for the Election), has no right to demand for the Certificate of return. He stressed that the Appellant has no legal grievance to ground, sustain or maintain the appeal.
In respect of ground No.2, it was, in elaborate terms, expressed that where an appeal requires leave of court to be obtained, and the same was not sought and obtained, such appeal is incompetent and ought to be struck out. Learned Counsel made reference to Ngige v. Obi (2006) LRECN P.1 at 60D – 61 D and Ekwerekwu v. Egboche (2010) 14 NWLR Pt.1213, 194 at 206 paras. D – F, and 207, paragraphs C – D and section 143 of 1999 Constitution of Federal Republic of Nigeria (as Amended) to buttress the point.
Regarding ground No. 3, Learned Counsel placed reliance on the cases of ndukwe v. Okonkwo (2005) AlL FWLR Pt.243 P.711 at 720, Pharma Deko PLC v. N.S.I.T.F.M.B. (2011) 5 NWLR Pt. 1241 p.431 at 446 paragraphs B- D and Olateju v. Commissioner for Lands and Housing, Kwara State (2010) 14 NWLR Part 1213 p.297 at 314 paragraphs A – D, and, emphasised that the Appellant was unauthorized in law to formulate two issues from one ground of appeal, and, as such, the said two issues formulated from ground No. 2 of the Notice of Appeal are incompetent and liable to be struck out. He further drew attention to grounds Nos. 1, 4, and 7 which were discussed together with ground no.2, and, claimed they had been contaminated by so doing and, ought to be struck out as well.
On ground No.4, Counsel critically observed that no issues emanated from grounds Nos. 3, 4, 5 and 6 of the Notice of Appeal, they seemed abandoned, and should, therefore, be struck out. He relied on Makinde v. Adeogun 92008) 3 LRECN p.355 at 366 paragraph B – D, Imam v. Sheriff (2004) 1 LRECN p.62 at 99 – 100, paragraphs G – B, and Ojukwu v. Yar’ adua (2007) LRECN p.401 at 411, paragraph F and urged that the said grounds be struck out.
Under ground no.5, it was alleged that grounds Nos. 3, 4, 5 and 6 did not relate to or arise from the ruling of the trial Tribunal delivered on 11/8/2011. They, surprisingly, attacked the ruling of the Election Tribunal handed down on the 5th July, 2011 which the Appellant did not appeal against. Learned Counsel cited Ololade v. INEC (2008) 3 LRECN p.480 at 497 – H – E, Pharma Deko Plc v. N.S.I.T.F.M.B. (2011), 5 NWLR Pt. 1241 p.431 at 446 paragraph A – B and Ndukwe v. Okonkwo (2005) All FWLR Pt.243 p.711 at 720 paragraphs C – E, and submitted that the said grounds are, therefore, incompetent and, should be struck out.
The argument tendered on behalf of the 3rd Respondent in respect of his preliminary objection by his Learned Counsel, Festus Okoye Esq., is a replica of the argument marshalled by Counsel for the 1st and 2nd Respondents in respect of theirs; therefore, it would be unattractive reiterating it hereat. It may, somehow, be necessary to mention that the cases of Ikweki v. Ebele (2005) All FWLR Pt. 257 p.1401 at 1420 paragraphs C E, Martins v. C.O.P. (2005) All FWLR Pt.278 p.1075 at 1089 paragraphs E – F, and Ebukuyo v. Obolo (2007) All FWLR Pt.372 p.1902 at 1907 – 1908 paragraphs H – A, were referred to by counsel in urging this court to strike out grounds Nos. 1, 3, 4, 5 and 6 of the Appellant’s grounds of appeal and issue No.1 formulated by the Appellant.
However, in their response, the Appellant shifted the focus of this Court to the stipulations in section 242 of the constitution of the Federal Republic of Nigeria (as Amended) which guaranteed right of appeal to any litigant who is not satisfied with the ruling of judgment of a Tribunal or Court either on the ground of law, mixed law and facts or facts alone. He then, contended that the Appellant cannot be deprived of the said right without him being made a party, particularly, where the decision offended the principles of natural Justice i.e. audia alteram partem and fundamental rights of fair hearing. Learned Counsel cited the case of PDP v. INEC (1999) 11 NWLR Pt.626 200 at 241 paragraphs D – G, 265 paragrapgs C – D; Udosen v. NECON (1997) 5 NWLR Pt.506 p.570 at 585-537 paragraphs F- H; Ndigwe v. Nwude (1999) 11 NWLR Part 626 314 at p.338 – 339 paragraphs G – B, 339 F – H; Umanah v. Attah (2006) 17 NWLR Pt. 1009 p.503 at 537, paragraphs F-H, Sken Consult v. Ukey (1981) 1 S.C. 6; Madukolu v. Nkedilim (1962) 2 SCNLR 341, and, Agbaso v. Ohakim (2008) 1 LRECN 317 at 355 paragraphs C – E, and, said it was wrong for the 1st, 2nd and 3rd Respondents to have argued that the Appellant had no legal grievance to ground or sustain the appeal.
He further relied on Agbogu v. Okoye (2008) All FWLR 414 p.1525 and Ibrahim v. Dailey (2000) ALL FWLR Pt.494 p.1577 at 1584, paragraphs A – C and submitted that justice cannot be done or seen to be done if all parties, either necessary, interested or nominal, are not given fair hearing or treated with fairness in the determination of the petition.
I have examined in great dept, the preliminary objections raised by the 1st and 2nd Respondents on the one hand, and, that of the 3rd Respondents on the other hand. Needless, dissipating the energy of the court on considerations of the respective objectives of the parties, since it was copiously demonstrated in the Appellant’s Brief of Argument, that only issue No. Emanated from Grounds No.2 and 7 of the Appellant’s Notice of Appeal.
It is glaringly obvious that Ground no.1 of the Appellant’s Notice and Ground of Appeal has no nexus whatsoever with any of the issues distilled by the Appellant in his Brief of Argument. Ground Nos. 3, 4, 5 and 6 are rootless, since they did not originate from the ruling of the National and State House of Assembly Election tribunal sitting in Katsina, delivered on the 11th August, 2011. They centered on the said Tribunal’s ruling delivered on the 5th July, 2011 in connection with the Motion on Notice filed by the 1st and 2nd Respondents on 13/6/11, and, to which the Appellant was not a party. Accordingly, Grounds Nos. 1, 3, 4, 5 and 6, of the Appellant’s Notice of Appeal will be and are hereby struck out, thereby leaving only grounds No.2 and 7.
A careful study of issue No. 1 indicates that it was originally hinged on the grounds of appeal Nos. 3, 4 and 5 relating to the Motion dated 13/6/11, and, in respect of which ruling was delivered by the Tribunal on 5/7/11. Since that said grounds had been struck out, issue No.1 formulated therefrom is liable to be struck out. Consequently the same is hereby struck out, then leaving for determination before us, only issue No.2.
However, ground No. 2 of the objection, alleged that the Appellant failed to obtain the leave of Court before filing this appeal. Unfortunately, no response was articulated by the Appellant in this direction in his Reply brief, but that would not preclude this court from considering the merit of t his ground of objection.
It is axiomatic that in circumstances where a party is mandated by the Rules of Court to obtain leave of either the lower court or the Appellate Court before lodging an appeal, against a certain class of the court’s decision, and, he failed to obtain such leave shall be incompetent and liable to be struck out.
As I earlier highlighted, the present Appellant was not a party to the Election Petition filed by the 1st and 2nd Respondents at the trial Tribunal. His name was neither contemplated nor mentioned in the Petition as clearly borne out in the facts averred in the said Petition. By the record of appeal, the said petition was dated and filed on the 29th April, 2011. The Declaration of result of Election Form EC8E (i) for election to the membership of the House of representative issued by the 4th Respondent and dated 10th April, 2011 did not, and, does not contain the name of the Appellant. The Appellant never featured as a candidate at the said election, nor, as a person declared to have won the result of the said election. Furthermore, the petition did not depict him as a person interested or going to be affected by the decision of the Tribunal over the Election Petition.
Nevertheless, an inexplicable scenario reared its head, when, on the 11th may, 2011, after the said election, and, about one month after the 3rd Respondent was allegedly declared as the winner of the April, 9th 2011, election, and, 12 days after filing of the Petition by the 1st and 2nd Respondents at the lower Tribunal, the Appellant, was from the blue, issued with a Certificate of return in respect of the said election.
It is discernible from the Motion filed by the 1st and 2nd Respondent on 13/06/11 that the prayers sought therein targeted the 4 Respondent in this appeal and obviously affected the right of the 6th Respondent regarding nomination/substitution of its candidates at the said election. The said motion was originated to set aside the said Certificate of Return issued by the 4th Respondent to the Appellant.
The second order made by the Tribunal on 5/7/11 was to the effect that the 4th Respondent shall issue a Certificate of return to the 3rd Respondent pending the hearing and determination of the Petition, signifying therefore, that the rights of the parties regarding the Certificate of Return had not been finally determined.
But, as far as the Petition before the Tribunal was concerned, the Appellant was not a party to it, particularly, where the Electoral Act, 2010 never envisaged making any person, who emerged as a holder of Certificate of Return from circumstances such as the one that produced the Appellant, a party to an election petition proceeding. In any case, the Supreme court in Bello v. INEC (2010) 8 NWLR Pt.1196 p.342 held that a person who was not a party to an action but whose interest is directly in issue has two options open to him:
”1. It may stay put and decided to abide by the judgment of the trial court particularly being responsible in the first place for forwarding the name of the Appellant to contest the election as it candidate or
2. Apply to the same trial court for leave to appeal to the Court of Appeal within the time prescribed for appealing against the judgment or after the expiration of that time, apply to the Court of Appeal for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the judgment as a person having an interest in the matter”.
It is crystal clear that the Appellant did not appeal against the ruling of the Tribunal delivered on 5/7/11, yet one of the reliefs he sought for in this appeal is for an order setting aside the Ruling of the Court below dated 5th July, 2011.
Needless reiterating the long aged principle of law that leave of court ought to be obtained where the person whose interest was affected by the decision of the court ought to be obtained before joining as a party, and, appealing as a party interested. Leave is also required in circumstances where the rights of the parties were not finally determined in a proceeding i.e. interlocutory.
There was no manifestation of procurement of the leave of either the lower Tribunal or this court to file this appeal, and that alone endangered the sustenance of the Appeal. The only natural consequence of such neglect is striking out if the process by the court for being incompetent.
I would have been inclined to striking out this appeal but somehow I am gravitated to, anxiously, considering the issues raised for determination of this court.
The said Motion filed on 13/6/11 dealt with a different dimension of the entire process whatsoever that had no connection with post election issue. Whether it was explicitly stated or not, the said Motion orders purely on who was the nominated candidate of the 6th Respondent at the 9th April, 2011 election into the Malumfashi/Kafur Federal Constituency, and possible substitution of the candidate by the 6th Respondent. It was therefore sequel to granting of the said Motion dated 13/06/11 that the Appellant, who was completely a stranger to the petition filed his Motion dated 05/07/00 on 06/07/11 as an interested party.
It needs be straightened out that the fact said Election Petition Tribunal nosedived into making the order it made on the 5th July, 2011 against the Appellant’s interest, in respect of an issue that border on the nomination/substitution of candidates at the said election of 9th April, 2011, by the 4th Respondent did not automatically confer on the Appellant the right to apply and describe himself as an interested party in the proceeding and then be joined.
It is a long agreed principle of law that where a court made an order or gave a judgment against a person who was not a party in the case, the person so affected may apply to the same trial Court or Tribunal to be allowed to apply set aside the said judgment or order of the court entered in the case.
As clearly articulated earlier, the only live issue for the resolution of this court is the Appellant’s former issue No.2, that is to say:
”Whether the Appellant has shown sufficient interest to be entitled to the relief sought on motion dated 5th July, 2011 and filed 6th July, 2011 seeking for inter-alia an order setting aside the Ruling/Orders of the Tribunal delivered on the 5th July, 2011 from the Tribunal and the ruling is not against the weight of evidence”
Learned Counsel for the Appellant in his submission, reproduced the paragraphs of the main affidavit in Support of his Motion on Notice filed on 6/7/11 paragraphs of his further and better affidavit sworn to by one Suleiman Usman Esq., and, stated that when the averments therein are considered together with Exhibits 1 – 7 attached to the further and better affidavit filed by the 1st Appellant at the lower Tribunal, it will be clear that sufficient interest was shown by the Appellant to warrant the grant of his application. He cited the cases of Fatoyinbo v. Williams (1956) 5 SCNLR 274, Lawal v. Dawodu (1972) 1 All NLR (pt.2) p. 270, and Okpala v. Umeh (1976) NSCC Vol. 10 S19 and urged this court to re-evaluate the facts and evidence adduced by the parties. Learned Counsel commented on the name depicted on the alleged INEC Form EC8E(i), and, the name of 3rd Respondent as shown on the processes filed in the appeal, and, stated that the proper thing the 1st and 2nd Respondent ought to have done was joining the Appellant and the 3rd respondent as parties in the case as was done in the case of Emeka v. Amobi (2004) 16 NWLR Pt.908 P.433 AT 444 paragraphs C- D, at 452 paragraphs D – E, and Obiekwe v. Obi (2005) 10 NWLR.
Counsel further mentioned Jang v. INEC (2004) 12 NWLR Pt.886 P.46 at 66 paragraphs E – H, sections 364 of the constitution of Federal Republic of Nigeria, and 137 of the Electoral Act, and, then stated that a candidate means; a person who has been nominated by this party to the Independent National Electoral Commission. He further made reference to PPA v. Saraki (2007) 17 NWLR Pt.1064 P.453 at 513 paragraphs G – H and sections 150 (1) and (2) of the Evidnece Act and 75(1) of the Electoral Act, 2010 and stressed that the Certificate of Return was given to the Appellant upon his being declared the winner of the election. He referred to Buhari v. Obasanjo (2005) 13 NWLR Pt.941 P.1 on presumption of law, and then urged that the appeal be allowed.
I would focus immediately on the latter part of the 1st and 2nd Respondent’s brief of Argument where the Counsel contended that the appellant was not a candidate of the 6th Respondent at the election, and, was never declared the winner of the election.
Counsel invoked the provisions of section 137 of the Electoral Act, 2010 (as Amended) and unequivocally stated that the Appellant was not an interested party in the Petition who ought to have been before the lower court of tribunal for effective determination of the said motion filed. He argued that by sub-section (2) of section 137, the 3rd Respondent being the person declared the winner of the election; was the only person whose election can be complained of, and, be made a necessary Respondent. He stated that the Appellant having not been declared the winner of the election cannot be the Respondent whose election is complained of. He is, therefore, not a necessary or a desirable party to the Petition, and since was not a party or a necessary party to the election petition, his right to fair hearing was not in issue and was not violated. He then urged this court to discountenance the Appellant’s argument on the issue of fair hearing as being misconceived and mischievous, and, then dismiss the appeal
It must be emphasized that due to this Court’s decision on the preliminary objection reached by the 1st and 2nd Respondent on the one hand and the 3rd Respondent on the other hand, which resulted to this Court striking out all the other grounds except grounds Nos. 2 and 7 of the Appellant’s Notice of Appeal, it would, therefore, be impudent to consider the respective submissions of Counsel for the 1st and 2nd Respondent, the 3rd Respondent, and the 4th and 5th Respondents on the very issue they had picked holes against the Appellant’s Notice and Grounds of appeal. In this connection, I would only consider the argument tendered by learned Counsel for the 1st and 2nd Respondents, 3rd Respondent and the 4th and 5th Respondents respectively regarding the matter relating to the Appellant being an interested party.
It must be acknowledged that the arguments proffered on behalf of the 3rd Respondents on the issue were similar in nature to the one adduced by learned counsel for the 1st and 2nd Respondents which this Court has taken cognizance of. Learned Counsel for the 1st and 2nd Respondents reproduced the provisions of Section 59(1) of the Electoral Act, 2002, which he said are in pari-materia with the provisions of Section 68(1) of the Electoral Act, 2010 (as Amended). Further, learned Counsel referred to section 68 (c) of the Electoral Act, 2010 (as Amended) which he also asserted were in pari-materia with the provisions of section 69(c) of the Electoral Act, 2006 which was interpreted in Mark v. Abubakar (2009) 2 NWLR Pt.1124 P.19 at 190 paragraphs A – G. It will held therein that once a returning officer made a declaration of the scores of parties and returned a candidate based on that declaration his decision is final and cannot be reviewed even by him but Tribunal or by this court. It does not confer on him any other powers, be it power of cancellation or other powers.
He further referred the cases of ANPP v. INEC (2004) 7 NWLR Pt.871 p.57058 paras E-B; 60, pars D – F, Amaechi v. INEC (1) (2007) 18 NWLR Pt.1065 p 32 at 48 paras D -E, Ngige v. Obi (2006) 14 NWLR Pt.999 P.1 at 197, paras F -G, P.D.P. v. Haruna (2004) 16 NWLR Pt.900 p.455 at 468, paras A -C, PPA v. Saraki (2007) 17 NWLR Pt.1064 p.453, Bello v. INEc (2010) 3 SCNJ Part 1 p.127 at 175 and Yusufu v. Obasanjo (2003) 16 NWLR Pt.847 p.633, paras B-G and argued that the action of the 4th and 5th Respondents in issuing Certificate of Return to the Appellant that did not contest election is a clear violation of the judicial process.
It must be borne in mind that the Petition filed by the 1st and 2nd Respondent herein at the lower Tribunal was in respect of the election held on the 9th April, 2011 to the House of representative of the Federal republic of Nigeria for the Malumfashi/Kafur Federal Constituency. The record of appeal at page 124 which depicted the names of those who participated at the said election on the document titled; ”INDEPENDENT NATIONAL ELECTORAL COMMISSION, DECLARATION OF THE RESULT OF THE ELECTION; ELECTION TO THE MEMBERSHIP OF THE HOUSE OF REPRESENTATIVES; as follows; (1) ALIYU M. GARBA, A.C.N.; (2) BASHIR AHMED MALUMFASHI, LABOUR; (3) BATURE UMAR, PDP; (4) ABDU-AZEEZ LABBO, C.P.C. The other political parties voted for, without indication of the names of their candidates were; MPPA, ADC AND CDC.
It is, somewhat, instructive to note the stipulations of section 137 of the Electoral Act, 2010 (as Amended) thus:
”137(1). An election petition may be presented by one or more of the following persons:-
(a) A candidate in an election.
(b) A political party which participated in the election.
(2) A person whose election is complained of is, in this Act, referred to as the Respondent.
(3). If the petition complains of the conduct of an Electoral officer, a Presiding or Returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complainant and the commission shall, in this instance, be:
(a) made a Respondent; and
(b) deemed to be defending the Petition for itself and on behalf of its officer or such other persons”.
By section 285 of the 1999 constitution of the Federal Republic of Nigeria (as Amended);
“(1) there shall be established for each state of he Federation and Federal Capital Territory, one or more election tribunals to be known as the National and State House of Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine
petitions as to whether;
(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a State”.
Further by section 138(1) of the Electoral Act, 2010, an election may be questioned on any of the following grounds, that is to say;
(a ) that a person whose election is questioned was as the time of the election not qualified to contest the election:
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
It became necessary to draw attention to the aforestated provisions of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) and the Electoral Act, 2010, basically to demonstrate that the issue of whether the Appellant has shown sufficient interest to be entitled to the reliefs sought in the said Motion he filed on the 6th July, 2011 was not one of the grounds envisaged by either the 1999 Constitution (as Amended) and the Electoral Act, 2010. The Original jurisdiction of the National and State House of Assembly Election Tribunal, Katsina State is circumscribed by section 285 of the 1999 Constitution (as Amended), meaning, therefore, that nobody was adorned with any minutest power to enlarge the said jurisdiction except as prescribed by the same constitution.
From the facts made available to this court via the record of this appeal, the said ruling of the 5th July, 2011 was appealed against by the 4th, 5th and 6th Respondents in this appeal, and those appeals have not been determined nor were they consolidated to be determined together with the present one.
It is of necessity to note that at paragraph 6 of the Petition filed by the 1st and 2nd respondents herein, it was alleged that the 3rd Respondent herein, i.e. 1st Respondent thereat, was the one returned and declared as the winner of the election by the 4th Respondent herein through the 5th Respondent. The result on Form EC8E(i) being the result declared by the 4th Respondent indicated the 3rd Respondent in this appeal as the winner of the election. It is apparent in the said Form (i) reproduced at page 134 of the record, that the Appellant was not candidate of the 6th Respondent declared to have won the said election. It is evidence in the processes before us that it was Abdul’azez Labo, being apparently, the declared winner of the said election to the Malumfashi/Kafur Federal Constituency that the 1st and 2nd Respondent thereat are questioning or complaining of his election on the ground that he was not duly elected by the majority of lawful votes cast at the election, or, in the alternative, he was not duly elected or returned.
Definitely, the sudden emergence of the Appellant, and, issuance of Certificate of Return to him after the 3rd Respondent had been allegedly returned and declared as the winner of the said election, under the platform of the 6th Respondent, and, after the Petition had been filed, portrays nothing, but, a glaring shift in the 6th Respondent’s decision as to who was its actual candidate at the election, and, whether any substitution was carried out by it, and, at what stage?
Further, the sudden emergence of the Appellant smacks of gave misgivings about the actually nominated candidate of the 6th Respondent. The names of the Appellant and the 3rd Respondent did not synchronize thereby signifying the murky or storming waters, the 6th Respondent, obviously, is in. It, definitely, could not have presented two candidates for the said election of 9th April, 2011. The only means to have resolved this issue was by institution of an action at the regular courts for ascertainment of the rightly nominated candidate of the 6th Respondents at the said election.
The express terms of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) clearly did not bring the determination of who is the proper candidate of any political party at any election or issue of substitution of a candidate after declaration of results of the election within the jurisdiction perimeter or jurisdiction powers of the national and State House of Assembly Election Tribunal.
The appeal, at hand, suggest tersely, that a substitution was allegedly made, which arose out of the exercise by the 6th Respondent of its power of nomination/substitution.
As distinctly asserted by the Supreme Court in PDP v. Onwe (2011) 4 NWLR Pt.1236 p.166, the nomination/substitution exercise of a party is clearly an intra-party/pre-election issue which has nothing to do with an election and, over which, an Election Tribunal has no jurisdiction. Being a pre-election matter, only the Federal High court or State High Court had jurisdiction. It was further stressed that any judgment delivered by Election Tribunal on a pre-election matter is a nullity and that appeal on issues of substitution, terminates in the Supreme Court as the Supreme Court has the jurisdiction to make the pronouncement on pre-election matters, i.e. substitution.
Whether it was explicitly stated or not, the said Motion filed on 13/6/11 impliedly borders, on who was the nominated candidate of the 6th Respondent at the 9th April, 2011 election into the Malumfashi/Kafur Federal Constituency. It also featured the possibility of issue of substitution of its candidate by the 6th Respondent.
However, it needs be straightened out that the fact the said Election Petition Tribunal nosedived into making the order it made on the 5th July, 2011 against the Appellant’s interest, in respect of an issue that startly borders on the nomination/substitution of candidates at the said election of 9th April, 2011, by the 4th Respondent cannot automatically confer on the Appellant, the right to apply and describe himself as an interested party in the proceedings of the Election Petition that the parties thereto had been statutorily earmarked and streamlined. To allow the Appellant to be joined in the Election Petition filed by the 1st and 2nd Respondents in respect of the said election held on the 9th April, 2011 as an interested party would seriously be contravening the Electoral Act, 2010, and the provisions of the 1999 Constitution of federal Republic of Nigeria (as Amended). On what platform would he stand? His stand could have been simplified if the 4th and 6th Respondents had prosecuted their respective appeals against the said orders of the Tribunal made on the 5th July, 2011.
The Appellant, apparently embroiled in a looming nomination/substitution dispute of his party, and as had severally been stated by the Supreme Court, is not completely shut out. He could still pursue his rights or ascertain whether he was the rightly nominated candidate of the 6th respondent in the regular High Courts, but not in the Election Petition Tribunal. He cannot foist his party’s nomination/substitution problem on the other parties to the Election Petition. He needs to iron out the facts between the 6th, 3rd, 4th Respondents and himself in relation to who was the proper candidate of the 6th respondent in the Federal high Court of High Court of the State. By the provisions of the Constitution of Federal Republic of Nigeria 1999 (as Amended) and the Electoral Act, 2010, the Appellant’s appeal is most unfounded and the same is hereby dismissed.
AMINA ADAMU AUGIE, J.C.A.: I agree.
ABDU ABOKI, J.C.A.: I agree.
Appearances
Suleiman Usman Esq.For Appellant
AND
Uyi Igunma Esq. for the 1st and 2nd Respondent.
Festus okoye Esq with E.Y. Kurah Esq, J.B. Amos Esq. S.J. Menta Esq and I. Izan Esq. for the 3rd Respondent.
Morris Odeh Esq with R.T. Adekoya Esq, for the 4th and 5th Respondent
Abdulrahman Mukhtar Esq, for the 6th Respondent.For Respondent
