CHIEF TERRY JOHNSON OTUYA v. CHARLES UDOGWU ONYEKWELI & ORS.
(2010)LCN/3863(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of June, 2010
CA/B/EPT/334/2007
RATIO
ACTION: WHAT IS THE CARDINAL PRINCIPLE OF ADJUDICATION
It is a cardinal principle of adjudication that every case must be decided on its peculiar facts and circumstances. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
ELECTION PETITION: WHO IS A NECESSARY PARTY IN ELECTION PETITIONS
In one of the most profound statements in AMAECHI the Supreme Court held that Section 221 of the 1999 Constitution places emphasis and responsibility in elections on political parties and it is political parties more than the candidates they sponsored that win or lose elections.
It is beyond speculation or conjecture that the person, whose election is complained of, i.e. the successful candidate, has always been a necessary party as a Respondent to an election petition. Now with the emphasis on political parties as the real winners, of elections in appropriate circumstances, political parties appear to be indispensable Petitioners or Respondents, as the case may be, in election matters. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
ELECTION PETITION: EFFECT OF FAILURE TO JOIN A NECESSARY PARTY
the law is so well defined and settled that in the circumstance of an appeal as the instant appeal, a political party is an indispensable and necessary party without whose presence an election petition could not be completely and effectually determined.
Any failure to join an indispensable necessary party as a Respondent, in my view, spells doom and catastrophic consequences on an election petition. An election petition that fails to comply with part 9 and the 1st Schedule to the Electoral Act, 2006 is liable to being struck out. S.147(3) of the Electoral Act enables the lower Court or this Court to, in appropriate circumstances, and upon the motion of a Respondent, strike out an election petition. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CHIEF TERRY JOHNSON OTUYA Appellant(s)
AND
1. CHARLES UDOGWU ONYEKWELI
(Substituted for Hon. Chief Mercy Almona Isei
By Order of Court of Appeal of 26/10/09)
2. THE INDEPENDENT NATIONAL ELECTORAL COMM. (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER
4. OBINOR SEBASTINE (RETURNING OFFICER) Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A: (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship/Legislative Houses Elections Petitions Tribunal established for Delta State delivered on 14th November, 2007. The Appellant was the Petitioner before the lower Tribunal. On the 21st April, 2007, elections were held for the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria, amongst other similar Federal Constituencies. At the end of the said election, the 2nd Respondent, through the 3rd and 4th Respondents declared one Chief Mercy Almona – Isei of the Peoples Democratic Party (PDP) as the winner of the election.
The Appellant was aggrieved by the declaration of the result of the election and return of Chief Almona-Isei as the elected candidate for the Ndokwa East/Ndokwa West and Ukwuani Federal Constituency.
In an Election Petition dated and filed on 21st May, 2007, the Appellant as the Petitioner sought to challenge the result of the said election.
The petition was predicated upon the following grounds. They are:-
a) The 1st Respondent declared as returned elected in the election which is the subject matter of this petition was not qualified to run for the election in that;
i. there is a subsisting judgment of a Court of competent jurisdiction declaring another person as the candidate of the PDP to contest the said election and not the 1stRespondent.
ii. the 1st Respondent did not satisfy the requirements of the Electoral Act 2006 and Electoral Guidelines as to qualify her to stand as a candidate in the April, 2007 election into the Federal House of Representatives for the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency, and
iv. In the only ward where lawful and valid election took place, the petitioner emerged as the clear winner of the election which ward is ward 2 in the Ukwuani Local Government area.
Upon this ground and its 3, though not serially numbered particulars, the Petitioner/Appellant sought for the following reliefs before the lower Court. They are:-
i. The 1st Respondent purportedly declared winner of the election, the subject matter of this petition was not eligible to contest the election;
ii. An order disqualifying the candidature of the 1st Respondent as candidate for the election into the Federal House of Representatives for the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency;
iii. An order declaring the Petitioner the winner of the said election who (apart from the votes credited to the 1st Respondent) scored the highest number of lawful votes cast at the election; and
iv. An order of the Tribunal setting aside and nullifying or canceling the election held on 21/04/07 in the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency on the ground enumerated in the facts stated above and ordering fresh election to be held in the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency of Delta State into the Federal House of Representative.
Alternative to these reliefs, the Petitioner/Appellant sought for this relief; i.e.:-
An order declaring the winner of the election for having received the majority of lawful votes cast at the election, the 1st Respondent having secured her votes through malpractices sufficient to affect the outcome of the election.
The Respondent replied to the petition and challenged all the material statements of fact and denied all allegation of illegal conduct and/or electoral malpractices etc. In a motion on notice dated 25/07/07 but filed on 31/07/07, the 2nd – 4th Respondents/Applicants sought for an order of the lower Court striking out or dismissing the petition of the Appellant for being incompetent or in the alternative for an order striking out paragraphs 1, 2, 3 and 4 (a) and (b) thereof etc. This application was brought pursuant to Sections 145(1), 147(3) and paragraph 49 of the 151 Schedule to the Electoral Act 2006 as well as under its inherent jurisdiction. It was supported by an affidavit of 12 paragraphs by one Adeyemi, a solicitor in the employment of the 2nd Respondent and a written address.
While this application was still pending, the 151 Respondent filed a notice of preliminary objection dated 8/08/2007 seeking for an order striking out or dismissing the petition for want of jurisdiction. This challenge to jurisdiction was on the grounds that the pillars upon which the petition was anchored were unknown to the Electoral Act, 2006 and also that the petition raised pre-election matters. Upon being served, the Petitioner/Appellant responded to the motion of the 2nd – 4th Respondents/Applicants and the preliminary objection of the 1st Respondent.
Though without specifically saying so, the application of the Respondents were seemingly consolidated and argued on 22/08/07.
In a reserved ruling delivered on 14/11/07, the lower Tribunal held that:-
“The sum total… is that the petition has no ground, apart from the fact that an indispensable party to wit PDP has not been made a party. It is settled law that a petition with no ground is not a petition under the provisions of the electoral Act, 2006 and as such, this petition is liable to be struck out…”
Accordingly, the petition is incompetent for noncompliance with the provisions of the Electoral Act, 2006 particularly paragraph 4 of the 1st Schedule to the electoral Act, 2006. This being the case, the Tribunal is robbed of any jurisdiction to hear and determine the petition. To this end, the petition is hereby struck out.”
(See page 37 of ruling contained at page 314 of the record of appeal)
The Appellant was dissatisfied with this ruling and appealed to this Court in a notice of appeal dated and filed on 28th November, 2007. The appeal is predicated on the following grounds with their copious particulars:-
GROUND 1
The Tribunal erred in law wherein being a Court manned by more than one Judge delivered a unilateral ruling striking out the petition of the Appellant.
PARTICULARS
a) The Ruling delivered by the Tribunal on 14/11/07 was a single ruling (document) signed by five Judges who sat in the Tribunal.
b) By virtue of the clear provisions of Section 294 of the constitution of the Federal Republic of Nigeria 1999, where a Court is manned by more than one Judge, each individual Judge must express his opinion on the issues canvassed in any judgment or ruling in writing personally.
c) The Ruling delivered by the Tribunal on 14/11/07 is a clear breach of the Constitutional Provision and is therefore void.
GROUND 2
The Tribunal erred in law when it held this:
“Accordingly the petition is incompetent for noncompliance with the provision of the Electoral Act, 2006 particularly paragraph 4 of the 1st Schedule to the Electoral Act, 2006. This being the case, the Tribunal is robbed of any jurisdiction to hear and determine the petition”
PARTICULARS
a) Non-compliance with paragraph 4 of the 1st Schedule to the Electoral Act, 2006 was never raised by any of the parties before the Tribunal.
b) The Tribunal suo-motu raised the issue of noncompliance with paragraph 4 of the 1st Schedule to Electoral Act, 2006 and proceeded to strike out the petition without calling on the parties to address the Tribunal on the issue before basing its ruling on it.
c) The approach of the Tribunal clearly breached the right of the Appellant to a fair hearing.
d) The Tribunal never showed in any way how the provisions of paragraph 4 of Schedule 1 to the Electoral Act, 2006 was not complied with.
GROUND 3
The Tribunal erred in law when it held as follows:
“On the other hand the learned Counsel for the petitioner, who must have inadvertently forgotten to supply the Tribunal with the relevant authorities cited, has in his submission expressed the processes of the respondents and all the submission opposed the processes of the Respondents and all the submissions made therefore citing some cases in support”
PARTICULARS
a) The Tribunal never considered the argument and legal authorities cited by the Counsel to the Appellant in opposition to the applications filed by the Respondent.
b) The parties to a case have no duty or responsibility to furnish a library for the Court.
c) The Tribunal was duty bound to consider all arguments and look into all authorities cited by parties in support of their respective cases.
d) In not considering the argument and authorities cited by Counsel for the Appellant, the Tribunal breached the right of the Appellant to a fair hearing.
GROUND 4
The Tribunal erred in law when it held as follows: –
“From the foregoing submissions of learned Counsel it is clear that this Tribunal lacks jurisdiction to hear and determine complaints pertaining to pre-election matters i.e., nomination of candidates and all other matters/issues related thereto.”
PARTICULARS
a) The Appellant in his petition raised questions relating to qualification and not nomination.
b) The Appellant challenged the election of the 1st Respondent on the basis of qualification and not nomination.
c) The mere fact that a candidate is sponsored by a political party does not mean that the qualification of the candidate cannot be raised after the election.
d) The petition clearly stated that the 1st Respondent did not meet some of the requirement of the Electoral Act, 2006.
GROUNDS 5
The Tribunal erred in law when it held that the petition was incompetent for non-joinder of the People Democratic Party (PDP) a political party.
PARTICULARS
a) The Electoral Act specifically provides for parties who can be respondents in an election petition and it clearly excludes political parties.
b) A cause or matter can never be defeated by non-joinder especially when there are parties sued whose presence can sustain the action.
c) The petition could be effectively and effectually determined without the presence of the People Democratic Party (PDP).
GROUND 6
The Tribunal erred in law when it held that the grounds of the Appellant’s were not known to law.
PARTICULARS
a) The Grounds of the petition fall squarely within the purview of section 145 of the Electoral Act, 2006 and the provision of the Constitution.
b) The objection raised bordered seriously on technicality and form rather than substance.
GROUND 7
The Tribunal erred in law when it entertained the applications of the Respondents to strike out the Appellant’s petition.
PARTICULARS
a) The applications were filed contrary to the enabling laws.
b) The Respondents before filing the applications had already taken fresh step.
c) The applications were not filed within a reasonable time.
GROUND 8
The Tribunal erred in law when it held:-
“Similarly, on what the petitioner called ground two, and numbered (iv) the Tribunal is not in doubt that this is not a ground under any of the grounds provided for by S.145(1) of the Electoral Act, 2006. Also, the Tribunal is of the firm view that typographical error and the request that the tribunal should read the ground in the manner suggested by the petitioner cannot properly be countenanced, as it amounts to surreptitious request for amendment of the ground of the petition which at this stage cannot and should not be accommodated. Accordingly, answer to issue one above must be in the affirmative.”
PARTICULARS
a) The ground of the petition labeled (iv) has been adjudged by the Court of Appeal to be a valid ground for challenging an election under provisions similar to S. 145 of the Electoral Act, 2006.
b) A request to treat a ground as different and independent of another cannot be described as an application for amendment.
c) The Electoral Act, 2006 prohibits amendment of s of grounds and not numbering.
d) A Court of law, justice and equity has unfettered jurisdiction and discretion to correct accidental slips in pleadings to which its attention has been drawn.
e) The Tribunal clearly abdicated its duty to do substantial justice.
GROUND 9
The Tribunal erred in law when it held:-
“Additionally, having observed that the Federal High Court judgment was handed down on 9/5/07 as against the election that took place on 21/4/07, with the 1st Respondent as PDP candidate, it is the view of this Tribunal that the issue whether or not the 1st Respondent was not qualified to contest the said election does not even arise as that judgment will not and must not operate retrospectively. The said judgment is, with due respect nothing but an academic exercise which cannot be enforced when regard is had to the fact it has been overtaken by events, which cannot at this stage be turned over.”
PARTICULARS
a) Suit No. FHC/ABJ/CS/206/2007 in which the judgment was delivered was pending before the election took place.
b) The Courts, judicial system and the Tribunal owe it a duty to the Nigerian Nation to ensure that judicial decisions are enforced to the letter.
c) The Tribunal not being a Court of Appeal cannot revise or give a different connotation to the judgment of a Court of competent jurisdiction.
d) The Tribunal cannot sit on appeal over the judgment of the Federal High Court.
e) There was no appeal whatsoever from the Federal High Court to the Tribunal.
f) The judgment of the Federal High Court is still valid and subsisting.
To argue the appeal, the Appellant filed an amended brief of argument dated 13/11/09. In response, the 1st Respondent filed a brief dated 15/11/2009 while the 2nd – 4th Respondents filed an amended brief dated 22/12/09 but filed on 11/01/2010 which by an order of this Court sought and obtained was deemed properly filed and served on 4/02/2010. To answer to some of the arguments in the brief of the 2nd – 4th Respondents, the Appellant filed a reply brief dated 8/02/2010.
At the hearing of this appeal before us on 10th March, 2010, respective learned Counsel took turns to adopt and rely on their respective briefs of argument.
Before, I proceed to the next stage in this appeal, let me tarry a while to explain a very unique feature of this appeal. The 1st Respondent before the lower Court was one Chief Mercy Almona-Isei and she remained the 1st Respondent in this Court until when she was substituted by one Charles Udogwu Onyekweli by an order of this Court made on 26/10/2009. This substitution was necessitated by the judgment of this Court in Appeal No. CA/B/EPT/177/07 wherein the said Mr. Onyekweli was declared the duly and validly elected candidate of the PDP for the Ndokwa East/Ndokwa, West/Ukwuani Federal Constituency. With this judgment, Mr. Onyekweli was found suitable to step in and take the position of the 1st Respondent. It was in that capacity that a brief of argument dated 25/11/2009 was filed on his behalf by learned Counsel Dr. Mrs. Azinge.
The Respondents filed and argued preliminary objections in their respective briefs. Learned Counsel Dr. Azinge identified and introduced her preliminary objection so too did Mr. Adeyemi, of Counsel for the 2nd – 4th Respondents. It was noticed by the Court that the preliminary objection filed on behalf of the 1st Respondent was irregularly filed, having been filed after the brief of argument in which it was argued. However, learned Counsel Mr. Ehighelua for the Appellant, graciously chose to waive this seeming irregularity occasioned by the belated filing of notice of preliminary objection on behalf of the 1st Respondent.
Before adopting her brief of argument Dr. Azinge, of Counsel referred to the notice of preliminary objection and explained that because, the Appellant did not file a reply brief to her brief, he is deemed to have conceded to all the arguments she made on points of law in support of the preliminary objection. She referred to the list of additional authorities and particularly the case of JOSEPH & ORS v. ECHENWENDU & ORS (1996) 8 NWLR (PT.468) 629 at 636 B- C and OKWONKWO V. INEC (2004) 2 NWLR (PT.854) 242 at 278 on the power of this Court to strike out an appeal predicated on a defective notice of appeal. While pointing out that the name of the current 1st Respondent is not contained on the extant notice of appeal, learned Counsel referred to the case of COKER V. ADEYEMO (1968) 1 ALL NLR 17 in urging this Court to strike out the notice of appeal to the extent of its defect. Further to this, Mrs. Azinge, submitted that the issue of parties in a matter is a jurisdictional question that can be raised at any time in the course of proceedings, she urged the Court to uphold the preliminary objection and dismiss this appeal.
On his own part, learned Counsel Mr. Adeyemi for the 2nd to 4th Respondents adopted and relied on the arguments in support of his preliminary objection in his brief of argument and urged this Court to strike out the notice of appeal herein for being incompetent and also in consequence of which this Court lacked jurisdiction to entertain this appeal that was predicated on same.
Mr. Ehighelua for the Appellant referred to his reply brief and urged this Court to discountenance the preliminary objection. He thereafter adopted and relied on his amended brief of argument and urged the Court to allow this appeal and set aside the ruling of the lower Court of 14/11/2007. Also in urging the Court to dismiss the appeal and affirm the ruling of the lower Court, both Mrs. Azinge and Mr. Adeyemi adopted and relied on their respective briefs.
At page 3 of the Amended Appellant’s Brief, the following 4 issues were identified and argued. They are:-
1. Whether the tribunal was right in holding that the Appellants petition was deficient for non-compliance with paragraph 4 of the 1st schedule to the Electoral Act, 2006 when:
a) The Tribunal never showed how paragraph 4 of Schedule 1 of the Electoral Act, 2006 was not complied with.
2. Whether the Tribunal was right when it held that the petition of the Petitioner/Appellant had no grounds whatsoever. (Ground 6)
3. Whether the Tribunal was right in holding that the Peoples Democratic Party (PDP) was a necessary party whose non-joinder had a fatal effect on the petition (Ground 5).
4. Whether the Tribunal was right in holding that the invitation to recognize the fact that there are two grounds in the petition amounted to an invitation to carry out prohibited amendment of the petition. (Ground 8).
At page 21 learned Counsel Mrs. Azinge formulated 2 issues for determination after exhaustive arguments on the notice of preliminary objection. These 2 issues are:-
1. Whether the lower tribunal was right to have struck out the Appellant’s petition for not being in strict compliance with paragraph 4 (1) of the first schedule to the Electoral Act, 2006.
2. Whether the People Democratic Party (PDP) is a necessary and indispensable party to the petition.
Mr. Adeyemi also nearly followed the footsteps of learned Counsel Mrs. Azinge. He too, identified and argued 2 issues and they are:-
1. Whether the Tribunal was right in holding that the Appellant’s petition before the tribunal was incompetent for non-compliance with the provision of the Electoral Act 2006. (Grounds 2, 6 and 8 of the appellants’ grounds of appeal)
2. Whether the Tribunal was right in holding that the Peoples Democratic Party (PDP) was a necessary party in the determination of whether the 1st Respondent was a valid candidate of PDP at the Election or not. (Ground 5).
The argument of learned Counsel to the 1st Respondent on the notice of preliminary objection are both very extensive and expansive. The foundation of this notice of objection can be underscored in the submission of learned Counsel that the present appeal as originally constituted without the name of the instant 1st Respondent remained incurably defective as it lacked the necessary indispensable party whose return was being challenged. This argument has featured as a substantive issue for determination in this appeal therefore a decision on it cannot and should not be made at this stage. Learned Counsel also argued that failure to join Mr. Onyekweli at the time of filing the petition and in the notice of appeal makes it impossible for the Court to have jurisdiction to proceed against him.
“Learned Counsel for the 1st Respondent Mrs. Azinge tried to explain that in her opinion this appeal seeks to urge on this Court for an order to review or vary its judgment of 10/06/2008 wherein Mr. Onyekweli was declared the Winner of the election for Ndokwa/Ukwuani Federal Constituency. With this opinion in mind, learned Counsel submitted that this Court is functus officio on who is the winner of 21/04/2007 elections to represent the Ndokwa/Ukwuani Federal Constituency. According to learned Counsel, this Court being functus officio in the circumstance remains bereft of the jurisdiction to vary the judgment or sit on appeal against the same judgment.
Part 2 of the reply brief of the appellant tackled and responded to all the submissions of Mrs. Azinge on the preliminary objection. It is therefore, wrong for Mrs. Azinge to suggest that learned Counsel Mr. Ehighelua had conceded to the issues she argued in the notice of objection. Its part 1 was a very bold attempt to meet the challenge posed and mounted by learned Counsel Mr. Adeyemi on the competence of this appeal.
While respective learned Counsel to the respondents, for their different reasons, prayed this Court to uphold their notices of objection and dismiss this appeal, learned Counsel Mr. Ehighelua for the Appellant urged this Court to overrule and dismiss the preliminary objections and proceed to determine this appeal on the merit.
Having carefully considered all the arguments and submissions of respective learned Counsel on the notices of preliminary objection, I am of the view that so many of the submissions and arguments of learned Counsel Mrs. Azinge are a fatal invitation to this Court to revisit its earlier order substituting Mr. Onyekweli for Chief Mrs. Almona-Isei. In the circumstance of this appeal it would totally be improper for this Court to at this stage yield to the unwarranted approach suggested by learned Counsel Mrs. Azinge. It is equally incongruous for Mrs. Azinge of Counsel to expect that Mr. Onyekweli would benefit from the fruits of the judgment of this Court in Appeal No. CA/B/EPT/177/2007 and also to be shielded from any obligations that may arise in consequence of that judgment. To the extent that Mr. Onyekweli benefited from the mandate of the people to the PDP in the election of 21/04/2007, in respect of Ndokwa/Ukwuani Federal Constituency, it is also incumbent upon him to positively participate in defending any challenge to that mandate. He just cannot escape the natural consequences that would normally follow being victorious at an election in this country, having to defend an election petition and appeal. Therefore, without any doubt, all the submissions of learned Counsel Mrs. Azinge tending to situate the issues in this appeal to have anything to do with the position of Mr. Onyekweli as the 1st Respondent or the legal principle of Res judicata are a misconception and totally irrelevant and grossly misleading.
The preliminary objection of the 2nd to 4th Respondents seeks to challenge the competence of this appeal and the jurisdiction of this Court to entertain it. It is primarily anchored on the premise that, this appeal could not have been properly brought as of right without the leave of this Court. Because of the decisions of the Supreme Court in BUHARI v. OBASANJO (2005) 13 NWLR (PT.941) 1, OROBU v. NEC (1988) 5 NWLR (PT.94) 323 and ABUBAKAR V. YAR ADUA (2008) 4 NWLR (PT.1078) 465 as well as many decisions of this Court founded on them. All the submissions of learned Counsel Mr. Adeyemi tending to suggest the idea that leave was needed to bring this appeal are totally superfluous and without any basis in law and same amounted to beating a dead horse. I hereby, reject and discountenance all the arguments and submissions of Mr. Adeyemi on his preliminary objection. Therefore, the preliminary objections of both Mrs. Azinge and Mr. Adeyemi are overruled for lacking in merit.
I now wish to proceed with the determination of this appeal on the merit. In this endeavour, I consider that issue 3 in the appellant’s amended brief of argument and issue 2 each in the briefs of the Respondents ought to be brought under the radar for scrutiny because of its crucial and proffered effect. This issue is whether the lower Court was right in holding the PDP was a necessary party to the petition upon which this appeal was brought.
In looking into this issue, Learned Counsel to the Appellant Mr. Ehighelua explained that by virtue of S.144(2) of the Electoral Act 2006, the only statutory or relevant parties to an election petition inter alia are:-
a) The person returned as elected; and
b) INEC and its officials against whom allegations of misconduct in the electoral process were made.
According to learned Counsel, under the 2006 Electoral Act, it is only where a petitioner relies on Section 145(1) (d) that a political party becomes a necessary party, otherwise, a political party is not a necessary party to an election petition, learned Counsel maintained.
In support of this submission, learned Counsel referred to the decisions of the Supreme Court in BUHARI V. YUSUF (2003) FWLR (PT.174) 329 and BUHARI & ORS V. OBASANJO (2005) FWLR (PT.186) 709 where pari materia provisions to S. 144(2) (supra) were considered and decided upon to the effect that a respondent other than those envisaged under S.133(2) (S.144(2) can neither be respondents nor are they necessary parties. While arguing that even if a political party were to be said to be a necessary party in the circumstance of this appeal its non-joinder would only result in all the paragraphs of the petition in which allegations of fact were made against it being struck out and not striking out the entire petition.
Learned Counsel concluded that the petition before the lower Court could be effectively determined without the joinder of the PDP. He then urged the Court to resolve this issue in favour of the Appellant.
In responding to this issue, learned Counsel to the 1st Respondent began with an explanation that the PDP participated in the election of 21/04/07 by sponsoring the 1st Respondent and therefore issues for determination as to his candidacy and sponsorship by it as well as to who was lawfully victorious at the election would be of enormous concern to it (PDP). In a further explanation, learned Counsel said that, this Court cannot determine the candidacy of the 1st Respondent in the light of the allegations of the Petitioner/Appellant that the PDP did not have a candidate in the election of 21/04/2007.
According to learned Counsel this seriously contentious issue cannot be determined completely without the full and active participation of the PDP and to do so would amount to an infraction of its constitutionally guaranteed right to fair hearing.
Further to this, learned Counsel referred to and underscored the allegations of facts made in paragraphs 1,2,3,4 (a) and 4 (b) of the petition and argued that it is the PDP that was in the best position to respond to these allegations.
While referring to the case of AMAECHI V. INEC (2008) ALL FWLR (PT.407) J at 97, learned Counsel also added that the provisions of paragraph 4 in the 1st schedule to the Electoral Act 2006 and submitted that all parties interested in the determination of issues raised in an election petition should be joined. She then argued that the petition in this appeal failed to comply with the strict and mandatory provisions of paragraph 4 (supra). Learned Counsel then added that the combined effect of paragraph 4 (1) and (6) is that noncompliance with same makes the petition defective and liable to being struck out. She urged the Court to resolve this issue against the appellant and dismiss this appeal.
The arguments and submissions of learned Counsel Mr. Adeyemi on this issue of joinder or non-joinder of the PDP in the circumstance of this appeal are relatively the same with that of Mrs. Azinge, of Counsel, I would therefore, for the sake of brevity, not bother to set them out herein.
It is beyond per adventure that the 1st Respondent is a member of the PDP. The PDP is also one of the political parties that contested the 21/4/07 election for Ndokwa/Ukwuani Federal Constituency. There is also no doubting the fact that the 1st Respondent is today, subject to this appeal and the decision to be rendered shortly, the duly elected candidate for the Ndokwa/Ukwuani Federal Constituency, having been held to be the validly nominated candidate of the PDP for the said election. Both the 1st Respondent and the PDP are apparently happy and seemingly contended with the current status quo. This appeal is a significant challenge to the status quo.
It is a cardinal principle of adjudication that every case must be decided on its peculiar facts and circumstances. To anybody who is fully abreast and appraised of the facts in the instant appeal, it would not be out of place to place it formally on record that the facts in this appeal are intriguing, unique and peculiar in their character and antecedence. Any challenge to the conduct and outcome of the election into the Ndokwa/Ukwuani Federal Constituency affects the interest of the PDP and the 1st Respondent. This is moreso, in a petition where it was alleged that the PDP did not have any candidate for the said election or where it was alleged that members or agents of the PDP hijacked and confiscated electoral materials. These are some of allegations in paragraphs 4 and 5 (f) of the petition in this appeal.
Against this background and facts, it must be explained that stricto sensu the non-joinder of a political party in an election petition was not fatal to the competence of the petition. That remained the law as espoused by the Supreme Court in the cases of OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 510 as per IGUH JSC at 576- 577. However with the decision of the Supreme Court in AMAECHI V. INEC (2008) 5 NWLR (PT.1080) 277 there now appears to be what I consider a radical departure from the decision in OBASANJO V. BUHARI (supra). In a pragmatic sense, the decision in AMAECHI (supra) put in perspective the emerging importance of political parties in the electoral process in Nigeria as well as the pivotal place of political parties both under the 1999 Constitution and the Electoral Act 2006.
In one of the most profound statements in AMAECHI the Supreme Court held that Section 221 of the 1999 Constitution places emphasis and responsibility in elections on political parties and it is political parties more than the candidates they sponsored that win or lose elections.
It is beyond speculation or conjecture that the person, whose election is complained of, i.e. the successful candidate, has always been a necessary party as a Respondent to an election petition. Now with the emphasis on political parties as the real winners, of elections in appropriate circumstances, political parties appear to be indispensable Petitioners or Respondents, as the case may be, in election matters. This indispensability appears to me to be a necessary adjunct and landmark effect of the decision in AMAECHI (supra). Without doubt therefore, one may be bold to say that the law is so well defined and settled that in the circumstance of an appeal as the instant appeal, a political party is an indispensable and necessary party without whose presence an election petition could not be completely and effectually determined.
Any failure to join an indispensable necessary party as a Respondent, in my view, spells doom and catastrophic consequences on an election petition. An election petition that fails to comply with part 9 and the 1st Schedule to the Electoral Act, 2006 is liable to being struck out. S.147(3) of the Electoral Act enables the lower Court or this Court to, in appropriate circumstances, and upon the motion of a Respondent, strike out an election petition.
An overview of the circumstances of this appeal appears to me to be appropriate for the petition of the Appellant to be struck out for failure to comply with paragraph 4(1)(a) and S.144(2) of the Electoral Act 2006. This issue is hereby resolved against the appellant. In my view, this issue has significantly resolved the main complaint of the Appellant against the order of the lower Court striking out his petition. I do not see any need to consider any of the other issues formulated by the parties in this appeal. This appeal is hereby dismissed and the ruling of the lower Court striking out the petition is affirmed. No order for costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I agree.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D), J.C.A: I agree entirely with the lead Judgment delivered by my learned brother, Ali ABUBAKAR BABANDI GUMEL, JCA.
There is therefore, no need to dwell further on the said Judgment.
I also abide by the order as to costs.
Appearances
No CounselFor Appellant
AND
No CounselFor Respondent
