HIS EXCELLENCY DR ORJI UZOR KALU & ANOR v. COMRADE UCHE CHUKWUMEREIJE & ORS.
(2011)LCN/4928(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of November, 2011
CA/OW/EPT/42/2011
RATIO
ELECTION PETITION : POSITION OF THE LAW ON THE DUTY OF THE PETITIONER QUESTIONING THE VALIDITY OF THE RETURN OF A CANDIDATE AS THE WINNER OF AN ELECTION TO STATE THE SCORES OF ALL THE CANDIDATES THAT PARTICIPATED IN THE ELECTION
In Obuzor vs. Ake (2009) 2 NWLR (Pt.1125) 388 at 423, Saulawa, JCA put the matter succinctly as follows: “In view of the entire paragraphs of the petition, especially the reliefs sought therein, it has become rather obvious that the scores of the candidates have been made an issue and are therefore relevant to the case of the Appellants, relief 3 of the petition is to the following effect: (3) A declaration that the 1st Petitioner having scored the highest number of legitimate and lawful votes cast at the Senatorial election in Rivers West Senatorial District held in April 28, 2007 be declared the winner and be returned as such. Most ironically however, despite the fact that the 1st Appellant has made scores or votes to be in issue and thus very much relevant to the petition thereof, he has failed to clearly plead or state the scores (votes) accredited to each candidate. It is trite law that by virtue of the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2007 (supra), a petitioner questioning the validity of the return of a candidate as the winner of the election has the duty to inter alia, state the scores of the candidates that participated in the election. PER MOJEED ADEKUNLE OWOADE, J.C.A.
ELECTION PETITION : CIRCUMSTANCES WHERE FAILURE OF THE PETITIONER TO STATE THE SCORES OF ALL THE CANDIDATES IN THE ELECTION WOULD NOT RESULT IN THE PETITION BEING RENDERED INCOMPETENT
Therefore, the prevalent view of the law is that it is not in all cases where failure of the Petitioner to state the scores of all the candidates in the election would be fatal as to render the election petition incompetent. Failure to state the scores of all the candidates in the election petition would not result in the petition being rendered incompetent where: (i) The petitioner states the votes scored by the necessary parties to the petition i.e. the score of the petitioner and the person returned as the winner of the election and it is clear that the petition could be determined without the scores/presence of the other candidates that contested the election. (ii) The scores of the candidates are not relevant to the issue for determination in the petition. For example, where the ground of the petition is that the person returned as elected was not qualified to contest the election and an order for fresh election between the qualified candidates is sought; or where the ground of the petition is that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election and a fresh election is prayed for; or where the contention of the petitioners centre on the noncompliance that the election did not hold. See, Owuru vs. INEC (1999) 10 NWLR (Pt.622) 201, P.D.P. vs. Taiwo (2004) 8 NWLR (Pt.876) 656 at 670, Ogbeide vs. Osula (2003) 15 NWLR (Pt.843) 266 at 288, Awuse vs. Odili (2004) 8 NWLR (pt.876) 481 at 512 – 513, 514 – 515, 543. PER MOJEED ADEKUNLE OWOADE, J.C.A.
GROUND: DEFINITION OF THE WORD ”GROUND”
What then is the meaning of the word ”ground”? The compact Edition of the Oxford English Dictionary (1971) U.S. Reprint 1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 – 1215. The relevant ones for our purpose are those contained in paragraphs 450 – 451 as follows: ‘Ground:” (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, argument statement or claim is founded or which has given rise to an action, procedure or mental feeling a reason motive often with additional implication. A valid reason justifying motive or what is alleged as such. PER MOJEED ADEKUNLE OWOADE, J.C.A.
Justices
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. HIS EXCELLENCY DR ORJI UZOR KALU
2. THE PROGRESSIVE PEOPLES ALLIANCEAppellant(s)
AND
1. COMRADE UCHE CHUKWUMEREIJE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE RESIDENT ELECTORAL COMMISSIONER, ABIA STATE
5. THE CENTRAL COLLATING OFFTCER FOR ALL FIVE LGA’S, ABIA NORTH SENATORIAL DISTRICTRespondent
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): On Friday, the 25th day of November, 2011 this appeal was dismissed. I now provide the reasons, why it was dismissed.
The appeal stems from the decision/ruling of the National and State Houses of Assembly Election Tribunal sitting in Umuahia, Abia State – Coram. Honourable Justice A. A. Adebara (Chairman), Honourable Justice J. I. Acha and Honourable Justice L. W. Mahmud (members) delivered on 29th September, 2011 wherein the Lower Tribunal struck out Appellants’ petition as being incompetent.
The Ruling of the Lower Tribunal itself was a product of consolidated applications. First, by the 1st & 2nd Respondents and also by the 3rd and 5th Respondents before the Lower Tribunal.
The 1st and 2nd Respondents filed a motion on notice, pursuant to sections 137, 138 and 140 of the Electoral Act 2010 as (amended), paragraphs a (1) 3(a) & (9) and 47 of the First schedule to the Electoral Act 2010 (as amended), order 26 of the Federal High court (Civil Procedure) Rules, 2009 and under the inherent jurisdiction of the Tribunal and prayed for the following orders:
“1. AN ORDER dismissing and /or striking out the petition for being incompetent, fundamentally defective and vesting no jurisdiction on the Honourable Tribunal to adjudicate on it.
2. AND for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.”
The grounds upon which the application is premised is as follows:
“(i) The entire petition is defective, incompetent and not in compliance with the Electoral Act, 2010 (as amended).
(ii) The right of the petitioners to present the petition as mandatorily required by the Electoral Act, 2010 (as amended) has not been stated and /or specified.
(iii) The Petitioners did not specify the parties interested in the election petition contrary to the mandatory provisions of the Electoral Act, 2010 (as amended).
(iv) The petition did not comply with the mandatory provisions of paragraph 4(1)(c) of the First schedule to the Electoral Act, 2010 (as amended).
(v) Pursuant to paragraph (iv) supra, paragraph 1(e) of the petition lacks legal basis and is liable to be struck out and/or discountenanced.
(vi) The Respondents did not participate in any questioned election on the 9th April, 2011.
(vii) The persons against whom the Petitioners made weighty criminal allegations are not joined in the petition.
(viii) Pursuant to paragraph (v) supra, (sic) paragraphs 4, 14(c), 15(a) and (b), 16 (d), 18(a), (b), (c) and (d), 18(b) (1) paragraph (iii), line 1, on page 15 and paragraph (d), line 11 on page18 are liable to be struck out and/or discountenanced with.
(ix) Paragraph 13(a), (b), (c), and (d) of the petition are not valid grounds within the meaning and context of Section 138(1) of the Electoral Act, 2010 (as amended).
(x) Further and pursuant to (ix) supra, paragraph 13(a), (b), (c and (d) of the petition are vague, argumentative, incompetent and cannot be countenanced by this Honourable Tribunal.
(xi) The facts contained under paragraphs 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the petition are not distilled from any grounds of the petition and the said facts are liable to be struck out and/or discountenanced.
(xii) Paragraph 6, 9, 14, (a) & (b), 15, 15(c) & (d), paragraph (g), line 29 – 30 on pages 18 – 19 (lines 1-3), paragraphs 23 and 28 (iv) & (vi) are incompetent, vague, argumentative and speculative, in contravention of the clear and mandatory provisions of paragraph 4(1) (d) of the First schedule to the Electoral Act, 2010 (as amended).
(xiii) The alternative ground contained under paragraph 26 on page 21 of the petition is vague, speculative, argumentative, incomprehensible and it is not cognizable under the Electoral Act, 2010 (as amended).
(xiv) Further to paragraph (xiii) supra, the alternative ground in paragraph 20 in page 21 of the petition does not comply with the mandatory provisions of the Electoral Act, 2010 (as amended).
(xv) The facts contained in paragraphs 27 and 28 of the petition are not distilled from any grounds of the petition and the said facts are liable to be struck out and/or discountenanced.
(xvi) Paragraph 17 of the petition is not supported by any facts, contrary to the mandatory provisions of paragraph 4(1) (d) of the Electoral Act, 2010 (as amended).
(xvii) The Petitioners did not comply with the mandatory statutory provisions of paragraph 4(1) (d) of the First schedule to the Electoral Act, 2010 (as amended).
(xviii) Paragraph (f) on page 13; F (2) on page 14; the entire paragraphs 16 & 18 and lines 8 – 14 on page 26; offend the mandatory provisions of paragraph 4(2) of the First schedule Electoral Act,2010 (as amended).
(xix) The relief sought by the Petitioners are not cognizable under the provisions of the Electoral
Act, 2010 (as amended).
(xx) Relief (a) is vague, incompetent, unrelated to the petition and cannot be granted by the Honourable Tribunal.
(xxi) Reliefs (b) & (c) are not supported by any ground or facts of the petition and cannot be countenanced, considered and/or granted by this Honourable Tribunal.
(xxii) Reliefs (b) & (d) are not reliefs within the meaning of paragraph 4(3) (a) of the First Schedule to the Electoral Act, 2010 (as amended).
(xxiii) Relief (e) is vague, ambiguous and cannot be granted by this Honourable Tribunal.
(xxiv) Alternative reliefs (a) and (b) are unrelated to the petition and cannot be considered and/or granted by this Honourable Tribunal.
(xxv) Alternative relief (c) is vague, unenforceable and cannot be countenanced and/or granted by this Honourable Tribunal.
(xxvi) Further to paragraph (xix) supra, this Honourable Tribunal has no jurisdiction to entertain the petition and/or grant the reliefs sought.
(xxvii) The petition did not disclose any reasonable cause of action against the Respondents.
(xxviii) The Petitioners’ petition did not comply with the mandatory provisions of the paragraph 4(3) (b) of the First schedule to the Electoral Act, 2010 (as amended) and not authenticated and/or signed by any named natural person for the petitioners.”
Similarly, the 3rd and 5th Respondents before the Tribunal also prayed for the following:
“1. An order dismissing and/or striking out this petition as incompetent for being substantially defective, thereby depriving this Honourable Tribunal of the requisite jurisdiction to adjudicate on it.
2. And for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.”
The grounds upon which their application was based are as follows:
“(i) This Honourable Tribunal is not competent to adjudicate on this petition for non-joinder of obligatory parties.
(ii) The entire petition disclosed no reasonable cause of action.
(iii) In view of the above, this Tribunal is robbed of the requisite jurisdiction to entertain the petiton.”
The two applications were argued on 8/9/2011. In a considered Ruling delivered on 29/9/2011, the Lower Tribunal held inter alia.
1. That the petition of the Appellants was liable to be struck out because it did not state the scores of Ail the other political parties that contested the election.
2. Paragraphs 13(a) and 13(d) of the petition dealing with the ground on which the petition was based was struck out for being alien to the provision of section 138(1) of the Electoral Act, 2010 (as amended).
3. Paragraphs 4, 14(a) 14(b) 14(c) 15(a) 15(f)(i) 16(a) 16(b) 16(c) 16(d) 16(f2)(iii) 18(a) 18(b)(i) 18(c) 18(d) 18(f) and 20(a) of the petition were struck out for non-joinder of necessary parties against whom diverse and criminal allegations were made in the petition.
4. Paragraph 17 and 23 were struck out for being vague and nebulous.
After striking out these paragraphs of the petitioner/Appellant’s petition, the Tribunal further found that what remained of the petition could not grant the Appellants a cause of action and also struck out the petition on this ground.
The concluding remarks of the Tribunal at pages 2242 – 2243 of the printed record are as follows:
“1. Issue No.1 formulated by the 1st and 2nd Respondents’ succeeds on the ground of failure of the part of the petitioners to state the scores of all the candidates in the petition. Issue No.1 is resolved in favour of the Respondents. Accordingly, this renders the petition incompetent. Thus, the petition is liable to be struck out. It is hereby ordered.
2. Objections canvassed under Issue No. 2 succeed in part leading to the striking out of some of the paragraphs of the petition in favour of the Respondents.
3. Issue No. 3 is resolved against the Respondents. All the objections canvassed touching on the reliefs sought in the petition are accordingly overruled.
4. Issue No. 4 of the 1st and 2nd Respondents as well as 1ssues 1 and 2 of the 3rd – 5th Respondents on non-joinder is resolved in favour of the Respondents. Consequently, paragraphs of the petition affected by no-joinder are struck out.
5. When all the paragraphs of the petition struck out are considered, the remaining paragraphs of the petition are not sufficient to sustain the petition for the purpose of being heard on the merit. This is because the remaining paragraphs earlier set out in this ruling touch on the ground that the election was invalid by reason of corrupt Practices when the remaining ground of the petition is on invalidity of the election by reason of non-compliance with the provisions of the Electoral Act, 2010. Accordingly, the petition is liable to be struck out on this ground as well. Therefore, this petition is liable to be struck out on two grounds as summarized in holding numbers 1 and 5 above.” ,
Dissatisfied with this ruling/decision, the Appellants filed a Notice of Appeal containing six (6) grounds of appeal in this court on 18/10/2011.
Appellants’ brief of argument dated 27/10/2011 was filed on that same day. The brief of argument of the 1st and 2nd Respondents dated 11/11/11 was filed on the same day. The 3rd Respondents brief dated 4/11/2011 was filed on 11/11/11. Alongside the filing of their brief of argument, the 1st and 2nd Respondents on the same 11/11/11 filed a Notice of Preliminary objection praying this court for the following.
1. An order of this Honourable court striking out grounds 1, 2, 3, 4, 5 and 6 of the Appellants Notice of Appeal, as same are incompetent altogether.
2. Pursuant to (1) supra, An order striking out the Appellants brief of argument formulated and/or based on the incompetent grounds of appeal.
3. Pursuant to (1) and (2) supra, An order dismissing and/or striking out the appeal.
4. In addition to (1) (2) and (3), An order striking out the entire appeal as the parties thereto were/are not the same as the parties before the Lower Tribunal. And, that the entirety of the appeal has no reliefs to sustain it,
5. And for such further or other orders as this Honourable court may deem fit to make in the circumstances of this appeal.
The grounds upon which the preliminary objection is predicated are as follows:
(i) The purported Appellant was not a party to the petition at the Lower Tribunal.
(ii) He did not obtain the requisite leave of the lower tribunal or of this Court of Appeal as an interested party.
(iii) The appeal does not have competent reliefs.
(iv) The appeal is not properly constituted.
(v) Grounds 1, 2, and 3 do not arise from the decision of the Lower Tribunal of 29ft September, 2011.
(vi) Ground 4 and 6 and/or their particulars are argumentative.
(vii) Ground 5 and/or its particulars are purely narrative.
(viii) The said grounds 1, 2, 3, 4, 5 and 6 are incompetent and this court lacks the requisite jurisdiction to entertain same.
(ix) The brief of Argument filed by the Appellants is based on the incompetent grounds of appeal, while the issues formulated in the said brief, apart from being incompetent, do not arise from the judgment of the Lower Tribunal.
The first issue of the preliminary objection argued by the learned counsel for the 1st & 2nd Respondents is that the 1st Appellant herein was never a party to the petition at the Lower Tribunal that gave rise to the appeal. He said, the 1st petitioner at the Lower Tribunal was His Excellency, Dr. Orji Uzor Kalu who did not appeal against the decision of the Lower Tribunal of 29th September, 2011. That His Excellency, Dr. Orji Uzor Kalu is fundamentally a different juristic person or entity from His Excellency Dr. Uzor Kalu which appeared in the Appellant’s Notice and Grounds of Appeal.
Since the purported 1st Appellant was not a party to the petition at the Lower Tribunal, he had/has no right at all against the decision of the Lower tribunal of 29th September, 2011 given the special nature of election petitions. On this point, learned counsel referred the court to the cases of Esenowo vs. Ukpong (1999) 6 NWLR (Pt.608) SC 611 at 617, Umar vs. W.G.G (Nig) LTD (2007) 7 NWLR (Pt.1032) 117 at 150.
Learned counsel submitted further that even assuming without conceding that the purported 1st Appellant had/has a right of appeal against the said decision, he needs either the leave of the Lower Tribunal or that of this Court of Appeal as an interested party as required under Section 243(a) of the 1999 Constitution (as amended).
Counsel referred to the cases of Adeleke vs. Oyo State House of Assembly (2006) 10 N.I.W.A. vs. SPDC (Nig) Ltd (2007) 1 NWLR (Pt.1015) CA 305 at 326- 327 Ehinkenwo vs. Oke (2008) 16 NWLR (Pt. 1113) SC 357 at 388 and said that the law is trite that where an appeal is filed without leave where one is required, the appeal is incompetent and is liable to be struck out.
Finally, on this point learned counsel to the 1st and 2nd Respondents submitted that since the notice of appeal is invalid, even the record of proceedings which is attendant to it is incompetent, since as a super structure, it must take its validity from its foundation.
On this, counsel referred to the cases of N.I.W.A. VS. S.P.D.C. (NIG.) LTD (supra) at P. 330 – 331, Clev Josh LTD VS. TOKIMI (2008) 13 NWLR (Pt.1104) CA 422 at 444, Uwazurike vs. A.G. Federation (2007) 8 NWLR (Pt.1035) SC 1 at 17.
I do not have any difficulty in disposing of this ground of preliminary objection by the learned counsel to the 1s and 2nd Respondents. His Excellency, Dr. Orji Uzor Kalu was the Petitioner in the Lower Court. The Notice of Appeal equally filed in the lower court now read His Excellency Dr. Uzor Kalu. In my opinion, no one is misled that the petitioner and the appellant is one and the same person. Unlike, the case of Esenowo vs. Ukpong (supra) referred to by the learned counsel to the 1st and 2nd Respondents, there is no misnomer in the instant case.
Furthermore, the present case is quite easily distinguishable from the Supreme Court decision in Esenowo vs. Ukpong (supra). In the Esenowo’s case, the gravity of the misnomer became apparent because the differing initials were to be used for the ‘purpose of registering a name in a professional register sanctioned by law.’ Thus, the Supreme Court per Belgore JSC held in the Esenowo case (supra) at page 617 that: “is it true that the register of Nigerian Medical Council for 1980 and 1981 did not contain plaintiff/appellant’s name? There is a world of difference between J. E. Esenowo and E. J. Esenowo for the purpose of registering a name in a professional register sanctioned by law. It allows for crooks and quacks to infiltrate into the profession if at random a person can re-arrange his initials or order in which his initials or order in which his names are written Exhibit H written by the first respondent queried the medical bills brought by PW6 as Exhibit E at page 92 (i.e. register of medical and dental practitioners for 1980) contained on entry thus:-
‘Esenowo, Johnson Esenowo’
The surname is Esenowo, the first and middle names being ‘Johnson’ and ‘Esenowo’ respectively. This will be rendered into ‘Dr. J. E. Esenowo not E. J Esenowo that the appellant in his pleading and evidence clearly claimed to be the correct name.”
In the instant case, the name of the petitioner as reflected in the petition in the lower tribunal is His Excellency, Dr. Orji Uzor Kalu, the Notice of Appeal filed in the same Tribunal says His Excellency Dr. Uzor Kalu. It is clear that the absence of Orji in the Notice of Appeal does not create a misnomer as there is neither confusion nor any misleading change between two names. There is no ‘purported appellant’ in this appeal as suggested by the learned counsel for the 1st and 2nd Respondents and the appellant need not seek leave to appeal as an interested party.
Ground 1 of the 1st and 2nd Respondents objection is overruled.
Second, learned counsel for the 1st and 2nd Respondents complained that the Appeal does not have competent reliefs. On this, he referred to the provision of Order 6 Rules 2(1) of the Court of Appeal Rules, 2011 which mandates an appellant to state the exact nature of the reliefs sought in the appeal. The Appellants, said counsel have asked for two joint reliefs both of which are diametrically opposed to each other. In other words, the two reliefs in paragraph 10 (1) and 10 (11) (sic) respectively cannot be granted together. Since this court cannot grant the two joint reliefs, the only thing it can do is to strike both out. Again, on this score, counsel argued that the failure of the Appellants to comply with the provisions of Order 6 Rule 2(1) of the Rules of this court renders their Notice of Appeal incompetent and liable to be struck out.
Reliefs 10 (1) and 10 (11) of the Appellant at page 2251 of the record read as follows:
(i) An order setting aside the ruling of the Tribunal and remitting the petition back for retrial by another panel or Tribunal based on merit.
(ii) An order declaring the said April 9th 2011 senatorial Election in Abia North as void, cancel same and order for a fresh election.
These two reliefs would have indeed been in the alternative as they are basically inconsistent and diametrically in conflict with each other. However, that in itself does not make the Appellants Notice of Appeal incompetent. In my opinion, the objection raises an issue of technicality, which does not affect the substance of the said grounds of appeal. The courts have moved away from reliance on technicalities in favour of doing substantial justice.
See, Alhaja Ayo Omidiran vs. Patricial Olubunmi Etteh & 343 Ors. (2011) 3 NWLR (Pt. 1232) 471 at 488. Aderounmu vs. Olowu (2000) 2 SC (Pt.11) pp. 8 – 9, (2000) 4 NWLR (Pt.652), 253 at 265 -266.
Ground 2 of the objection of the 1st and 2nd Respondents is also overruled.
The third ground of objection by the 1st and 2nd Respondent is that Grounds 1, 2 and 3 in the Appellants Notice of Appeal do not arise from the decision of the Lower Tribunal of 29th September, 2011.
Counsel referred to the cases of APGA VS. Umeh (2011) 13 NWLR (Pt.1250) SC 544; Iriana LTD vs. U.T.B. PLC (2009) 12 NWLR (1155) CA 313 at 324, D.Owie vs. Igwiwi (2005) 5 NWLR (Pt.917) SC 184 at 217 M.B.N. Plc. vs. Nwobodo (2005) 14 NWLR (Pt.945) SC 379 and submitted that grounds of appeal must relate to the decision being challenged and that such grounds must arise from the decision appealed against. The Appellants by their ground one, said counsel are challenging the decision of the Lower tribunal for purportedly being based on the opinions of two schools of thoughts as to the importance or otherwise of stating the scores of candidates as required under the Electoral Act.
Counsel noted however, that the Lower Tribunal did not anywhere in its judgment base its decision in this regard on the two schools of thought represented by the decisions of this court. But, rather, the Lower Tribunal analysed the two schools of thought and eventually based its decision on the decisions of this court representing the newer view to the effect that where the scores of the candidates are in issue, they must be stated. To this extent, said counsel, ground one of the Notice of Appeal does not arise from the decision of the Lower Tribunal.
On another wicket, learned counsel for the 1st and 2nd Respondents complained that Ground 2 of the Appellants Notice of Appeal challenges the decision of the Lower Tribunal in striking out ground 13 (a) of the petition on the ground (according to the Appellant) that the said ground was inelegantly drafted. Counsel however pointed out that ground 13 (a) of the petition was not struck out because of inelegant drafting, but because it was outside Section 138 of the Electoral Act, 2010 in that it has the addition of “undue influence” in it. He also urged us to strike out the said Ground 2 as not arising from the decision of the Lower Tribunal.
On Ground 3 of the appeal, learned counsel for the 1st and 2nd Respondents said that the complaint of the Appellants is that the Lower Tribunal struck out the petition after holding that substantial paragraphs of the petition were clear, precise and exact, and that the reliefs may only be granted, refused or struck out at the end of the trial in its judgment and not before.
Counsel for the 1st and 2nd Respondents observed that the decision of the Lower Tribunal in striking out the petition was mainly based on the failure of the petitioners to state the scores of all the candidates when such scores were an issue before it, and also on the premise that after striking out the paragraphs relating to persons not parties to the petition, ground 13 (a) and the paragraphs that are vague, there were/are no sufficient pleadings in the petition to sustain it. Counsel added that the lower Tribunal neither struck out the petition on the trouno of incompetence of the reliefs nor on the ground that substantial paragraphs of the petition were increase, imprecise and inexact. To this extent, said counsel, ground 3 of the Notice of Appeal is not a challenge to the decision of the Lower Tribunal but is rather independent of it, and is liable to be struck out.
To start with, Grounds 1 and 2 of the Appellants’ Grounds of Appeal together with their particulars are reproduced hereunder as follows:
Ground One: Error in Law
That the learned Justices of the National and state House of Assembly Election Petition Tribunal sitting at Umuahia erred in law when they struck out petition EPT/ABS/5/1020/11 on the bases of two school of thought, opinions on stating scores of all the candidates, in an election, which occasioned a gross miscarriage of justice against the appellant.
Particulars of Error
“i. The Lower Tribunal accepted really, that they (sic) there were two schools of thoughts old and new in law.
ii. That the older view stresses the stating of all scores of even those who lost and did not file any petition.
iii. The newer, current, pro-active, positive and in tandem with modern jurisprudence on doing substantial justice devoid of technicalities, opined that not in all cases as in the present petition, that failure to state all scores are fatal, if the petition can be determined without the scores of losers, who did not present any petition at all.
iv. That the stating of eleven Political Parties with the scores of the candidates and pleading of Forms ECSD with serial number S/No.012078 and (sic) well as Form EC8D, appreciated by the Lower tribunal in their ruling but failed to apply same was in error.
v. That when two things are competing in law, one to kill and another to save (old or new) the innovation in law and to natural justice is to save, applying the new rule as electoral reforms envisages.
Ground Two: Error in Law
The Honourable Tribunal erred in law when it struck out ground 13 (a) of the petition as not cognizable by the Electoral Act on the bases that it was not elegantly drafted with precision and clarity.
Particulars of Error
“i. The provision of the electoral Act (as amended) 2010 provided the Grounds for presenting election petition.
ii. The petitioners petitioned the questioned election based on the ground that the election was invalid, vitiated by non-compliance, corrupt practices, against the Electoral Act (as amended) 2010.
iii. The Lower Tribunal despite the use of all the magic, material and commanding words/language of the Act, as used in said grounds, yet the Lower Tribunal selected and singled out the word “undue influence’ from the body of the grounds and struck out the said ground, whilst the operative wordings of the said ground was fully captured and encapsulated in the said ground.”
There is no doubt that neither ground 1 nor 2 of the Appellants’ Grounds of Appeal is elegantly drafted. Nevertheless, when read together with the particulars of each of the grounds, it is obvious that the complaint in ground 1 is that the Lower Tribunal accepted the view in between two schools of thought that the scores of all the candidates in an election must be stated when it is an issue in the petition. Similarly, Appellants’ Ground Two though clumsy managed to convey the idea that paragraph 13 (a) of the petition was struck out “as not cognizable by the Electoral Act. For these reasons, I find it difficult to declare ground 1 and 2 of the Appellants’ Notice of Appeal as incompetent. The dictum of Onnoghen, JSC in the case of Aigbobahi vs. Aifuwa (2006) 2 SC (Part 1) 82 at 89, (2006) 6 NWLR (Pt.976) 270 at 287 -208 is instructive in this respect.
“…the position, in my humble view, is that once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection in fact, the ground is valid, the defect in its form notwithstanding.
The rational behind this lies in the shift in emphasis from technical justice to substantial justice from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting and thereby defective in form, that defect alone is not sufficient to have it struck out provided the complaints therein are clear- see pages 265 – 266 of Aderounmu vs. Olowu (supra) per Ayoola, JSC.”
Ground 3 of the Appellants Notice of Appeal together with its particulars read thus:
Ground Three: Error in Law
The Honourable Tribunal erred in law, when it held that substantial paragraphs of the petition were clear, precise and exact, and that the reliefs may be granted, refused or struck out by a court of law or Tribunal at the end of the trial in its judgment and not before yet it struck out the petition without trial.
Particulars of Error
i. The Honourable Tribunal accepted that very substantial parts of the paragraphs of the petition were cogent, substantial, precise and exact, capable of sustaining the petition.
ii. The Honourable Tribunal also agreed that reliefs sought can only be an issue, after fully hearing of a case.
iii. The Honourable Tribunal in affirmation agreed also to reliefs (a) and (c) of the petition.
iv. That the acceptance of all above, without allowing the petition to be determined on merit of being heard, but struck same out, is a miscarried (sic) miscarriage of justice against the Petitioners/Appellants.
I must say that unlike Grounds 1 and 2 of the Appellants’ grounds of appeal; Ground 3 does not capture or reflect any ratio decidendi in the decision rendered by the Tribunal on 29th September 2011. Furthermore, the Ground lacks meaning and does not convey any sense in the context of the decision rendered by the Tribunal. In these circumstance and applying the decisions of the supreme court in Aderounmu vs. Olowu (supra) and Aigbobahi and Aifuwa (supra) it could be said that it is not possible to make sense out of Appellants ground 3.
Accordingly, the objection of the 1st and 2nd Respondents in relation to Appellants Grounds 1 and 2 is overruled. The objection to Ground 3 is sustained. Ground 3 is hereby struck out.
The fourth leg of the objection by the 1st and 2nd Respondents is that Grounds 4, 5, and 6 are argumentative and/or narrative.
I have carefully gone through all the Grounds of Appeal by the Appellant. I am in agreement with the learned counsel that Ground 6 of the Appellants grounds is indeed argumentative and narrative, that could not be so easily said of Grounds 4 and 5.
The objection in respect of Ground 6 is sustained. Ground 6 is accordingly struck out.
On the whole, the preliminary objection of the 1st and 2nd Respondents is upheld in part.
Having struck out Grounds 3 and 6 of the appellants Notice of Appeal, Appellants Issues Nos. 3 and 5 are also struck out. Issues based on incompetent grounds of appeal are liable to be struck out.
Afribank (Nig.) Plc vs. Onyima (2004) 2 NWLR (Pt.858) CA 654 at 670, Owners of M/v Gongola Hope vs. S.C.(Nig.) LTD (2007) 15 NWLR (Pt.1056) SC 189 at 208-209. Indeed, it is not expected that something could be placed on nothing, as it would not stay see U.A.C. vs. Macfoy (1961) 8 All ER 1477.
Having struck out Appellants Issues Nos. 3 and 5. the Appellants are only left with three (3) issues in this appeal. They are:
1. Whether the Tribunal was right in law, when it postulated two legal dictums(sic)dicta based on two schools of thought, on stating of scores in an election accepted both, but applied the killer position that struck-out the Petition’
2.Whether the Tribunal was right when it held that one of the Grounds contained in paragraph 13(a) of the main petition was not cognizable by Electoral Act (as amended) 2010.
3.Whether the Tribunal was right when it held that certain persons who are not necessary parties ought to be joined’ when all the necessary statutory parties were joined and made parties in the petition.
Learned counsel for the 1st and 2nd Respondents nominated four (4) issues as follows:
1. Considering the clear and unambiguous provisions of paragraphs 18 (2)(a), 18(7)(b) and 53 (5) of the First Schedule to the Electoral Act 2010 (as amended) and Section 140(4) of the Electoral Act, Coupled with the fact that the application before the Lower Tribunal challenged its jurisdiction and competence to adjudicate or countenance the petition before it, whether the Tribunal was not right in considering the 1st and 2nd Respondents objection and consequently striking out the petition.
2. Having regard to the pleadings of the petitioners qua Appellants, as well as the grounds upon the petition was/is predicated, whether the Tribunal was not in order or right by striking out paragraphs 4, 14(a) 14(b), 14(c), 15(a), 15(f), 15(f)(i), 16(a), 16(b), 16(c), 16(d) 16(f2)(iii), 18(a), 18(b)(i), 18(c), 18(d), 18(f), and 20(a) of the petition for non-joinder of necessary parties against whom diverse and criminal allegations were/are made in the petition.
3. Considering the clear and unambiguous provisions of Section 138(1) of the Electoral Act 2010 (as amended), whether the Tribunal was not right in its conclusion and/or by striking out ground 13(a) of the petition for not being cognizable under the law.
4. In view of the clear and mandatory provisions of paragraph 4(1)(c) of the Electoral Act, 2010 (as amended) vis-a-vis the pleadings and/or the reliefs claimed in the petition as being incompetent for failure to state the scores of all the candidates that participated in the election of 9th April 2011 into the Abia North Senatorial District of Abia State.
The 3rd – 5th Respondents merely adopted the issues formulated by the Appellants.
This appeal shall be determined by a consideration of the following three(3) issues which is an admixture of the issues formulated by both the Appellant and the 1st and 2nd Respondents and which in my opinion will meet the justice of the case.
1. Whether the Tribunal was right in law, when it postulated two legal dicta based on two schools of thought, on stating of scores in an Election accepted both, but applied the killer position that struck out the petition.
2. Considering the clear and unambiguous provisions of Section 139(1) of the Electoral Act, 2010 (as amended), whether the Tribunal was not right in its conclusion and/or by striking out ground 13(a) of the petition for not being cognizable under the law.
3. Having regard to the pleadings of the petitioners qua Appellants, as well as the grounds upon which the petition was/is predicated, whether the tribunal was not in order or right by striking out paragraphs (4) 14(a) 14(b) 14(c ) 15(a) 15(f) 15(f)(i) 15(f)(j) 16(a) 16(b) 16(c) 16(d) 16(f) 16(f2)(iii), 18(a), 18(b)(i) 18(c ), 18(f) and 20(a) of the petition for non-joinder of necessary parties against whom diverse and criminal allegations were/are made in the petition.
Henceforth, in the determination of this appeal, the submissions of the Appellant shall be placed on one side of the scale while those of the two sets of Respondents that is the 1st and 2nd and 3d to 5th Respondents shall be treated together on the other side of the scale. This is for the reason of the shared common interest in between the Respondents and also for convenience.
Issue No. 1 concerns the interpretation of paragraph 4(1)(c) of the Electoral Act 2010 (as amended). In the Appellants petition before the Tribunal, the Appellant failed to state the scores of two of the parties that participated in the election who however are not respondents before the Tribunal.
Before us in this appeal, learned counsel for the Appellants reiterated the views of the petitioner before the Tribunal that the omission to state scores of other candidates who contested but lost the election cannot affect the competency of the petition when the necessary parties i.e. the statutory respondents were all joined and the petition would properly be determined without the presence of the other candidates. In other words, it is sufficient that a petitioner states the votes of the necessary parties to the petition.
On this point, learned counsel for the Appellant relied on the cases of Pius Nwoga vs. Emeronye Benjamin (2009) 5 NWLR (Pt.1133) 152 at 177, Ogbeide vs. Osula (2003) 15 NWLR (Pt.843) 266 at 288 amongst others.
The Respondents more especially through the 1st and 2nd Respondents agreed with the observations of the Lower Tribunal and noted on the one hand that there are many decisions of the Court of Appeal to the effect that once the scores of all the candidates are not stated, the petition will be incompetent whether or not the scores of the candidates is in issue.
Some of such decisions include Magaji v. Balat (2004) 8 NWLR (Pt.876) 449 at 470 – 471, Offonah v. Ajegbo (2000) 1 NWLR (Pt.641) 498, Ajidua vs. Nwogu No.1 (2004) 16 NWLR (Pt.898) 56, Dalhatu v. Dikko (2005) All FWLR (Pt.242) 483 at 499 etc.
However, said Respondents counsel’ there are also many decisions of the court of Appeal which have held that failure to state the scores of all the candidates is not fatal to the petition except in cases where such scores become an issue in the matter. cases in this category are Owuru vs. INEC (1999) 10 NWLR (Pt.622) 201, PDP vs. Taiwo (2004) 8 NWLR (Pt.876) 656 at 670, Awuse vs. Odili (2004) 1 NWLR (Pt. 876) 481 at 512 – 513, 514 – 515, Nwoga & Anor vs. Benjamin &.Ors. (2009) 5 NWLR (Pt. 1133) 152 at 177 etc.
Learned counsel to the Respondents submitted that the scores of the candidates are in issue when a petitioner is seeking to be returned as the winner of the election. In such a situation, it will be necessary for the petitioner to make available to the Tribunal the scores of all the candidates so as to enable the Tribunal to determine the candidate who scored the second highest number of votes to the winner of the election. Also, that the 1st Appellant herein seeks to be returned as the winner of the election of 1st April 2011 making the issue of scores of all the candidates central to their petition.
It seems to me that the decision on Issue No. 1 would necessarily depend on whether or not the Appellants have made the scores of candidates an issue in their petition. But, before then, let us first examine the provision of paragraph 4(1) (c) of the First Schedule to the Electoral Act 2010 (as amended). Paragraph 4 of the schedule as a whole reads thus:
4 – (1) An election petition under this Act shall –
(a) Specify the parties interested in the election petition
(b) Specify the right of the petitioner to present the election petition
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner. (underlined emphasis supplied).
In the instant case, the next thing to examine, given the liberal but prevailing view of judicial authorities as to the true import of paragraph 4 (1)(c) of the First Schedule to the Electoral Act 2010 (as amended) is whether the of the candidates are in issue in the Appellants petition. Now, in paragraph (e) under the heading Reliefs sought at page 25 of the printed record the Petitioners (now Appellants) prayed the Tribunal:
“(e) That the Tribunal on collating the total valid votes cast returns the petitioners as duly elected by majority of the lawful valid votes cast at the April 9th election in Abia North Senatorial District.”
It is clear from the above that the Appellants in this case sought to be returned as the winner of the election. For this reason, the Appellants are by law obliged to state the scores of all the candidates that participated in the election by virtue of the provision of paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2010 (as amended). In Obuzor vs. Ake (2009) 2 NWLR (Pt.1125) 388 at 423, Saulawa, JCA put the matter succinctly as follows:
“In view of the entire paragraphs of the petition, especially the reliefs sought therein, it has become rather obvious that the scores of the candidates have been made an issue and are therefore relevant to the case of the Appellants, relief 3 of the petition is to the following effect:
(3) A declaration that the 1st Petitioner having scored the highest number of legitimate and lawful votes cast at the Senatorial election in Rivers West Senatorial District held in April 28, 2007 be declared the winner and be returned as such.
Most ironically however, despite the fact that the 1st Appellant has made scores or votes to be in issue and thus very much relevant to the petition thereof, he has failed to clearly plead or state the scores (votes) accredited to each candidate. It is trite law that by virtue of the provision of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2007 (supra), a petitioner questioning the validity of the return of a candidate as the winner of the election has the duty to inter alia, state the scores of the candidates that participated in the election.” Therefore, the prevalent view of the law is that it is not in all cases where failure of the Petitioner to state the scores of all the candidates in the election would be fatal as to render the election petition incompetent. Failure to state the scores of all the candidates in the election petition would not result in the petition being rendered incompetent where:
(i) The petitioner states the votes scored by the necessary parties to the petition i.e. the score of the petitioner and the person returned as the winner of the election and it is clear that the petition could be determined without the scores/presence of the other candidates that contested the election.
(ii) The scores of the candidates are not relevant to the issue for determination in the petition. For example, where the ground of the petition is that the person returned as elected was not qualified to contest the election and an order for fresh election between the qualified candidates is sought; or where the ground of the petition is that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election and a fresh election is prayed for; or where the contention of the petitioners centre on the noncompliance that the election did not hold.
See, Owuru vs. INEC (1999) 10 NWLR (Pt.622) 201, P.D.P. vs. Taiwo (2004) 8 NWLR (Pt.876) 656 at 670, Ogbeide vs. Osula (2003) 15 NWLR (Pt.843) 266 at 288, Awuse vs. Odili (2004) 8 NWLR (pt.876) 481 at 512 – 513, 514 – 515, 543.
In the instant case, the Appellants could not benefit even from the above liberal view of the interpretation of paragraph 4(1)(c) of the First schedule to the Electoral Act, 2010 (as amended) because their relief made the scores of the candidates an issue in the petition as they sought the return of the 1st Appellant as the winner of the election.
Therefore, and contrary to the suggestion of the learned counsel for the Appellant the Tribunal rightly applied the current position of the law to the facts of the case before it and did not apply “any killer position” to strike out the petition.
Issue No. 1 is resolved against the Appellants.
The complaint of the Appellants on Issue No. 2 is that the Tribunal was in error to have struck out paragraph (a) of their grounds of petition on the excuse that “undue influence” is not a cognizable ground under the provision of Section 138 (1) of the Electoral Act, 2010 (as amended).
Learned counsel for the Appellants submitted that the words in Section 138 (1) (b) are fully encapsulated and captured in their said ground 13(a). He relied on the dictum of Niki Tobi JSC in Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 to say that a counsel is at liberty to use his own words to convey message and that counsel can add or subtract the wordings in a statute provided it conveys the meaning required. The Respondents, on the other hand, defended the position taken by the Tribunal and more especially through the learned counsel to the 1st and 2nd Respondents joined the Tribunal to rely amongst other cases on the dictum of Uwais C.J.N in Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) SC 1 at 148 that undue influence” is not one of the grounds mentioned in Section 134 of the Electoral Act 2002, which is in pari materia with the provision of Section 138(1) of the Electoral Act 2010, (as amended).
138 – (i) An election may be questioned on any of the following grounds, that is to say –
(a) That a person whose election is questioned was’ at the time of the election, not qualified to contest the election.
(b)That the election was invalid by reason of corrupt practices or noncompliance with the provisions of this 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 unlawfully excluded from the election.
The first point to note in the consideration of this issue is that the dictum of the learned and respected Chief Justice of Nigeria (Uwais CJN) in the Buhari vs. Obasanjo case (supra) that “undue influence” is not a ground to question an election under Section 134 of the Electoral Act 2002, though obvious is Obiter to the decision in Buhari v. Obasanjo (supra) itself. In that case, the learned Chief Justice of Nigeria was to respond to a submission by Chief Ahamba of counsel to the Petitioner/Appellant which urged the Supreme Court to hold on the balance of probabilities that the 1st and 2nd respondents/cross-appellants were liable for the election offence of undue influence and by implication of corrupt practices under Section 129 of the Electoral Act 2002. After a view of the replies to Chief Ahamba’s point by Chief Afe Babalola and Mr. Ebun Sofunde, the learned jurist (Uwais C.J.N) remarked, closing the discussion of Issue no.9 in that case at page 148 thus:
“Now it is clear to me that Section 129 of the Electoral Act, creates a criminal offence which it terms “under influence” and prescribed punishment for the offence. I do not therefore see how such an offence can be the subject of an election petition or civil proceeding. If the Petitioners mean to prosecute the 1st and 2nd Respondents/cross appellants for the offence under Section 129 then there must be a charge to which they must plead in a normal criminal proceedings. However, that is not the situation here. I am strengthened in holding this view by the heading given to part vi to the Electoral Act, which is “Electoral offences” and the part covers Section 114 to 130 inclusive of the Electoral Act, 2002 provides the grounds on which an election may be questioned by way of petition, none of which mentions ‘undue influence” consequently, I see no substance in this issue and it fails.”
In relation to this appeal, the pertinent question is whether the Appellants indeed made “undue influence’ a ground under paragraph 13 (a) of the petition. Paragraph 13(a) of the Appellants petition reads thus:
“The Petitioners brought this petition on the ground that the election was invalid and in most local Government Area, Wards and polling units vitiated by reason of noncompliance, multiple thumb-printing, changing of polling unit, INEC collating centres shifted, non-pasting of result in private residences, corrupt practices, undue influence and monetary inducement, against the Electoral Act 2010 and INEC Electoral guideline.”
I do not agree with either the Tribunal or the learned counsel to the Respondents that the mentioning of the words “undue influence” in Appellants paragraph 13 (a) tantamounts to making ‘undue influence” a ground of the petition.
Paragraph 13 (a) of the Appellants petition is nearest in Form to the provision of Section 138(1)(b) of the Electoral Act 2010 (as amended). In other words it seeks to question the election on the ground that the election was invalid by reason of corrupt practices or non compliance with the provisions of the Act. Undoubtedly, paragraph 13(a) of the Appellant petition is clearly inelegant and clumsy. However, the key words in the inconclusive and untidy lexical arrangement are ‘invalid” and “non-compliance” others like multiple thumb printing, undue influence and monetary inducement are species, examples or characterizations of non-compliance in line with Section 138(1) of the Electoral Act.
By that, I mean that the categories of corrupt practices and/or noncompliance under the provisions of the Act are by that Section open – ended.
What then is the meaning of the word ‘ground’?
The compact Edition of the Oxford English Dictionary (1971) U.S. Reprint 1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 – 1215. The relevant ones for our purpose are those contained in paragraphs 450 – 451 as follows:
‘Ground:” (a) The fundamental constituent or the essential part of anything.
(b) A fundamental principle also the elements or rudiments of any study or branch of knowledge.
(c) A circumstance on which an opinion, inference, argument statement or claim is founded or which has given rise to an action, procedure or mental feeling a reason motive often with additional implication. A valid reason justifying motive or what is alleged as such.”
From the above, it would be seen that a ‘ground’ more especially in the context of an election petition is the fundamental reason, basis or justification for questioning the election.
The use of the words “undue influence” in the context of paragraph 13 (a) of the Appellants petition at best described a category of a particular thing, in this sense it qualifies or elaborates the disjointed use of the word ‘invalid” and “non-compliance” and cannot be said to be synonymous with the ground, justification, reason for the petition or the basis in which the petition was brought. For these reason, I think the learned Justices of the Tribunal misapplied the obiter dictum of Uwais CJN in the case of Buhari vs. Obasanjo (supra) to come to the conclusion that paragraph 13(a) of the Appellants petition is not cognizable to the provision of Section 138(1) of the Electoral Act 2010 (as amended)’as a ground for questioning the election of the Respondents.
Issue No. 2 is resolved in favour of the Appellants.
Learned counsel for the Appellants sought to fault the Tribunal’s striking out of sundry paragraphs of the petition which contain diverse and criminal allegations against the military, police, SSS personnel, traditional rulers and named private persons who are not joined in the petition by reliance on the provision of Section 137 (3) of the Electoral Act, 2010 (as amended).
The Respondents, through the 1st and 2nd Respondents said they are not unaware of the innovation introduced by section 137 (3) of the-Electoral Act 2010 (as amended) to the effect that if the complaints are against the conduct of an Electoral officer, a presiding or returning officer, it shall not be necessary to join such persons once INEC is joined. They (the Respondents) submitted that the said innovation does not extend to .situations like the present one where the allegations are against unnamed military, police and SSS personnel, Traditional Rulers and private persons who are neither Electoral Officer, nor Presiding officers nor Returning officers within the meaning of these designations/phrases in the Electoral Act.
Clearly and by way of example, the unnamed military personnel in paragraphs 4 and 18 (a), the unnamed police and SSS personnel in paragraphs 16 (d) and 14 (c), Mr.. Okoroagha Uka (in paragraph 14 (c), Mr. Onyejiocha in paragraph 18 (a) Rev. Dimanoches Ndeke in paragraph 1g (b) His Royal Highnesses, Luke Uche (Naka Eze) in paragraph 18 (c), Eze Moses Onyia in paragraph 18 (d), Mr. V. C. Ngwu and Mr. Ugochukwu Okpara in paragraph 18 (b)(i) (d) etc. were not shown to be and cannot be presumed to be agents of INEC as to come within the provision of section 137 (3) of the Electoral Act. As they are necessary and proper parties to the petition, their non-joinder provided legal justification for the Tribunal to strike out the paragraphs relating to serious and criminal allegations against parties that were not joined in the petition. This is because, it would otherwise be futile to proceed to adjudicate on the issues in controversy in the absence of parties who are not joined and who serious and criminal allegations have been made against.
See the unreported decision of the Court of Appeal in CPC vs. INEC and 42 Others – Appeal No. CA/A/EPT/PRES/1/2011 at pages.63 – 65 delivered on 14h July 2011. (per Salami PCA)
In Bidu vs. Haladu (2003) 14 NWLR (pt.841) CA 624 at 625, the Court of Appeal held thus:
“From the foregoing, it is crystal clear that the proper parties responsible for the electoral offences, irregularities or malpractices were not made parties such non-joinder of necessary parties has been described as fundamental vice which renders all allegations made against such officer as unproven and also deprives the Tribunal of the required jurisdiction to adjudicate on the matter and make any pronouncement against them.”
See also Haruna vs. Modibbo (2004) 16 NWLR (Pt.900) 487 at 561 – 562.
In the instant appeal, the lower Tribunal was right in striking out paragraphs 4, 14(a), 14(b), 14(c), 15(a), 15(f), 15(f)(i), 15(f)(j), 16(a), 16(b), 16(c), 16(d), 16(f2)(iii) 18(a) 18(b(i), 18(c) 18(d), 18(f) and 20(a) of the Appellants petition for non-joinder of necessary parties against whom diverse and criminal allegations were/are made in the petition.
Issue No.3 is resolved against the Appellant.
Issues Nos. 1 and 3 in this appeal are against the Appellants. Issue No. 2 was resolved in favour of the Appellants. In-spite of my resolution of Issue No. 2 in favour of the Appellants, the appeal lacks merit. The striking out of the Appellants petitiod on the ground that the scores of All the candidates were not stated provides sufficient justification for the dismissal of this appeal. The appeal lacks merit and it is accordingly dismissed.
There shall be cost of N30,000 in favour of the 1st and 2nd Respondents only.
UWANI MUSA ABBA AJI, J.C.A.: I have had the advantage of reading the judgment of my Learned brother, M. A. Owoade, JCA. I agree with the reasoning and conclusions reached therein that the appeal is devoid of any merit and it be dismissed.
I adopt the reasoning and conclusion as mine and have nothing more to add.
I adopt the consequential orders including one on costs.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage to read in advance the lead judgment delivered by my learned brother, M. A. Owoade, JCA.
My learned brother had admirably summarised the facts and the issues in contention in this appeal and adequately, in my view, resolved same. I therefore agree with his reasoning and conclusion on the issues that arose for consideration in this appeal. I adopt same as mine.
It is thus my conclusion that this appeal has no merit and is accordingly dismissed by me. I abide by the order as to cost made therein.
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Appearances
Morgan A. Anyalechi, Esq, with U. B. Eke, Esq.For Appellant
AND
Uche Ihediwa, Esq, for 1st and 2nd Respondents
Ms. Maurice Onyiuke, Esq, for the 3rd – 5th Respondents.For Respondent
