KENNY EKENECHUKWU OKOLUGBO V. MERCY ALMONA ISEI & ORS
(2010)LCN/3918(CA)
(2010) LPELR-8629(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of July, 2010
CA/B/EPT/85/2008
RATIO
NON-JOINDER OF A POLITICAL PARTY IN AN ELECTION PETITION: EFFECT OF THE NON-JOINDER OF A POLITICAL PARTY IN AN ELECTION PETITION ON THE COMPETENCE OF THE PETITION
Any decision on the petition and this appeal one way or another would affect the fortunes of the PDP. Initially and up to the decision of the Supreme court in OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 510 the non-joinder of a political party in an election petition was not fatal to the competence of the petition. However, with the decision of the supreme court in AMAECHI (supra) there appears to be what I consider a radical departure from the decision in OBASANJO V. BUHARI (supra). In an earlier decision in appeal No. CA/B/EPT/334/2007, CHIEF TERRY J. OFUYA V. CHARLES UDOGWU ONYEKWELI AND ORS. (Unreported) judgment delivered on 9th June, 2010 this court observed: – “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).” Further to this observation, this Court in the same case held 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.” PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICE
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
KENNY EKENECHUKWU OKOLUGBO Appellant(s)
AND
1. MERCY ALMONA ISEI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER (REC) (DELTA STATE)
4. ELECTORAL OFFICER, INDEPENDENT NATIONAL ELECTORAL COMMISSION UKWUANI L.G.A
5. ELECTORAL OFFICER, INDEPENDENT NATIONAL ELECTORAL COMMISSION NDOKWA WEST L.G.A.
6. ELECTORAL OFFICER, INDEPENDENT NATIONAL ELECTORAL COMMISSION NDOKWA EAST L.G.A.
7. RETURNING OFFICER, FOR THE NDOKWA/UKWUANI F’EDERAL CONSTITUENCY Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship/Legislative Houses Elections Petitions Tribunal, Asaba, Delta State in Petition No. EPT/DT/NASS/41/2007 delivered on 5th February, 2008. On the 21st April, 2007, the 2nd Respondent (INEC) conducted elections for the Ndokwa/Ukwuani Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria. The appellant herein was the candidate of the Accord Party at the election while the 1st Respondent was the candidate of the Peoples’ Democratic Party (PDP). At the conclusion of the election, the then candidate of the PDP, one Mrs. Mercy Almona Isei was declared and returned by INEC as the duly elected Candidate.
The Appellant was not satisfied with result of the election and petitioned in Petition No. EPT/DTA/NASS/41/2007 dated and filed on 21st May, 2007. The petition was predicated on 3 grounds. They are:-
1. That at the time of the election the 1st Respondent was not qualified to contest the said election;
2. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006; and
3. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
Upon these 3 grounds and the particulars therefore, the appellant as the petitioner at the Court below sought for the following reliefs namely: –
1. A declaration that the House of Representatives election into the Ndokwa/Ukwuani Federal Constituency did not own (sic) in majority or substantial unit in the aforementioned Federal Constituency;
2. A declaration that the 1st Respondent was not validly nominated and/or sponsor (sic) by Peoples Democratic Party;
3. An order nullifying the purported votes ascribed to the 1st Respondent;
4. An order nullifying or setting aside the certificate of return already issue (sic) to the 1st Respondent;
5. An order nullifying the entire election; and
6. An order on the 2nd – 6th Respondent (sic) to conduct fresh election for the Ndokwa/Ukwuani Federal Constituency.
Issues were duly joined with the Petitioner/Appellant in the replies of the respective Respondents to the Petition and the matter went to trial.
During the trial, the Petitioner/Appellant gave oral evidence as PW3 and 2 other witnesses gave oral evidence in support of his petition. A number of documents were also tendered and admitted in evidence including witnesses statements. Four witnesses gave oral evidence and tendered documents in support of the case of the 1st Respondent while DW5 gave evidence likewise in support of the case of the 2nd – 7th Respondents. Also, in the course of the trial respective learned Counsel were ordered to file and exchange written addresses. In due course addresses were filed and exchanged and judgment was reserved. In its judgment the lower Court held that the Petitioner/Appellant failed to establish any of the grounds of the petition and accordingly dismissed it for lacking in merit.
The Petitioner/Appellant was dissatisfied with the decision of the lower Court and appealed to this Court in a notice of appeal filed on 25th February, 2008. This appeal is predicated on 3 grounds with their particulars. They are as follows: –
GROUND ONE
The Honourable Tribunal erred in law when it held that “Exhibits showing the return of the 1st Respondent namely, Exhibit “6” and Exhibits 4 (A) to 4 (C) and 5 respectively upon which the return of the said 1st Respondent is based. The correctness and authenticity of the Exhibits have in no way been impugned”.
PARTICULARS OF ERROR
i. The correctness and authenticity of Exhibit 4A-4C, 5 and 6 were violently impugned.
ii. DW5 was SEBASTIN OBINOR. He is not only a party (7th Respondent) in this petition; he was also named as a witness in the 2nd – 7th Respondents reply in this suit.
iii. Consequently DW5 made a statement on oath.
iv. DW5 gave evidence that he made the statement on oath before the Commissioner for Oath (the secretary of the Election Tribunal) and he adopted same in the witness box.
v. Therefore the signature on DW5 (Sebastin Obinor) written statement on oath cannot be disputed or challenged.
vi. DW5’s name (Sabastin Obinor) is written on exhibits 5 and 6 as the purported maker.
vii. But the signature on Dw5’s statement on oath is absolutely different from the signature he purportedly made on Exhibits 5 and 6.
viii. DW5 did not state in his statement on oath or evidence under cross-examination that he has two different signatures.
ix. It is therefore obvious that Dw5 was not the maker and/or did not sign and/or authenticate Exhibits 5 and 6.
x. Further more Exhibit 5 was not signed by any party agent.
xi. The 4th – 6th Respondents herein were named as witnesses in this petition and they made statements on oath.
xii. Even though 4th – 6th Respondents did not come to court to testify the fact that they made the statement on oath is undisputed, their signature on oath is deemed to be their only and correct signatures.
xiii. The 4th, 5th and 6th Respondents purportedly made exhibits 4A, 4B and 4C respectively.
xiv. Their purported signatures on Exhibits 4A, 4B and 4C are absolutely different from their signatures on their respective statements on oath.
xv. The 4th – 6th Respondents did not state their respective statements on oath that each of them has more than one signature.
GROUND TWO
The Honourable Tribunal erred in law when, it held that “the Tribunal has no difficulty in finding that no relevant evidence of non-compliance has been adduced in the petition”
PARTICULARS OF ERROR
i. There is evidence that S 75 of the Electoral Act, 2006 was violently breached in the conduct of the said election held on 21/4/07 in the Ndokwa/Ukwuani Federal Constituency.
ii. Exhibits 4A, 4B, 4C, 5 and 6 were not signed relevant authorities as ordained by S.75 Electoral Act, 2006.
iii. The purported signatures on Exhibits 4A, 4B, 4C, 5 and 6 (INEC RESULT FORMS) were not the signatures of those who purportedly signed them.
iv. Exhibits 4A, 4C and 5 were not signed by any party agent. Six Political parties fielded candidates for the election and none of their agents signed the aforementioned Exhibits. This is a flagrant breach of S.75 of the Electoral Act. Political parties did not sign.
v. Exhibit 4B was only signed by the PDP agent. The agent of the other five (5) political parties did not sign.
vi. These non compliance are substantial enough to vitiate the entire election.
GROUND THREE
The Honourable Tribunal erred in law when it held that “the Petitioner… Definitely failed to adduce any iota of relevant and/or credible evidence establishing the allegation that no voting took place in any unit of any ward in the Ndokwa/Ukwuani Federal constituency talk less of most or substantial number of units in the said Constituency”.
PARTICULARS OF ERROR
i. The case of the petitioner at the Election Tribunal was that there was no election at all in Ndokwa East and Ndokwa West Local Government Area. While in Ukwuani Local Government Area where election was held in some units the election was marred by election mal-practices and non-compliance with the Electoral Act and the INEC manual for the election.
ii. There is ample evidence that no election was held in Ndokwa West and Ndokwa East Local Government Area on 21/4/07.
iii. There is ample evidence also that the election of 21/4/07 in Ukwuani Local Government Area was marred by election mal-practice and non-compliance.
iv. The 2nd – 7th Respondents (Independent National Electoral Commissioner-INEC) and its Servants/Agents tendered through DW5 EXHIBITS 4A – 4C, 5 and 6 in an attempt to show that there was election in Ndokwa East, Ndokwa West and Ukwuani Local Government Area. But based on the records of Court (Pleadings and statements made on oath) it is manifestly clear that all the said Exhibits were falsified.
v. Exhibit 6 Declaration of Result of election – Form EC. 8E (II) was not made and/or signed by the Returning Officer DW5.
In prosecuting the appeal respective parties filed and exchanged briefs of argument. At the initial hearing of the appeal on 10th March, 2010, respective learned Counsel adopted and relied on their briefs. While the appellant prayed this Court to allow his appeal and order that a fresh election be held by the 2nd Respondent into the Ndokwa/Ukwuani Federal Constituency, the Respondents urged this Court to dismiss the appeal.
In the Appellant’s amended brief of argument dated and filed on 30th April, 2009 two issues were identified and formulated for the determination of this appeal. They are as follows: –
a) Whether the petitioner/Appellant was able to establish that Exhibit 6, 5, 4a, 4b and 4c did not comply with S.75 of the Electoral Act 2006, and if yes, whether it is substantial enough to invalidate the result and/or the said election.
b) Whether the petitioner/Appellant was able to establish that election did not take place in Ndokwa East Local Government Area and Ndokwa west Local Government Area and a substantial number of units in Ukwuani Local Government Area, and if yes, whether the defects are fundamental enough to invalidate the election.
Before going further, let me pause a little to highlight a special feature in this appeal. The 1st Respondent before the lower Court was one chief Mrs. Mercy Almona Isei and she remained the 1st Respondent in this court until when she was substituted by the current 1st Respondent, Mr. Charles Udogwu Onyekweli by an order of this court made on 26th October, 2009. This substitution was necessitated by the judgment of this court in Appeal No. CA/B/EPT/177/2007 wherein the said Mr. Onyekweli was declared and returned as the duly and validly elected candidate of the PDP for the Ndokwa/Ukwuani Federal constituency. Sequel to that judgment, Mr. Onyekweli was found suitable to step in and take the position of the original 1st Respondent. It was in that capacity that learned Counsel Mrs. Azinge, filed a brief of argument on behalf of the said 1st Respondent, Mr. Onyekweli.
At the hearing of the appeal before us respective learned Counsel identified, adopted and relied on their briefs of argument. While the Appellant urged the court to dismiss the preliminary objection of the Respondents and allow the appeal, learned Counsel to each set of Respondents urged on us to dismiss the appeal and affirm the order of the lower Court dismissing the petition of the Petitioner/Appellant.
After judgment had been reserved in this appeal, Appeal No.CA/B/EPT/334/2007 was also heard and judgment was similarly reserved. In another twist and irony of fate appeal No.CA/B/EPT/334/2007 also happened to have arisen from an election petition affecting the declared result for the Ndokwa/Ukwuani Federal Constituency. To that extent the facts and circumstances in this appeal and appeal No. CA/B/EPT/334/2007 appears to be on all fours.
In Appeal No. CA/B/EPT/334/2007 issue No. 3 identified and argued in the amended appellant’s brief was: –
“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.”
This issue was formulated out of ground 5 of the grounds of appeal in that appeal. This issue appeared to have been very crucial and important because it pertained to competence of the petition and jurisdiction of the lower Court to entertain and adjudicate on same.
The issue was fully decided in that appeal.
Now, because it was the same Tribunal that decided the petition of the Action congress (AC) candidate Chief T.J. Otuya, against the candidate of the PDP, Mrs. Almona Isei and also because that Tribunal decided the Petition giving rise to this appeal concerning the same election into the Ndokwa/Ukwuani Federal Constituency, this Court saw it fit to give this appeal a deeper look. While considering the circumstances of this appeal it was observed that paragraph 19 in the petition that led to this appeal averred as follows: –
“Your Petitioner states that the First Respondent was not validly nominated by the PDP and therefore not qualified to have contested the said election under the ticket of the PDP.”
It was also further observed that one of the reliefs sought in the petition goes thus: –
In his address learned counsel Mr. Agbamu quoted S.144 (2) of the Electoral Act, 2006 and explained that the PDP is not a necessary party in the circumstance of the petition and this appeal because of numerous allegations of corrupt practices and/or non-compliance with the provisions of the Electoral Act which were made against the (INEC) 2nd Respondent and its officials and the candidate of the PDP. According to learned Counsel Mr. Agbamu, the provisions of S.144 (2) are very clear as to the categories of persons who should be Respondents in an election petition. He then referred to them as: –
a) The person whose election or election victory is complained of;
b) INEC staff whose conduct in the election is complained of; and
c) Other persons who took part in the conduct of the election.
Upon this background, Mr. Agbamu, of Counsel opined that a political party that sponsors a candidate for an election cannot be said to have taken part in the conduct of an election. With this opinion in mind learned Counsel went on to submit that on a proper construction of S.144 (2) of the Electoral Act, 2006, against the circumstance of this appeal, the PDP does not fall within the ambit of a candidate at the election and it was not INEC or its officials or among the category of any other persons that took part in the conduct of the election.
In a further effort learned Counsel Mr. Agbamu tried to distinguish the case in appeal No. CA/B/EPT/334/2007 and explained that it was only against INEC and its officials as well as the candidate of the PDP that allegations of wrong doing were made in this appeal.
He also distinguished the case of AMAECHI V. INEC & ORS (2008) 1 SCNJ 1 with this case. In conclusion learned Counsel submitted that the Petitioner/Appellant acted within the law not to have joined PDP as a party in the petition and this appeal because it was not a necessary party and also because the petitioner did not make any allegations against it. He then urged this Court to hold that the Petitioner/Appellant was right not to have joined the PDP as a party to the petition.
In her address, learned Counsel to the 1st Respondent, Mrs. Azinge referred to certain paragraphs of the petition and relief 2 thereto and explained that the PDP is a necessary party who would be directly affected by the decision of this Court in the determination of this appeal. Learned Counsel also explained that the PDP participated in the election of 21/04/2007 by sponsoring the 1st Respondent and issues for determination as to the candidature of the 1st Respondent and whose victory at the election was a victory for the PDP was being questioned.
After referring to a number of decided cases of this Court and the Supreme Court, learned Counsel cited S.221 of the 1999 Constitution and the case of AMAECHI vs. INEC & ORS (supra) and emphasized their importance and impact on the facts and circumstances of this appeal. Upon this background, Mrs. Azinge of counsel urged this court to hold that the PDP, being the person whose election was being questioned and against whom several allegations of wrong doing were made, is a necessary and indispensable party to these proceedings and the failure to join it as a patty renders this appeal incompetent and liable to accordingly be struck out.
Also, after referring to the case of AMAECHI (supra) learned Counsel Mr. O. A. Adeyemi for the 2nd – 7th Respondents referred to S.80 of the Electoral Act, 2006 and explained that the PDP is a registered political party and a body corporate with perpetual succession capable of suing or being sued in its corporate name. He also explained that a provision pari materia to S.80 was interpreted by the Supreme Court in OBASANJO v. BUHARI (2003) FWLR (PT.186) 709 where it was held that pursuant to the audi alteram partem rule a Court cannot enter judgment against a person who will be directly affected by its decision if such a person is not a party to the action and had no opportunity of defending the action.
Based on the foregoing explanations learned counsel Mr. Adeyemi submitted and urged this Court to hold that the non-joinder of the PDP in this matter as a respondent rendered it incompetent. He also urged the Court to hold that the petition before the lower Court was incompetent and go further to dismiss this appeal.
I have carefully considered all the foregoing explanations, arguments and submissions etc of respective learned Counsel and the decided cases, statutory provisions as well as the entire facts and circumstances of this matter. I now wish to emphasize a key factor in the written address of learned Counsel Mr. Agbamu at page 3. Therefore he stated as follows: –
“However because of the audi alteram partem rule, when a petitioner makes complaints against a person or a political party in an election petition such a person or political party must be made a party to give him or it an opportunity of defending his or its action.”
In my humble view this is the crux of the matter in this appeal. There is now a better understanding of the real effect of the decision of the Supreme Court in the case of AMAECHI V. INEC & ORS on the pivotal and superior position of a political party in the outcome of an election and what follows victory or defeat thereat.
There is no doubt and it is beyond per adventure that paragraph 19 of the petition as reproduced hereinabove is a clear allegation on the PDP. It is also clear that relief 2 is principally being sought against the PDP.
Any decision on the petition and this appeal one way or another would affect the fortunes of the PDP. Initially and up to the decision of the Supreme court in OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 510 the non-joinder of a political party in an election petition was not fatal to the competence of the petition.
However, with the decision of the supreme court in AMAECHI (supra) there appears to be what I consider a radical departure from the decision in OBASANJO V. BUHARI (supra). In an earlier decision in appeal No. CA/B/EPT/334/2007, CHIEF TERRY J. OFUYA V. CHARLES UDOGWU ONYEKWELI AND ORS. (Unreported) judgment delivered on 9th June, 2010 this court observed: –
“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).”
Further to this observation, this Court in the same case held 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.”
I have carefully considered the facts and circumstances of the instant appeal against the backdrop of the above decision of this Court. To the extent that allegations of wrong doing or non-compliance with the provisions of the Electoral Act, 2006 have been made against the PDP and also to the extent that a relief was being sought directly against it, its non-joinder was fatal to the petition of the Appellant and had afflicted it with a fundamental vice capable of rendering it incompetent and not capable of being entertained by the lower Court. Further to this, because it was the PDP who won the election more than Mr. Onyekweli and also it was its victory that was being challenged or complained of, the petition has failed to comply with Part 9 and paragraph 4(1) (a) of the 1st Schedule and S.144 (2) of the Electoral Act, 2006. By virtue of S.147 (3), the petition was liable to being struck out to the extent of such non-compliance.
This appeal fails and it is hereby dismissed. The petition before the lower Court remained liable to be struck out and is hereby accordingly struck out. No order for costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I have read in draft the lead judgment of my learned brother, A.A.B. Gumel, J.C.A., in this appeal. I agree with his line of reasoning and conclusion that this appeal is bereft of merit.
On the locus classicus case of: Amaechi v. INEC & ORS. (2008) 1 SCNJ p. 1, political parties being the sponsors of candidates at elections have become the indispensable big masquerades in all election affairs. They are now synonymous to the proverbial head-owners whose consent must be sought and obtained before their hairs can be shaved. This of course is in tandem with the doctrine of fair hearing which is derived from the principle of natural justice under its twin pillars, namely audi arteram partem which means ‘hear the other side” and nemo judex in causa sua which means “you cannot be a judge in your own case”. A breach of fair hearing is regarded or treated as very fundamental and a sine qua non to any proceedings, hearing or a trial which is subject to an adjudication process. See the cases of: (1) Mfa v. Inongha (2005) 7 NWLR (Pt. 923) p.1 and (2) F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) p. 652. Therefore, the courts are not to proceed to decide a case without hearing all the necessary parties therein.
The consequence of a breach of the principle of fair hearing is that the proceedings in the case are null and void. And it will not matter that the proper thing had been done, the decision would have been the same. It is equally immaterial that the same decision would have been arrived at in the absence of the departure from the essential principles of justice. A decision given in breach of fair hearing must be declared to be no decision at all and must be set aside. This is because, litigation is not a game of hide and seek.
Parties must put their adversaries on full notice of what they intend to rely upon in the prosecution or defence of their case, as the case may be, All of the parties’ cards must be placed on the table facing up. See the cases of:
(1) Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) p.411; (2) CFAO (Nig.) Plc. v. Sanu (2009) 15 W.R.N p. 106 and (3) Tamti v. N.C.S.B (2009) 7 NWLR (Pt. 1141) p. 631.
In the instant matter, the PDP is the mother of the actor, Mrs. Mercy Almona Isei. Non-joinder of PDP is an incurable vice in the given circumstance.
I also dismiss this appeal and abide by the consequential orders contained in the lead judgment, including that for costs.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D) J.C.A: A draft of the lead Judgment written by my learned brother ALI ABUBAKAR BABANDI GUMEL JCA was read by me. I agree entirely with his reasoning and conclusion that incompetent. Accordingly, the appeal is dismissed, and the petition before the lower tribunal is accordingly struck out. I also make no order as to costs.
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Appearances
MR. J.O. AGBAMUFor Appellant
AND
DR. MRS. V.J.O. AZINGE
O.A. ADEYEMI ESQ.For Respondent
