Abdulrazak Ismail Bagwai & Anor V. Saadu Yusifgoda & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

The 1st Appellant herein was a candidate of the Peoples Democratic Party in the 14th of April, 2007 elections for the seat of Bagwai/Shanono constituency in the Kano State House of Assembly.

The 1st Respondent contested on the platform of the 2nd Respondent, the All Nigeria Peoples Party. At the conclusion of the said election, the 3rd Respondent declared the 1st Respondent as winner of the election with a total vote of 23,835 as against 22,578 votes scored by the 1st Appellant. Not being satisfied with the declaration and return of the 1st Respondent as winner, the Appellants filed their petition at the Governorship and Legislative Houses Election Petition Tribunal, Kano against all the Respondents challenging the said return.

The main point raised in the petition being a matter pertaining to the conduct of certain electoral officials, the issue of whether or not proper parties were sued by the Appellants was raised by the 1st Respondent at the lower Tribunal. The Court below, after hearing arguments from both sides on the matter, resolved

same in favour of the 1st and 2nd Respondents and struck out the petition.

The Ruling of the Tribunal which struck out the petition was delivered on the 10th day of November, 2007. Dissatisfied with the said ruling, the Appellants have appealed to this court. The notice of appeal is dated and filed on 30th November, 2007. Four grounds of appeal are contained therein. When this appeal came up for hearing on the 23rd day of November, 2009, the learned counsel for the 2nd Respondent was absent though duly served. Having filed his brief, the appeal was deemed duly argued in line with Order 17, Rule 9(4) of the Court of Appeal Rules, 2007.

From the four grounds of appeal, two issues have been formulated by the Appellants for the determination of this appeal. The issues are:-

1. Whether or not in the circumstances of this Petition especially in the light of the provisions of section 30 and 144(2) of the Electoral Act, 2006, the learned Trial Tribunal was right in striking out the Petition on the grounds of none joinder of necessary parties notwithstanding the joinder of the Independent National Electoral Commission, the Returning Officer and Presiding Officers for Bagwai State House of Assembly?.
2. Whether or not in the circumstances of the case especially in the light of the averments of the Petitioners in paragraphs 8(c) to (f) of the petition, the learned Trial Tribunal drew a completely wrong inference from the established facts of this case which led to a miscarriage of justice in the matter.

The learned counsel for the 1st Respondent also distilled two issues for determination as follows:

1. Was the Lower Tribunal in error by striking out the petition on the basis of lack of proper capacity to sue and omission to join the proper parties to the proceeding?
2. Whether having regard to the facts in this matter, it could be said that the conclusion reached by the lower Tribunal led to miscarriage of justice in this matter.

Two issues have also been decoded by the learned counsel for the 2nd Respondent which state as follows:-

1. Was the lower Tribunal in error in striking out the petition on the basis of omission to join necessary parties to the proceedings?
2. Whether having regard to the facts of this matter the answer could be that the decision reached by the lower Tribunal led to miscarriage of justice in this matter.

The 3rd – 28th Respondents through their counsel, however submitted one issue for the consideration of this appeal. The lone issue is:-

Whether or not in the circumstances of this petition, the learned Trial Tribunal was right in striking out the petition on the ground of non-joinder of necessary parties notwithstanding the joinder of Independent National Electoral Commission, Returning/Presiding Officer for Bagwai State House of Assembly.

As can be seen from the issues formulated by all the parties, they are the same though variously and differently couched. I shall therefore determine this appeal on the two issues formulated by both parties.

In the brief settled by M. N. Duru Esq, counsel for the Appellants, it is contended on the first issue that the Independent National Electoral Commission, having appointed and designated collation/supervisiory Presiding Officers for the election at Bagwai, it was exercising the powers conferred upon it by the provisions of section 30 (1) and (2) of the Electoral Act, 2006. That the learned Tribunal by holding that such appointment and designation must be in respect of offices created and designated by the Electoral Act 2006 and the manual for election Officials 2007, sought to and indeed, introduced into the section that which it does not contain. That the wordings of the section are clear and unambiguous and ought to be given its ordinary meaning relying on the case of Okonkwo V. Ngige (2007) All FWLR (pt 393) I.

Further more, on this issue, it was submitted that if the law makers intended the meaning which the Tribunal gave to the section, they would have said that the Electoral Commission had power to appoint such officers only into offices as created and designated by the Electoral Act. It was their further submission that section 144 (2) of the Electoral Act, 2006, which the lower Tribunal relied upon in holding that the 7th, 8th 10th, 11th, 12th and 13th Respondents were not juristic persons, when read alongside section 30(1) of the same Act, shows on the contrary that the Law makers actually contemplated persons so appointed and designated by the INEC, hence the phrase “or any other person who took part in the conduct of an election ” in the said sub section.