Ahmed Mohammed Sani Abubakar V. Idris Sanni Buko & Ors. (2003)

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WALTER SAMUEL NKANU ONNOGHEN, J.C.A. 

This is an appeal against the ruling of the National Assembly/Governorship and Legislative House Election Tribunal holden at Ilorin in Petition NO.KW/SA/1/03 delivered on 4th June, 2003 striking out the Petition of the appellant on the ground that proper parties were not made respondents in the petition.

The appellant was dissatisfied with the ruling and appealed to this court.

The facts of the case include the following.

The appellant, 1st respondent and one ADAMU GOOGE contested the 3rd May, 2003 election for a seat in the Kwara State House of Assembly on the platform of Peoples Democratic Party (PDP); All Nigeria Peoples Party (ANPP) and Alliance for Democracy (AD) respectively. At the conclusion of the election the 1st respondent was declared duly elected with a majority of lawful votes of 5,531 while the appellant polled 5,408 and Adamu Googe, 3,626 votes. The appellant was not satisfied with the conduct of the said election and therefore petitioned the Election Tribunal complaining of various acts of violations by way of non-compliance with electoral law and guidelines by 2nd – 17th respondents. The complaints include counting of invalid votes in favour of 1st respondent. That there were large scale electoral malpractices in aid of the 1st respondent by various people at polling stations.

Some of these people whose conducts were complained of were not made parties to the petition consequent upon which the 1st respondent filed a notice of preliminary objection challenging the competence of the petition on the ground, inter alia that the persons mentioned in the petition other than 1st – 17th respondents ought to have been joined in the petition and that failure to join them rendered the petition incompetent and subject to be struck out. The Tribunal agreed with the learned senior counsel for the 1st respondent and consequently struck out the petition.

The appellant has appealed against that ruling on three grounds out of which learned counsel for the appellant ABUBAKAR A. OTHMAN Esq., in the appellant’s brief of argument filed on 23/6/03 and adopted in argument on 17/11/03, has formulated two issues for the determination of the appeal.

The issues are as follows:

“(1) Whether the lower Tribunal was right in holding that proper parties were not joined as respondents and in so holding examined the paragraphs of the petition in search of proper parties.

(2) Whether the lower Tribunal was right to have permitted the 1st respondent to argue his Notice of Preliminary Objection having regard to paragraph 49(2) of Schedule one to the Electoral Act 2002.”

In arguing the first issue, learned counsel for the appellant referred the court to section 133(2) of the Electoral Act 2002 and submitted that the appellant joined the proper parties as respondents since he joined the presiding officers, returning officers and ward returning officers in respect of the polling units/centres where complaints were made. That that being the case, the Tribunal ought not to have struck out the petition on the ground that some persons had been accused of electoral malpractices and had not been made patties. That the Tribunal is wrong in holding that the rationale for making a person a party to an action is to make him bound by the out come since the persons to be affected or be bound by the result of the action are 1st -17th respondents who are already parties to the petition. In addition counsel further submitted that section 133(2) of the Electoral Act, 2002 talks of the conduct of persons entrusted with the conduct of the election which makes 1st – 17th respondents the only proper parties to the petition; since the other persons mentioned in the petition had nothing to do with the conduct of the election and cannot be affected by the result of the action.

That the 1st respondent failed to identify the parties who ought to have been joined neither, did he identify the offending paragraphs of the petition. That the Tribunal was therefore wrong in considering, suo motu, paragraphs after paragraphs of the petition in search of the offending paragraphs and the person who ought to have been joined in the petition. That the court is only to act on materials placed before it and is not expected to go on a voyage of discovery relying on Olorunfemi vs. Asho (1999) 1 SCNJ 1 at 3; Fasikun v. Onironke 1 SCNJ 110; Mohammed v. C.O.P. (1961) NNLR 70 at 73 – 74.

Finally learned counsel submitted that granted, without conceding that some persons mentioned in the petition and whose acts are complained of have not been made parties, there still remain paragraphs such as paragraphs 26(1), 26(ii), 26(iii), 26(iv), 26(vi), 26(vii) and 27 which can sustain the petition.

During oral hearing of the appeal learned counsel for the appellant cited and relied on the case of Buhari vs. Yusuf (2003) 6 SC. (pt.2) 156 at 174 and submitted that the 1st respondent having filed his reply to the petition before arguing the preliminary objection the said preliminary objection is incompetent in that respondent is presumed to have waived his right to same haven taken fresh steps on the proceedings by filing the reply.