Ahmed Mohammed Sani Abubakar V. Idris Sanni Buko & Ors. (2003)
LawGlobal-Hub Lead Judgment Report
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.
He then urged the court to allow the appeal.
On his part, learned senior counsel for the 1st respondent, CHIEF P.A.O. OLORUNNISOLA, SAN, in the brief of argument filed on 30/6/03 submitted that election cases are sui generis and that their laws must be specifically complied with. That in considering whether a court has jurisdiction, it is only the claim of the plaintiff or petition that is relevant. That for the Tribunal to determine whether proper parties are before it, the Tribunal must examine the petitioner’s claim before it. That the Tribunal rightly found that paragraphs 26 – 31 of the petition made serious criminal allegations against people who are named but were not joined as parties.
That from the paragraphs of the petition, it is clear that persons against whom the petitioner had no claim are parties to the petition while those against who he has complaints are not. Referring to section 133(2) of the Electoral Act 2002 learned SAN submitted that the expression “any other person who took part in the conduct of the election” refers to a “person” who is not an “officer”. That the appellant having made grievous allegations against some persons other than the officials, no criminal proof can be attained without the persons alleged to have committed the crimes to be aware and defend the allegations. That it is not enough to make them witnesses. For this counsel relied on Samamo vs. Anka (2000) 1 NWLR (pt.640) 283; NEC vs. Isuogu (1993) 2 NWLR (pt.275) 270 at 295.
Learned counsel further submitted during oral hearing of the appeal that the case of Buhari vs. Yusuf cited supra by his learned friend is against the appellant in that the preliminary objection was filed a day before the filing of the reply to the petition. He then urged the court to resolve the issue against the appellant.
On her part, learned counsel for 2nd – 17th respondents MRS. N. I. OGHUMA, in a brief of argument filed on 4/11/03 submitted that only necessary parties for the conduct of a case must be joined, That the case of Green vs. Green (1987) 2 NWLR 480 defines who a necessary party is. That the case of Buhari vs. Yusuf (2003) Vol. 40 WRN 124 explained section 133 of the Electoral Act 2002 clearly.
Learned counsel then submitted that the petition of the appellant was not competent because it made very serious and grave accusations against persons who were not joined in the petition. She urged the court to resolve the issue against the appellant.
There are three sub-issues or questions that are inherent in the issue under consideration, These are:
(i) Who should be joined as necessary parties in an election petition. As required by section by section 133(2) of the Electoral Act 2002.
(ii) What is the effect of failure to join a necessary party, and
(iii) Whether the Tribunal can suo motu examine paragraphs of the Petition in attempt at finding out whether necessary parties have been joined.
Section 133(2) of the Electoral Act 2002 provides as follows:
“(2) The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an Election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election Petition in his or her official status as a necessary party,”
From the above it is clear that the following are necessary respondents in an election petition.
(a) The person whose election is complained of.
(b) The official of INEC who took part in the conduct of the election and whose conduct failed to measure up to expectation of the law, and,
(c) Any other person who took part in the conduct of the election and whose conduct at the election is also questionable.
There is no doubt that respondents in terms of (a) and (b) above are clear and not subject to interpretation to discover who they are. The problem lies in the meaning of “any other person who took part in the conduct of an election.” The question is whether that expression is limited to officers who took part in the conduct of an election in their official capacity or extend to any other person involved in the conduct of an election who is not necessarily an official of INEC. In either way one looks at that expression what is outstanding about it is the fact that the person ‘whose conduct is complained of must have taken part “in the conduct of an election.”
The Supreme Court has held in Adisa vs Oyinwola (2000) 10 NWLR (pt.674) 116 at 202 that the safer and more correct course of dealing with the question of construction is to take the words of the document or statute themselves and arrive if possible, at their meaning without in the first instance reference to cases. In other words, the rule of construction is to intend the legislature to have meant what they have actually expressed.
The court went on to hold that where the language of a statute is plain and admits of but one meaning, as in this case, the task of interpretation can hardly be said to arise. In such a case the words of the provisions of the statute should be given their plain, ordinary grammatical meaning without qualification – see also Owena Bank Nig. PLC vs. NSE Ltd (1997) 8 NWLR (pt.515) 1; Amadi vs. NNPC (2000) 10 NWLR (pt.674) 76 at 109; Buhari vs. Yusuf(2003) 14 NWLR (pt.841) 446 at 509 and 535.
From the ruling now on appeal, the Tribunal found the appellant made allegations or complaints about the conduct of some agents of the first respondent, village heads and other persons who were not joined in the petition as respondents. That these complaints are contained in paragraphs 26 to 31 of the petition. At pages 29 and 30 of the record, the Tribunal made the following findings:
“In this petition the election was challenged on the ground of multiple voting, massive irregularities, rigging, multiple voting, counting of invalid and unlawful votes, and finally that the petitioners supporters were prevented from voting. It is mandatory as earlier alluded that the necessary parties are joined.
By paragraph 26(i) the agents ought to be joined.
By paragraph 26(ii) Jummi Musa ought to be joined.
By paragraph 26(iii) the party responsible for the acts
Complained of must be joined as a respondent.
By paragraph 26(iv) Mallam Idris Woru Sena Gawe ought to have been joined the same applied to subsection (v).
By paragraph 26(vi) unnamed agents ought to have been joined as respondents.
By paragraph 26 (vii) unnamed agents are not joined.
By paragraph 26(Viii) Alhaji Dmoru Gunu ought to have been joined.
By paragraph 26(ix) unnamed village head, and the following:
Musa Brunduro, Hussaini Denbo, Audu Langalange are necessary parties as respondents – they were not joined.
By paragraph 26(x) Alhassan Mena ought to have been joined as a Respondent.
By paragraph 26(xi) the village head of Gberebere village ought to be a respondent.
By paragraph 27 the person who inflated votes ought to have been joined as a respondent.
By paragraph 28 where the conduct of the village head of Gobo village is in issue, he ought to be joined as a respondent.
Paragraphs 28 end 29 are merely statements there is no complaint.
Finally in paragraph 31 the agents that were assaulted aren’t named.”
The Tribunal went further to hold that since the malpractices were directed at the persons referred to in the paragraphs of the petition, and not at the 2nd – 16th respondents on record, it means that the wrong respondents were before the Tribunal and that the law is that “no person shall be guilty without being given the opportunity to defend himself.” That “anyone against whom an allegation is made must be confronted with that allegation and given an opportunity to defend himself.”
The Tribunal had earlier in the ruling held that paragraphs 1 – 25 of the petition are introductory or peripheral and that they were admitted by the respondent; but did not state which set of respondents admitted them. For instances the 1st respondent, in paragraph 2 of his reply to the petition did not admit paragraphs 2, 4 and 25 of the petition amongst others listed therein. Though the record of appeal contains a memorandum of conditional appearance filed on behalf of 2nd – 16th respondents at page 21 thereof, there is no record of the reply to the petition filed on their behalf, granted that any was filed.
I have carefully gone through the facts as pleaded in paragraphs 26, 27, 28, 29, 30 and 31 of the petition. From, the exposition of section 133(2) of the Electoral Act 2002, it is clear that the expression “any other person” used therein refers to such person who took part in the conduct of an election! In other words, for the “any other person” to be a necessary respondent under section 133(2) of the Electoral Act 2002 he must have an official role to perform in the election process which role or duty must be recognised by the Electoral Act, 2002 or rules made there under. It does not say that any busy body who interferes with the election process must be made a respondent.
The question then is, what do we mean by the expression “conduct of an election” As used in section 133(2) of the Electoral Act, 2002.
In Buhari vs. Yusuf (2003) 14 NWLR (pt.841) 446 at 534 the Supreme Court defined the word “conduct” as used in the said section 133(2) supra stated, per TOBI, JSC , thus:
“As it is, section 133(2) provides for the word “conduct” twice.
The word conveys two different meaning in the subsection. While the first meaning of the word is behaviour, the second meaning (which is what concerns us here) is management, in the sense of taking part in the election, as opposed to either being a candidate or a voter. In my view, both meanings do not relate to a person who is a candidate in the election.
A person who is a candidate cannot at the same time be a person who should conduct the election.”
The other term that needs to be under stood is “necessary Party” when used in relation to pleadings. By that we mean a party whose participation in the proceedings is indispensable. They are the persons who must be joined in an action otherwise complete relief cannot be given to those who are already parties without their joinder. They are those who have to be included in an action either as plaintiffs/petitioners or defendants/respondents, unless there is a valid excuse for their non-joinder.
The question now is even though there are complaints against the conduct behaviour of certain persons such as village heads in the course of the election in question did such persons – village heads for instance – take part “in the conduct of the election so as to make them necessary parties to be joined as respondents, I do not think so, Such persons may be said to have committed criminal offences under the Electoral Act 2002 depending on what they did or omitted to do during the election but they cannot be respondents in a petition against that election though they may be vital witnesses in the proceedings. Part vi of the Electoral Act 2002 deals expensively with electoral offences.
The village heads against whom the appellant complained are alleged to have threatened and prevented PDP supporters from voting in favour of the PDP, which conduct is contrary to the provisions of the Electoral Act. Granted that I am wrong in holding that they are not necessary respondents since they did not take part “in the conduct” of the election which I very much doubt, what is the legal effects of their nonjoinder? Must their non- joinder result in the striking out of the petition?
I am of the view that the answer to that question lies in the fact that the law allows the Tribunal to sever those paragraphs of the petition where allegations of misconduct are made against those who are not joined as necessary parties. These are the paragraphs that may be struck out. The question that remains is whether the surviving paragraphs of the petition can sustain the petition after the striking out of the offending paragraphs – see Omoboriowo vs. Ajasin (1984) 15 NSCC 81; Nwobodo vs. Onoh (1984) 1 SCNLR 1; Egolum vs. Obasanjo (1999) 9 NWLR (pt.611) 355 and Oduka vs. Okwranyia (1999) 4 NWLR (pt.597) 35.
Now if one is to strike out the paragraphs that talk of the conduct of the village heads and others who are not said to be agents of the 1st respondent, you still have paragraphs 1 – 25; 26(i); 26(iii); 26(vi); 26(vii); 26(x); 27; 28; 29 – 32 of the petition to prove at the hearing.It should be noted that since the allegations of the appellant against the village heads and others constitute criminal offences under the Electoral Act 2002, the standard of proof placed on the appellant is that of proof beyond reasonable doubt. It must be noted that all the returning officers in the polling stations and wards where electoral malpractices were alleged by the appellant had been joined in the petition as required by law. We of the judiciary must always be careful when considering technicalities involving Election petitions. It is better to allow the petitioner to be heard on the merit than to shut him up on technical grounds. Who knows, he may not establish his claim but he should be allowed to try.
Making allegations is one thing and proving them is another. Learned counsel for the appellant has complained of the Tribunal going through the paragraphs of the petition on its own while considering the preliminary objection and has submitted that it is not proper. I am of the firm view that the submission of learned counsel in that respect is, with respect misconceived.
It is trite that where an objection is raised as to the competence of an action or lack of jurisdiction of a court or Tribunal to entertain an action, the only relevant process in considering the issue is the Statement of Claim of the plaintiff, where one has been filed otherwise the writ of summons. This is because that document is the only foundation on which the case of the plaintiff or petitioner is built – the basis of his claim. So for the Tribunal or court to resolve the objection it must of necessity take a close look at the Statement of Claim or in this case the petition of the petitioner. There is therefore no doubt that the Tribunal was right in so doing. Despite the resolution of this sub-issue in favour of the respondents, issue No.1 is hereby resolved in favour of the appellant.
On issue No.2 learned counsel for the appellant submitted that the notice of preliminary objection filed on 27th May, 2003 but moved on June, 2003 after the 1st respondent had filed his reply to the petition on 28 May, 2003 is incompetent and contrary to paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002 since the same was done after the 1st respondent had taken fresh steps in the proceedings thereby forfeiting his right to raise the said objection. Counsel then urged the court to give paragraph 49(2) of the first schedule its ordinary meaning and prayed the court to resolve the issue in favour of the appellant and allow the appeal.
On his part learned Senior Counsel for the 1st respondent submitted that the notice of preliminary objection does not offend the provisions of the said paragraph 49(2) supra particularly as the said paragraph does not say that the preliminary objection must be heard before any fresh step is taken in the proceedings. That since the objection is based on jurisdiction paragraph 49(2) is inapplicable. He then urged the court to resolve the issue against the appellant and dismiss the appeal.
Learned counsel for the 2nd – 17th respondents adopted the submission of the learned Senior Counsel for the 1st respondent on issue No.2 and urged the court to resolve same against the appellant and dismiss the appeal.
Paragraph 49(2) of the First Schedule to the Electoral Act 2002 provides as follows:
“(2) An application to set aside an election or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
The above sub-paragraph requires an application of the nature of the one giving rise to this appeal not only to be made within a reasonable time after the applicant had become aware of the defects complained of but before he takes any fresh step in the proceedings after becoming so aware. In this appeal, there is no complaint from the appellant about the reasonability of the time for presenting the application. His complaint is simply that the objection was raised after the 1st respondent had taken fresh steps in the proceedings by filing reply to the petition.
In resolving the issue, the following facts are not disputed.
(a) That the 1st respondent filed his Notice of Preliminary objection against the petition of the appellant on the 27th day of May, 2003.
(b) That he filed his reply to the petition on the 28th day of May, 2003.
This was a day after filing the preliminary objection.
The question is whether the preliminary objection was filed after the 1st respondent had taken fresh step in the proceedings after becoming aware of the defects complained of. I do not think so. From the admitted facts, it is clear that the Notice of Preliminary Objection was filed before the reply to the petition and I so hold. I hold the view that the filing of the reply to the petition is not a fresh step in the proceedings since it was not taken before the filing of the preliminary objection. That being the case, it is my view that the notice of preliminary objection filed on 27/5/03 was done within a reasonable time and in compliance with the provisions of paragraph 49(2) of the First Schedule to the Electoral Act, 2002 and therefore competent. The issue is therefore resolved against the appellant.
In conclusion I hold that the appeal succeeds in part and is consequently allowed. The ruling of the Tribunal delivered on 4th June, 2003 is hereby set aside and in its place is hereby substituted an Order of this court remitting the matter to the Tribunal to be dealt with on the merit by another panel. There shall be cost against the 1st respondent in favour of the appellant which I assess and fix at Ten Thousand Naira only (N10,000.00)
Appeal allowed in part.
Other Citations: (2003)LCN/1510(CA)