Chief (Dr.)ugwu Nwafor Ujam V. Chief Ken Nnamani & Ors (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

In the National Assembly Election conducted throughout Nigeria on 12/4/2003, the petitioner/appellant was a candidate and contested for the seat of the Senator in the Enugu East Senatorial District on the platform of the All Progressive Grand Alliance (APGA), The 1st respondent on the other hand who was also a candidate in the same election was sponsored by the Peoples Democratic Party (PDP), At the close of polls from the 6 local government Areas comprising the Enugu East Senatorial District of Enugu State of Nigeria, the 1st respondent was returned as the winner of the election.

The appellant who was not happy with the result of the election then proceeded to the National Assembly Election Tribunal Enugu on 12/5/03 and presented his Election Petition pleading in paragraphs 12 & 13 thereof as follows:

“12. Your petitioner contends that once the invalid and unlawful votes credited to the 1st respondent are removed and expunged from the overall votes awarded him petitioner’s votes contained in all the Forms EC 8A herein pleaded (and which will be tendered at the hearing) will show that the petitioner scored a majority lawful votes in the entire election and so ought to be returned as duly elected.

13 WHEREFORE YOUR PETITIONER prays that it may be determined that the said Chief Ken Nnamani of the PDP was not duly elected or returned and that his election was void and that Chief (Dr.) Ugwu Nwafor Ujam of the All Progressive Grand Alliance (APGA) was elected and ought to have been returned.”

Although in the petition as manifested in the relief above, the petitioner claimed to have won the election and therefore ought to have been returned as duly elected, the petitioner did not state the votes he scored in the election to have entitled him to the relief claimed. Further more the petitioner did not state anywhere in the petition the votes scored by the 1st respondent whom the petitioner alleged did not win the election or the votes scored by any of the candidates who contested the election along with him in the Enugu East Senatorial District on 12/4/2003.

The 1st respondent therefore on being served with the petition, filed a memorandum of conditional appearance on 4/6/2003 and without filing any reply to the petition, proceeded and filed a motion on notice on 11/6/03 challenging the competence of the petition and urged the Tribunal to strike it out on the grounds:

“1. Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002, stipulates that an election petition must state the holding of the election, the scores of the candidates and the person returned as the winner of the election.

2.The petition is predicated on the ground that the Petitioner and not the 1st respondent secured majority of the lawful votes cast at the election.

3.The petitioner had failed to set out the scores obtained at the election by either the petitioner or any of the other candidate at the election.

4.The petitioner failed to join the Peoples Democratic Party (PDP) as a necessary party in spite of the very grievous allegations made against the party in paragraph 4(ix)(a) & (b) of the petition.”

The motion was supported by a 10 paragraph affidavit to which Form EC 8E dated 13/4/03 containing the result of the election was exhibited.

The appellant as petitioner not only filed a counter affidavit to oppose the motion but also filed another motion on notice on 17/6/03 urging the Tribunal to strike out the 1st respondent’s motion for being an abuse of process of the Tribunal. The two motions were accordingly heard together by the Tribunal which in its Ruling delivered on 24/6/03, held that the petition was fundamentally defective and accordingly struck it out. The relevant part of this Ruling reads:-

“The failure to join each of these presiding officers in Nkanu East, Nkanu West and Isi-Uzo LGAs against whose conduct in the election the petition complains is fatal to the petition as the reliefs sought in the petition revolve round their individual conducts.

See Maikori v. Lere (1992)2 LRECN 125 at 132.

The defect is fundamental. It cannot be cured by striking out the paragraphs wherein allegations are made against the presiding officers in the three Local government Areas. Doing that will reduce the petition to an empty shell, a mere carapace.The non joinder of the individual presiding officers against whom the allegations have been made in the petition is also a fundamental defect in view of the cardinal principle of fair hearing guaranteed by the constitution that non including these presiding officers, shall be condemned unheard.

The petition being fundamentally defective for the joinder of the nebulous 5th respondent and the non-joinder of the individual presiding officers of Nkanu East, Nkanu West and Isi-Uzo Local Government areas of Enugu East Senatorial District, is hereby struck out.”

Aggrieved by this ruling of the trial Tribunal, the petitioner had appealed to this Court against it by his notice and grounds of appeal dated 30/6/03. The petitioner, now appellant had challenged the decision of the trial Tribunal upon two grounds of appeal. These grounds without their particulars read:-

“1. The National Assembly Election Tribunal erred in law when it struck out the petitioner/appellant’s petition on the grounds of non-joinder of necessary parties in compliance with Section 133(2) of the Electoral Act 2002 whereas the appellant duly complied with the said provisions in his petition.

2.The National Assembly Election Tribunal erred in Law when it denied the petitioner the opportunity of making use of the facts, materials, and information contained in its order of 23rd May, 2003 thereby frustrating appellant’s petition by denying him all the facilities of fair hearing.”

In the appellant’s brief of argument dated 17/7/2003 and filed in this Court on 18/7/2003, only one issue for determination of the appeal was formulated from the two grounds of appeal filed by the appellant. The issue which is at page 2 of the brief of argument states:

“Whether the Election Tribunal was right in striking out the appellant’s petition on the grounds of non compliance with Section 133(2) of the Electoral Act 2002 for non-joinder of presiding officers.”

This issue clearly arises from the appellant’s first ground of appeal. This of course means that no issue for determination had been identified from the appellant’s second ground of appeal which is quite distinct from the first ground.The law is trite that where no issue for the determination of an appeal is formulated from a ground of appeal filed by the appellant, that ground of appeal is deemed to have been abandoned and the appeal court will strike it out or discountenance it in the determination of the appeal. See CHUKWUMAH V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1993) 4 NWLR (PT.289) 512 AT 551.

Accordingly, by not formulating any issue from ground 2 of the appellant’s grounds of appeal, that ground is deemed to have been abandoned by the appellant. That ground is therefore hereby struck out.

In the respondents’ brief of argument filed by the 1st and 2nd – 11th respondents respectively, while the 2nd-11th respondents simply adopted the single issue as framed in the appellant’s brief of argument, the 1st respondent decided to reframe the issue to read –

“Whether the Tribunal was right in striking out the petition instead of the paragraphs of the petition where the allegations were made against the presiding officers.”

Learned counsel to the appellant had submitted that the Tribunal was in error when it found that the petition was fundamentally defective for the joinder of the nebulous 5th respondent and the non-joinder of Nkanu East, Nkanu West and Isi-Uzo Local Government Areas of Enugu East Senatorial District in striking out the petition. This is because according to the learned counsel, the law is now settled that it is only the affected paragraphs being complained of that ought to have been struck out and not the entire petition. Learned counsel to the appellant analysed various decisions of this Court on the effect of the failure of an election petition to join a necessary party and came to the conclusion that the cases of EGOLUM v. OBASANJO (1999)7 NWLR (PT.611) 423; ODUKA v. OKWARANYIA (1999)4 NWLR (PT.597) 35; and JIDDA v. KACHALLAH (1999)4 NWLR (PT.599)426 which stated the law all agreed that only the paragraphs of the petition affected by the non-joinder that are rendered incompetent and not the entire petition.

Reliance was ultimately placed by learned counsel on the Supreme Court decisions in EGOLUM v. OBASANJO (1999)7 NWLR (PT.611)355 AT 397; and BUHARI v. YUSUF, SUIT NO. SC/116/2003 delivered on 27/6/2003 in which the view of Belgore J SC in Egolum v. Obasanjo (Supra) on the state of the law on the subject was adopted by the Supreme Court.

Learned counsel therefore urged this Court to allow the appeal since the EGOLUM V. OBASANJO (1999)7 NWLR (PT.611) 423; ODUKA v. OKWARANYIA (1999)4 NWLR (PT.597) 35; and JIDDA v. KACHALLAH (1999)4 NWLR (PT.599)426 which stated the law all agreed that only the paragraphs of the petition affected by the non-joinder that are rendered incompetent and not the entire petition. Reliance was ultimately placed by learned counsel on the Supreme Court decisions in EGOLUM v. OBASANJO (1999)7 NWLR (PT.611)355 AT 397; and BUHARI v. YUSUF, SUIT NO. SC/l16/2003 delivered on 27/6/2003 in which the view of Belgore JSC in Egolum V. Obasanjo (Supra) on the state of the law on the subject was adopted by the Supreme Court.

Learned counsel therefore urged this Court to allow the appeal since the remaining paragraphs of the petition after striking out the offending paragraphs were enough to sustain the petition.

For the 1st respondent however, his learned counsel had argued that all the cases cited and relied upon by the appellant were decided on their specific peculiarities which are not present in the instance case and as such the authorities are not helpful to the appellant. This is because according to the learned counsel, if paragraphs 4(iv), 4(vi), 4(vii) & 4(ix)(b) of the petition which made allegation against the presiding officers in Nkanu East, Nkanu West and Isi-Uzo Local Government Areas who ought to have been joined are struck out, the remaining paragraphs in the petition could not sustain the petition having regard to the relief being sought by the petitioner. Counsel therefore urged this Court to dismiss the appeal.

The stand of the 2nd-11th respondents on this appeal is not different from that of the 1st respondent. Quoting the provisions of Section 133(2) of the Electoral Act 2002 and paragraph 47(1) of the 1st Schedule to the parties to defend themselves as stated by Belgore JSC in Egolum v. Obasanjo (supra) at 397. That failure to join the presiding officers is fatal to the petition relying on a number of decisions of this Court particularly TAFIDA v. BAFARAWA (1999)4 NWLR (PT.597)70; and NNAMAN1 v. NNAJI (1999)7 NWLR (PT.610) 313.

Learned counsel observed that even if only the offending 9 paragraphs of the petition were struck out as being sought by the appellant, the remaining paragraphs, having regard to the relief being sought, cannot sustain the petition as rightly held by the Tribunal. Counsel therefore urged this Court to dismiss the appeal.

The only issue for determination in this appeal is whether the Election Tribunal was right in striking out the appellant’s petition for non compliance with Section 133(2) of the Electoral Act 2002 and paragraph 47(1) of the 1st Schedule to the same Electoral Act 2002. The provisions of Section 133 of the Act state:

“133(1) An election petition may be presented by one or more of the following persons:-

(a) a candidate at an election;

(b) a political party which participated at the election.

(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.”

It is quite clear from the above provisions of the law that where an election petition has been presented to an election tribunal by any person named under sub-section (1) of Section 133 complaining of the election of a successful candidate in an election, then that person whose election is being complained of in an election petition must be a respondent in the petition by virtue of sub-section (2) of the Section. This is because the main complain in an election petition is a complaint against the return of the successful candidate. In other words as far as sub-section (2) of section 133 of the Act is concerned, there is nothing stopping a petitioner from proceeding with his petition against the person whose election is complained of only, if the petitioner has no complain against any other person who participated in the conduct of an election.

However where a petitioner decides to complain in his petition 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 the Electoral 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.

Therefore it is the complain by a petitioner in his petition of the conduct of an electoral official named in subsection (2) of Section 133 of the Act or any other person who took part in the conduct of an election, that makes such official or person a respondent in the election petition and therefore a necessary party in h is or her official capacity. In other words the determining factor in the determination of who are the necessary parties who must be joined in an election petition is the conduct of the petitioner himself in complaining against such officials or persons in the petition who took part in the conduct of an election.

My view on the state of the law in the application of section 133(2) of the Electoral Act 2002 is further strengthened by the provisions of paragraph 47(1) of the 1st Schedule to the Electoral Act 2002 which reads as follows:

“47(1) Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission he shall for all purposes be deemed to be a respondent and joined in the Election petition as a necessary party.”

Close reading of the provisions of section 133(2) of the Electoral Act 2002 and paragraph 47(1) of the First Schedule to the same Act, leaves no one in doubt that when an election petition complains of the conduct of an electoral official in the conduct of an election, such electoral official must be joined as a party.The provisions of the law also reveal that the only compulsory and necessary party in an election petition is the person whose election is being questioned in an election petition. In other words where there is no complaint against the conduct of any electoral official or any other person in the conduct of an election in an election petition, such electoral official or other person is not a necessary party and therefore failure to join such official or person as a party in the petition would not have any adverse effect on the petition.

In GREEN V GREEN (1987)3 NWLR(PT.61)480 AT 493, the Supreme Court defined necessary parties in any proceedings as –

“Those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”

See also AMON v. RAPHAEL TUCK & SONS (1956)1 WB 351; SETTLEMENT CORPORATION V. HOSHSCHILD (No.2) (1956) 1 WLR 1664; and RE VANDERVILLS TRUST (1971) AC 812.

In the instant case, it is not at all in dispute that the appellant in his petition in paragraphs 4(ii), 4(iii), 4(iv), 4(vi), 4(vii), 4(ix), 4(x), 4(xi) & 4(xii) made specific allegations of malpractices against the presiding officers in Nkanu East, Nkanu West and Isi-Uzo Local Government Areas of the Enugu East Senatorial District. These allegations of malpractices made against the presiding officers include their alleged refusal to release to the agents of the petitioner appellant statements of results as embodied in Forms EC 8A, so as to manipulate and inflate the results of the election in favour of the 1st respondent and as such the affected presiding officers in Nkanu East, Nkanu West and Isi-Uzo Local Government Areas ought to have been joined as specific respondents in the petition to afford them the opportunity of being heard in their own defence on the various allegations of malpractices made against them as stated by Belgore JSC III Egolum v. Obasanjo (1999) 7 NWLR (PT.611)355 at 397:

“The principle of our law is that no person shall be guilty without being given an opportunity to defend himself. Every person against whom an allegation is made must be confronted with that allegation so that he can offer his defence.”

In the same case, the Supreme Court concluded that the failure to make such presiding officers parties in an election petition renders the paragraphs making allegations against them incompetent.

In the present case therefore, where the petitioner appellant made various allegations of malpractices against the presiding officers of Nkanu East, Nkanu West and Isi-Uzo Local Government Areas of Enugu East Senatorial District but failed to join such presiding officers as parties in the petition, the affected paragraphs 4(ii), 4(iii), 4(iv), 4(vi), 4(vii), 4(ix), 4(x), 4(xi) & 4(xii) of the petition of the appellant are hereby declared as incompetent as rightly found by the trial tribunal.

The next question for determination is whether as argued by the learned counsel to the appellant that even if the offending paragraphs of the petition were struck out, the remaining paragraphs could have sustained the petition leading to judgment in favour of the appellant.

It is common ground between the parties in this appeal that no where in any of the paragraphs of the petitioner’s petition, did the petitioner state the number of valid and lawful votes scored by him at the election conducted on 12/4/03, or the valid and lawful votes scored by the 1st respondent whose election and return was being challenged in the petition, or the valid and lawful votes s cored by other candidates who also contested along with the petitioner appellant at the election. The most relevant paragraphs of the remaining valid paragraphs of the petition are paragraphs 4(viii), 12 & 13 in which it was averred:

“4(viii) Your petitioner states that the 1st respondent was not returned with a majority of valid and/or lawful votes scored at the said election, rather, it is your petitioner who scored a majority of lawful and valid votes and ought to be returned.

12.Your petitioner contends that once the invalid and unlawful votes credited to the 1st respondent are removed and expunged from the overall votes awarded him petitioner’s votes contained in all the Forms EC 8A herein pleaded (and which will be tendered at the hearing) will show that petitioner scored a majority lawful votes in the entire election and so ought to be returned as duly elected.

13. WHEREFORE your petitioner prays that it may be determined that the said Chief Ken Nnamani of the PDP was not duly elected or returned and that his election was void and that Chief (Dr) Ugwu Nwafor Ujam of the All Progressive Grand Alliance (APGA) was elected and ought to have been returned.”

From the above quoted paragraphs of the petition, it is not difficult to see that the petition was predicated on section 134(1)(c) of the Electoral Act 2002 which says:

“134(1) 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 non-compliance 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 was unlawfully excluded from the election.”

The above quoted paragraphs and indeed the entire remaining paragraphs of the petition are bare and naked containing no pleaded relevant facts to support the claim of the appellant petitioner that the 1st respondent was not returned with a majority of valid and/or lawful votes scored at the election or that it was the appellant/petitioner who scored a majority of lawful and valid votes at the election and therefore ought to have been returned.

Nowhere in the entire petition did the appellant petitioner state any score upon which such a determination could have been made by the trial tribunal. It is baffling to observe that the appellant/petitioner was not even prepared to disclose anywhere in the petition the number of valid and lawful votes from the three of the six Local Government Areas in the Enugu East Senatorial District released to his own agents after the election in which he allegedly scored the majority of valid and lawful votes cast at the election.

It is very important to note that an election petition like that of the appellant, predicated on the ground specified in paragraph (c) of sub-section (1) of section 134 of the Electoral Act, 2002 quoted earlier in this judgment, can only be determined effectively by a trial tribunal where the petition comply’s with the provision of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2002. That paragraph states:-

“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

(e) the ground or grounds on which the petition is based and the relief sought by the petitioner.”

In other words, an election petition based on the only complaint that the respondent who won the election was not duly elected by a majority of lawful votes cast at the election under the Electoral Act 2002, in which the petition failed to plead the scores of the candidates at the election, the petition is fundamentally defective and therefore not competent to proceed to hearing.

This is because without pleading the scores of the candidates at the election, the very foundation upon which the ground of the petition is founded namely, that the respondent was not elected by majority of lawful votes cast at the election under section 134(1)@ of the Electoral Act 2002, would have been completely absent. In this situation, the hearing of the petition in the absence 0f scores of the candidates becomes a futile exercise because of the absence of vital pleaded facts upon which evidence could be led to support the relief being sought.

For the foregoing reasons therefore, I am of the firm view that the decision of the trial Tribunal in striking out the entire petition was quite in order in the circumstances of the present case. There is no merit at all in this appeal which must fail. Thus, the appeal having failed the same is hereby dismissed. The decision of the trial Enugu National Assembly Election Tribunal of 24/612003 striking out the appellant’s petition is hereby affirmed.

I do not regard it as appropriate to make any order on costs.

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Other Citations: (2003)LCN/1474(CA)