Col. Muhammadu Bello Kaliel (Rtd.) & Anor V. Alhaji Mohammed Adamu Aliero & Ors (1999)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
The appellants herein were the petitioners at the Governorship and Legislative House Election Tribunal Birnin Kebbi. They were sponsored by the Peoples Democratic Party (PDP) to contest the election as Governor and Deputy Governor of Kebbi State at the election held on 9th January, 1999. The 1st and 2nd respondents contested the election for the same positions under the umbrella of the All Peoples Party (APP). At the close of the election, the returning officer, i.e. the third respondent returned the 1st and 2nd respondents as duly elected by a majority of 257, 489 votes. The appellants were said to have obtained 208,522 votes.
The appellants were dissatisfied with the results declared by the returning officer. They, therefore presented a petition before the Governorship and Legislative Houses Election Tribunal, Birnin Kebbi, (hereinafter referred to as “the tribunal”).
In the petition, the appellants prayed for the following declarations:-
“(i) That the 1st and 2nd respondents were not qualified to contest the election of 9th January, 1999 and that all the votes cast in their favour at the said election are invalid, null, void and of no effect.
(ii) That the election of the 1st and 2nd respondents is vitiated by corrupt practices.
(iii) That the petitioners and not the 1st and 2nd respondents are the persons duly elected by majority of lawful votes, cast at the election.
Alternatively:-
(iv) An order nullifying the election of 9th January, 1999 and order for fresh election.
(v) And such further orders as this honourable tribunal may deem fit to make in the circumstances.”
Before the petition was heard by the tribunal, the 2nd respondent filed a motion on notice praying for the following orders:-
“1. An order striking out the petition for non-compliance with section 133(2) of Decree No.3 of 1999, paragraphs 5 and 7 of Schedule 6, and paragraph 6(3) of Schedule 5 of Decree No.3 of 1999.
- An order striking out the petition for lack of jurisdiction based on the reasons and grounds in prayer 1 above.
- Such other or further order(s) as the honourable tribunal shall deem fit to make in the circumstances.”
The tribunal heard arguments from all the counsel in the matter and in a reserved ruling it held that the petition was not properly before the tribunal because the petitioners failed to provide the address for service as well as the name of the occupier of the address as required by paragraph 5(4) or Schedule 6. The tribunal also held that the petitioners did not join all the necessary parties to the petition. The tribunal then struck out the petition.
Aggrieved with this decision, the petitioners appealed to this court. They filed five grounds of appeal. The second respondent also cross-appealed. However, at the hearing of the appeal, the 2nd respondent applied to withdraw the cross-appeal. The cross-appeal was struck out accordingly. Shorn of their particulars, the grounds of appeal read:-
“(1) The honourable tribunal erred in law when held that failure to state the petitioner’s address and name of the occupier is fatal.
(2) The honourable tribunal erred in law when it held that the petition does not specify all the interested parties.
(3) The tribunal below misdirected itself when it held that the petition is therefore not properly before the tribunal and sustained the objection that the petition No. GOV/ER/1/99 is incompetent by reason of failure to state the name of the occupier of the petitioner’s address for service.
(4) The tribunal below erred in law when it held that ‘failure to state all the interested parties is a fatal lapse’ see Ezeobi v. Nzeka (1989) 1 NWLR (Pt.98) 478.
(5) The tribunal below in exercising the discretion reserved for it by Decree No.3 did not take into consideration all necessary factors and/or took into consideration irrelevant factors which caused it to strike out the petition before it.”
In compliance with this court’s practice direction, brief of argument were filed and exchanged. The appellants formulated four issues for determination in their brief. The 1st respondent formulated three issues for determination in his brief, even though the second issue is split into two i.e. (a) and (b). The 2nd respondent formulated three issues in his brief while the 3rd – 12th respondents formulated two issues for determination in their joint brief.
I have carefully considered the grounds of appeal filed. I have also considered all the issues formulated by all the parties. In my opinion the issues formulated by the 2nd respondent are more apt to the disposal of this appeal. I will therefore adopt the issues formulated by the 2nd respondent in the determination of this appeal. The issues are:-
“(a) Whether failure to State the occupier in the petition as required by paragraph 5(4) and sanctioned by paragraph 5(5) of Schedule 6 to Decree No.3 of 1999 was fatal.
(b) Whether the non-joinder of INEC functionaries against whom several allegations were made was a violation of s.133(2) of Decree No.3 of 1999 and fatal.
(c) Whether the lower tribunal exercised its discretion judicially and judiciously by striking out the petition under section 133(3) of Decree No.3 of 1999 in the light of the answers 10 issues Nos. (a) and (b) above.”
At the hearing of the appeal, all the counsel adopted their respective briefs of argument. All of them also proffered oral arguments to amplify certain issues in their various briefs. Before considering counsels’ submissions, I will first deal with an issue raised by the 2nd respondent in his brief. The issue was also raised by the 2nd respondent’s counsel in his oral argument. The issue is that ground 5 in the notice of appeal is incompetent and should be struck out.
I have already reproduced ground 5 at the beginning of this judgment. However, for the sake of clarity I will reproduce it again:-
“5. The tribunal below in exercising the direction reserved for it by Decree No.3 did not take into consideration all necessary factors and/or took into consideration irrelevant factors which caused it to strike out the petition before it.”
Looking at this ground of appeal it could be seen it is a mere statement, a narrative. It did not state that the tribunal was in error for doing what it did. It only stated that the tribunal took into consideration irrelevant factors. There is no allegation whatsoever that the tribunal erred in law or misdirected itself.A ground of appeal must not be vague. It must be concise. See Order 3 rules 2(2), (3) & (4) of the Court of Appeal Rules 1981 which provides:-
(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground, that the judgment is against the weight of evidence; and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on applicable by the respondent.”
Clearly the ground of appeal has failed to comply with the above rule and it is liable to be struck out. I hereby strike out ground of appeal No.5 for not complying with Order 3 rule 3(2), (3) & (4).
It therefore follows that the issue relating to the said ground of appeal will be discontenanced. The argument in respect of the issue will also be discontenanced.
I now come to the first issue which is whether failure to state the occupier in the petition is fatalParagraph 5(4) & (5) of Schedule 6 to State Government (Basic Constitutional and Transitional Provisions) Decree 1999 (hereinafter referred to as “Decree No.3 of 1999”) provides:-
“5(4) At the foot of the election petition there shall also be stated an address of the petitioner for service within five kilometres of a post office in the judicial division, and the name of its occupier at which address documents intended for the petitioner may be left.
(5) If an address for service and its occupier are not stated as specified in sub-paragraph (4) of this paragraph, the petition shall be deemed not to have been filed, unless the Election Tribunal otherwise orders.”
At the foot of the petition presented to the tribunal, it was stated in paragraph 23 as follows:-
“Address of the petitioners within judicial division
c/o Amana Law Chambers
No.33 Murtala Mohammed Road,
Birnin Kebbi.”
It could be seen that the petitioners have stated the address of the petitioners for service within the judicial division. However they failed to name the occupier of the address. It is this failure to name the occupier of the address that is said to be fatal to the petition. It was submitted in the appellant’s brief that the appellants have complied with the substance of paragraph 5(4) and (7) of Schedule 6. The authorities relied upon by the tribunal in reaching its decisions were discussed in the appellant’s brief and it was submitted that they did not apply to our present case. We were urged to hold that the appellant’s petition has complied with the provisions of paragraph 5(4) & (7) of Decree No.3 of 1999.
In the 1st respondent’s brief, after extensively discussing the facts and circumstances of the case, it was submitted that the failure to state the name of the occupier as required by paragraph 5(4) of schedule 6 was fatal. It was submitted on behalf of the 2nd respondent that rules of court are meant to be obeyed as stated in the case of Mohammed & Ors v. Kayode (1997) 11 NWLR (Pt.510) 584 and that since the appellants did not state the names of the occupier at the foot of the petition, the petition was incompetent. The following authorities were cited in support of this submission:- Iyedufe v. Olokotun (1965) NNLR 26, & Ngelizana v. Hindi (1965) NNLR 12. It was submitted on behalf of the 3rd to 12th respondents that the tribunal was right in striking out the petition for the petitioner’s failure to state the name of the occupier in their petition. In support of this submission the following cases were cited:- Ngelizana v. Hindi (supra) and Enebi v. Yachim (1965) NNLR 26.
On careful consideration of paragraph 5(4) of Schedule 6 to Decree No.3 of 1999, it would be seen that it is mandatory to state at the foot of the petition the address of the petitioner. Apart from that the petitioner must state the name of its occupier at which address documents intended for the petitioner may be left. In our present case the appellants have stated the address for service on the appellants but failed to state the name of the occupier of the address. The effect of failure to state an address for service and its occupier is stated in paragraph 5(5) of Schedule 5 to the Decree. The petition – shall be deemed not to have been filed, unless the tribunal otherwise orders. In Ngelizana v. Nindi (supra) the court considered the provision of section 100(4) of the Electoral Act, 1962 which is in pari materia with paragraph 5(4) of Schedule 5 to the Decree and held that an election petition which did not include the name of the occupier is deemed not to have been filed. See also Enebi v. Yochim (1965) NNLR 26. Clearly the provision of paragraph 5(4) is mandatory and the effect of non-compliance with the said provision is that the petition shall be deemed not to have been filed. Where a petition is deemed not to have been filed, the only option open to the tribunal is to strike out the petition. The tribunal was therefore right to hold that the petition was not properly before the tribunal. My answer to the first issue is therefore in the affirmative. Failure to state the name of the occupier of the address for service is fatal to the petition.
I now come to the second issue which is whether the non-joinder of INEC functionaries against whom several allegations were made was fatal to the petition. In the appellant’s brief, it was submitted that section 133(3) has in contemplation two sets parties in an election petition. The first sets are the candidates who contested the election and INEC. According to the appellant these must be made parties to the petition. The other set is where a petitioner made complaints about the conduct of electoral officials who have not been specifically named as parties or respondents. It was submitted that the law did not intend that failure to specifically make electoral officials party to an election petition fatal or incurably defective. It was also submitted that the parties who must be present to constitute an election petition are the candidates and INEC and that the non-joinder of returning officers against whom there was allegation of misconduct was not fatal to the petition as held in the case of Omoboriow’o v. Ajasin ( 1984) 1 SCNLR 108. It was further submitted that the tribunal erred in holding that the non-joinder of the presiding officers is fatal to the appellant’s petition.
The 1st respondent on the other hand submitted that an election petition which failed to join the necessary parties was not only in violation of section 133(3) but was not presented in accordance with the provisions of the Decree. It was therefore submitted that the tribunal was right to have struck out the appellant’s petition. The 2nd respondent also submitted that the tribunal was right in striking out the petition because the appellants did not join all the necessary panics to the petition. It was submitted on behalf of the 3rd to 12th respondents that the non-Joinder of the necessary parties is fatal to the petition. It was submitted that since damaging allegation were made against the conduct of some presiding officers and returning officers, they must be joined. The cases of Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) 471 and Ezeobi v. Nzeka (1989) NWLR (Pt.98) 478.
Section 133(2) of Decree No.3 of 1999 provides:-
“The person whose election is complained of is in this Decree 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, the electoral officer, presiding officer, a returning officer or that other person shall for the purpose of this Decree be deemed to be a respondent and shall be joined as a necessary party.”
I will now consider the petition to determine whether or not parties who should have been joined were joined or not. In the petition it was alleged that the election of the 1st and 2nd respondents was vitiated by corrupt practices, or offences of non-compliance with the Decree. Indeed it was alleged that the election in the whole state was characterised by malpractice. However specific allegations were made against certain officials. For example in paragraph 13 of the petition it was stated:-
“In Zuru and Danko/Wasagu Local Government Areas particularly elections did not take place in most polling stations and officials of the 13th respondent in conjunction with agents of the 1st and 2nd respondents and All Peoples Party (APP) merely sat and completed Forms EC8A and EC8AI to show the perfunctory compliance with the electoral Decree.”
It was also alleged in paragraph 15(ii) of the petition that:-
“At Dogan Daji East (Gebas) polling station Dogan Daji made supporters of the 1st and 2nd respondents did not allow the electorate to exercise their free will to vote by themselves or to be accredited in person with the acquiescence of the presiding officers …..
In paragraph 15(xiii) of the petition it was also alleged that:
“At Kambarori polling station in Jege Makera Ward of Aliero Local Government Area where the register of voters show that a total of550 votes were registered the presiding officer purportedly accredited 550 voters …”
Also it was alleged in paragraph 15(xx) of the petition that:-
“The petitioners state that in all polling stations in Danko/Wasagu except those in Wasagu and Ayu Wards, normal election as stipulated did not take place and Forms EC8A were merely completed and voters credited in favour of the parties at the will or pleasure of the presiding officers and agents or supporters of the 1st and 2nd respondents.”
It could be seen that these are specific allegations of misconduct made against certain presiding officers, electoral officers, or returning officers. The examples I quoted above are just a few. There are several of these allegations contained in the petition. Where an allegation of misconduct is made against an official or there are complaints against the conduct of any electoral] official, that official must be made a party to the petition as a necessary party. Those electoral officers, presiding officers and returning officers against whom allegations of misconduct were made, are necessary parties to the petition and they must be joined. Failure to join them will render the petition defective and liable to be struck out. In Maikori v. Lere (1992) 3 NWLR (Pt.231) 252 it was held by this court that a court as well as a tribunal will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. In NEC v. Izuogu (1993) 2 NWLR (Pt.275) 270 it was stated at page 295 that.-
;’Any person to be directly affected by an order of the court ought to be heard by that court before such order is made and indeed Section 33 (2) (a) of the 1979 Constitution emphasised the need to provide any person whose rights and obligations may be affected an opportunity to make representations before a decision or order affecting him is made.”Allegations of misconduct were made against certain electoral officials who were not made parties to the petition. Any order made by the tribunal will affect these officials. They must be given the opportunity to be heard. Failure to join them is a breach of their inherent right to Fair hearing. The tribunal has no jurisdiction to hear the petition in their absence. I therefore hold that failure to join them is fatal to the petition. My answer to the second issue is also in the affirmative. The tribunal was right to strike out the petition for non-joinder of certain necessary parties.
In the circumstance the appeal fails and is hereby dismissed. I affirm the decision of the tribunal. I award N1,000.00 costs each in favour of the 1st and 2nd respondents.
Other Citations: (1999)LCN/0576(CA)