Muhammadu Buhari & Ors V. Chief Olusegun a. Obasanjo & Ors (2003)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, P.C.A.

Following notices of preliminary objections filed by the 1st, 2nd and 3rd – 268th respondents on 19/6/2003 challenging the competence of the petitioners petition, the learned senior counsel to the petitioners on being served with the notices of the objections, reacted by filing on 7-7-2003, a notice of preliminary objection to the respondents’ objections in the following terms:
“TAKE NOTICE that the petitioners/respondents’ intend to object to the hearing of the notices of preliminary objection filed on behalf of the respondents and shall pray for the striking out of –
1. 1st and 2nd respondents’ notice of preliminary objection filed on 19th June, 2003, and
2. 3rd – 268th respondents’ notice filed on 19th June, 2003.

AND FURTHER TAKE NOTICE that the grounds upon which the objection is based is that the notices of preliminary objection are incompetent in that –
(a) the notices were filed after the two sets of respondents had joined issues with the petition by filing their replies thereby taking steps in the proceeding after they were served with the petition; contrary to paragraph 49(2) of the First Schedule to the Electoral Act, 2002.
(b) the notices filed by the two sets of respondents did not state clearly the legal grounds upon which their applications were based contrary to paragraph 49(3) of the First Schedule to the Electoral Act, 2002, and
(c) the content of the notices filed by the two sets of respondents offend the petitioners/applicants right to fair hearing.”

Moving this preliminary objection to the respondents’ preliminary objections to the petition, Chief Ahamba, learned senior counsel to the petitioners relied essentially on the provisions of paragraph 49(2)(3) and (5) of the First Schedule to the Electoral Act, 2002.

That the respondents having taken fresh steps in the proceeding in the petition after becoming aware of the defects alleged in the petition, have lost their right to raise the objections which must be regarded as incompetent and therefore must be struck out.

Learned senior counsel pointed out that by filing their replies and joining issues on the petition, the respondents have taken fresh steps in the proceeding within the meaning of paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002 and as such cannot now be allowed to question the competence of the petition.

Further more, that as no clear grounds of law are shown on the face of the respondents objections and that as the objections were not heard and determined by this court before the respondents took further steps in the proceedings contrary to paragraphs 49(3) and (5) of the 1st Schedule to the Electoral Act, 2002, the respondent’s objections are incompetent and must be struck out. The case of Ozize v. Nweke Obo (1974) 2 SC 23 -31 was cited and relied upon.

In his reaction to this application which he described as a strange procedure, Chief Afe Babalola, learned senior counsel for the 1st and 2nd respondents said the application or objection by the petitioners to the respondents’ preliminary objection is at best only a defence to their objection as the respondents by entering their appearance on protest and filing their replies, the respondents did not at all waive their right to raise preliminary objection.

Learned senior counsel stressed that the provisions of paragraph 49 of the 1st Schedule relied upon by the petitioners, cannot override the provisions of sections 133(2), 136 and 137 of the Electoral Act, 2002, and the right of the respondents under the law to challenge the jurisdiction of this court. That by filing their replies to the petition within the time prescribed by law, that alone is not enough for the court to regard the respondents as having taken fresh steps on the authority of the case of Ikeh v. Njoke (1999) 4 NWLR (Pt.598) 263 at 267.

Mr. Gadzama, senior counsel for the 3rd – 268th respondents contended that the respondents’ preliminary objection had clearly shown on its face the grounds of law being relied upon and having been filed within reasonable time as stated in paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002, the objection is competent as such this court has jurisdiction to hear it.

This application by the petitioners in the form of a preliminary objection to other preliminary objections filed by the respondents is rather unique. I entirely agree with Chief Afe Babalola, learned senior counsel to the 1st and 2nd respondents that the application can best be described as a defence to the preliminary objections filed by the respondents against the petition. The application could have served the same purpose if it had been presented in the form of response to the respondents’ preliminary objections to the competence of the petition.

This is because having regard to the terms of the preliminary objections by the respondents which I have earlier quoted in this ruling, it is not at all in doubt that the jurisdiction of this court to hear and determine the petitioners petition, the competence of which is the main subject of the preliminary objections, is plainly in issue. Therefore, where issue of jurisdiction is involved in a matter such as the respondents’ preliminary objections the question of whether or not the respondents have taken any fresh steps in the proceedings in the petition after becoming aware of the defects in the petition within the requirements of paragraph 49(2) of the 1st Schedule to the Electoral Act, which is the back bone of the petitioners’ objection, cannot provide any basis to prevent the respondents from raising the question of jurisdiction.

The provisions of the law in paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act, 2002 relied upon by the petitioners are: –
“49(1) …
(2) An application to set aside an election petition 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.

(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.

(4) …

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”

It is trite, and there is no doubt whatsoever that in our adversary system of adjudication, the question of jurisdiction is very fundamental.

It is so fundamental that the adjudicating court should determine the issue first before embarking on any proceedings. This is because if the court proceeded to hear the matter and it was later found that the court had no jurisdiction in the matter, all the proceedings however well conducted, amount to nothing and are a complete nullity as was decided by the Supreme Court in the cases of Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341; Katto v. Central Bank of Nigeria (1991) 9 NWLR (Pt.214) 126 at 148 and Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 365.

The law is also well settled that the issue of jurisdiction can be raised at any time by an aggrieved party not only at the trial court, which is what this court actually is in the present case, but even on appeal in the highest court of the land at the Supreme Court as was done in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 310 and the recent case of Jeric Nigeria Ltd. v. Union Bank of Nigeria Plc (2000) 15 NWLR (Pt. 691) 447 at 457.

“In the present case therefore, notwithstanding the provisions of paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act heavily relied upon by the learned senior counsel to the petitioners, the jurisdiction of this court to determine whether or not it has jurisdiction to hear and determine the petitioners petition in the form it is being questioned by the respondents as to its competence, cannot be curtailed on the grounds being relied upon by the petitioners in their application or preliminary objection. With this position of the law on the issue of jurisdiction, the need to decide now whether or not the respondents had taken fresh steps in the proceedings after
becoming aware of the defects in the petition, is not necessary as the respondents’ right to raise the issue of jurisdiction as contained in their preliminary objections now being objected to, cannot be defeated by those provisions of paragraph 49(2), (3) and (5) of 1st Schedule to the Electoral Act, 2002.”

In the result, the petitioners’ preliminary objection to the respondents’ preliminary objections to the petition is without any merit and the same is hereby refused. I am of the view that the 1st and 2nd respondents by filing a reply cannot be regarded as having taken a step in the proceedings within the meaning of paragraph 49(2) of the First Schedule to the Electoral Act, 2002. This is because, they made it manifest that whatever they were doing in the case was without prejudice to their rights to raise objection to the competence of the petition. I shall now proceed to determine the respondents’ preliminary objections on their merit.

The two sets of respondents, after filing their respective answers, prayed the court to strike out the petition. The first and second respondents came by way of motion on notice. The second set of respondents, comprising 3rd to 268th respondents, has given notice of intention to rely on a preliminary objection.

The first and second respondents are praying the court to strike out the petition on account of lack of competency. In addition they are asking for three other alternative reliefs. In the first alternative there is a prayer calling for striking out of certain respondents who are set out in the motion on notice on the ground that they are not proper parties to the petition. Another alternative relief is asking for striking out of some paragraphs of the petition which are set out in that relief while the last one is asking that the petitioners be prevented from leading evidence on the same paragraphs of the petition.

The grounds for seeking the four reliefs are as follows-
“1. The court lacks jurisdiction to entertain the petition on the grounds that proper and necessary parties are not before the court.
2. Mandatory provisions of section 133(2) of the Electoral Act, 2002 is violated, ignored and not complied with.
3. The court lacks competence and jurisdiction to consider and determine the allegations contained in the paragraphs complained of in the petition in so far as they relate to places mentioned.
4. Parties against whom no allegation are made are joined as parties to this petition.”

The 3rd to 268th respondents, in their notice of intention to rely on preliminary objection, equally asked for an order of the court striking out the petition in limine for incompetence and want of jurisdiction. The prayer seeking for the striking out of the petition is subjoined by two alternative reliefs praying for striking out of specific paragraphs of the petition or preventing the petitioner from leading evidence thereon.

The grounds upon which the preliminary objection is brought are as follows-
“(a) Non-joinder of interested parties contrary to paragraph 4(1)(a) of the 1st Schedule to the Electoral Act, 2002.
(b) Non-joinder of necessary parties contrary to S. 133(2) of the Electoral Act, 2002.
(c) Non-compliance with provisions of paragraph 3(1) of the First Schedule to the Electoral Act, 2002 and Form TF 002 in that the petition does not contain an attestation clause and/or the signature of the Secretary (sic) to the Tribunal.
(d) Non-compliance with the provisions of paragraph 4(1)(c) of 1st Schedule to the Electoral Act, 2002 in that the petition does not state the person returned as the winner of the election.
(e) Non-compliance with the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2002 in that the petition does not specify the right of the petitioners to present the election petition.
(f) The various paragraphs in the election petition do not contain separate and distinct grounds for the petition contrary to paragraph 4(1)(d) and (2) of the 1st Schedule to the Electoral Act, 2002.”

But, at the hearing of the two applications en bloc, learned senior counsel for first and second respondents appear to have withdrawn all the grounds of objection to the petition save the one complaining about non-joinder of Peoples ‘Democratic Party. The learned counsel for 3rd to 268th respondents also withdrew his objection to the petition on all grounds except grounds (b) and (c).
In the circumstance, I think the complaint of the 3rd to 268th respondents on non-joinder of proper and necessary parties could conveniently be considered along with the outstanding relief of the first and second respondents. The two objections coalesce. In the circumstance both will be taken together.

In view of my fusing the consideration of the question of non-joinder in the two objections together I propose to dispose of the other unsettled issue in the notice of intention to rely on a preliminary objection of 3rd to 268th respondents. It is for reasons of convenience necessary to repeat immediately hereunder the relevant ground –
“(c) Non-compliance with provisions of paragraph 3(1) of the 1st Schedule to the Electoral Act, 2002 and Form TF 002 in that the petition does not contain an attestation clause and/or the signature of the Secretary to the Tribunal.”

I believe learned senior counsel has in mind paragraph 7(1) and Form TF 003 and not paragraph 3(1) and Form TF 002 which deal merely with receipt to be issued to the petitioner. I therefore deal with the matter as if it were brought under the correct paragraphs.

Once a party is entitled to a remedy provided by law it does not matter that he has applied for it under a wrong law, the court will proceed to hear his application on merit: Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313; Falobi v. Falobi (1976) 1 NMLR 169 and Gibbings v. Strone (1884) 24 Ch. D 66, 69.

This complaint clearly arose out of misconception of the status of this court vis-a-vis election petition. The power of this court to entertain the presidential election petition is contained in section 239 of the 1999 Constitution and the power is vested directly in the court and not in a tribunal. In view of this, I take judicial notice, as I am bound to do, of the fact that all courts of record in Nigeria indeed throughout common law countries are serviced by various cadre of registrars and not secretary or secretaries. It is therefore anomalous to expect papers filed in this court to be endorsed, attested to and signed by secretaries.

Be that as it may, I am respectfully of the opinion that the issue of attestation is for the court and not the petitioners. It is for the petitioners to prepare their petition and present it with necessary filing fees. The endorsement is for the court and whether the petition was adequately endorsed or properly attested to be that of the court. There is evidence on record that when the petitioners presented their petition revenue collector’s receipt No. 20022605370 dated 20/5/2003, was issued to them. It can, therefore, be safely inferred that necessary filing fees was paid. The petitioners can be taken to have done their bit and have passed the bulk to the court and its officials.

They cannot, thereafter, be held responsible for default, omission or error on the part of the court. The Supreme Court in Alawode & Others v. Semoh (1959) SCNLR 91, (1959) 4 FSC 27, 29 – 30 stated per Ademola, F.C.J., while delivering the judgment of the court thus.
“It is to be observed that in England once a plaintiff buys his writ the action commences. In the Lagos High Court, as in this case, the provisions of Order 2 rule 1 require that an application for a writ be made by plaintiff to the Registrar of the court who, after issuing the summons will place it before a Judge, or other officer empowered to sign it. The test for the commencement of an action both according to the English rules and the Rules of Court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action? In England all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued), and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been “commenced”

Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penalized. It certainly would be a matter of grave injustice to a plaintiff who delivers his application for a writ and pays the necessary filing fees if he is deemed not to have commenced an action merely because for some reason, it was not possible for the court or the Judge to sign the writ…”

The same judgment was recited with approval by Agbaje, JSC, in the case Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 422.

The petitioners having prepared their petition and presented it along with the requisite fees, the processing is a matter that falls squarely within domestic affair of the court. The responsibility of the petitioners ceased with the presentation of the petition. The attestation is expressly a responsibility vested in the registrar; if for some inexplicable reason he fails to perform his duty it would be unjust to penalize the petitioners for it by saying they have not presented a petition.

In case, I am wrong and the failure to attest and sign the petition by the registrar constitutes a non-compliance with the provisions of subparagraph (1) of paragraph 3 of the First Schedule to the Electoral Act, 2002, I am respectfully of the view that there have been substantial compliance.

The petition shall not, therefore, be rendered void on account of the irregularity which is not the making of the petitioners: See sub-paragraph (1) of paragraph 49 of the same First Schedule which provides as follows-
“49(1) Non compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the tribunal or court may deem fit and just.”

The hearing of the election petition, in my respectful opinion, should not be scuttled in the pursuit of a mere technicality which attestation is. The inclusion of attestation or otherwise will not improve the quality of the petition nor will either parties be prejudiced. But striking out the election petition, on account of failure on the part of the court registrar to attest to it, would seriously erode fidelity in law and also result in a grievous miscarriage of justice. In the circumstance the prayer for striking out the petition on this ground fails and it is refused.

I now come to the issue of joinder or non-joinder of parties, particularly the Peoples’ Democratic Party. It will be recalled that at the hearing of the application or notice of objection, both learned counsel for petitioners and first and second respondents respectively submitted written addresses upon which learned senior counsel relied. In addition the two learned senior counsel made extensive submission in elaboration. Learned senior counsel for the 3rd – 268th respondents adopted the submissions of the learned counsel for first and second respondents on this point as his own, except that he too did not consider PDP as a necessary party to the petition because it did not take part in the conduct of election strictly so to speak. It only sponsored 1st and 2nd respondents as candidates. No doubt the issue was strenuously contested.

I have studied the submissions and will take them into consideration in the course of writing this ruling.
“Learned senior counsel is contending that because of the nature of the allegations made against the party, it should be made a party to the petition. This turn of events seems provoked by the allegation to the effect that PDP, on the day of the election “stuffed ballot boxes, forged results disrupted voting, carried away voting materials, abducted party agents, attacked, chased and murdered petitioners’ party agents”.

Notwithstanding these words and many more as well as the submissions of the learned counsel for petitioners “that by submissions of the respondents PDP had participated in the “conduct” of the election and therefore PDP was part of INEC”, the Peoples’ Democratic Party did not conduct the election as envisaged by section 133(2) of the Electoral Act No.4 of 2002. On the same token the words of mouth of the learned senior counsel for the petitioners did not and would not make PDP to become part of INEC. The allegations do not constitute PDP into a person who took part in the conduct of the election and therefore do not come under the umbrage of section 133(2) of the Electoral Act No.4 of 2002.

It is not correct that under the provisions of this sub-section anyone against whom allegation is made is deemed a party and should be joined as a respondent. Sub-section (2) of section 133 is recited immediately hereunder-
“(2) The person whose election is complained of is, in this Act, referred to as the respondent, but if the petitioner 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.” (italics mine)

The words “or any other person” cannot on the rule of ejusdem generis accommodate Peoples’ Democratic Party because it does not fall within the class of “an electoral officer, a presiding officer, or a returning office?” nor has it acquired an official status which shall fit into the class, such as that of a polling officer. It is not in doubt that Peoples’ Democratic Party participated in the election by sponsoring candidates including first and second respondents herein but certainly its participation did not include the conduct of the election.”

The person required to be joined in an election petition under this sub-section is an official of the Independent National Electoral Commission who participated in the conduct of the election and against whom imputation of malpractices is made. In the event PDP did what was being alleged against it, without so deciding, such allegations do not go into promotion or conduct of the election rather such conduct is more consistent with the disruption of the election hence my saying PDP did not conduct the election.

This view is further borne out by paragraph 47 of the First Schedule to the same Act, which is unequivocal on the person to be joined to an election petition. The provision leaves no one in doubt that when an election petition complains of the conduct of an electoral official he should be joined.

Paragraph 47 reads as follows-
“47. Where an election petition complains of the conduct of an Electoral Officer, a Presiding Officer, a 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, but an Electoral Officer, a Presiding Officer, Returning Officer or any other official of the Commission shall not be at liberty to decline from opposing the petition except with the written consent of the Attorney-General of the Federation.”

It shows that it is the officials of the Commission and not any other person such as a political party that is accommodated or provided for under paragraph 4.7 of the Schedule and S. 133(2) of the Act when read communally. It therefore follows from these provisions that the only person who is a compulsory necessary party is the person whose election is being questioned unlike under sections 121(a) and (b) of the 1982 Act which made the winner and the electoral body compulsory and necessary party. See Omoboriowo v. Ajasin (1984) 1 SCNLR 108, 130.

The principle of civil procedure on joinder and non-joinder of the necessary parties applies to election petition even though it is sui generis.

It is, therefore, necessary to join the electoral body where imputations are made against them. Even where there are no accusations of impropriety leveled against it, it is apt to join it to secure its obedience to the final order the court may make. It is also important to join officers and agents of the electoral body who officiated as presiding officers’, electoral officers and returning officers and polling officers at various stages or area of polling station that the petitioner may be complaining of. In the case Green v. Green (1987) 3 NWLR (Pt. 61) 480, 493 the Supreme Court defined necessary parties thus-
“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 otherwords, 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. Amon v. Raphael Tuck & Sons (1956) 1 QB 351; Settlement Corporation v. Hoshschild (No.2) (1959) 1 WLR 1664; Re Vandervells Trust (1971) AC 912; Re Vandervelle (1969) 3 All ER 496.

The Peoples’ Democratic Party clearly is an interested party as the sponsor of the candidacy of first and second respondents but it is not a party which ought to have been joined and its presence before the court is not necessary in order to enable the court determine both effectively and completely all issues in controversy in the matter or suit. The joinder is being sought in my respectful opinion to assuage injured feeling. There is nothing the party can contribute to the success of the respondents, which it would not achieve as their witness.

This same principle applies to police officers and military officers not specifically assigned to participate in the conduct of the elections. These are what the learned senior counsel for the petitioners referred to as rampaging police and military officers. It is only fair to mention that the rampaging police and military officers is coined by the learned senior counsel for the petitioners and the word was not used in any of paragraphs pleaded in the petition. I mentioned it just to drive home the point that they are indeed not necessary parties, since the role they were alleged to have played was more in tune with disrupting the election rather than facilitate its smooth conduct.

Be that as it may, the learned senior counsel in his written submission dated 16/7/2003 made some concessions and pointed out some paragraphs in the petition that ought not to be there or partially should not be there. He however maintained that he would be entitled to adduce evidence against any remaining parties that were properly joined in the event that some were struck out.

In the final analysis, it is the stand of Chief Afe Babalola, SAN that in the light of massive mis joinders and non-joinder of parties, particularly the PDP which assumed a distinct status under the Nigerian Constitution 1999 and the Electoral Act, 2002 as a Political Party that can sue or be sued as well as the various security agencies particularly the police and military, the petition should not see the light of the day and should be terminated now.

Chief Afe Babalola, SAN has again re-emphasised the point that section 133(2) should be extended to cover the word “person” used therein to include the candidate and the political party which nominated and sponsored the candidate and that the political party which participated in the victorious election is a necessary party to any petition against the candidate sponsored by the party.

He made available a certified true copy of the ballot paper used for the Presidential Election of 19th April, 2003. He argued that the ballot paper did not contain the name of any candidate. That voters were required to affix their right hand thumb print against the political party of their choice, thereby making it imperative that where a petitioner complains of undue return, the proper parties are the victorious political party that was voted for and its sponsored candidate. Attractive as this argument sounds, I am still not persuaded that the provision of S. 133(2) of the Electoral Act, 2002 can accommodate, this proposition brilliantly formulated by Chief Afe Babalola, SAN.

I still hold the view that the conclusion I reached earlier on, that PDP even though a political party that sponsored the 1st and 2nd respondents who emerged victorious at the election do not come under the umbrage of section 133(2) of the Electoral Act, 2002, The words ‘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’ (italics provided) is very clear. I do not see the need of expanding it further beyond what in my view it said.

This is the same position taken by GADZAMA, SAN, even though the learned senior counsel did not put all his eggs in one basket, by accepting alternatives such as striking out some paragraphs or an order to stop the petitioners from calling evidence on some of the paragraphs.
In the final conclusion, all the three applications by the petitioners, 1st and 2nd respondents and 3rd – 268th respondents respectively are refused.

The petition will be heard on the merit. I make no order as to costs.

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Other Citations: (2003)LCN/1460(CA)