Sule Lamido V. Ibrahim Saminu Turaki & Ors (1999)

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AMAIZU, J.C.A.

This appeal calls for the interpretation of section 133(2) of Decree No.3 1999, otherwise known as State Government (Basic Constitutional and Transitional Provisions) Decree, 1999.

The appeal is sequel to an election petition filed by Sule Lamido against Ibrahim Saminu Turaki, his opponent, and 3others, contesting the election victory of Ibrabim Saminu Turaki, on the grounds as stated in the petition. For ease of reference Sule Lamido is hereinafter referred to as the appellant, Ibrahim Saminu Turaki as the 1st respondent and other 3 respondents as 2nd to 4th respondents.

The 1st respondent after filing his reply to the petition, put in a notice of preliminary objection to the petition on the grounds namely:

(1) The petition was left with the Director Civil Litigation of the High Court of Justice, Dutse, Jigawa State and presented to the Secretary of the Election Tribunal on 17th February, 1999.

(2) The petition is not properly constituted and is incompetent as this honourable tribunal lacks jurisdiction to hear and determine the said petition.

After hearing the submissions of learned counsel for the parties on the said preliminary objection, the tribunal, in its ruling dated 3rd March, 1999 disallowed the 1st ground of objection. On the second ground of objection it held:

“On the whole we are satisfied that the objection on this ground of non joinder of necessary parties is well founded. We allow this objection moved under section 137 of Decree No.3, 1999 and the petition is hereby struck out. We make no order as to costs,”

The appellant was dissatisfied with the above ruling of the tribunal. He has now appealed to this court. The grounds of appeal without their particulars are as follows:

“1. That the Election Tribunal erred in law in declining jurisdiction and thereupon striking out the appellant’s petition for non joinder of the presiding officers as necessary parties thereto, when by section 133(2) of Decree No.3 of 1999 their non joinder was not fatal to the petition as they were already deemed to be respondents to the petition and their non joinder did not detract from the jurisdiction and competence of the tribunal to hear and determine the petition.

2. That the Election Tribunal erred in law when it struck out the appellant’s petition on the ground that the presiding officers were not joined as necessary parties when it was imperative upon the tribunal to use its inherent powers and discretion to suo motu order their joinder to enable it effectually and completely adjudicate on the claim in the petition on their merits instead of striking out the presiding officers. He urged the court to allow the appeal. A Abubakar Esq., the learned counsel for the 1st respondent adopted the two issues formulated by the appellant’s counsel. On issue one, the learned counsel submitted that Decree No.3 of 1999 is a “constitution”. It is his view that the court should give strict interpretation to the provisions. Further, that the court should accord the words in the provision their ordinary meanings. This, according to the learned counsel, is because the words are clear and unambiguous. He submitted 8 further that the provisions of section 133(2) of the Decree are very clear as regards joinder of presiding officers when their conducts are in issue. It is his view that the word “deemed” as used in the section is not conclusive as to who are to be parties when the conduct of a presiding officer is in issue in an election petition. He contended that the parties must be clearly stated. He placed reliance on the case of Ogba v. The State (1992) 2 NWLR (Pt.222) 164 at 186.

Finally, he submitted that the word “shall” is mandatory, and, consequently, a petitioner should comply with the provision of section 133(2) of the Decree by joining the presiding officers whose conducts are being questioned in the petition. He placed reliance on the case of Ajayi v. Military Administrator of Ondo State (1991) 5 NWLR (Pt.504) 237 at 246.

On the second issue, the learned counsel contended that the tribunal does not have the power to suo motu order the joinder of parties in an election petition. In his view, if a tribunal orders, suo motu, the joinder of a party, it amounts to amending the said petition. He submitted that such an amendment would have been contrary to the provisions of section 132 of the Decree. He urged the court to dismiss the appeal.

Hassan Esq., of counsel associated himself with the above submission. He also urged the court to dismiss the appeal.

The provisions of section 133(2) of Decree No.3 of 1999 read as follows: