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.
- 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:
“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 in the election petition as a necessary party.”
It is necessary, in my view that before commenting on the above provision one has to look at the following paragraphs of the petition viz:
“5. And your petitioner states that the facts and the grounds upon which this petition is being brought to question the election and return of the 1st respondent are as set out below –
Grounds
(1) That the election of the 1st respondent was invalidated by reason of substantial non compliance with the provision of Decree No.3.
1999, to wit, allowing party agents to be present at the various polling units during the elections.
Particulars
a. The petitioner’s polling agents were driven away and disallowed from participating and monitoring the conduct of the election by agents of the 2nd, 3rd and 4th respondents in their polling units in the following local government areas; by reason of which the election was not conducted freely and fairly.
i. Babuba
ii. Guro etc.
Grounds
(2) That the election and return of the 1st respondent was invalidated by reason of non compliance with the provisions of the Decree No. 3 1999, requiring proper, adequate and due completion of the various forms EC8A (statement of result of polls) used in the election by the agents of the 2nd, 3rd and 4th respondents.
Particulars’
a. In the following local government areas, the forms EC8A (a summary of result of polls) from some polling units contain cancellations, alterations and mutilations of figures and information (data) which rendered the results doubtful and objectionable. Local government areas.
i. Jahun
ii. Kafin Hausa etc.”
It is necessary to mention here that under section 121 of the same Decree-
A person who being a Presiding Officer at an election –
(c) does anything which impedes or obstruct the proper counting or obtaining of the correct result of the election commits an offence and is liable on conviction to a fine of N10,000 or imprisonment for a term not exceeding 2 years or to both such fine and imprisonment.”
It is very clear, from the foregoing that the conducts of the presiding officers attached to the named polling booths were being challenged in the petition. If the tribunal had decided the petition on the evidence of the petitioner without hearing the presiding officers whose conducts were being castigated, would the hearing have amounted to a fair one? In any case it is well established principle of interpretation that if the words used in a legislation are plain and unambiguous they should be given their ordinary meaning. The relevant words in section 133(2) above are –
“shall for the purpose of this Decree be deemed to be a respondent and shall be joined in the election.”
The learned S.A.N. in his interpretation of the words submitted that “deemed to be respondent” to the petition means that the presiding officers are already respondents to the petition. With respect, the interpretation would have been alright if there had been a full stop after respondent. But there is no full stop. The provision continues with the following “and shall be joined in the election etc.”
This fact gives, in my view, a different complexion to the whole provision. In my view the provision means that the presiding officers are deemed to be respondents to the petition, and they must be joined.
I agree therefore with the tribunal when it stated:
“We do not think that the word shall” used in section 133(2) of Decree No.3 1999 is directory, as submitted by the learned Senior Advocate for the petitioner…”
In the light of the foregoing, issue one fails. On issue two, the learned Senior Advocate of Nigeria reminded us that the tribunal declined to accede to the alternative submission that it should suo motu invoke its inherent powers and discretion to order the formal joinder of the presiding officers.
It has to be borne in mind that the tribunal like any court of law was an impartial observer in the contest between the petitioner and the respondents. It could not have descended into the arena of the trial by doing the case of the petitioner for him. It could not therefore have suo motu ordered the joinder of the affected presiding Officers.
Finally, I observe that the result of the election was announced about the 9th of January, 1999. Under section 132 of Decree No.3 of 1999 a petition must be brought within 30 days from the date on which the result of the election was declared. From 9th of January to 3rd of March 1999 when the tribunal gave its ruling is over 50 days. It follows that any action by the tribunal should have been caught by the above provision. Issue two therefore fails.
In the result this appeal lacks merit and is hereby dismissed. The decision of the Governorship and Legislative Houses Election Tribunal of Jigawa State dated 3rd March 1999 is accordingly affirmed. I award costs assessed at N2,000 to the respondents.
Other Citations: (1999)LCN/0577(CA)