ALABI A. KAZEEM v. OYEJIDE GBADEBO KOLA & ORS

CORAM

PARTIES

ALABI A. KAZEEM APPELLANTS

OYEJIDE GBADEBO KOLA & ORS

AREA(S) OF LAW

SUMMARY OF FACTS

On the 14th day of April 2007, the 3rd Respondent (INEC), conducted election to Irewole/Isokan Constituency of Osun State House of Assembly in which the 1st Respondent sponsored by the People’s Democratic Party (PDP), was returned elected as the member of the Osun State House of Assembly for Irewole/Isoka constituency. The Appellant was not satisfied with the result declared by the 3rd Respondent hence, he filed an election petition in the Election Petition Tribunal set up for Osun State. There were 75 Respondents to the petition. The 1st and 2nd Respondents objected to the competence of the petition and it was also the 1st issue formulated by the tribunal: “Whether the petition before the Tribunal is competent” and the issue was resolved by the Tribunal that the petition was competent. The Appellant’s petition was heard and dismissed by the Election Petition Tribunal. The Appellant was not satisfied and filed an appeal against the judgment of the tribunal. The Appellant’s brief of argument was filed on the 21st day of August 2008, while that of the 1st and 2nd Respondents was filed on the 15th day of September, 2008. The 74th and 75th Respondents’ brief was filed on the 29th day of September 2009. At the hearing of the appeal, the Appellant, who distilled 8 (eight) issues in his brief, withdrew the 5th and 6th issues and they were accordingly struck out. He adopted and relied on his abridged brief and his reply brief and urged the Court to allow the appeal and set aside the judgment of the tribunal. The 1st and 2nd Respondents also adopted their brief and urged the court to dismiss the appeal and affirm the judgment of the tribunal. The 74th and 75th Respondents were absent at the hearing of the appeal. The 74th and 75th Respondents were duly notified of the hearing of this case. Therefore, by virtue of the provisions of Order 17 rule 9(4) of the Court of Appeal Rules (2007), the 74th and 75th Respondents are deemed to have duly adopted their brief and argued their case.

HELD

Appeal Dismissed

ISSUES

Not Available

RATIONES DECIDENDI

PLEADINGS – STATUS OF EVIDENCE OF FACTS NOT PLEADED OR IS AT VARIANCE WITH THE PLEADINGS

“Without an amendment the issues joined in the body of the petition by the petitioner/appellant were clear – that the candidate of PDP was OLAJIDE ADEYEYE who scored 33, 190 votes against the 10, 469 votes scored by the petitioner/appellant and that the said OLAJIDE ADEYEYE was returned as the candidate elected at the said election. Any evidence to the contrary relates to facts not pleaded or is at variance with the pleadings and goes to no issue. See Muhammadu Buhari & Anor V. Chief Olusegun Aremu Obasanjo & Ors (2005) 13 NWLR (Pt. 941) 1 at L93 where the Supreme Court, per BELGORE, JSC (as he then was, later CJN) held as follows:
“The appellants adverted to 14 states of the Federation where electoral malpractices took place but hardly offered evidence on them but went on to adduce evidence on states not pleaded and thus evidence on those unpleaded states went to no issue. Purpose of pleading is to afford the opponent the opportunity of knowing the case he faces, a matter not pleaded and offered only in evidence is an embarrassment to the opponent who was unprepared for it.”
–

ELECTION PETITION – FORMAL CONTENTS OF A COMPETENT ELECTION PETITION

“The formal contents of a competent election petition are statutorily set out in paragraph 4 (1) (c) of the First Schedule to the Electoral Act, 2006. It is mandatory for the contents of a competent petition to include “the scores of the candidates and the person returned as the winner of the election.” In the case of Abimbola V. Aderoju (1999) 6 NWLR (Pt. 601) 100, the court while interpreting the provisions of paragraph 5(1) of Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, in parimoteria with paragraph 4 (1) of the First Schedule to the Electoral Act, 2006 held that a petition which failed to comply with the said provisions was incompetent and liable to be struck out. See also Offomah V. Ajegbo (2000) 1 NWLR (Pt. 641) 498. –

ELECTION PETITION – PERSONS WHO SHOULD BE MADE RESPONDENTS IN AN ELECTION PETITION

“As stated earlier, there were 75 (seventy – five) respondents to the petition but, curiously, OLAJIDE ADEYEYE was not listed or included as one of the 75 respondents. No amendment was made to the contents of the petition. The only biological person joined in the petition, as a respondent, is the 1st respondent – OYEJIDE GBADEBO KOLA. The alleged winner of the said election was, therefore, not a party to the appellant’s election petition and this is contrary to the provisions of section 144 (2) of this Election Act, 2005 which provides, inter alia, that “The person whose election is complained of is, in the Act, referred to as the Respondent…should be made a respondent to a petition questioning his election.
In the case of Buhari V. Yusuf (2003) 14 NWLR (pt.841) 446, the Supreme Court while interpreting the provisions of section 133(2) of the Electoral Act, 2003 which is in parimaterio with section 144(2) of the Electoral Act, 2006 held that two categories of respondents are provided for under this section. At pages 509 – 510 of the Law Report, the Supreme Court, per KASTINA- ALU, JSC (as he then was, now CJN) stated the position of the law as follows:
“I think the law is now settled. It is cardinal rule of interpretation of a statutory provision that it must be given its clear and ordinary meaning. Subsection 2 of section 133 of the Electoral Act which I have reproduced above provides for persons who may be respondents in an election petition. The first set of respondents is the person whose election is complained of. The second set is made up of an electoral officer, a presiding officer, a returning officer whose conduct the petition complains of and any other person who took part in the conduct of election. These are collectively referred as ‘statutory respondents.’ When subsection 2 speaks of the person whose election is complained of, it clearly did not contemplate making any person a respondent except a (sic)
See also the case of Ibrahim Idris V. All Nigeria Peoples Party (ANPP) (2008) 8 NWLR (Pt. 1088) 1 at 89, per SANUSI, JCA. –

ELECTION PETITION – CONSEQUENCES OF THE NON-JOINDER OF PRINCIPAL STATUTORY RESPONDENT IN AN ELECTION PETITION

“It is very obvious that the intention of the legislature, under section 144 (2) of the Electoral Act 2006, is that non-joinder, as a respondent to an election petition, of the person declared elected in an election makes the election petition void and it should be avoided, accordingly. It is clear, therefore, that OLAJIDE ADEYEYE ought to have been joined to the election petition as a mandatory statutory respondent. The non-joinder of such a principal statutory respondent made the appellant’s election petition incompetent abintio and it ought to have been struck out. See Tafida V. Bafarawa (19ss) 4 NWLR (Pt. 597) 70. and Ojong V. Duke (2003) 14 NWLR (Pt.841) 581 at 589. The joinder of a statutory respondent, such as the candidate declared and returned elected in an election, is not a trivial matter to be consigned to the discretion of a petitioner. Apart from the mandatory statutory provisions of section 144(2) of the Electoral Act, 2005, common sense and the principles of natural justice, relating to fair hearing, demand that it is very unfair for a candidate, elected at an election, to have his election contested in a tribunal, and possibly have his return upturned, without making him a party or respondent to the petition. See NEC V. Izuogu (1993) 2 NWLR (Pt. 295) 270 at 295, per SULU-GAMBARI, JCA. The law is very trite that the person declared by the electoral umpire as the winner of an election must be made a respondent to an election petition questioning his election. It is compulsory or mandatory for such a person to be made a respondent to the petition. See Okonkwo V. Ngige (2006) 8 NWLR Pt. 981) 119. –

INCOMPETENT SUIT – CONSEQUENCES OF AN INCOMPETENT SUIT ON THE JURISDICTION OF THE COURT

“It is trite that if a suit is incompetent the court’s jurisdiction is affected thereby. Where the suit is not competent, the court lacks competence to entertain it. And an election petition is a suit. See Dr. Alphonsus Ojo V. INEC & Anor. (2008) 13 NWLR (Pt. 1105) 577 at 513, per NWOSU-IHEME, JCA where His Lordship stated the law as follows:
“The incompetence of a suit affects the competence of a court to try it, and lack of competence in a court affects the jurisdiction of the court. A court has jurisdiction to try a matter when the subject matter is within its jurisdiction, when the suit is initiated by due process and there is no feature therein which robs the court of its jurisdiction, and all the conditions precedent to the exercise of jurisdiction has been fulfilled. See Madukolu V. Nkemdilim (1962) ALL NLR (pt. 2) 581 at 583; (1962) 2 SCNLR 341.”
The feature in the appellant’s election petition, which robbed the tribunal of its jurisdiction, is the failure to join OLAJIDE ADEYEYE – the candidate he claimed was declared winner of the election with 33, 190 votes. The appearance by the 1st respondent – OYEJIDE GBADEBO KOLA and his participation in the proceedings in the tribunal would not and did not, in the absence of amendment to the petition, confer competence on the incompetent election petition thereby conferring jurisdiction on the tribunal. See First Amalgamated Building Society Ltd. & Anor V. Alhaja Kudirat Ibiyeye (2008) 14 NWLR (pt. 1107) 375 at 406 and Chief (Dr.) Pere Ajuwa & Anor V. The Shell Petroleum Development Company Of Nigeria Limited (2008) 10 NWLR (pt. 1094) 64 at 96.-

NON-JOINDER OF THE STATUTORY RESPONDENT IN AN ELECTION PETITION – CONSEQUENCES OF THE NON-JOINDER OF THE PRINCIPAL STATUTORY RESPONDENT IN AN ELECTION PETITION

“The failure by the appellant to join OLAJIDE ADEYEYE, the candidate claimed by him to have won the disputed election, is a fundamental flaw which goes to the competence of the petition. It is a jurisdictional issue which I cannot gloss over. For purpose of emphasis, I hold that the entire proceedings in the trial tribunal were incompetent, null and void. The tribunal was robbed of its jurisdiction to entertain the petition which was liable to be struck out. Therefore, this appeal is equally afflicted by the same incurable disease – lack of jurisdiction. In the case of Nigerian Romanian Wood Industries Ltd. V. J. O. Akingbulugbe (APPEAL No. CA/B/73/2009) decided on Tuesday the 7th day of December, 2010, the Akure Division of this Court held, per NGWUTA, JCA, as follows:
“The proceedings in the Court below are a nullity and this Court has no jurisdiction to determine the merit of appeal based on the void proceedings. It is my order that both the suit in the Court below and the appeal that arose from it be struck out as incompetent”
See also the case of DR. N. E. Okoye & Anor V. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt. 1110) 335 at 353, where the Supreme Court, per TOBI, JSC, held as follows:
“I agree that a trial Judge has the jurisdiction to determine whether it has jurisdiction to try the case of a plaintiff based on the claim before it, and an appellate court has the jurisdiction to determine whether the trial court really has jurisdiction to hear the case. Where an appellate court comes to the conclusion that the trial court has no such jurisdiction, it will strike out the matter, thus removing it from the cause list of the trial court.”
–

ELECTION PETITION – CONSEQUENCES OF A FAILURE TO INCLUDE THE STATUTORY RESPONDENT TO AN ELECTION PETITION

The 1st Respondent is Oyejide Gbadebo Kola whose score, if any, was not stated in paragraph 11 of the petition and Olajide Adeyeye who scored a plurality of 33,190 votes and who must have been returned as elected was not listed as a respondent. Olujide Adeyeye should have been the one whose election is complained of and therefore a respondent in the petition under S.144 (2) of the electoral Act 2006. His non-inclusion as a respondent renders the petition incompetent. See A.A. Maikori v. Dabo Mohammed Lere& Ors. (1992)2 LREGN 125 at 126. The Tribunal or Court cannot validly make an order or give a Judgment that will affect the interest of a person that is not a party to the case and who was never heard in the matter. See Anya V. Iyagi (1988) 3 NWLR (Pt. 82) 359 CA. –

ELECTION PETITION – CONSEQUENCE OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT IN ELECTION PETITIONS

“Elections petitions are sui generis. Any slight error in complying with the provisions of the Electoral Act could be fatal to the petition. See the case of Awuse v. Odili (2004) 8 NWIR (Pt. 876) 481 @ 519. –

Legalpedia Citation: (2011) Legalpedia (CA) 11613

In the Court of Appeal

HOLDEN AT IBADAN

Wed Feb 23, 2011

Suit Number: CA/I/EPT/HA/72/2008