CORAM

---

SALIHU MODIBO ALFA BELGORE, JUSTICE, SUPREME COURT

EMMANUEL OLAYINKA AYOOLA, JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI, JUSTICE SUPREME COURT

---

PARTIES

---

1. GENERAL MUHAMMADU BUHARI (3RD RESPONDENT)2. ALL NIGERIA PEOPLES PARTY (ANPP) (4TH RESPONDENT) APPELLANTS

---

RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

The Petitioner Alhaji Mohammed Dikko Yusuf and the 1st Respondent Chief Olusegun Aremu Okikiola Obasanjo along with 17 other candidates contested the presidential election held on the 19th of April 2003. The Petitioner contested under the umbrella of the Movement for Democracy and Justice (MDJ) while the 1st Respondent contested under the aegis of the Peoples Democratic Party (PDP). The 1st Respondent was returned elected at the conclusion of the election hence this petition filed by the Petitioner at the Election Tribunal constituted by the Court of Appeal. The Petitioner joined as 2nd, 3rd, and 4th Respondents respectively the Peoples Democratic Party (PDP), the party under which Chief Obasanjo contested, General Muhammadu Buhari who contested the election but was not returned and All Nigeria People’s Party (ANNP), a party under which General Buhari contested. In addition, all the other 17 candidates who contested and lost together with their respective parties and the Alliance for Democracy (AD) which fielded no candidate at the presidential election were joined as the 5th – 39th Respondents respectively. Furthermore, the Independent National Electoral Commission (INEC), the Chairman of the Commission (Dr. Abel Guobadia, as Returning Officer) and the Resident Electoral Commissioners in 14 of the States of Nigeria were joined as the 40th – 55th Respondents. Finally one Dr. Ndidi Okereke-Onyiuke described as Coordinator, Corporate Nigeria, was joined as the 56th Respondent. The 3rd and 4th Respondents applied for their names to be struck off the petition on the grounds that their joinder offended the provisions of section 133(2) of the Electoral Act, 2002. The Petitioner opposed the application contending that a petition seeking to void the entire election is directed not solely at the winner but also at other candidates.  The tribunal held that the 3rd Respondent ought to be given an opportunity to defend the assertions made by the petitioner in paragraph 12 of the petition and that the 4th Respondent ought to remain a party since it sponsored the 3rd Respondent and consequently refused to strike out the said paragraph 17. The 3rd and 4th Respondents as Appellant have called upon this court to determine whether they were properly joined in the petition as Respondents.

---

HELD

---

Appeal Allowed?

---

ISSUES

---

Whether the Appellants were properly joined in the Petition?

---

RATIONES DECIDENDI

---

RIGHT TO FAIR HEARING – THE RIGHT TO FAIR HEARING ARISES WHERE A PERSON IS MADE A NECESSARY PARTY TO A PETITION

---

“It is basic that the issue of a right to fair hearing for a party will not arise unless there has been compliance with section 133(2) of the Act which ensures that he is a necessary party. That means, of course, that no allegation can be allowed to be pleaded or made against a person if he is not a necessary party to the petition, or someone who will need to be called as a witness.” PER UWAIFO, JSC

---

ELECTION PETITION – DUTY OF AN ELECTION TRIBUNAL TO HEAR AND DETERMINE AN ELECTION PETITION

---

“An election petition is heard and determined by an appropriate election tribunal as usually provided by the constitution.” PER UWAIFO, JSC

---

ELECTION PETITION – WHERE TWO OR MORE CANDIDATES ARE RESPONDENTS IN AN ELECTION PETITION, THE PETITION SHALL BE DEEMED TO BE A SEPARATE PETITION AGAINST EACH RESPONDENT – SECTION 45 OF THE ELECTORAL ACT

---

“Where two or more candidates may be made respondents to the same petition and their case may, but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents.”PER KATSINA-ALU, JSC

---

PRINCIPLE OF AUDI ALTERAM PARTEM – WHEN CAN THE PRINCIPLE OF AUDI ALTERAM PARTEM BE INVOKED

---

“The principle of audi alteram partem can only be invoked in respect of a case where a person ought to be joined as a necessary party but is denied the right to be joined. The principle, in my humble view, cannot apply in respect of a person, who by statute, is not and cannot be a party to an action”. PER NIKI TOBI, JSC

---

PARTIES IN AN ACTION – WHETHER A COURT OF LAW HAS JURISDICTION TO ENLARGE STATUTORY PROVISIONS RELATING TO THE REQUIRED PARTIES TO AN ACTION IN ORDER TO ACCOMMODATE OTHER PARTIES NOT WITHIN THE CONTEMPLATION OF THE LAW

---

“Where a statute specifically provides for parties in an action, a court of law has no jurisdiction to enlarge the specific statutory provision to accommodate other parties not within the contemplation of the Statute, however desirous such a situation or position may be. PER NIKI TOBI, JSC

---

EXPRESSION UNIUS EST EXCLUSION ALTERIUS RULE – MEANING OF EXPRESSION UNIUS EST EXCLUSION ALTERIUS RULE

---

“The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expression unius est exclusion alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication: see Ogbuayinya V. Okudi (1979) 6-9 SC 32; Udoh V. Orthopaedic Hospital Management Board (1993) 7 NWLR (pt. 304) 139.” PER UWAIFO, JSC

---

ELECTION PETITION – DUTY OF AN ELECTION TRIBUNAL OR COURT TO DECLARE AS ELECTED A CANDIDATE WHO SCORED THE HIGHEST NUMBER OF VALID VOTES CAST IN AN ELECTION – SECTION 136 (2) OF THE ELECTORAL ACT

---

Section 136 (2) reads:
“(2) If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Electoral Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and this Act.” PER UWAIFO, JSC

---

ELECTION PETITION – WHAT CAN BE QUESTIONED BY A PETITION – SECTION 131 (1) OF THE ELECTORAL ACT

---

“By section 131(1) of the Act, it is only an election or return of a candidate that can be questioned by a petition in which the person elected or returned is joined as a party.” PER UWAIFO, JSC

---

ELECTION PETITION – CATEGORY OF PERSONS WHO MAY PRESENT AN ELECTION PETITION – SECTION 133 (2) OF THE ELECTORAL ACT

---

Section 133 provides as follows:-
“133: (1) An election petition may be presented by one or more of the following persons-
(a) a candidate at an election;
(b) a Political party which participated at the election.
(2) The person whose election is complained of is, in this Act, 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, 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.” PER KATSINA-ALU, JSC

---

INTERESTED PARTIES – INTERESTED PARTIES IN AN ELECTION PETITION ARE THE PETITIONER(S) AND THE STATUTORY RESPONDENT(S)

---

“The persons who can justifiably be regarded as parties interested in the election petition are the petitioner(s) and the statutory respondent(s)”. PER UWAIFO, JSC

---

ELECTION PETITION – WHO CAN BE A RESPONDENT IN AN ELECTION PETITION

---

“The construction of Section 133 (2) of Electoral Act (set earlier in this judgment) can be as follows:
The respondent to an election petition can be
(i) the person whose election is complained of,
(ii) the Electoral Officer, the Presiding Officer, the Returning Officer whose conduct is complained of at the election.
(iii) Any other person who took part in the conduct of the election whose conduct is complained of.”PER S.M.A BELGORE, JSC

---

EJUSDEM GENERIS RULE – WHEN WILL THE COURT APPLY THE EJUSDEM GENERIS RULE

---

“Ejusdem generis rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words which follow special words as used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore general terms following particular ones apply only to such persons of things as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms. In other words, the general words or terms are to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended: see Maxwell on the Interpretation of Statutes, 12th edition, page 297; Fawehinmi V. Inspector-General of Police (2002) 7 NWLR (pt.767) 606 at 683; (2002) 8 SCM 77.” PER UWAIFO, JSC

---

STATUTORY INTERPRETATION – THE OBJECT OF STATUTORY INTERPRETATION IS TO DISCOVER THE INTENTION OF THE LAWMAKER

---

“The main object of all statutory interpretation is to discover the intention of the lawmaker which is deducible from the language used. Once the language is clear and unambiguous, the Judge will give an ordinary or literal interpretation to it. The underlying principle of statutory interpretation is that the meaning of a legislation must be collected from the plain and unambiguous expressions used therein rather than from any nations which may be entertained as to what is just and expedient. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole. See generally Ahmed V. Kassim (1958) 3 FSC 51; Lawal V. G.B. Ollivant (1972) 3 SC 124; Onashille V. Idowu (1961) All NLR 313; Awolowo V. Shagari (1979) 6-9 SC 51; Ojokolobo V. Alamu (1987) 3 NWLR (Pt.61) 377; Garba V. F.C.S.C. (1988) 1 NWLR (Pt.71) 449; Idehen V. Idehen (1991) 6 NWLR (Pt.198) 132.” PER NIKI TOBI, JSC

---

COURT – A COURT OF LAW HAS NO JURISDICTION TO EXCEED THE PROVISION OF A STATUTE WHICH IS CLEAR AND UNAMBIGUOUS

---

“A court of law, in the exercise of it interpretative jurisdiction, must stop where the statute stops. A court of law has no jurisdiction to go beyond a clear and unambiguous statutory provision by adding what the statute does not provide or intend to provide.” PER NIKI TOBI, JSC

---

COURTS – WHETHER COURTS CAN ENTERTAIN THE MERIT OF A MATTER IN AN INTERLOCUTORY APPEAL

---

“It is trite law that courts of law cannot entertain the merits of a matter in an interlocutory appeal which will not finally determine the matter”. PER NIKI TOBI, JSC

---

ELECTION PETITION – A POLITICAL PARTY WHICH PARTICIPATED IN AN ELECTION MAY FILE A SINGLE PETITION AGAINST THOSE ELECTED OR RETURNED BUT THE ELECTION PETITION SHALL BE DEEMED TO BE A SEPARATE AGAINST EACH OF THE RESPONDENTS

---

“A petitioner, say, a Political Party which participated in the election may file a single petition against those elected or returned candidates but the election petition “shall be deemed to be a separate petition against each of the respondents.”PER UWAIFO, JSC

---

PRINCIPLE OF FAIR HEARING – THE PRINCIPLE OF FAIR HEARING CAN ONLY BE INVOKED WHERE A PERSON WHO OUGHT TO BE JOINED IS DENIED JOINDER

---

“The fair hearing principles entrenched in section 36 of the Constitution like the twin principles of natural justice, can only be invoked in situations where a person who ought to be joined is denied joinder because the plaintiff is either frightened of the case the person will present or wants to obtain cheap victory outside the person”. PER NIKI TOBI, JSC

---

JURISDICTION OF AN ELECTION TRIBUNAL – THE JURISDICTION OF AN ELECTION TRIBUNAL TO DEAL WITH ELECTION PETITION IS DIFFERENT FROM THAT IN AN ORDINARY CIVIL CASE

---

“The jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case: see Onitiri V. Benson (1960) SNCLR 314 at 317. It is plain that the proceedings are special for which special provisions are made under the Constitution: see Oyekan V. Akinjide (1965) NMLR. 381 at 383, a decision of this court. Election petition are distinct from the ordinary civil proceedings. see Obih V. Mbakwe (supra) at p.200 per Bello JSC; at p. 211 per Eso and Aniogolu JSC.” PER UWAIFO, JSC

---

ELECTION PETITION – A PETITIONER (S) CANNOT MAKE ANY CANDIDATE WHO LOST IN AN ELECTION A RESPONDENT OTHER THAN THE STATUTORY RESPONDENT – IMPORT OF SECTION 133 (2) OF THE ELECTORAL ACT

---

“Section 133 of the Act places no obligation on a petitioner (s) to make any candidate who lost an election or any Political Party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under subsection (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or Political Parties can neither be respondents nor are they necessary parties.” PER UWAIFO, JSC

---

INTERPRETATION OF STATUTES – WAY IN WHICH REPUGNANCY CAN BE AVOIDED IN THE INTERPRETATION OF STATUTES

---

“It is trite law that one way in which repugnancy can be avoided in the interpretation of statutes is by regarding two apparently conflicting provisions as dealing with district matters or situations: T.K. Worgan & Sons Ltd V. Gloucestershire County Council (1961) 2Q.B. 123 at 132.” PER D.O. EDOZIE, JSC

---

INTERPRETATION OF STATUTES – PROPER APPROACH TO THE INTERPRETATION OF A PARTICULAR SECTION OF A STATUTE

---

“In seeking to interpret a particular section of a statute or a subsidiary legislation ones does not take the section in isolation but one should approach the question of the interpretation on the footing that the section is part of a greater whole: See James Orubu V. National Electoral Commission (1988) 5 NWLR (Pt. 94) 323: Chima& Anor V. Nelson Ude& 2 Ors (1996) 3 NWLR (Pt. 461) 379 at 417.” PER D.O. EDOZIE, JSC

---

CASES CITED

---

1. Obih V. Mbakwe (1984) 1 SCNLR 192 at 2042. Egbolum V. Obasanjo (1999) 7 NWLR (pt.611) 355 at 397.3. Fawehinmi V. Inspector-General of Police (2002) 7 NWLR (pt.767) 606 at 683; (2002) 8 SCM 774. Onitiri V. Benson (1960) SNCLR 314 at 3175. Oyekan V. Akinjide (1965) NMLR. 381 at 3836. Benson V. Allison (1955-56) WRNLR 587. Emenue V. Nkerewen (1966) 1 All NLR 638. Ige V. Olunloyo (1984) 1 SCNLR 158?

---

STATUTES REFERRED TO

---

Constitution of the Federal Republic of Nigeria, 1999Electoral Act 2002Presidential Election Decree 1999

---

CLICK HERE TO READ FULL JUDGMENT