(Delivered by JOHN INYANG OKORO, JSC)
On Tuesday, the 20th day of September, 2016, this appeal was heard by the panel listed above. On that date, I adjudged this appeal unmeritorious and it was for dismissing the appeal on Friday, the 30th day of September, 2016. I shall therefore proceed to state the reasons why the appeal was dismissed.
This appeal is against the judgment of the Court of Appeal delivered on 4th August, 2016 in Appeal No. CA/A/EPT/384/2016 which affirmed the decision of the Kogi State Governorship Election Tribunal delivered on the 9th of June, 2016 dismissing the petition filed by the appellant challenging the return of the respondent as the winner of the election conducted on the 21st of November, 2015 and 5th December, 2015 to the office of Governor of Kogi State. A synopsis of the facts leading to this appeal will suffice.
The appellant was one of the twenty-two (22) political parties which fielded candidates for the election into the office of Governor of Kogi State conducted by the Independent National Electoral Commission on 21st
The All Progressives Congress, another registered political party sponsored late Prince Abubakar Audu in the Election. The other political party which made a great showing at the election was the Peoples Democratic Party (PDP) with Capt. Idris Ichalla Wada as its candidate.
At the end of the polls of 21st November, 2015, the Independent National Electoral Commission declared it inconclusive because, according to it, the number of registered voters in 91 polling units, infested with electoral malpractices, exceeded the total number of registered voters in the vote margin between the leading party APC and the PDP, its closest rival. Soon after the declaration of the election inconclusive, the candidate of the APC, Prince Abubakar Audu died. The APC notified INEC of his demise on 23rd November, 2015 and requested for his substitution. The Independent supplementary election in the 91 polling units that were tainted with electoral malpractices.
Sequel to the grant, the APC substituted its deceased candidate, Prince Abubakar Audu with the respondent herein. At the end of the supplementary election, INEC added the votes garnered by the APC in the 21st November, 2015 election to those earned by the respondent and declared the respondent the winner of the governorship election having scored majority of lawful votes.
The appellant was piqued by the declaration and return of the respondent as the winner of the election. Consequently, the appellant, on 24th December, 2015, filed a petition at the Election Petition Tribunal. The said petition was later amended.
As would be expected, the respondent joined issues with the appellant by filling a reply wherein he raised who tendered some electoral documents and called one witness i.e. PW1. In his defence, the respondent fielded one witness as PW1 and tendered some electoral documents.
At the end of the trial, both counsel addressed the tribunal. In a considered judgment delivered on the 9th June, 2016, the trial tribunal declared the petition incompetent and dismissed it for lacking in merit.
Appellant was dissatisfied with the decision. Hence, on 22nd June, 2016, it lodged an appeal at the Court of Appeal. On 4th August, 2016, the lower court delivered its judgment dismissing the appeal for being unmeritorious. On 12th August, 2016, the appellant filed a notice of appeal containing twelve grounds of appeal to challenge the said decision. Briefs were filed and exchanged in accordance with the rules of court.
On the 20th of September, 2016 when this appeal was of some salient points in the briefs. In the appellant's brief settled by its counsel, A. O. Maduabuchi, Esq., leading another, three issues are distilled for the determination of this appeal. The three issues are:-
1. What is the effect of a court not resolving all the principal issues submitted to it for resolution?
2. Whether a fact which has been admitted needs any further proof?
3. Who is a necessary party in any proceedings?
On the other hand, P. B. Daudu, Esq., leading other counsel submitted two issues on behalf of the respondent. The two issues are stated thus:
1. Whether the Court of Appeal was justified in affirming the trial tribunal's decision that INEC was a necessary party to the appellant's petition.
2. Whether having regard to the facts and circumstances of this appeal, the Court of Appeal can be faulted in the way the 1st respondent did not win the election by a majority of lawful votes.
Having regard to the complaint of the appellant as evinced in the paragraphs of its petition and moreso, the judgment of the court below appealed against, it is my well considered opinion that the two issues nominated by the respondent are more apt and germane for the determination of this appeal than the issues thrown up by the appellant. I shall accordingly determine this appeal based on the two issues as couched by the learned counsel for the respondent.
Although the respondent has numbered his two issues as numbers 3 and 4, I think it is a typographical error. I hereby renumber them as 1 and 2. The respondent's first issue is the same as the appellant's issue 3 and is asking the question whether INEC was a necessary party to this petition?
Electoral Act, 2010 (as amended) and the case of Dangana V. Usman (2013) 6 NWLR (pt. 134) 50 at 80 on rules of interpretation of statutes, and submitted that the intendment of the legislature was that the only necessary party to an election petition is the person whose election is being challenged. According to him, no other person is a necessary party to an election petition except the person whose election is being challenged.
Again, learned counsel relies on Section 137(3) of the Electoral Act, 2010 (as amended) and submitted that where the law makes an event a condition precedent for its coming into effect, the law does not come into effect unless that event has occurred, citing the case of Ugwuanyi V. NICON Ins. Pic (2013) 11 NWLR (pt. 1366) 546. According to learned counsel, the condition precedent to the inclusion of INEC as a party in any election petition is that there must have been a
It is a further submission of the appellant that by Section 133(1) of the Electoral Act (supra), the person elected or returned shall be a party to the petition. That the law did not state that INEC should be a party.
Finally, learned counsel opined that INEC does not need to be a party to the petition for it to implement the decision of the Tribunal or Court of Appeal. It is his view that Section 287(2)&(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) enjoins all authorities and persons and other courts that are subordinate to them to implement and enforce such decisions. Learned counsel submitted that INEC was not a necessary party to this petition and urged this court to resolve this issue in favour of the appellant.
Contrary to the position adopted by the appellant above, the learned counsel for the respondent submitted that INEC was and still is a necessary party to this Referring to paragraphs 11 - 16, 17, 18 and 19 - 25 of the petition, learned counsel submitted that the appellant was challenging the legality of INECs decision to add the votes garnered by Prince Abubakar Audu to those garnered by the respondent, the decision of INEC to conduct supplementary election and its decision to return the respondent as governor of Kogi State. Learned counsel submitted that these acts were done by officials of INEC and by Section 137 (3) of the Electoral Act (supra), INEC was not only a necessary party but also a statutory party. He submitted that parties are bound by their pleadings, relying on the case of Kubor V. Dickson (2013) 4 NWLR (pt. 1345) 534 at 589. He urged the court to discountenance the attempt by the appellant to surreptitiously jettison its case at the trial tribunal via its submission in its brief. Learned counsel submitted that by the wording of Section 137(3) (a) of grossly incompetent. Contrary to the position adopted by the appellant in its brief, the respondent submits that where a necessary party is not joined in the case, the court or tribunal lacks jurisdiction to entertain and determine the matter, citing and relying on the case of Tafida V Bafarawa (1999) 4 NWLR (pt. 597) 70. He urged this court to resolve this issue against the appellant.
In this case, both the trial tribunal and the Court of Appeal held that INEC was a necessary party to the petition giving birth to this appeal. The two courts below also held that the failure to make INEC a party in this case is fatal to the petition. But who is a necessary party in a case? A necessary party in a case is one whose presence or involvement in the matter is not only necessary but crucial and unavoidable for the effective, effectual, exhaustive, complete and comprehensive subject matter of the proceedings but also who in his absence, the proceeding cannot be fairly dealt with. In other words, the question to be settled in the action between the existing parties in the suit must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green V. Chief Dr. E. T. Dublin Green (1987) NWLR (pt. 61) 481, (1987) LPELR - 1338 (SC), Attorney-General of the Federation V. Attorney General of Abia State (2001) 11 NWLR (pt. 725) 689, (2001) LPELR - 631 (SC), Guda V. Kitta (1999) 12 NWLR (pt. 629) 21,
It is imperative that a person whose presence in a suit is necessary ought to be joined so that he would be bound by the result of the action. Where the issues or questions raised in the action cannot be effectually and completely settled unless a person is a party to the suit,
Transport Nig. Ltd. V. J. B. Olandeen Intl & Ors (2010) LPELR - 2902 (SC).
In the instant appeal, I agree with the submission of the learned counsel for the respondent that the appellant in its petition was indeed challenging the acts of INEC which it did not make a party to its petition. The paragraphs of the petition do certainly disclose the following grouse against INEC by the appellant:
1. INEC's decision to add the votes garnered by Prince Abubakar Audu (deceased) to those of the respondent as candidate of the APC.
2. The conduct of supplementary election with the respondent as candidate of APC.
3. INEC's decision to return the respondent as duly elected Governor of Kogi State.
4. Paragraph 27 of the petition before the Tribunal clearly seeks a relief specifically directing INEC to conduct fresh appellant could not have been carried out by INEC itself but through its electoral officials and returning officers. It is therefore patently wrong for the appellant to argue that it did not make any complaint against INEC officials or INEC itself so as to make it a necessary party. The law is trite that parties are bound by their pleadings. It is too late in the day for appellant to abandon the specific pleadings in the paragraphs of his petition. See Kubor V. Dickson (2013) 4 NWLR (pt. 1345) 534 at 589.
I hold a strong view that the appellant made allegations and complaints against INEC in conducting supplementary election, adding late Audu's votes to the respondent's score at the supplementary election and declaring the respondent as winner of the election. Appellant had alleged that the respondent did not win the election by majority of lawful votes. The question is: Who compiled and computed the result? Who decided that the petition be determined without the presence of INEC. Would it have been a fair hearing with regard to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)? I do not think so. Section 137 (3) of the Electoral Act 2010 (as amended) states thus:
"137 (3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be:-
(a) made a respondent, and
(b) deemed to be defending the petition for itself and on behalf of its officers or such other persons."
By the above provision of the Electoral Act (supra), INEC is not only a necessary party but a statutory party. Having agreed with the two courts below on the issue, challenged the actions/decision of INEC in the Kogi State Governorship election held on 21st November, 2015 and 5th December, 2015, it was necessary to make the Commission a party to the petition as it would have been unfair and impossible to determine the issues raised by the appellant in the absence of INEC.
Moreover, the use of the word "shall" in Section 137 (3) of the Electoral Act makes it mandatory for INEC to be made a party where complaints are made against it or its officials in an election petition. That section is a mandatory provision because the operative word there is "shall". The word "shall" when used in a statutory provision imports that a thing must be done. It is a form of a command or mandate. It is not permissive, it is mandatory. See Nwankwo V. Yar'adua (2010) 12 NWLR (pt. 1209) 518, Bamaiyi V. Attorney General of the Federation (2010) 12 NWLR (pt. 727) 468; Ngige V.
On the whole, it is my view that the two courts below were right in holding that INEC was a necessary party in this petition before the trial Tribunal. Issue one, as it turns out, is resolved against the appellant.
Before I consider the second issue adopted for the determination of this appeal, I observe that the learned counsel for the appellant has imported a fake issue No. 2 into his brief on page 4 of its brief of argument. Argument on the said strange issue spans pages 4-13 i.e. paragraphs 4.07 to 4.29 thereof. The said issue is said to be predicated on grounds 3, 4, 5, 6, 14,15,16,17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32 and 33 of the notice of appeal. This issue is not for this court for the following reasons: 1. It is an appeal against the judgment of the trial tribunal and this court has no jurisdiction to hear appeals directly from the judgment of the tribunal of appeal challenging the judgment of the Court of Appeal to this court has only 12 grounds of appeal.
A scrutiny of the record of appeal reveals that the appellant's counsel just lifted the said issue with arguments in support from his brief to the Court of Appeal into the present brief of argument. I will regard this as a serious oversight by counsel. I charge counsel to always read and cross check his documents before signing them and sending them for filing. The inclusion of the issue in appellant's brief to this court has exposed the tardiness of counsel in handling his brief. Be that as it may, the said issue 2 contained on pages 4 -5 of the brief of argument and the arguments in support thereof spanning pages 5 - 13 of the same brief are hereby discountenanced.
There is yet another issue 2 on page 13 of the brief of any further proof."
This issue, to say the least, has no relevance to this appeal. It is not only academic but self-serving. There is nowhere in the judgment of the lower court or even at the trial tribunal where the respondent admitted that he did not score majority of lawful votes. The said issue is also discountenanced.
I am now left with issue number 2 in the respondent's brief which, unfortunately, the appellant did not proffer any argument on it. It is settled law that where a party fails to respond to a point or an issue, either in the brief of argument or oral presentation, the opposing party is deemed to have admitted all that his adversary has stated. See Okongwu V. NNPC (1989) 4 NWLR (pt. 115) 296, Nwankwo V. Yar'adua (2010) 12 NWLR (pt. 1209) 518.
In circumstance of this case, since the appellant has becomes unnecessary as there is nothing to respond to. Secondly, the appellant has no complaint or challenge against the issues so raised. It is his appeal and whatever he does not challenge is deemed admitted. To consider this issue without any complaint by the appellant amounts to an academic exercise. There is no time for such an exercise in this court. Accordingly, this issue is deemed abandoned.
Having resolved the only issue on which both parties exchanged arguments in favour of the respondent, the only thing remaining for me to say is that this appeal is devoid of merit and is accordingly dismissed. The judgment of the Court of Appeal which upheld the judgment of the trial tribunal is hereby affirmed. Parties shall bear their respective costs. It is based on the above reasons that I dismissed this appeal on 20th September, 2016.
REASONS FOR JUDGMENT
(Delivered by CLARA BATA OGUNBIYI, JSC)
This appeal was heard and dismissed as lacking in merit on the 20th September, 2016. The reason for the dismissal was however adjourned for the 30th September, 2016 and I now give same.
I have read in draft the lead judgment of my learned brother John Inyang Okoro, JSC. I have no reason to disagree with the comprehensive and thorough research made by the learned jurist. In other words, I adopt the judgment as mine and in the same terms also dismiss the totality of the appeal.
The facts and the back ground history of the case are all spelt out clearly in the lead judgment. The issues set out as contained in the appellant's brief of argument are threefold while the respondent formulated two. They are also contained in the lead judgment and I do not wish to reproduce same.
The only relevant issue central to this appeal is whether INEC was and is a necessary party to the petition culminating into this appeal now before us.
While the appellant's counsel answers in the negative, it was argued vehemently to the contrary by the respondent's counsel.
The learned counsel for the appellant relates copiously to section 137(2) of the Electoral Act 2010 (as amended) and reiterates the intention of the legislature; that the only necessary party to an election petition is the person whose election is being challenged. This, counsel submits is the strict interpretation of section 137(2) of the Electoral Act supra; that section 137(3) gives a conditional provision as to when INEC may be made a party; that INEC is not therefore a necessary party in every election petition. Further, that the condition precedent to the inclusion of INEC as a party in any election petition is where there is a complaint regarding the conduct of either an Electoral officer, a Presiding officer or a Returning officer; in the absence of such complaint, as is the case at hand, counsel submits, INEC will not be joined as a party; that with reference to section 133 (1) of the Electoral Act, the law did not provide that INEC should be made a party. Counsel contends on the totality that both the two lower courts erred in law in holding the contrary.
The sole issue for determination is whether the matter in this appeal is competent in the absence of joining INEC as a Respondent?
The reproduction of section 137(3) of the Electoral Act states thus:-
"If the petitioner complains of the conduct of an electoral officer, presiding officer or returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall in this instance be,
(a) Made a respondent, and
(b) Deemed to be defending the petition for itself and on behalf of its officers."
For the definition of a necessary party, this court in the case of Green V. Green (1987) 3 NWLR (Pt. 61) 480 at 493 had this to say per Oputa, JSC:-
A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence of proceedings cannot be fairly and judiciously decided. In other words, the questions to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action."
The learned jurist proceeded further and re-iterated that the deciding factors determining the effect of non-joinder or misjoinder of a party lie in the following questions:-
(1) Whether the cause or matter is liable to be defeated by non-joinder.
(2) Whether the matter can be adjudicated without the 3rd party added a Defendant?
(3) Is the 3rd party a person who should have been joined in the first place?
(4) Is the 3 party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter? On the communal reading of section 137(3) and taken together with the definition of a necessary party per Oputa, JSC supra, it is correct to say that the interpretation given by the appellant's counsel is grossly misconceived as rightly submitted by the learned counsel for the respondent.
In other words, it is a misconception of the law for the appellant's counsel to contend that "it is only when you complain specifically about the bad conduct of an Electoral officer, a Presiding officer or a Returning officer that it becomes necessary to join INEC "
I further wish to add that the argument put forward by the appellant's counsel is completely at variance with the facts pleaded in its pleadings and also a radical distortion of the petition. For instance, a critical appraisal of paragraphs 11 -16 of the petition (contained at page 4 of the record) reveals that the appellant is specifically challenging the legality of INEC's decision to add the votes garnered by Prince Abubakar Audu to those by Alhaji Yahaya Bello as candidates of APC. Also paragraphs 17 and 18 of the said petition at pages 4-5 of the record question why INEC conducted supplementary election upon becoming aware of Prince Abubakar Audu's demise. Further still paragraphs 19 - 25 of the said petition are all challenging the decision of INEC in returning the Respondent as duly elected. It is clear on the printed record that paragraph 27 of the petition seeks a relief from the
Tribunal to direct INEC to specifically conduct fresh elections. The appellant cannot now change the character of his pleadings. It is too late in the day. The law is well settled that parties are bound by their pleadings and the appellant will not be allowed to abandon its pleadings, after having made express complaints against INEC who, acting via its various officials returned the Respondent as the duly elected Governor of Kogi State in the same pleadings. See the decision of this court in Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 589 where it was held that parties in election petition are bound by their pleadings and cannot jettison them by address of counsel. See also Fagbenro V. Arobadi (2006) 7 NWLR (Pt. 978) 172 at 194, Ojo V. Adejobi (1978) 3 SC 65 and Olatunji V. Adisa (1995) 2 NWLR (Pt. 376) 167. The appellant at hand has been most inconsistent in its pleadings.
A necessary party to a case has been defined as a person or party whose presence or involvement in the matter is not only mandatory but is crucial and unavoidable for the effective, effectual, exhaustive, complete and comprehensive adjudication of all questions raised in a cause or matter and in due deference to the principles of fair hearing. See O. K. Contact Point Ltd. V. Progress Bank Pic (1999) 5 NWLR (Pt. 604) 631; B.O.N. Ltd. V. Saleh (1999) 9 NWLR (Pt. 618).
Appellants as petitioners sued everybody sueable but conveniently forgot, omitted or refused to join the one party that was most important i.e. to say - INEC being the body constitutionally and statutorily charged with the conduct and organization of the election. It is legally incorrect for the appellant to have therefore left out INEC in the scheme of things in the instant case. For all intents and purposes, the petition as presently constituted without INEC as a necessary party is grossly incompetent. The law is trite that where a necessary party is not joined in a case, the court or tribunal lacks jurisdiction to entertain and determine it. See Tafida V. Bafarawa (1999) 4 NWLR (Pt. 597) 70. The exclusion of INEC will occasion a serious miscarriage of justice against the principle of audi alterem partem. It would result in the election petition being heard and determined ex parte INEC.
The case of Fayemi V. Oni (2007) 7 NWLR (Pt. 1140) 223 at 255 - 256 is in point where a court will not make an order that will affect the interest or right of a person that is not a party to the case and who was never heard in the matter. Persons whose rights or interests are to be affected by the decision of a court must be made parties. As rightly submitted by the learned counsel for the respondent, this petition (and by extension this appeal) died on the day the Honourable Tribunal struck out INEC as a party in the petition and same cannot in the circumstance be revived by way of the instant appeal.
My learned brother Okoro, JSC has dealt with the issues exhaustively and I also agree and hold that the lower court was right in law when it affirmed the decision of the tribunal dismissing the appellant's petition as incompetent in the absence of INEC. On the totality, the appeal is also dismissed by me in terms of the lead judgment and parties are to bear their respective costs.
REASONS FOR JUDGMENT
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC)
On Tuesday 20th September, 2016 when we heard this appeal, I dismissed it as lacking in merit and promised to give my reasons for doing so today, 30th September 2016.
I have had the benefit of reading in draft, the lead reasons for judgment just delivered by my learned brother, Okoro, JSC. He has ably captured and admirably resolved the issues in contention in this appeal.
I agree entirely with the reasons stated. In further support I wish to comment briefly on issue 1 formulated by the respondent and adopted in the lead judgment, which challenged the findings of the two lower courts on the incompetence of the petition in the absence of INEC as a party.
The sole ground for the petition is:
"That 2nd respondent was not duly elected by a majority of lawful votes cast at the election and was therefore not duly returned as validly elected."
While the main relief sought, which is contained in paragraph 27(a) of the petition is as follows:
(a) That it be determined that the 2nd respondent was not only duly elected or returned duly elected not having scored the majority of the valid votes cast at the election not having contested into the whole polling units of Kogi State and a fresh election be ordered to be held in the whole state consequent upon the death of Prince Abubakar Audu, the candidate of APC."
The Independent National Electoral Commission is established pursuant to Section 153(l)(f) of the 1999 Constitution. Its duties and powers are as contained in paragraph 15(a) - (i) of Part I of the Third Schedule to the Constitution. By paragraph 15(a), the Commission shall have power to "organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a state and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation."
Section 69 of the Electoral Act provides for the declaration and return of a duly elected candidate by the Returning Officer after the counting of votes cast for each candidate.
It is therefore quite clear without any equivocation that the Electoral Body is an integral part of the entire election process. A complaint that a person was not duly elected by a majority of lawful votes cast is an indictment on the body that carried out the election.
A necessary party has been held to be one who has an interest in the outcome of the litigation, a person who will be bound by the decision reached and in whose absence the issues in contention cannot be fairly and effectively dealt with. See: Green Vs Green (1987 3 NWLR (Pt.61) 481: Azubuike Vs P.D.P. (2014) 7 NWLR (Pt.1406) 292 @ 316 E and 313 D-E: APC Vs P.D.P. (2015) LPELR - SC 113/2015.
There is no doubt that the Commission was a necessary party to the petition as it would have been afforded the opportunity to defend the election it conducted. Apart from the fact that by virtue of Section 137(3) of the Electoral Act 2010 (as amended), INEC is a statutory respondent, there is no doubt that it would be bound by the result of the petition.
The petition against the Independent National Electoral Commission (INEC) having been dismissed by the Trial Tribunal on 11th March 2016 upon an application by its counsel for failure of the petitioner to apply for the issuance of pre-hearing notice on it, the petition as constituted thereafter, between the appellant and the respondent alone was incompetent, as the Tribunal lacked jurisdiction to entertain it. In effect the rug had been pulled from under the appellant's feet.
The Commission would have been in the best position to defend the election it conducted and to give effect to the judgment of the Tribunal if in favour of the appellant.
It was for these and the more detailed reasons set out in the lead judgment that I dismissed the appeal.
The judgment of the lower court affirming the decision of the Kogi State Governorship Election Tribunal delivered on 9/6/2016, which dismissed the appellant's petition challenging the return of the respondent as the duly elected Governor of Kogi State is hereby affirmed. I agree with the order that parties shall bear their respective costs.
REASONS FOR JUDGMENT
(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
My brother Inyang Okoro JSC had obliged me the draft of his reasons for finding appeal No 687/2016 unmeritorious. I agree entirely that given those reasons the appeal stands dismissed. I also abide by the consequential orders reflected by his lordship.
Oba Maduabuchi, Esq., with Godwin Omagbogu, Esq., for the appellant.
P.B. Daudu, Esq,, with A. T. Ahmed, Esq, H. M. Ibega, Esq., C. C. Oyere, (Miss), L. S. Mamman, (Miss), Arome Abu Esq, and E. Omotayo-Ojo, (Mrs.) for the respondent.