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COURT OF APPEAL, KADUNA DIVISION
MONDAY, 30TH MARCH, 1992
(1992) 3 NWLR (Pt. 231)
BEFORE THEIR LORDSHIPS
IBRAHIM KOLAPO SULU‑GAMBARI, J.C.A.
OWOLABI KOLAWOLE, J.C.A.
OKAY ACHIKE, J.C.A.
SIMEON ADEBAYO.ODUWOLE, J.C.A
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.
Kayode Sofola – for the Appellants
T.E. Williams – for the Respondents
ELECTION PETITION:‑ Election result ‑ Grounds upon which result may be questioned ‑ 5. 91 of State Government (Basic Constitutional and Transitional Provisions) Decree No.50 of 1991 considered.
ELECTION PETITION:‑ Election under State Government (Basic Constitutional and Transitional Provisions) Decree 199] ‑ Who can challenge by way of petition ‑ Section 90(1).
ELECTION PETITION:‑ Hearing and determination of election petition ‑ Time limit therefor ‑ Need to give adequate time.
PRACTICE AND PROCEDURE – ACTION:- Parties ‑ Non‑joinder of necessary party ‑ Effect.
PRACTICE AND PROCEDURE COURT:‑ Election petition ‑ Hearing and determination of election petition ‑ Time limit therefor ‑ Need to give adequate time.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:‑ Order of court ‑ Whether binding on non‑party to suit.
SULU‑GAMBARI, J.C.A. (Delivering the Leading Judgment):
This appeal was the third taken today. At the hearing, learned Senior Advocate Mr. Sofunde, drew our attention to the fact that the Notice of Appeal was filed on 28/2/92 and by virtue of Decree No. 50 of 1991 an election petition must be heard and determined within one month of the filing of Notice of Appeal. See SCHEDULE 6 paragraph (3) of Decree No.50 of 1991. It became imperative that the hearing of the appeal must be completed and judgment delivered today.
In the Kaduna State gubernatorial election held on 14/12/91, the contest of which was between Alhaji Mohammed Dabo Lere on the platform of the NRC and Ango Abdullahi on the platform of the SDP, the former was declared elected by the 3rd and 4th Respondents.
Following the announcement of Alhaji Mohammed Dabo Lere as the person elected as the governor of Kaduna State, Mr. A.A. Maikori on 13/1/92 presented a petition against the election and the Return of Dabo Lere as the Governor.
Professor Ango Abdullahi also presented a petition against the election and return of Dabo Lere as the Governor. The tribunal dismissed both petitions and both petitioners filed their appeals before this Court.
Professor Ango Abudullahi thought it best to withdraw his own appeal and this Court struck out same and r think it is wise for the professor to have decided to withdraw the appeal.
The appeal before us now is in respect of the Petition presented by Mr. A. A. Maikori at the Tribunal against:
The petitioner stated:
“that the Social Democratic Party primary elections pursuant to ARTICLE 18 SCHEDULE 3 (iii) of the Social Democratic party, Constitution was organised and conducted by the party on the 19th day of October, 1991 and at the end of the said party primary elections the petitioner and one Professor Ango Abdullahi emerged as the two with the highest votes in the Gubernatorial primary elections”.
He relies on the following grounds for his petition:
(a) That consequent upon the result of the party’s primary elections held on 19/10/91 the Social Democratic Party organised and conducted run‑off elections pursuant to ARTICLE 18 Schedule 3 (v) of the Social Democratic party Constitution between the petitioner and one Professor Ango Abdullahi, the said run‑off election was held on 9/11/91.
(b) That consequent upon the Social Democratic Party’s run‑off elections held on 9/11/91, the petitioner WON the run‑off election.
(c) That INSTEAD of declaring the petitioner as the validly elected candidate to contest the Governorship election held on 14/12/91 under the sponsorship of the Social Democratic Party for Kaduna State one professor Ango Abdullahi was declared winner.
(d) That the Petitioner being aggrieved with the said false declaration of Professor Ango Abdullahi as the WINNER of the 9/11/91 runoff election challenged the said false declaration at the High Court of Justice at Zaria via Writ of Summons Suit No. KDA/Z/89/9 I dated 18/11/91.
By interim injunction
(e) That on 20/11/91 the said Professor Ango Abdullahi was restrained from parading or presenting himself as the Gubernatorial Candidate of the Social Democratic Party for Kaduna State for the governorship election held on 14/12/91 organised and conducted by the 3rd and 4th Respondents.
(f) That on the 22/11/91 the said Professor Ango Abdullahi filed a Memorandum of Appearance and a motion on notice through MESSRS. DANIEL OSMAN and the motion to discharge the order of an Interim Injunction was heard on 05/12/91 but application was refused on 06/12/91.
(g) That Professor Ango Abdullahi filed an appeal at the Court of Appeal, Kaduna Appeal No. CA/A/l/EMP/9 1 dated 7th December, 1991 against the High Court refused to grant the application and the Court of Appeal struck out the appeal on the 11/12/91 pursuant to section 86(1) of State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 1991.
(h) That pursuant to paragraph B (g) of this petition above the Social Democratic Party sent Professor Ango Abdullahi’s name to the 3rd and 4th Respondents without complying with ARTICLE 18, Schedule 3 (iii) (C) of the Social Democratic Party, Constitution for clearance to contest the Governorship elections for Kaduna State organised and conducted by the 3rd and 4th Respondents between the said Professor Ango Abdullahi on the ticket of the Social Democratic Party and the 1st Respondent on the ticket of the 2nd Respondent held on 14/12/91.
(J) That as at Saturday, 14/12/91 when the Governorship election was organised and conducted by the 4th Respondent for Kaduna State the said Professor Ango Abdullahi was not the VALIDLY, ELECTED AND NOMINATED Candidate under the Social Democratic Party and ought not be sponsored by the Social Democratic party who OUGHT NOT HAVE CONTESTED the Governorship election for Kaduna State, having regard to the pronouncement of the Kaduna State High Court of Justice judgment Zaria Judicial Division in Suit No. KDH/Z/89/91 rather the petitioner was the rightfully elected Governorship candidate who ought to contest the election but was denied the right. The Petitioner will rely on the judgment No. KDH/Z/89/91 between A.A.MAIKORI V ALHAJI BABA GANA KINGIBE & 60TH‑ ERS delivered by the Hon. Mr. Justice S.H. Makeri.
The appellant urged the Tribunal to hold that the whole election held on 14/ 12/91 by the 3rd and 4th Respondents is void and ought to be repeated with the appellant as the validly elected and nominated governorship candidate of the SDP. The petitioner then sought the following reliefs:
(a) A DECLARATION that the Governorship election organised and conducted by 3rd and 4th Respondent for Kaduna State held on 14/12/91 between the 1st Respondent sponsored by the 2nd Respondent Professor Ango Abdullahi being purportedly sponsored by the Social Democratic Party and in which the 1st Respondent was unduly elected and returned as the winner was null and void by reason that the said Professor Ango Abdullahi was not the validly elected and nominated candidate to so contest Governorship election and ought not be sponsored by the Social Democratic Party.
(b) A DECLARATION that having regard to the judgment of the High Court, Zaria, Judicial Division in Suit No. KD/Z/89/91 A.A. MAIKORI v ALHAJI BABA GANA KINGIBE and 6 OTHERS and the Certificate of Judgment in the said Suit above TOGETHER with the cumulative effect of sections 35(1) and (2); 86(2) and 92(3) of the STATE GOVERNMENT (BASIC) CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE NO. 50 OF 1991 the Petitioner is the validly elected and nominated Governorship Candidate of the Social Democratic Party for Kaduna State.
(c) AN ORDER of by‑election BETWEEN AUDU ADAMU MAIKORI the Petitioner otherwise known and referred to as “A. A.MAIKORI” the validly elected and nominated Kaduna State Governorship Candidate of the Social Democratic Party AND 1st Respondent under the 2nd Respondent pursuant to Section 92 (3) of the STATE GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE NO.50 OF 1991.
This is a most unusual petition against the election and return of a candidate. It is a novelty. The petition was presented by somebody who did not contest the election but who thought he ought to have been the person qualified to have contested the election against the declared winner of the Election. The petition had to be considered despite its being novel and the appeal on its dismissal too must be considered once it is established that the appeal is properly before this Court. But it is very interesting.
It is noteworthy that the petitioner did not complain against the conduct of the Gubernatorial election of the Kaduna State held on 14/12/91. He did not complain against its result but questioned the eligibility of one Professor Ango Abdullahi nominated and or sponsored by the SDP to contest the Kaduna State Governorship election against Dabo Mohammed Lere of the NRC. All the grounds of his complaints were in respect of primaries and/or run‑off elections held by the SDP to pick who to represent the party in the election. The appellant claimed that when he and Professor Ango Abdullahi emerged with the highest votes at the primary election conducted by SDP on 19/10/91, run‑off elections were held in which he, the appellant, emerged the over‑all winner. Instead of declaring him the flag bearer of the SDP to contest the gubernatorial election against Dabo Mohammed Lere, Professor Ango was the one sponsored by his party the SDP.
He prayed that the Tribunal should declare that the election and return of Dabo M.Lere were null and void because he and not Professor Ango was the person who ought to have contested the election against Dabo Lere on the platform of the SDP. He wanted to be declared validly sponsored and nominated to contest the election which had already been conducted and its result declared. The Tribunal dismissed his claims on the premises that:
(i) The appellant made no complaint against Dabo Lere and the other respondents.
(ii) The court has no power to inquire into intra‑party affairs.
(iii) He did not join Professor Ango Abdullahi as a party when the Professor was a necessary party.
(iv) Though he tendered a judgment of the High Court and referred to an order of interim injunction which was later vacated and made feeble attempt at relying on the judgment of the Court of Appeal on the same matter but all these were held to be irrelevant to the issue of the election held on 14/12/91 and that the reliefs sought are not also in proper alignment with the evidence adduced and are not supported by the evidence tendered.
(v) On the evidence led no case was made out against the Respondents.
Being dissatisfied with the decision of the Tribunal the appellant has appealed to this court filling 6 grounds of appeal. He filed a brief of argument. He postulated 5 issues for the determination of the appeal. 1st and 2nd Respondents also filed a brief and postulated 3 issues, the 3rd and 4th Respondents also postulated 2 issues. I think the issues postulated by the 1st and 2nd Respondents will adequately determine this appeal.
Failure to join Professor Ango Abdullahi.in this petition is fatal for whatever reliefs the appellant was claiming would revolve around his claim against choice of Professor Ango by his party SDP while he was the one that won the primary election for the candidature of the SDP in the governorship election. It is trite law that a court as well as a tribunal will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. Olawuyi v. Adeyemi (1990)4 NWLR (Pt. 147)746., Oroh v. Buraimoh (1990)2 NWLR (Pt.134) 641., Anya v. Iyayi (1988) 3 NWLR (Pt.82) 359.
In the main the appellant simply stated baldly without substantiating with reasons that the appellant’s petition was within the section 91 of the Decree No.50 of 1991 and that it mattered not that the appellant did not complain against the conduct or the result of the election held on 14/12/91.
That the evidence of the primaries and the run‑off election adduced by the appellant was relevant. That it is impossible for the tribunal to exercise the jurisdiction conferred on it to determine election duly conducted without going into the consideration of the primaries and run‑offs.
He distinguished the case of ONUOHA that the decision was decided in the light of the laws (electoral laws) then in force and under which elections at that time were conducted. Onuoha v. Okafor (1983) 2 SCNLR 244, (1983) 10 Sc 118 and submitted that the tribunal had jurisdiction to take cognisance of his petition.
The complaints of the appellant did not fall within the purview of section 91 of the Decree No.50 of 1991. It seems to me that his complaints are only concerned with intra‑party affairs.
The appeal is totally misconceived and the petition ought not to have been commenced at all at the Tribunal. The appeal is dismissed with N500 costs to each set of the Respondents.
We have heard three Election Petition Appeals today. Pursuant to Para. 1 (3) of Schedule 6 of Decree No.50 of 1991 an Election petition must be heard and determined within one month from the date of filing of Notice of Appeal. The Appeal on this matter was filed on 28 February 1992. Judgment ought to have been delivered on 29th March 1992 but yesterday was Sunday and so today is the last day when judgment must be delivered. It seems that Justices of the Court of Appeal and the Election Tribunal have been strained without exception.
It appears the position has not improved from what Aniagolu JSC said in Ojkwu v’ Onwudiwe (1984)15 NSCE 172; (1984)1 SCNLR 247 when he observed:
“During the 1966 election and the petitions that followed all Judges in Nigeria without exception were strained to the almost by reason of pressure of urgency which the then State of law put on the Judges. All courts, seised with election petition worked round the clock to beat the deadline resulting in some court sitting till late hour in the night, and delivering judgments immediately after closure of address of counsel no matter how late it was in the day or in the night.” (See also (1984) 2 SC. 15 at 88/89)
That is exactly what we have done today. Aniagolu JSC says that this is an intolerable burden for the effective discharge of which the judiciary deserved. Justices of the court of Appeal have been moved all over this country the President of the court leading the team.
I am of the view that the law makers ought to look at this rush of dispensation of justice particularly in election petit matters afresh.
There is need to give adequate time to all courts to hear cases in a manner conducive to proper administration of justice without any health hazard to the Judges.
Having said this little bit, I have had the privilege of reading in draft the judgment of my learned brother Sulu‑Gambari JCA just delivered. I entirely agree with his conclusions. I too will dismiss the appeal. I abide with the orders as to costs.
I have had a preview of the judgment just delivered by my learned brother Sulu‑Gambari, JCA.
The crux of appellant’s complaint is that he, rather than Professor Ango Abdullahi, was duly nominated by the Social Democratic Party (SDP) for the governorship election held on 14/12/91, having been declared victorious in the SDP primaries run‑off election. It may well be true that the appellant was successful in the SDP primaries run‑off. Unquestionably, that complaint lies within the domestic domain of the SDP. It cannot ground a petition under section 91 of State Government (Basic Constitutional and Transitional Provisions) Decree No.50 of 1991. The appellant’s complaint about the disqualification of Prof. Ango Abdullahi who was sponsored by the SDP that person was not qualified or was disqualified from being elected to the office of Governor. The appellant’s complaint in the appeal does not relate to this type of disqualification. The complaint is therefore incompetent within the purview of section 91(1) (a).
It is for the foregoing and for the fuller reasons contained in the leading judgment that I entirely agree that the appeal lacks merit. Accordingly, I too would dismiss the appeal. It is hereby dismissed and I also abide by the order as to costs.
I have had the privilege of reading in draft the judgment of my learned brother, Ibrahim Kolapo Sulu‑Gambari JCA, just delivered. I agree with all his conclusions which I adopt as mine. I wish however to emphasize that the petitioner oi the facts presented before us can be likened to a shadow boxer having failed to join his real opponents viz. Prof. Ango Abdullahi and the Social Democratic Party (SDP) against whom he had a score as regards their intra‑party primary furore.
The petitioner has also curiously joined in particular the 1st Respondent Dabo Mohammed Lere who won the said governorship Election against whom he has not made any allegation whatsoever.
Certainly the question of Sponsorship/nomination of a candidate by his party is not among the grounds upon which an election may be questioned as per section 91(a) (b) (c) of Decree 50 State Government (Basic Constitutional and Transitional Provisions) 1991.
The appeal lacks merit. I also dismiss it with costs assessed at N500.00 in favour of each Respondent.
I have had the opportunity of reading in draft the judgment just delivered by my learned brother Sulu‑Ganibari, JCA. I agree entirely with his judgment as well as the order for costs made by him.
I may add by way of emphasis that this appeal is not only without scintilla of merit but also rather strange. The appellant has no complaint against any of the respondents. His complaint is against his party SDP and Prof. Ango Abdullahi. Strangely enough, neither Prof. Ango Abdullahi nor SDP is made a party in this petition. The appellant has therefore filed his petition and brought this appeal against persons he had not made any complaint.
I conceded that under S.90 (1) of Decree 50 of 1991 the appellant being a person who either voted at the election or had a right so to vote can question an election by an election petition. He must however be able to bring his petition within one of the grounds as specified in S.91 (1) of the Decree. The Intra‑party complaint of the petitioner has nothing to do with any of the grounds for questioning an election under S.9 1 (1) of the Decree. I will also and do hereby dismiss this appeal as lacking in merit.