➥ CASE SUMMARY OF:
Alhaji Mohammed Dikko Yusufu & Anor. V. Chief Olusegun Aremu Okikiola Obasanjo & Ors. (SC.122/2003, 9 Oct 2003)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Amendment of election petition;
Who can be Respondent in an election petition.
➥ CASE FACT/HISTORY
The 1st appellant contested the 2003 presidential election on the platform of the Movement for Democracy and Justice (MDJ). He lost the election to the 1st respondent, Chief Olusegun Obasanjo, who contested the election on the platform of the Peoples Democratic Party (PDP). The appellant did not like the election result. He contested the result by filing an election petition against the 1st respondent and other respondents. He challenged the conduct, result and return of the 1st respondent as the winner of the election.
And so in a unanimous ruling, the Presidential Election Tribunal, otherwise known as the Court of Appeal, refused to grant what it referred to as “material and substantial amendments” but granted what the learned President of the Court of Appeal called “innocuous” amendments. The appeal before us is in respect of the 5th June, 2003 ruling of the Tribunal.
On 21st May, 2003, the appellants filed a motion before the Presidential Election Tribunal which is for all intents and purposes the Court of Appeal. He sought for the following prayers: “1. Leave to join CORPORATE NIGERIA (LIMITED BY GUARANTEE) as 57th respondent in the petition. 2. Leave to amend the petition to reflect the joinder, and to amend some paragraphs of the petition, etc. 3. An order deeming as properly filed a separately filed amended petition in terms of proposed amended petition, the necessary filing fees having paid therefore on the same 21st May, 2003. 4. An order permitting to be sub-joined to the petition a schedule of list of documents intended to be relied upon at the hearing of the petition…(The exact wordings of the prayers in the motion are to be found at pages 2-4 of the records).”
For reasons which are not obvious from the record, the Presidential Election Petition Tribunal could not take the motion earlier than 28th May, 2003. After hearing arguments from counsel, the Tribunal granted some of the reliefs and refused others.
➥ ISSUE(S)
I. Whether the court below has the jurisdiction to make any order amending the petition of the appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR, in part.
[THE PROVISIONS OF THE ELECTORAL ACT SUPERCEDES THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES
‘It is clear from the provision of paragraph 50 of the First Schedule to the Act that the Civil Procedure Rules of the Federal High Court can only be applied to the extent that the Electoral Act allows or permit. In other words, the Civil Procedure Rules of the Federal High Court do not have life of their own, outside the Electoral Act, 2002. By paragraph 50, they are parasitic on the Electoral Act, and in the area of adjectival law, on the First Schedule to the Act. That is not all. Paragraph 50 has placed restriction on the application of the Civil Procedure Rules of the Federal High Court. The Rules shall be applied with such modifications as may be necessary to render them applicable in the light of the provisions of the Act. This means that the sky is not the limit in respect of the application of the Civil Procedure Rules of the Federal High Court. From the provision of paragraph 50, it is clear to me that if any of the provisions of the Civil Procedure Rules of the Federal High Court are inconsistent or in conflict with the Electoral Act, 2002, the inconsistency or conflict will be resolved in favour of the provisions of the 2002 Act.’
THE PETITIONER IS RESTRICTED IN THE AMENDMENT OF HIS PETITION
‘A joint interpretation of paragraph 14(2) of the First Schedule to the Electoral Act, 2002 and section 132 thereof, places restrictions on the part of a petitioner in the amendment of his petition. And the restrictions are itemised or enumerated in paragraph 14(2)(a), (i), (ii) and (iii). Since the ipsissima verba of the provisions have been stated above, I need not repeat myself. The merit of it all is that substantial amendments will not be allowed, after the expiration of the period of thirty days, following the presentation of the petition.’
THE PETITIONER FILED HIS AMENDMENT OF THE PETITION WITHIN TIME
‘The sub-paragraph provides inter alia in the negative that “no amendment shall be made” after the expiry of the time limited by section 132 of the Act. It looks clear to me that the legal duty of the petitioner is to make the amendment within a period of thirty days from the date the result of the election is declared. In my view, the amendment is made the moment the application for amendment is filed in court. By the use of the word “made”, it is also my view that the draftsman did not anticipate the adjudicatory role of the court in determining the application with the option of granting or refusing it. There is a clear dichotomy or cleavage between a party coming to a court by a relevant court process and the determination of that process by the court. While the former function is that of the litigant, the latter function is that of the court. I think this is where the lower court, with the greatest respect, got it wrong. The court loaded into paragraph 14(2)(a) a burden the draftsman did not apportion to the appellants and a burden it cannot carry. The moment a party has filed an application in court, it is not within his power to dictate a date for the hearing of the application. As a matter of practice and rules of court, the responsibility of the party stops the moment he files the application, and the responsibility of the court begins from there in respect of fixing a date and subsequent hearing. Although an applicant may take further steps to ask for a specific date for the hearing of the application, he must succumb to the date the court gives. He could be lucky if the court accepts his date.’
CORPORATE NIGERIA CANNOT BE JOINED AS A RESPONDENT TO THE ELECTION PETITION
‘It is clear that as CORPORATE NIGERIA, did not take part in the conduct of the Presidential Election which was held on 19th April, 2003, the body does not qualify as a respondent. Where a statute has specifically provided for parties to an action, the common law principles of joinder of a necessary party will not apply. This is because the statute by its specific provisions has stopped or blocked parties not mentioned therein.’
‘In the light of the above, it is my view that CORPORATE NIGERIA (LIMITED BY GUARANTEE) cannot be joined as a party as that body does not come within the provision of section 133(2) of the Electoral Act. I hereby make the following orders in the light of the only issue formulated by the appellants for determination of this appeal.’]
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✓ DECISION:
‘In sum, the appeal succeeds in part. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ MEANING OF SUBJECT TO
In Alhaji Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 592, this court held that the expression “subject to” is often used in statutes to introduce a condition, a proviso, a restriction, a limitation. The expression subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See also Oke v. Oke (1974) 1 All NLR (Pt. 1) 443 at 450; LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 at 461; Aqua Ltd. v. Ondo Sports Council (1988) 4 NWLR (Pt. 91) 622; Olusemo v. Commissioner of Police (1998) 11 NWLR (Pt. 575) 547. — Niki Tobi JSC.
⦿ DRAFTSMAN SHOULD BE CAREFUL IN BILL DRAFTING
Let me pause here to say that it is sad that the Act made reference to a non-existent section. While this may be taken as a slip of the mind and not of the head, it is a very serious one for which the draftsman should accept full responsibility. Numbers or names of sections play a major role in legal drafting as they are the hubs of the draftsman. For a legal draftsman to be that careless to mention a non-existent section is to say the least unfortunate. This has arisen as a result of careless proof reading and that is bad, very bad indeed. I say no more on this, but I hope that the draftsman will be more crafty, careful and elegant in the drafting of bills because the provisions which finally ripen into an Act are the basis for the courts interpretation. In this situation, it is good that the courts can place their hands on the real section. The courts should have found themselves in a helpless or hopeless situation if there was no section 132 to bail them out in the interpretation of paragraph 14(2). I do hope that the draftsman will initiate an amendment immediately, and I so urge. — Niki Tobi JSC.
⦿ THE COURT CAN TAKE JUDICIAL NOTICE OF WHEN AN ELECTION IS HELD
As it is, paragraph 2 averred that the presidential election was held on 19th June, 2003. I take this as a typographical error and I change it to 19th April, 2003. I think I am entitled to take judicial notice of the fact that the presidential election took place on 19th April, 2003 and not 19th June, 2003. That is one way to make the averment in paragraph 2 reasonable, particularly the last leg thereof. There cannot be an election where the election date is 19th June and the result is 22nd April. This is what paragraph 2 has erroneously averred. Since an election has to be conducted before a result, paragraph 2 does not make any sense. Fortunately, that is not an issue in controversy and I will not pursue it any further. — Niki Tobi JSC.
⦿ ONLY A WINNER OF AN ELECTION OR INEC CAN BE A RESPONDENT IN AN ELECTION PETITION
In the recent case of Buhari and Others v. Yusuf and Others (2003) 14 NWLR (Pt. 841) 446, (2003) 6 SC (Pt. 11) 156, this court took time to interpret the provision of section 133(2) of the Electoral Act. The court held that by the provision of section 133(2), a candidate who lost an election cannot be a respondent under the subsection. In view of the importance of section 133(2) in determining the joinder of CORPORATE NIGERIA, I will take time to quote what this court said on the ambit of the subsection, in extenso. Delivering the lead judgment of the court, Uwaifo, JSC, said at page 168: “Section 131(2) of the Act requires that the person elected or returned be joined as a party. Section 133 which I earlier reproduced provides in subsection (1) for persons who may present a petition. It is either one or both of (a) a candidate at an election; (b) a political party which participated at the election. No other person may do so. In the same vein, those who shall be joined to defend the petition in accordance with subsection (2) are the persons whose election (or return) is complained of, referred to as the respondent and any of the INEC officials mentioned in the subsection or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. All such persons are regarded as the statutory respondents, and who only, in my view, qualify as the necessary parties.” Belgore, JSC, in his contribution said at page 177: “While it is clear the declared winner of the election maybe a respondent or any or all the electoral officials, ‘any other person’ in (iii) above may create problem as it has done in this case. But viewed dispassionately in the election process in this country that ‘other person’ may be the police or other security agents deployed to maintain law and order during the election. The 3rd and 4th respondents, now appellants, were not more than candidates at the election, as such candidates, the election was conducted to decide their fate in it by INEC and its officials. The two, by no stretch of imagination, cannot be regarded as conducting the election but were only contesting the election.” Katsina-Alu, JSC, in his contribution, said at page 179: “It is a cardinal rule of interpretation of a statutory provision that it must be given its clear and ordinary meaning. Sub-section 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 the election. These are collectively referred to 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 person petitioned against, that is, the person declared the winner of the election. I think it is quite elementary really. I cannot envisage a situation under which a person who lost an election will present a petition against another loser.” Kalgo, JSC, in his contribution, said at pages 184 and 185: “For the purpose of determining who may be sued as respondent under the Act, Section 133(2) is the only relevant provision and is in my view divided into 2 parts. The first part referred to the person ‘whose election is complained of’, and this must only mean the person who was successful or was announced as the winner of the election and no other. It does not, in my view, mean that an unsuccessful candidate at an election whose election involved some malpractices or non-compliance with the electoral law can be sued as respondent in an election petition. That was not the intendment of the electoral law, as it would have no effect on the election itself and the complaint would not have been against the election of the successful party. Therefore, by the first part of the sub-section, it is my respectful view that only the person who succeeded at the election complained of can be sued as respondent. The second part of the subsection speaks generally about the conduct of the elections by the electoral officers or other persons involved. The subsection made a list of officers who might be involved in the ‘conduct of an election’ and ended up by saying that if the complaint is about the other persons involved in the conduct of the election can be joined in their official capacities etc., as necessary parties and be sued as respondents. This is very clear and needs no further clarification but will definitely not include a candidate in the election like the 1st appellant.” Edozie, JSC, in his contribution, said at page 214: “Guided by this principle, it seems to me that the persons who may be made respondents in an election petition are circumscribed by subsection 2 of section 133 of the Electoral Act, 2002. Those persons as enumerated in the subsection are the persons duly elected and any of the electoral officers or persons whose conduct at the election is complained of in the petition. A candidate who lost at the election is not within the contemplation of the subsection; it is immaterial that an allegation was made against him. The subsection does not accommodate such a person and one cannot read into a statute what is not there.” And finally, I made the following contribution on the subsection at page 204: “I would like to look at section 133(2) in three limbs. The first limb is the expression ‘the person whose election is complained of’. This limb, in my humble view, means the person who was declared winner of the election. And that person in the language of the subsection is the respondent. The second limb of the subsection enumerates other persons who will be deemed as respondents, if the petition complains of their conduct in an election. They are an Electoral Officer or Presiding Officer, or a Returning Officer. These are the officials involved in the conduct of the election. The third limb, as the expression implies, anticipates any other person who participated in the conduct of the election, other than an Electoral Officer, a Presiding Officer or a Returning Officer… A person who is a candidate cannot at the same time be a person who can or should conduct the election. That is not within the tenor and spirit of the Electoral Act as it is clearly against the natural justice rule and public policy. Neither section 133(2) nor any other section of the Electoral Act anticipates such a situation.” It is clear that as CORPORATE NIGERIA, did not take part in the conduct of the Presidential Election which was held on 19th April, 2003, the body does not qualify as a respondent.
⦿ BASIC PRINCIPLE GUIDING AMENDMENT OF PROCEEDINGS
The courts have established basic principles guiding amendment of proceedings. Basically, an amendment for the purpose of determining the real questions in controversy between the parties ought to be allowed by the court unless such amendment will entail injustice. See Adetutu v. Aderonhunmu (1984) 6 SC 92, (1984) 1 SCNLR 515; Amadi v. Aplin (1972) 4 SC 228; Ojah v. Ogboni (1976) 4 SC 69; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42. — Niki Tobi JSC.
⦿ CONDITIONS BEFORE THE COURT EXERCISES HIS SECTION 22 POWER UNDER THE ACT
In Adeyemi v. Y. R. S. Ike Oluwa and Sons Ltd. (supra) this court held that before determining whether the conditions surrounding an appeal before it are conducive to the exercise of its general powers under section 22 of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990, as if the proceedings had been instituted and prosecuted before it as a court of first instance, one consideration is the availability before it of all the necessary materials on which to consider the appellant’s application, for example, the motion on notice and all affidavits in support, exhibits to the affidavits including judgment of the High Court and the proposed grounds of appeal to the Court of Appeal. The record of appeal, in my view, contains all the relevant materials for this court to consider and make order or orders one way or the other in respect of the amendments sought by the appellants. I therefore resort to the record of appeal to make the necessary orders. — Niki Tobi JSC.
⦿ FOR COMPUTATION OF TIME, IT IS THE TIME OF FILING THAT IS TAKEN INTO ACCOUNT, NOT WHEN THE IS TO HEAR IT
Time can only be considered of essence in respect as to whether the application was made within the time stated by the statute and not necessarily when the court in its inscrutable majesty decides to adjudicate or hear the matter. I do not with greatest respect share the view espoused by the respondents’ counsel, and I do not subscribe to the view of the court below as it concerns the time some of the amendments can be competently made. — Pats-Acholonu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. A. J. Owonikoko.
⦿ FOR THE RESPONDENT(S)
Mr. Seeni Okunloye, SAN.
Mr. Roland Otaru.
Mr. A. C. Eghobamien, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Paragraph 50 of the First Schedule to the Act is in the following terms: “Subject to the express provisions of this Act, the practice and procedure of the tribunal or the court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modification as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
