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FAILURE TO JOIN A PARTICULAR PARTY WILL NOT WARRANT STRIKING OUT OF ENTIRE PETITION

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The other argument of note of 2nd Respondent in this application is the one of failure of petitioners to join Friday Adejoh and Governor Yahaya Bello of Kogi State and its effect on the petition. We have already struck out the relevant paragraphs of the petition where allegations of malpractice were made against the two men. We abide by that decision. We shall simply add that we do not agree with 2nd respondent’s argument that the entire petition merits dismissal for non-joinder of those two men. The proper sanction, in the circumstances of this case as we have already pointed out citing Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 @ 583 paras G-H. (SC), is to strike out the paragraphs of the petition where those allegations were made. That order, we also further add, and contrary to the argument of 2nd Respondent, will not affect the paragraphs where allegations were made against unnamed thugs.

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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election

WHOEVER ALLEGATION IS MADE AGAINST SHOULD BE JOINED IN AN ELECTION PETITION, NOT JUST THE CONTESTANTS

I am however of the opinion that the second complaint of 1st respondent against paragraph 129 of the petition, that it also deserves to be struck out for petitioners’ failure to join Hon. Adejoh, Chairman of Olamaboro L.G.A. of Kogi State accused by them of having led thugs at gun point to force Electoral officers in named polling units in Olamaboro L.G.A. of Kogi State to declare concluded elections in the said units cancelled, is well made. The petitioners’ response that not only was no relief claimed by them against Hon. Adejoh, he did not even participate’ in the election neither was he returned so he is not a person contemplated by section 133 of the Electoral Act 2022 to be joined to an election petition, is not a valid response. Section of 133 of the Electoral Act 2022 only deals with the issue of which contestant of an election ought to be joined in an election petition by a co-contestant. It has nothing to do with the issue of joining of third parties against whom allegations of electoral infraction are made by petitioners as in this case. Such persons must be joined to the petition if the court is not to be exposed to the risk of infringing their fundamental right to fair hearing guaranteed by the Constitution. It is also of no moment that no relief was claimed against such persons in the petition; what is important is that allegations of electoral malpractice, which will require the court to make findings, including condemnation of their alleged conduct where necessary, are made in the petition. Support for that position can be found in NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 at 583 where Muntaka-Coomassie, J.S.C., after reproducing the provisions of the then newly enacted section 144(2) of the Electoral Act 2006 (in pari materia with section 133(2) of the Electoral Act 2022) and confirming that that provision had done away with the old regime of the Electoral Act 2002 that required petitioners to join all relevant Electoral Officers of INEC that conducted an impugned election, in addition to INEC itself, spoke thus at page 583: “Unless the conduct of a party who is not an agent of the Commission is in question, it will then be necessary to join such party as a necessary party to the petition in order to afford such party a fair hearing.” (Italics mine) As regards the consequence of failure to join such necessary parties on the petition itself, His Lordship again said as follows: “However, where such a party is not made a party, it will not result into the whole petition being struck out, but the particular allegation against such party is liable to be struck out.” That is the fate of paragraph 129 of the petition where allegations of electoral malpractice were made by the Petitioners against Hon. Adejoh yet he was not cited in the petition. Incidentally, this is also one of the main reasons the Supreme Court gave in dismissing the appeal of the petitioners in the Ondo State Governorship case of Eyitayo Jegede & Another v. I.N.E.C. & Ors (2021) LPELR-55481 (SC) where allegations were made by the Petitioners in that case against the then National Caretaker Committee Chairman of the present 3rd Respondent, APC, Governor Mai Mala Buni of Yobe State, yet he was not joined to the petition by the Petitioners.

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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ELECTION ARE SUI GENERIS

It is well settled that election matter are sui generis with a special character of their own, quite different from ordinary civil or criminal proceedings. They are governed by their own statutory provisions regulating their practice and procedure. See Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223 ) 547; Ehuwa v. OSIEC (2006) All FWLR (Pt. 298) 1299, (2006) 18 NWLR (Pt. 1012) 544.

— Kekere-Ekun, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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IMPORTANCE OF AUTHENTIC REGISTER OF VOTERS

Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election.

— C.M. Chukwuma-Eneh, JSC. Akeredolu v. Mimiko (2013) – SC. 352/2013

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GROUND; GROUND FOR QUESTIONING AN ELECTION

It is trite law, that a Petitioner is required to question an election on any of the grounds set out in Section 134 (1) of the Electoral Act, 2022. For ease of reference, Section 134(1) of the Electoral Act, 2022 provides as follows: “An election may be questioned on any of the following grounds – a. A person whose election is questioned was at the time of the election not qualified to contest the election; b. The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or c. The Respondent was not duly elected by majority of lawful votes cast at the election. What then is the meaning of the word “ground”? In the case of KALU VS CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AT 485, the Court of Appeal per Owoade, JCA puts it succinctly, thus: “The Compact Edition of the Oxford English Dictionary (1971) US reprint (1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 to 1225 as follows: “Ground”: (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle, also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, arguments, statement or claim is founded, or which has given rise to an action, procedure or mental feeling, a motive often with additional implication. A valid reason justifying motive or what is alleged as such.” Thus, a ground in the context of an election petition, is the fundamental reason, basis or justification for questioning the election. Before a party can question an election, his petition must fall within the grounds specified by the Electoral Act 2022. See the following cases: OYEGUN VS IGBENEDION & ORS (1992) 2 NWLR (PT. 226) 947; OKONKWO VS INEC & ORS (2003) 3 LRECN 599; ABUBAKAR VS INEC (2020) 12 NWLR (PT. 1737); and MODIBO VS USMAN (2020) 3 NWLR (PT. 1712) 470.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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FRESH PRIMARY ELECTION IS NOT NEEDED FOR SUBSTITUTED VICE PRESIDENTIAL CANDIDATE

By the proviso thereto, the political party affected, is enjoined to conduct a fresh primary election for the purpose of producing a new or fresh candidate to submit to the Electoral Commission. The grouse of the Petitioner here is that, the 5th Respondent withdrew his nomination as Vice-Presidential candidate of 2nd Respondent but the 2nd Respondent did not conduct another primary election for the purpose of producing a new Vice-Presidential candidate within the 14 days prescribed by Section 33 of the Electoral Act. It should be remembered that by Section 142(1) of the 1999 Constitution, a Presidential candidate for election to the office of President has the sole discretion, authority or power of nominating his associate who shall run with him in the election as Vice-President. The choice or nomination of a Vice-Presidential candidate is, not the product of any primary election. Therefore, in my view, the requirement to conduct a fresh primary election does not apply to the nomination of a Vice-Presidential candidate. Thus, my Lord Augie, JSC highlighted the point in his contributory judgment in PDP v. INEC & 3 Ors (Exhibit X1) as follows: “No; the fourth Respondent was not required to buy any nomination Form. He was the second Respondent (APC’s) candidate at the election into the office of Senator representing Borno Central Senatorial District. But before the election could hold, he was nominated as the third Respondent’s associate, who is to occupy the office of Vice President. The fourth Respondent did not buy a nomination Form for the said office, and most importantly, did not contest any primary election in order to emerge as APC’s Vice-Presidential candidate.”

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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THE WHOLE CONCEPT OF SUI GENERIS NATURE OF ELECTION PETITION

Tobi, J.S.C., in his lead judgment in Buhari v, INEC (2008) LPELR-814 (SC) p. 97 paragraph A-B: “The whole concept of Election Petition being sui generis, in my view, is to project the peculiarity of the reliefs sought, the time element and peculiar procedure adopted for the hearing of the petition and all that.”

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