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  • 2005-01-10
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Kallamu v. Gurin

REV. JOSHUA ELSON KALLAMU

V

NUHU BOBBO GURIN

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RESIDENT ELECTORAL COMMISSIONER, ADAMAWA STATE & 17 ORS

COURT OF APPEAL

( JOS DIVISION )

OLUDADE OLADAPO OBADINA JCA ( Presided )

IFEYINWA CECILIA NZEAKO JCA

IKECHI FRANCIS OGBUAGU JCA ( Read the Lead Judgment )

CA/J/142/2003

THURSDAY, 7TH AUGUST, 2003

APPEAL - Appeal lacking in merit - Duty on counsel to advise their clients not to pursue

COUNSEL - Appeal lacking in merit - Duty on counsel to advise their clients not to pursue

COUNSEL - Cases counsel lacks confidence in success of - Acceptance of -  Impropriety of

ELECTION PETITION - Joinder of all electoral officials against whom there is a complaint - Mandatoriness of - Effect of non-joinder

ELECTION PETITION - Nature of - Special and distinct from civil or criminal proceedings

ELECTION PETITION - Necessary parties thereto - Non-joinder of - Effect

ELECTION PETITION - Presiding officers - Need to join in election petition where malpractices, falsification of votes and irregularities alleged against a polling unit

PRACTICE AND PROCEDURE - Necessary party for purposes of joinder -  Who is

PRACTICE AND PROCEDURE - Necessary party to election petition - Non-joinder of - Effect

STATUTES - The word ‘shall’ - Purport of when used in statutes

WORDS AND PHRASES - The word ‘shall’ - Purport of when used in statutes

Issue:

Whether the Tribunal was right in striking out the petition on ground of non-joinder of presiding officers of the units complained of in the petition.

Facts:

By his petition filed on 7th May, 2003 in the National Assembly/ Governorship and Legislative Election Tribunal sitting at Yola, Adamawa State, the appellant herein challenged the election and return of the 1st respondent as the elected member of the House of Representatives in respect of Song/Fufore constituency. He alleged rigging and other electoral malpractices. In the said petition, he claimed the following reliefs:

“1. An order of the Tribunal nullifying the results of the areas, units and wards where rigging, over voting and malpractice took place.

2. An order declaring the election of the 1st respondent nullified.” He then prayed as follows:

2. “An order that the petitioner be returned as the winner of the April 12th, 2003 election into the House of Representatives for Song/Fufore Federal Constituency having scored the highest number of lawful votes.”

Although the 1st and 5th respondents filed their respective replies, they also filed a notice of preliminary objection challenging the competence of that petition and the jurisdiction of the Tribunal to entertain and determine the petition upon several grounds and more particularly, that necessary parties, were not joined as parties in the petition. In other words, the ground of objection specifically were that the petitioner did not specify parties interested in the petition and that the petitioner did not join as co-respondents officers whose conduct were impugned or questioned.

The Tribunal heard arguments from learned counsel for the 1st and 5 th respondents and the petitioner. In a considered ruling delivered on 7th June, 2003, it upheld the preliminary objections and consequently, struck out the petition.

Dissatisfied, the appellant appealed to the Court of Appeal.