EKITI STATE: THE PROPER PARTIES IN AN ELECTION PETITION

The Ekiti State All Progressive Congress has released a press statement saying that they will challenge the process of the recently concluded governorship election in the state even though the incumbent governor concedes defeat by congratulating the governor elect. The APC in the state said the process was not free and fair as the presence of the military deployed to the state for election its members were harassed by military men before and after the election.

The question now is who are the necessary parties in an election petition? Section 131(1) and 133(2) of the Election Act states that for the petition to be entertained the necessary parties to election petition are the (1) candidate at an election (2) political parties participating in an election and respondents in these regard shall be (1) person elected or returned at the election (3) electoral, presiding or returning officers or any INEC officer in whose conduct at the election, there is a complaint.

In Chief AJIBOLA V. Chief Ajadi & ors(2004) All FWLR 220 thus the INEC official complained of are mandatory respondents and are respondents where necessary in an election petition. Justice Mohammed JCA defined necessary parties as to exclude a person of whom rather than complaining about his conduct, reliance is placed on his declaration of the petitioner as a winner. This electoral officer must be the one who participated in the election in which a petition is filled for him to be seen as necessary parties.

There has been tremendous divide in the interpretation of the provision of the Election Act and paragraph 47(1) of the 1^st schedule thereto. As would be seen there are decisions that perceive the clear words thereof as requiring a mandatory joinder of certain persons in terms of Election Act.In Kallamu V. Gurrin & 5 ors (2005) All FWLR court of Appeal lay emphasis on the use of the word shall in asserting the mandatory provisions of sui generis that all necessary officers/respondents should be properly joined as failure to do so as it goes to the root of the matter and fatal to the petition. Justice Obadina JCA said that non joinder of necessary parties to an election petition where there are specific and serious charges of misconduct levied against such party or presiding officer as in the instant case makes the petition incompetent as the tribunal would lack the competence to entertain the petition.

In Ibrahim & ors V. Senator Sheriff & ors (2005) All FWLR it was held that non-joinder of necessary parties makes those paragraphs where the allegations or complaints were made incompetent and liable to be struck out.

From the above sited case we all have seen that the fact that the incumbent governor conceded defeat does not prevent the All Progressive Congress from contesting the governor elect’s success at the poll.

We wish them good luck.

Thank you.

Oyenike Alliyu-Adebiyi LLB(hons)BL