Vol 8 No 17 18th Feb 2008

SQUIB CASE LAW
Continued from Vol. 8 number 16 4th February 2008…
Counsel submitted that the effect of this provision is that non-compliance with a rule of procedure will not render any proceedings void unless the rule itself provides expressly or by implication that the non-compliance will be fatal. Or put differently, non- compliance with a mandatory rule or a rule which in its wording implies that its provisions are mandatory will render a proceeding void. He submitted that the use of the word "shall" in both paragraphs 36 and 45 in respect of payment of filing fees makes compliance mandatory. That it is implied in paragraphs 36 and 45 that non-compliance will be fatal and incurabty by an amendment. Counsel relied on the decision in the case of FADA vs NAOMI (2002) 4 NWLR CPT. 757) 318 AT 334 in which the Court relied on ONWUGBUPOR v. OKOYE 0996) 1 NWLR (PT. 424) 252 AT 262 where the Supreme Court held:
"Payment of the prescribed filing fees is a condition precedent to the filing of a valid claim. It is the primary responsibility of the plaintiff to pay the appropriate or adequate filing fees prescribed in the rules as a condition precedent for the existence of jurisdiction. Where such a condition is not satisfied, jurisdiction of the Court does not vest or is ousted. Failure to comply can be fatal because any suit brought in contravention of or without compliance with the rules of Court on payment of filing fees is incompetent and the Court is equally incompetent to entertain or hear the same. It is therefore not a mere irregularity, which is curable by a mere amendment."
Counsel also relied on OBIEKWE v. OBI (2005) 10 NWLR (PT. 932) 60 AT 74 PARAGRAPH E-H. P. 76 PARAGRAPHS A-B and ONUORAH v. OKEKE (2005) 10 NWLR (PT. 932) 50 AT 55. PARAGRAPHS D-E: P. 58, B-D.
On whether the non-payment of fees is a matter of form which can be remedied by the Court, Counsel referred to paragraph 49(4) of the Rules which states:
"An Election Petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court."
He submitted that the purport of this provision is that an Election Petition cannot be defeated by a remediable defect- But to benefit from this provision the objection must be one as to form. That the Court of Appeal has held that non-payment of either fees or security for costs is not a mere matter of form. That this was the conclusion of the Court in OLAN1YONU v. PROF. EME AWAH (-1989) 5 NWLR (PT,122) 493 AT 501-502, where Akanbi JCA (as he then was) said:
"The issue of payment of fees or security for costs is fundamental to the hearing of the Petition. They are not mere matters of form. Without such payments, the Petition has no legs to stand on and it must necessarily collapse,"
Counsel submitted therefore that paragraph 49(4) cannot avail the Petitioner for the reason that non-payment of fees or security for costs is not a matter of form. It is a fundamental prerequisite for the validity of the Petition itself. He finally urged the Tribunal to exercise its powers under Section 147(3) of the Electoral Act 2006 and strike out this Petition as being incompetent and a nullity.
In response to the 1st motion dated 28.8-07 by the 1st to 12 Respondents, learned Counsel to the 1st and 2nd Petitioners Adesina Ogunlana Esq. filed a written address dated 10.9.07 and a counter-affidavit of 14 paragraphs dated same date. While in reaction to the application of 13th and 14th Respondents dated 10.9.07, Counsel filed a written address dated 12.9.07.
Counsel to the Petitioners adopted the three (3) issues for determination formulated by Counsel to the 1st to 12th Respondents reproduced earlier. He argued the first and second issues together and the third issue separately. He submitted that the applicants lacks the competence to raise these issues because they are neither the 14th to 36th respondents in the Petition nor are they returned or briefed by the 14th to 36th Respondents to act for them or on their behalf. That the competent parties to complain of wrong joinder are the 14th to 35th Respondents. Counsel cited the case of GENERAL BUHARI v. DlKKO (2003) l4, NWLR (PT.841) 466 wherein the Court held that candidates who lost in the disputed election were not necessary parties as respondents in the petition and those who contested the joinder were the very persons who lost in the election but were not interested in challenging the election. He submitted further that even if the Tribunal finds that the 14th to 36th Respondents are not necessary parties; their names should be struck out. More so, that no argument was advanced to the effect that the Petition discloses no reasonable cause of action against the 1st to 12th Respondents who are proper parties.
Counsel also submitted that the 1st to 12th Respondents erred in classifying the 14th and 16th Respondents with 15th to 36th Respondents because ground 3 of the Petition complained that the election was marked and marred by fraudulent and corrupt practices involving the 1st to l2th Respondents and 14th and 16th Respondents. Further, that Petitioners have also filed some statement of witnesses on oath to support the assertions.
He submitted therefore that it is proper for the Petitioner to join such persons accused of acts amounting to Electoral malpractices and misconduct as Respondents. He argued that the 13th Respondent is the candidate of the 14th Respondent which sponsored him for the Election and that it was the name of the 14th Respondent that was put on the ballot paper used by the applicants to conduct the election just as they used the names of other Political parties instead of their candidates' names, He said it is proper to join the Political Party of the 13th Respondent as a Respondent and urged the Tribunal to hold him as a necessary party.
The third issue is on whether the Petition was competent in view of the fact that the Petitioners did not comply with Section 36 and 45 of the First Schedule to the Electoral Act. Counsel in his submission, said 1s1 to 12th Respondents relied heavily on the case of ONUORAH vs OKEKE (2005) 10 NWLR (PT. 932) 40 AT 44.
Further, that the applicants cannot bring this application because they ran foul of paragraph 49(2) of the First Schedule to the Electoral Act which provides:
"An application to set aside an Election Petition or a proceeding resulting therefrom for, irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect,"
He said the application was filed on 31.8.07 more than two months after being served with the Petition and after the applicants have taken fresh steps in the proceeding by way of filing and serving a reply to the Petition dated 18.6.07. He submitted therefore, that the application was not brought within a reasonable time. That by filing a reply, the applicants should be deemed to have waived their right to object or have submitted to the jurisdiction of the Tribunal.
Counsel argued further that in interpreting paragraph 45 of the First Schedule to the Electoral Act 2006, Section 144(2) of the Electoral Act which provides that "the person whose election is complained of is in this Act referred to as the Respondent must be taken into consideration''. That the said paragraph 45 envisages multiple payment of filing fees and security for costs in a Petition challenging the Election of more than one candidate as was in the case of EMEKA vs. EMORDI (2006) 16 NWLR (PT. 900) P. 433.
Learned Counsel submitted that should the Tribunal accept the position that Petitioners ought to have paid multiple filing fees and security for costs, recourse should be made to Section 49 of the Is1 Schedule which provides that non-compliance with any provisions of the Schedule shall not render any proceedings void. Further, that it was the duty of the Secretary to the Tribunal to assess fees and costs to be paid and that the Petitioners paid what they were directed to pay by the Tribunal and should not be penalized for complying with the directives of the Tribunal. He urged us to strike out the application of the 1st to 12th Respondents.
Responding to the preliminary objection/application by the 13th and 14th Respondents, OGUNLANA ESQ. formulated two issues:

1. Whether the Honourable Tribunal can and should entertain the notice of preliminary objection, and if it can,

2. Whether the notice of preliminary objection should succeed?

On issue one, he submitted inter aha, that the 13th and 14th Respondents by a Memorandum of Appearance dated 3rd day of September 2007 clearly stated who their Counsel is, to wit: Kunle Adegoke Esq. of M. A. Banire & Associates, 19 Yinusa Adeniji Street, Off Toyin Street, Ikeja, Lagos, and endorsed by the said Kunie Adegoke Esq. He contended that the preliminary objection brought by 13th and 14th Respondents was prepared by Professor Yemi Osinbajo, S.A.N. with his address given as 9th Floor Fortune Towers, 27/29, Adeyemo-Alakija Street, Victoria Island, Lagos. He submitted that by virtue of Section 9(2) of the I'1 Schedule to the Electoral Act 2006 Prof. Yemi OS1NBAJO cannot represent the 13th and 1411 Respondents. That the only way Prof. Osinbajo SAN can properly act as Counsel for 13th and 14th Respondents is to file before the Honourable Tribunal a Notice for Change of Counsel to pave way for him to act for the 13th and H111 Respondents more so that Kunie Adegoke Esq has not filed any Notice of Withdrawal of Appearance as Counsel for the said respondents. Counsel relied on the decision of the Court of Appeal in OKONEDO vs. JULIUS BERGER 0995) NWLR (PT. 398) PAGE 679 AT 685 PARAGRAPH 5. He urged the Tribunal to hold that 13th and 14 ! Respondents cannot retain two different firms of Legal Practitioners

2. The true and proper Counsel for 13th and 14th respondents is KUNLE ADEGOKE ESQ.,

3. to declare that Prof Yemi Osinbajo, SAN has no hens to act for the 13th and 14th Respondents therefore urged that the preliminary objection filed by Prof. Yemi Osinbajo SNA be discountenanced.
Counsel went further to submit that should the Tribunal find that Prof Osinbajo SAN has no locus to represent the 13th and 14th Respondents, there is no proper notice of preliminary objection to the Petition from the 13th and 14^ Respondents. The reasons for the above contention are that:

1. the notice of preliminary objection did not state under what law or rule it was brought as prescribed by paragraph 6(2) and (3) of the Court Practice Directions.

2. the address accompanying the preliminary objection did not refer to any application before the Tribunal.

He argued that the preliminary objection though accompanied by a written address dated 10th day of September 2007, the heading of the address "Written Address In Support of The Preliminary Objection Dated 6th September, 2007”. In other words, the address is meant to support an application of 6th September, therefore, that the preliminary objection of 10th September is not accompanied by any address.
On the second issue as to whether the Preliminary Objection dated 10.9.07 should succeed, Counsel submitted That the Petitioners complied fully with the provisions of the Electoral Act 2006 as regards payment of filing fees and security for costs and that the interest of the I1'1 and 2nd Petitioners are intertwined in that the 1st Petitioner is the candidate in the disputed election on the platform of the 2nd Petitioner. Further that Section of the 1st Schedule to the Electoral Act 2006 did not provide that Petitioners listed in a single Petition are to each pay for the Petition. He contended that the use of the phrase "The Petitioner" particularly the word "The" before the word Petitioner contemplates singularity of Petitioners in a petition under the Act. That under the Act, it is only in respect of Respondents that plurality of parties may determined a construction of a singular Petition as being more than one for the purpose of filing fees and security for costs; he referred the Tribunal to paragraph 45 of the First Schedule to the Electoral Act 2006, Further in his submission, he said "Respondent' under the Act is defined as:

(a) ''the person whose election is complained of; and

(b) all those who may be construed as conductors of an election"

On this Counsel referred to the case of PEOPLES DEMOCRATIC PARTY (PDP) vs. SENATOR HARUNA ABUBAKAR (2004) 16 NWLR (PT. 900') PAGE 455 AT 459 PARAGRAPH 2: and submits that it is only the candidate whose election is complained of and the conductors of the election that can be respondents. Flowing from the above, that it is only the 1st to 13th Respondents that are proper Respondents in this Petition. On the issue of payment of fees. He argued that only the 13th Respondent was declared and returned as winner of the election and by virtue of paragraph 45, the filing fees and security fee cost is to be paid only in respect of the 13th Respondent.
MR. OGUNLANA finally prayed the Tribunal to strike out the preliminary objection of the 13th and 14th Respondents.
Replying on points of law. Prof, OSINBAJO submitted that the Supreme Court in ONWUGBUFOR v. OKOYE (1996) 1 NWLR (PT. 424) P. 252 AT 262, held that it is the responsibility of the Plaintiff to pay appropriate filing fees prescribed in the Rules as condition precedent, and where this condition is not met, jurisdiction of the Tribunal is ousted- That the fees are already prescribed and the Secretary does not assess any fees to be paid, the Secretary he said, acts only after fees have been paid,
On the issue of not stating under which law the application is brought. Counsel referred to the case of UCHENDU vs OGBON1 (1995} 5 NWLR (Pt. 603) p. 337 at 351 paragraph D.
On the issue of date and the apology made thereto. Counsel argued that it does not matter that the apology explaining the date came after the process was challenged. That the Supreme Court in SHANU v. AFRI BANK PLC (2000) 13 NWLR (PT. 684) 392 AT 404 per Ayoola JSC, and in JERTC v. UBA PLC (2000) 15 NWLR PT. 691) P. 447 AT 457 PARAGRAPHS B-F held that error in date did not mislead the other party. Further, that the Petitioner's Counsel cannot challenge the appearance of another Counsel in a matter and cited in support of his contention the case of AKALANU vs. OMOKARO (2003) 8 NWLR (PT. 821) PAGE 190 AT 209 paragraph C-D where it was held that it is the respondent that should challenge the appearance of Counsel even where a Memorandum of Appearance was filed by another Counsel, he (Prof. Yemi Osinbajo) is leading the Counsel, the junior Counsel does not have to come and say that he isled by the Senior Advocate.
We have carefully read through the motions affidavits for and against the application vis-avis the address as filed and the oral submissions of Counsel. We commend their industry,
In determining these applications, we shall consider the three issues formulated by Counsel to the 1st to 12th Respondents which issues were also adopted by Counsel to the 13th and 14th Respondents. In addition, we shall endeavour to consider whether the preliminary objection by the 1st to 12111 Respondents was brought within a reasonable time as prescribed m paragraph 49(2) First Schedule to the Electoral Act. 2006. And whether the Tribunal can and should entertain the notice of preliminary objection filed by the 13th and 14th Respondents.
Briefly, the fact of this case is that Elections into the various seats in the National Assembly was held on the 28th day of April, 2007 in Lagos State for Lagos West Senatorial District. The 1st Respondent INEC returned the 13th respondent as winner of the said election. Aggrieved, the Petitioners filed a Petition against the returned candidate along with other candidates who lost in the election with their political parties.
The Petition is dated 25.5.07 and filed on the 26th May 2007. 1st to 12th Respondents filed a Memorandum of Conditional Appearance on the 1s1 of June 2007.
They also filed a notice of preliminary objection to the competency of the Petition on the 18.6.2007, the reply to the petition was filed on the same date, i.e. 18/6/07. The notice of preliminary objection was on 3.9.07 withdrawn and substituted with a formal motion on notice dated 28.8.07 and filed on 31.8.07. The motion on notice is for the same purpose as the preliminary objection that was withdrawn. The withdrawal and substitution were without objection by Counsel to the Petitioners.
A Conditional Appearance was also entered for the 13th and 14th Respondents on the 3rd day of September, 2007 but proper service of the Petition was effected on the 13th Respondent on the 23rd August, 2007. A notice of preliminary objection was filed by the 13th and 14th Respondents on the 8th of September. 2007. it is dated 6.9.07. This notice of preliminary objection dated 6,9,07 was withdrawn and substituted with another notice of preliminary objection dated 10.9.07 without objection.
It is opposite to determine the issue as to whether the preliminary objection of the 1st to 12th respondents was brought within a reasonable time as prescribed in paragraph49(2) First Schedule to the Electoral Act 2006 as it affects the competency of the preliminary objection. The said paragraph 49(2) of the First Schedule to the Electoral Act 2006 provides:
"An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect"
The term reasonable time is defined by Blacks Law Dictionary as such length of time as may fairly, properly and reasonably be allowed or required, having regard to the nature of the act or duty, or of the subject matter and to the attending circumstances. It is usually left to the discretion of the, Judges. From the facts of this present petition, the Petition was filed on 26/5/07, 1st to 12th Respondents filed a Memorandum of Conditional Appearance on "1.6.07, filed a notice of preliminary objection to competency of the Petition on 18.6,07 which was followed by a reply to the Petition dated same date as the Preliminary objection. On 3.9.07 the notice of preliminary objection was withdrawn and substituted with a formal motion on notice dated 28-8.07 and filed on 31.8.07.
We do not agree with the argument of learned Counsel to the Petitioners that the objection was not brought within a reasonable time. No time can be more reasonable than filing an objection on same date as the reply was done in this case by Counsel for the 1st to 12th Respondents. It is trite law that the essence of riling a Notice and Grounds of Preliminary Objection is primarily to give the other party sufficient notice of what he is going to meet in the Court to avoid springing surprises on the opponent in Court. The Petitioners have sufficient notice of the objection. Although the respondents withdrew the preliminary objection filed on 18.6.07 and substituted with a formal motion on notice filed on 31.8,07. For the same purpose as the preliminary objection withdrawn, it cannot be reasonably argued that the preliminary objection was not filed within a reasonable time. To our minds, the argument is a lame one. The Petitioners had notice of this objection on 18.6.07 up to the 31.8.07 when it was substituted.
In BICH v. HALADU (2003) 14 NWLR (FT. 840 624 AT 650, the Court of Appeal in considering a similar application stated that the filing of pleadings alone per se and even the entry of unconditional appearance do not amount to taking fresh step in the proceedings and would not amount to a waiver barring the defendant or respondent from bringing his objection against the competency of the Petition especially where the hearing has not yet commenced and no evidence has been adduced. That it does not matter whether or not the appearance is conditional or that pleadings have been concluded. See also NWOKE vs. EBEQGU 1999) 6 NWLR (PT. 606) 247 AT 258.
It is our view and we so hold, that the preliminary objection was filed within a reasonable time and the 1st to 12th Respondents did not therefore offend paragraph 49(2) First Schedule to the Electoral Act 2006.
On the competency of the preliminary objection filed by 13th and 14th Respondents, ADES1NA OGUNLANA ESQ. formulated two issues;


1. Whether the Tribunal can and should entertain the notice of preliminary objection and if answered in affirmative,

2. Whether the notice of preliminary objection should succeed.

On the 1st issue Mil. OKUNLANA submitted that the 13th and 14th Respondents by their Memorandum of Appearance dated the 3rd day of September, 2007 clearly stated who their Counsel is, to wit KUNLE ADEGOKE ESQ, with his address as M. A. BANTRE AND ASSOCIATES, 19, YINUSA ADENU1 STREET, OFF TOYIN STREET, IKEJA LAGOS. But that the preliminary objection brought by the 13th and 14th respondents was prepared by Professor Yemi Osinbajo, S.A.N. of 9th Floor Fortune Towers. 27/29 Adeyomo-Alakija Street. Victoria Island. Lagos. He argued that by virtue of paragraph 9(2) of the First Schedule lo the Electoral Ad, Prof. Osinbajo cannot represent the 13th and 14^ Respondents. Paragraph 9(2) is hereby reproduced:
“If an address for service and its occupiers are not stated, the memorandum of Appearance shall be deemed not to have been filed, unless the Tribunal or Court otherwise orders”
The purport of the above paragraph is that where the address for service and its occupiers are not stated, (underlined for emphasis), the Memorandum of Appearance shall be deemed not to have been filed. Clearly, an address for service and its occupiers were stated on the Memorandum of Appearance. By the provisions of the above paragraph 9(2), First Schedule to the Electoral Act 2006, the Memorandum of Appearance is properly filed as the Petitioners' Counsel is not disputing the fact that an address for service and its occupier are set out therein,
On the appearance of Prof Yemi Osinbajo for the 13th and 14th Respondents, the affected respondents have not complained against Prof. Osibanjo appearing for them.
In the absence of any such complaint by the 13th and 14th Respondents it does not lie in the mouth of the Petitioners to so complain. See AKALONLI v, OMOKARO (2003) 8 NWLR (PT. 821) PAGE 190 AT 209 PARAGRAPHS C-D. It is also a trite law that when a Counsel announces his appearance for a party, he is presumed to have the authority of that party, this was the decision in TUKUR vs. GOVERNMENT OF GONGOLA STATE {1988) 1 NWLR (PT. 68) 39 AT 52. We therefore adopt the above and rule that since the 13th and 14th Respondents have not complained, we presume that Prof. Osinbajo has the authority of 13th and 14th Respondents irrespective of the fact that the name of Counsel on the Memorandum of Appearance reads Kunle Adegoke Esq.
The Petitioners further contend that there is no proper Preliminary Objection before the Tribunal on grounds that

(1) the application did not state under what .Rule or Law the application is brought as provided by Paragraph 6(2) of the First Schedule to the Electoral Act 2006; and

(2) that while paragraph 6(3) of the First Schedule commands that all such applications must be supported by written addresses, the said written address accompanying the preliminary objection did not refer to any application before the Tribunal,

A close look at the Notice of Preliminary Objection shows that the law or rule under which the objection was brought was not stated. Paragraph 6(2) of the Election Tribunal and Court Practice Directions 2007 uses the mandatory word "shall'', it states:
"... and shall state under what rule or law the application is brought and shall be served on the Respondent."
It is our view that paragraph 6(2) referred to though used the word shall, we see it as a mere directive. Clearly stating the law under which The motion or preliminary objection is brought is a matter of form and not substance and it therefore cannot affect the competence of the Tribunal. The Petitioners are not misled because they know what the applicants are asking for. It should be noted that the heydays of technicalities are gone for good. Courts are now more concerned in doing justice rather than giving undue prominence to technicalities. Courts are now more interested in substance than mere form of a matter and justice can only be done if the substance of the matter is examined. See STATE v. GWONTQ (19S3) 1 SCNJ 142 AT 160, NNEJ1 v. CHUKWU (3988) 3 NWLR {PT. 81) 184. EGOLUM v. OBASANJO (1999) 7 NWLR (PT. 611) 355 AT 413. (1998) 5 SCNJ 92 AT 145.
Uwais, JSC (as he then was) in NWOBODO vs. ONOH H984) 1 SCNLR 1 AT 92 (1984)NSCC 3 SAID:
"Election Petitions are by their nature peculiar from other proceedings and are very important from the point of view of Public Policy. It is the duty of Courts therefore to endeavour to hear them without allowing technicalities to unduly fetter their jurisdiction"
See also NGIGE vs. OBI (2006) 14 NWLR (pt. 999) page 1 at 228 to 229.
We therefore see no merit in the argument of the Petitioners' Counsel on this point. On the complaint that the address accompanying the application though dated 10th of September, 2007 the heading of the address has 6th September, we are satisfied with the explanation proffered by Prof. Osinbajo who said it was an error. Again, Counsel to the Petitioners was not misled as evident by the caption of his Written Address filed on 13/9/07.
As earlier stated, we shall not sacrifice substantial justice on the altar of technicalities.
The objection to the competency of the preliminary objection is without merit.
The 1st and 2nd issues for determination in this Ruling as argued by Counsel are as
follows:-

1. Whether unsuccessful parties and their candidates can be joined as respondents in an Election Petition.
2. Whether the Petitioners have reasonable cause of action against the respondents, especially the 14th to 36th Respondents.
In determining the above issues, it is pertinent to decipher who a Respondent to an Election Petition is. Section 144(2) of the Electoral Act 2006, sheds some lights. It provides:
“The person whose election is complained of is in this Act referred to as the Respondent but if the Petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the Election petition in his or her official status as a necessary party. Provided, that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not, on its own operate to void the Petition if the Commission is made a party."
From the foregoing, it is correct to state that the only compulsory and necessary party in an Election Petition is the person whose election is being questioned. Where there is complaint against the conduct of an election, the electoral officials are necessary parties. This clearly does not include the unsuccessful candidates or their Political Parties. This stance is strongly propped up by the Supreme Court in BUHARJ vs YUSUF (2003) 14 NWLR (PT. 841) 446 AT 455 RATIO 2 particularly PAGE 508 PARAGRAPHS B-D wherein Uwaifo, JSC (Delivering the Lead Judgment) held that:-
"….. The construction of Section 133(2 of the Electoral Act, the Respondent to an Election Petition can be;

1. The person whose election is complained of,
2. The Electoral officer, the Presiding officer, the Returning Officer whose conduct is complained of at the election.
3. Any other person who took part in the conduct of the election whose conduct is complained of."
From the Supreme Court's decision, it is clear who a respondent to an election petition should be. At page 505 paragraph B-F, Uwaifo 3SC had this to say:
"... It is manifest that Section 133 of the Act places no obligation on Petitioner(s) to make any candidate who lost at an election or any political party, whether of a candidate elected or returned or of a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under subsection (2)..."
"As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties,"
For clarity, Section 33(2) of the Electoral Act 2002 is in pari materia with Section 144(2) of the Electoral Act, 2006. In as much as it is true that the 14th to 36th Respondents are not statutory respondents or necessary parties, it is for those respondent joined (i.e. 4th to 36th) that should protest against their joinder. It is the prerogative of the respondent(s) to move the Court or Tribunal TO strike out his or her (their) name(s). It is not the business of the respondent (1st - 12th and 13th) to apply that other respondents be struck out. See CHIEF OLUSEGUN OBASANJO & ORS vs. ALHAJI MOHAMMED YVSUF & ORS (2004) 9 NWL.K CPT. 877) M4 AT 390 SCN. In the absence of any application from 14th to 35th Respondents or their Counsel, there is no basis for striking out the names of those respondents. The petitioners who joined them know -why they made them respondents more so that the Petitioner alleges corrupt practices against 14th and 16th Respondents.
The third issue for determination is whether the Petition is competent for non- compliance with paragraph 36 and 45 of the First Schedule to the Electoral Act 2006 in respect of payment of filing fees and security for costs.
On a calm salient issue, it is needful to reproduce these two paragraphs.
Paragraph 36{1){2){3) of First Schedule to the Electoral Act, 2006 provides:

(1) "The fee payable on the presentation of an election petition shall not be less than N1,000.00
(2) A hearing fees shall be payable for the hearing at the rate of N40 per day of the hearing but not exceeding N 2,000.00 in all, but the Tribunal or Court may direct a different fee to be charged for any day of the hearing.
(3) For the purpose of subparagraph (2) of this paragraph, the Petitioner shall make a deposit of not less than N200 at the time of presenting his petition."

Paragraph 45 states:
"Two or more candidates may be made respondents to the convenience be heard at the same time but for ai1 purposes ('including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents."
The purport of these paragraphs were elucidated by the Supreme Court in BUHARl vs YUSUF f2003) 14 NWLR. 447 AT 500 per Uwaifo JSC, paragraph F to H in relation to paragraph 45 said:
"Again this provision envisages that the inclusion of such multiple respondents in the same petition shall he deemed to have made the election petition a separate petition against each of the respondent. But by section 131(1) of this Act, it is only an election or return of a candidate that can be questioned by a petition in which the person elected or returned is joined as a party. See also Section 133(2) which talks of the person whose election is complained of it is such a person that is referred to as the respondent. It is therefore clear that the deemed separate petition arising from the operation of paragraph 45 of the First Schedule to the Act must be in regard to each of the respondents elected or returned in the election in question. Such will normally happen only where multiple candidates within the same electoral area are returned or elected in their respective constituencies, for example, National Assembly candidates. A petitioner, say, a political party which participated in the election may file a single petition against those elected or returned candidates but the election petition "shall be deemed to be separate petition against each of the respondents". Otherwise, how can an election petition be deemed to be against each or any of the respondents who lost the election? What would the cause of action of the Petitioner be based OR if he were to file or deemed to have filed separate petition against a candidate who did not win an election?"
See also the case of ONUORAH vs. OKEKE 0005) 30 NWLR (PT. 932) 40 AT 44 RATIO 1, where the Court of Appeal had cause to consider the purport of paragraphs 36 and 45 of the Electoral Act 2002. The Court held in that case, that the 1st and 2nd Respondents were candidates within the meaning of paragraph 45 of the First Schedule to the Electoral Act 2002 as each was alleged to have been declared winner at one time or the other ....
The Court upheld the view of the lower Tribunal in that case which held that the Petitioner only paid filing fees for one petition instead of two since he sued two candidates (returned or elected) as required by paragraph 36 and 45 of the First Schedule to the Electoral Act 2002. See also the case of EMEKA v. EMORDI f2006) 16 NWLR (PT. 900) AT PAGE 433.
In the Petitioners' Petition before us, the Petitioner is challenging the election of only one candidate (13th Respondent) who was returned by the 1s' Respondent. The argument by the Applicants that the Petitioner ought to have paid filing fees for each of the candidates sued or pay filing fees and security cost for each of the 36 respondents in the petition is otiose and not in consonance with paragraphs 36 and 45 of the Electoral Act.
It is also our candid view that the submission by Prof Osinbajo that by virtue of paragraph 36(1)(2)(3) each of the Petitioner has a case against a respondent in which case each of the Petitioner must pay the filing fees separately is very novel. The submission is not backed up by any provision of the Electoral Act and the Rules of Court. The argument, though logical as it sounds by paragraph 36 of the Rules, the use of the words.
“'The Petitioner" and the word "The" contemplates singularity of Petitioners in a petition under the Act. This is the intendment of the law and its purport should not be over stretched- In the Petition at hand, it is brought against 36 Respondents by two Petitioners. It would be absurd in the light of paragraphs 36 and 45 of the present Rules of Procedure to interprete the rules to mean that each Petitioner shall pay N36,000.00 against the 36 respondents, in other words, both Petitioner should have paid N72,000 as filing fees.
It is our view that the provisions of paragraph 36 and 45 of the First Schedule to the Electoral Act 2006 are clear and unambiguous and need no further interpretation as was done by Prof Osinbajo, for it is trite law that where the words of a statute are clear, the Court shall give effect to their literal meaning. See
(1) ONUORAH v OKEKE ^2005) 10 NWLR (PT. ) PAGE 43 AT 54-55 PARAGRAPH G-A:
(2) ADEWUMI v. A-G. EKITI STATE (2002)2 NWLRCPT. 751) 474.
(3) IFEZUE v. MBADUGHA (1984) 5 SC, (1984) 1 SCNLR 425.
By the clear meaning of paragraphs 36 and 45 of the Rules, as argued by the Petitioners' Counsel, the two Petitioners who filed a single Petition against a single candidate (13th Respondent) are to pay the filing fee and security for cost only one in respect of 13th Respondent whose election is questioned or who was elected or returned. It is our view that the Petitioners in this Petition, paid the correct filing fee and security for cost to the tune of N3,000.00 and they are in no way in breach of paragraphs 36 and 45 of the First Schedule to the Electoral Act 2006.
Furthermore, the submission of learned Counsel to the Respondents on the issues of installmental payment, partial payment or belated payment do not arise in the Petition before this Tribunal and as such the arguments canvassed and the authorities cited amount to a wild goose chase. Accordingly, this third issue is resolved in favour of the Petitioners and as such, the Preliminary Objection on this issue is overruled.
We rule therefore, that the two applications lack merit and they are each Dismissed.
A

ADESINA OGUNLANA Esq. OLANREWAJU AJANAKU for the Petitioners
Prof. YEMI OSINBAJO, AW with S. I. OKE ESQ., MOHAMMED ALI Esq. O. A. SOREMI ESQ., B. A. RAMUNJ ESQ. TEJU TlJANI (MRS}, O. EGHOBAMIEN (MISS) for the Respondents