ALL PROGRESSIVES CONGRESS V. 1. PEOPLES DEMOCRATIC PARTY (PDP) 2. MR. PETER AYODEEE FAYOSE 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. THE CHIEF OF DEFENCE STAFF 5. INSPECTOR-GENERAL OF POLICE SUPREME COURT OF NIGERIA SC. 113/2015 JOHN AFOLABI FABIYI, J.S.C. (Presided) SULEIMAN GALADIMA, J.S.C. OLABODE RHODES-VIVOUR, J.S.C. NWALI SYLVESTER NGWUTA, J.S.C. (Read the Leading Judgment) CLARA BATA OGUNBIYI, J.S.C. KUMAl BAYANG AKA’AHS, J.S.C JOHN INYANG OKORO, J.S.C. TUESDAY, 14th APRIL 2015 ACTlON - Case put forward by a party - Need for party to be consistent in case put forward by him at trial and on appeal -Rationale therefor. ACTION - Parties to an action - Joinder of parties - Principles governing joinder of parties to a suit - Who should not be joined as a part}' to an action. APPEAL - Basis of appeal - Finding of court for purpose of appeal - What amounts to. APPEAL - Basis of appeal - Whether appeal can arise from “of dictum” APPEAL - Findings of fact - Concurrent findings of low u am Attitude of the Supreme Court thereto. CODE OF CONDUCT - Contravention of the Code oj Candy hoi'iun imbued with power to try and convict a person there - Whether impeachment panel can try offences relating contravention of Code of conduct. CODE OP CONDUCT - Impeachment of Governor of a Stag Impeachment panel - Whether can pronounce Governor guilty of contravention of Code of Conduct. CONSTITUTIONAL LAW - Guilt of a person and imposition, punishment therefor - Constitutionally permitted organ and means of proving. CONSTITUTIONAL LAW - Impeachment of Governor of a State' Impeachment panel - Whether can pronounce Governor guilty of contravention of Code of Conduct. CONSTITUTIONAL LAW - Impeachment of Governor of a State- Procedure therefor. CONSTITUTIONAL LAW - Impeachment proceedings against u Governor - Nature of - Scope of finding impeachment panel can make. CONSTITUTIONAL LAW - Office of Governor of a State - Election thereto - Grounds for disqualification therefor. CRIME - Forgery - Meaning and nature of. CRIMINAL LAW AND PROCEDURE - Contravention of the Code of Conduct - Forum imbued with power to try and convict a person therefor. CRIMINAL LAW AND PROCEDURE - Criminal liability-Principle of vicarious liability - Whether applies to crime. CRIMINAL LAW AND PROCEDURE - forgery - Meaning and nature of - How proved - Standard of proof required thereof. CRIMINAL LAW AND PROCEDURE - Guilt of a person and imposition of punishment therefor - Constitutionally permuted organ and means of proving. ELECTION - Election into office of Governor of a State - Grounds for disquaiifcation therefor - Whether impeachment is a ground for disqualification from contesting gubernatorial election. ELECTION PETITION - Election into office of Governor of a State -Grounds for disqualification therefor - Whether impeachment is a ground for disqualification from contesting gubernatorial election. ELECTION PETITION - Nature of election petition - Sui generis nature of election petition - Implication of. ELECTION PETITION - Petitioner's reply to respondent's reply to petition - Purpose of - What it should contain - Scope of. ELECTION PETITION - Proof-Allegation of crime in election petition -Onus of proof of - On whom lies - Standard of proof of. ELECTION PETITION - Respondent to an election petition - Who is a proper respondent to an election petition - Whether the Inspector-General of Police and the Nigerian Army are proper respondents to an election petition. ESTOPPEL - Issue estoppel - Doctrine of - Application of. EVIDENCE - Estoppel - Issue estoppel - Doctrine of - Application of. EVIDENCE – Proof - Allegation of crime in election petition - Onus of proof of - On whom lies - Standard of proof of. NOTABLE PRONOUNCEMENT - On Need to reform process of impeachment to ensure that a Governor impeached does not return to contest election. PRACTICE AND PROCEDURE - Appeal - Basis of - Finding of court for purpose of appeal - What amounts to. PRACTICE AND PROCEDURE - Appeal - Basis of - Whether can arise from "obiter dictum". PRACTICE AND PROCEDURE - Case put forward by a party - Need for party to be consistent in case put forward by him at trial and on appeal - Rationale therefor. PRACTICE AND PROCEDURE - findings of fact - Concurrent findings of lower courts - Attitude of the Supreme Court thereto. PRACTICE AND PROCEDURE - Parties to an action - Joinder of parties - Principles governing joinder of parties to a suit - Who should not be joined as a party to an action. PRACTICE AND PROCEDURE - Parries to election petition - Respondents loan election petition - Who is a proper respondent to an election petition - Whether the Inspector- General of Police and the Nigerian Army are proper respondent to an election petition. PRACTICE AND PROCEDURE - Pleadings - Reply -Function and scope of - What it should contain. PRACTICE AND PROCEDURE - Pleadings in election petition – Petitioner’s reply to respondent’s reply to petition – Purpose of – What it should contain - Scope of. TORT – Vicarious liability Principles of Whether applicable to crime. WORDS AND PHRASES – Forfery - Meaning and nature of Issue: 1. Whether the Court of Appeal was right in its decision that the 4th and 5th respondents were not necessary parties to the petition in the light of the pleadings and findings made by the Court of Appeal and whether the Independent National Electoral Commission (INEC) ought to take responsibility for their actions. 2. Whether the Court of Appeal was right in its decision that the appellant based its petition on impeachment and whether the decision in Omoworare v. Omisore (2010) 3 NWLR (Pt. 1180) 58 was rightly applied to this case by the Court of Appeal. 3. Whether the Court of Appeal was right in its decision that the appellant did not prove the allegation of forgery of the HND Certificate submitted by the 2nd respondent to INEC. 4. Whether the Court of Appeal was right in its decision affirming the striking out of paragraph 13 of the appellant's reply to the 2nd respondent's reply to the petition. Facts: On 21st June 2014, the 3rd respondent, INEC, conducted Governorship election in all the wards of live 16 Local Government Areas of Ekiti State. Eighteen political parties, including the appellant and the 1st respondent, contested the election through their respective candidates. The result of the election showed that the 2nd respondent, sponsored by his party, the Peoples Democratic Party (PDP) won with a total of 203,020 votes against a total of 120,433 scored by his closest rival, the candidate sponsored by the appellant in this appeal. The appellant's said candidate at the election, John Olukayode Fayemi, accepted the result of the election and did congratulate the 2nd respondent although the appellant did not accept the result and challenged same at the Governorship Election Tribunal constituted for Ekiti State in petition No. EPT/EKS/GOV/01/2014 as the sole petitioner. In its petition, the appellant averred, inter alia: “ ... that the election was marred with irregularities that are unprecedented in the annals of elections in this country as 'photo chromic' and "thermo chronic' ballot papers already programmed to favour the 1st and 2nd respondents in all the polling units, were used.” Specifically, the appellant predicated its petition on the following grounds: “(i) The 2nd respondent was not duly elected by majority of lawful votes cast at the election. (ii) The election of the 2nd respondent is invalid by reason of corrupt practices. (iii) The election of the 2nd respondent is invalid by reason of non-compliance with the provisions of the Electoral Act 2011 as amended and the Manual of Election Officials 2014 and the Constitution of the Federal Republic of Nigeria 1999 (as amended). (iv) The 2nd respondent was not qualified to contest as at the time of the election on the following grounds: (a) The 2nd respondent was found guilty of the contravention of the Code of Conducts by the impeachment panel set up by the Acting Chief Judge of Ekiti State on allegation of gross misconduct involving embezzlement of funds preferred against him by the Ekiti State House of Assembly consequent upon which he was impeached and removed from office of the Governor of Ekiti State in the year 2006. (b) The 2nd respondent presented a forged Higher National Diploma (HND) Certificate of The Polytechnic Ibadan to the 3rd respondent (INEC).” The appellant adopted the facts averred in paragraphs 1 to 16 of the petition, as facts in support of the grounds of the petition, and also made and iched on specific averments in respect of some Local Government Areas in the State. Based on the tacts stated in its petition, the appellant sought the following reliefs: “A. That it be determined and declared that the 2nd respondent, Peter Ayodele Fayose, was not qualified to contest the Governorship election held on 21st June, 2014 on the ground that he was found guilty of the contravention of the code of conduct by the impeachment panel set up by the Acting Chief Judge of Ekiti State and the Ekiti State House of Assembly, consequent upon which he was impeached and removed from the office of the Governor of Ekiti State in the year 2006. B. That it may be determined that the 2nd respondent presented a forged certificate of Higher National Diploma (HND) of The Polytechnic Ibadan to the Independent National Electoral Commission thus was not qualified to contest the election. C. That it be determined and declared that the 2nd respondent Peter Ayodele Fayose was not duly elected or returned by the majority