CHIKE ANYAONU v. UMEOJI CHUKWUMA & ORS.
(2010)LCN/3761(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of May, 2010
CA/E/EPT/62/2008
RATIO
APPEAL: ISSUE FOR DETERMINATION; WHERE SHOULD ISSUE FOR DETERMINATION BE DERIVED FROM AND EFFECT OF ITS FAILURE
It is trite law that every issue for determination raised must relate to a ground or grounds of appeal. It is also a well settled law that if an issue for determination is not formulated from a ground or grounds of appeal such ground of appeal should be deemed by the court to have been abandoned. See Bendel v. Aideyan (supra). Onuoha v. Nwabueze (supra); Okwejunior v. Itakeji (2008) 5 NWLR (pt 1079) 172. PER AMIRU SANUSI, J.C.A.
APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION ARISE FROM AND WHAT A GROUND OF APPEAL SHOULD RELATE
It is now well settled law that issues for determination in an appeal must be formulated or distilled from the grounds of appeal themselves und not from anywhere. See Basiriyu Akinlagun & Ors v. Taiwo Oshoboja & Anor (2006) 5 SCNJ 261. It is also a well established proposition of law in respect of which there can hardly be a departure, that a ground of appeal against a decision must relate to the decision and indeed should constitute a challenge to the ratio. See Saraki v. Kotoye (1990) 4 NWLR (pt 143) 44, Fasoro v Bajioku (1988) 2 NWLR (pt. 76) 263. Adejumo v. Ayantegba (1989) 3 NWLR (pt 110) 417, Affaka v. Amadi (1998) 11 NWLR (P 572) 16; Iweka v. SCOA (Nig) Ltd (2000) 7 NWLR (pt 664) 325 at 338. PER AMIRU SANUSI, J.C.A.
APPEAL: EFFECT OF FAILURE OF ISSUES OF DETERMINATION TO RELATE TO ANY GROUNDS OF APPEAL AND ANY GROUND OF APPEAL NOT RELATING TO ANY ISSUE FOR DETERMINATION
It is trite and well settled law that an issue for determination must be covered or must relate to any of the grounds of appeal. Any issue for determination which is not covered by or which failed to relate to any of the grounds of appeal filed is incompetent and is therefore liable to be struck out. Similarly, the law is equally settled that where a ground of appeal is not covered by an issue for determination set out in the brief of argument that ground of appeal must be deemed to have been abandoned and should be struck out. See Ngiaere v. Mothercat Ltd (1999) 13 NWLR (pt.636) 626; Ugo v. Obiekwu & Anor (1989) & NWLR (pt. 99) 566 Sha (Jnr) v. Kwann (2000) 8 NWLR (pt.670) 685. Having said this much therefore, the three grounds of appeal having no issue or issues raised on them are deemed abandoned and thus liable to be struck out. See Ndiwe v. Okocha (1992) 7 NWLR (pt.252) 129, Iyaji v. Eyigebe (1987) 3 NWLR (pt. 61) 523. PER AMIRU SANUSI, J.C.A.
COURT: HOW SHOULD THE COURT EXERCISE ITS DISCRETIONARY POWER TO FORMULATTE ISSUES
I am mindful of the fact that it is now settled law that a court has discretionary power to formulate issues for determination in an appeal. This can however be done in order to narrow down issue(s) in controversy in the interest of accuracy, clarity and brevity, Where a court chooses to do so, however such issue so formulated by it must be anchored on the ground or grounds of appeal. It must be which an opposite party may not complain against. See Unity Bank Plc & Anor v. Bouri (2008) 2 SCM 193 @ 210 Solomon Mnya v. Abdul M. Mshelizh & Ors (2004) 19 WRN at 142/143.
In the case of Bishiruju Akinlagun & Ors v. Taiwo Oshoboja (supra) the Supreme Court alter emphasizing per Kalgo .JSC, that a court has no power to set up a case different from that which the parties have brought before restated the established law that even though an appellate court has discretionary power to reframe or formulated issues for determination in an appeal different from those raised by the parties in their briefs, the reframed or formulated issues must be derived from or culled from the grounds of appeal filed by the parties. PER AMIRU SANUSI, J.C.A.
JUSTICES:
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
CHIKE ANYAONU – Appellant(s)
AND
1. UMEOJI CHUKWUMA
2. LABOUR PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. NASIRU AYILARA RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE
5. ODINAKA IKOROHA THE RETURNING OFFICER, HOUSE REPRESENTATIVE ELECTION, AGUA TA CONSTITUENCY
6. RAPHAEL NWANKWO ELECTORAL OFFICER AGUAT A LOCAL GOVERNMENT AREA – Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Awka (hereinafter simply referred to as ‘the Tribunal’) delivered on 16th May, 2008. In the said judgment, the tribunal dismissed the petition filed by the Petitioner now appellant herein, and upheld the election and return of the 1st Respondent as duly elected member of the House of Representatives representing Aguata Federal Constituency of Anambra State.
The background facts which gave rise to this appeal are simple and straight forward. The Appellant then petitioner at the tribunal took part in the 21st April, 2007 election held in throughout the Nigerian Federation, and had contested the said election into the House of Representatives representing his own constituency i.e. Aguata Federal Constituency of Anambra State. He contested the election on the platform of the Peoples Democratic Party (PDP for short). The first respondent herein, as also 1st Respondent in the petition before the tribunal, contested the same election with the appellant/petitioner on the sponsorship of Labour Party (or LP) which is a registered political party and which is the 2nd respondent at both the tribunal and in this appeal too. The third respondent (INEC) is the statutory body saddled with the responsibility of conducting elections throughout the country while the 4th, 5th and 6th Respondents are officials of the 3rd respondent. After the conduct of the said election, the fifth Respondent declared and returned the 1st Respondent as the winner of the said election. Dissatisfied with the results of the election, and more particularly the candidacy and/or eligibility of the 1st respondent to contest the election ab initio, the appellant as petitioner filed a petition before the tribunal on 21/5/2007. The ground or gravamen of the appellants petition at the tribunal as could be gleaned from his depositions in the petition filed on 21/5/2007, is to the effect that the 1st respondent who was returned as duly elected and winner of the election, was in the first place not qualified to contest the said election and therefore his returned as winner of same by the 5th Respondent was invalid under Section 32(1) and (2) of the Electoral Act 2006 and Sections 65(2) (b) and 68(1)9g) of the 1999 Constitution of the Federal Republic of Nigeria. For these reasons adumbrated above, the petitioner in Paragraph 16 of his petition averred as follows:- Whereof the Petitioner prays that it may be determined that the 1st respondent, Mr. Umeoji Chukwuma, who was returned as the elected member of the House of Representatives representing Aguata Federal Constituency of Anambra State, was not validly elected at the election and not qualified to contest the election. In addition to the above the petitioner prayed the tribunal to nullify the said election and declare him the winner of same as according to him, he scored the highest number of valid votes if the return of the 1st Respondent is nullified. In the alternative, the petitioner urged the tribunal to order fresh election in the said constituency.
After Replies were filed and exchanged by parties to the petition, hearing commenced in earnest and some documentary exhibits were tendered by parties. In the end, the tribunal in its wisdom while dismissing the repetition decided as follows:-
We have calmly considered the submissions of both senior counsel on this point and we must state that we are in complete unison with Dr. O. Ikpeazu SAN that the petitioner did not prove that the 1st Respondent was not unqualified or not qualified to contest the election as stated in the sole ground of the petition, where he grounded his petition on non-qualification but the evidence adduced disclosed disqualification which is not a ground to question election under Section 145 of the Electoral Act 2006.
Aggrieved by the above finding of the tribunal on which it apparently dismissed the appellant/petitioners petition on 16/5/2008, the appellant herein, appealed to this court. To that effect, he on 5th June 2008 filed an undated Notice of Appeal containing three grounds of appeal which said Notice of Appeal is reproduced hereunder for ease of reference:
NOTICE OF APPEAL
TAKE NOTICE: that the Petitioner/Appellant being dissatisfied with the decision of the National Assembly Election Tribunal/Governorship and Leg1stative Houses Tribunal (The Election Tribunal) delivered on the 16th day of May 2008, more particularly stated in paragraph 2 herein, doth hereby appeal to the Court of Appeal upon the Grounds set out in paragraph 3 AND the Petitioner/Appellant will at the hearing of the appeal seek to Relief set out in paragraph 4. AND the Petitioner/Appellant further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: THE WHOLE GROUND OF APPEAL
a. ERROR OF LAW: The learned justices of the Election Tribunal erred in law and thus occasioned a miscarriage of justice when they held: The Petitioner in an attempt to prove that 1st Respondent did not sear to his Form CF001 before the High Court of Justice FCT, Abuja summoned on Hajiya Zainab Mohammed Fufure who produced a letter written by the FCT High Court. She could not tender the said letter as she had no written deposition as required by paragraph 1 of produced a letter written by the FCT High Court. She could not tender the said letter as she had no written deposition as required by paragraph 1 of the Practice Direction. The said letter was therefore produced and left with the Secretary of the tribunal. We say no more of the letter.
Particulars of error
i. Letter dated 14/5/2007 and written by the Chief Registrar, High Court of Justice FCT Abuja is amply pleaded in the petition.
ii. Exhibit P4, the subpoena duces tecum issued by the Honourable Election Tribunal Commanded the Chief Registry of the High Court of Justice Abuja to produce the letter dated 14:5:2007 before the Honorable Election Tribunal.
iii. By the Provisions of Section 192 of the Evidence Act, the Honourable Election tribunal was enjoined to act on the letter dated 14:5:2007 produced before the Honourable Election Tribunal
iv. The Honourable Election Tribunal completely failed and refused to act on the letter dated 14:5:2007 which was produced before it as required by law.
b. ERROR OF LAW: The learned Justices of the Election Tribunal erred in law and thereby came to a wrong conclusion when they held that the 1st Respondent was duly sponsored by the Labour Party as its Candidate for the election into the House of Representatives Aguata Federal Constituency.
Particulars of Errorr: The Honourable Election Tribunal completely overlooked Exhibit RR4 and other documentary evidence before the Honourable Tribunal showing that the 1st Respondent last paid his subscription as a member of Labour Party In December 2006.
ii. The Honourable Election Tribunal failed and neglected to make any finding on the documentary evidence before it showing that 1st Respondent was not a member of Labour Party as at February 2007 when his name was purported submitted to the 3rd Respondent as a candidate of the Labour Party.
iii. The Honourable Election Tribunal acted on evidence not given by any party and not forming part of the record of the Tribunal in coming to the conclusion that a letter to the State Secretary of the PDP terminating the membership of the 1st Respondent is in our view good notice as it is the aggregate of the wards that form Local Government Chapter of a Party and the aggregate of the Local Government that form the State Chapter to the national Level.
iv. The Form CF001 purportedly forwarded by the Labour Party for the election of the 1st Respondent is contrary to Section 32 of the Electoral Act 2006.
c. ERROR IN LAW: The learned Justices of the Election Tribunal erred in law and thereby occasioned a miscarriage or justice when they held that the Petitioner did not establish that the 1st Respondent was not qualified to contest the election as a candidate for the House or Representatives Aguala Federal Constituency.
Particulars of Error:i. The letter dated 14:5:2007 written by the Chief Registrar or the High Court or the Federal Capital Territory which was produced before the Honourable Tribunal as required by law conclusively show that the Form CF001 submitted by the Labour Party in favour or the 1st Respondent was contrary to Section 32 of the Electoral Act.
ii. The Honourable Election Tribunal completely overlooked and disregarded the documentary evidence before it.
iii. The authority or ALLIANCE FOR DEMOCRACY V. PERT AYODELE FAYOSE & ORS (2005) 10 NWLR (pt.932) 151 at 187 relied upon by the Honourable Election Tribunal is completely irrelevant to the uncontested facts of this Petition including the documentary evidence before the Honourable Tribunal.
d. ERROR IN LAW: The learned Justices of the Election Tribunal Erred in law and thereby came to a wrong conclusion when it disregarded Exhibit P3 and held that Exhibit P3 is a conclusive proof that it (the Form CF001) has been Sworn to at the High Court of Justice FCT before a proper Commissioner of Oath.
i. Exhibit P3 is a Certified Copy of Form CH001 submitted by 1st and 2nd Respondents to the 3rd Respondent.
ii. Exhibit P3 satisfies the requirements of Section III (I) & (2) of the Evidence Act.
iii. Exhibit P3 and RR3 are materially same regarding the purported compliance with Section 32 of the Electorial Act.
iv. The conclusion of the Honourable Tribunal regarding Exhibit RR3 is contrary to the letter dated 14:5:2007 produced as required by Section 192 Evidence Act.
4. RELIEF SOUGHT FROM THE COURT OF APPEAL
To allow the appeal, set aside the decision of the Election Tribunal and grant the reliefs sought by the Petitioner OR ALTERNATIVELY remit the Petition for hearing before another Panel of the Election Tribunal.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
NAMES ADDRESSES
CHIKE ANYAONU c/o His Solicitor
Professor Ben Nwabueze SAN,
P.I.N. IKWUETO, SAN
DOM OBIEKWE, Esq.
KEN NWAOGU Esq.
c/o DOM OBIEKWE Esq.
b. CHUKWUMA UMEOJI c/o His Solicitor, DR.
ONYECHI IKPEAZU, SAN
c. LABOUR PARTY c/o G.C. ENEKCHI & CO.
177 ZIKS AVENUE AWKA
d. INDEPENDENT NATIONAL
ELECTORAL COMMISSION
e. NASIRU AYILARA
The Resident Electoral
Commissioner Anambra State
f. ODINAKA IKOROHA c/o INC Office
The Returning, Officer The House Akwa
of Representatives Election Aguata Anambra
Federal Constituency
g. RAPHAEL NWANKWO
The electoral Officer
Aguata L.G.A
Dated this day of May 2008
Sgd P.I.N. IKWUETO, SAN
For and on behalf of
Petitioner/Appellant’s
Solicitors
c/o DOM OBIEKIE, Esq.,
96A Awaka Road, Onitsha.
For Service on:
1. 1st and 2nd Respondents,
Their Counsel
Dr. Onyechi Ikpeazu, SAN,
117, Ziks Avenue, Awka.
2. 3rd – 6th Respondents,
c/o INEC Office, Awka Anambra State.
In the Appellants brief of argument dated 16th September, 2008 but filed on 22nd September, 2008, the lone issue formulated by him for the determination of this appeal reads thus:
Whether the learned Tribunal correctly resolved that the 1st Respondent was qualified to contest the election as candidate of the 2nd Respondent in the Constituency for ejection held on 21-4-2007 as provided by the Electoral Act 2006
It needs to be stated here that the 1st Respondents Senior Counsel upon being served with the appellants brief, filed a Notice of Preliminary Objection on 19/9/2009 dated same day, wherein he challenged the competence of the issue vis-a-vis the notice and grounds of appeal filed. The learned counsel of the 1st respondent also argued the said Preliminary Objection in his Brief of Argument. I will presently deal with the Preliminary Objection, Suffice it to say however that the Appellant filed an Appellants Reply Brief on 30/7/2009, In the Reply brief, after replying to the Preliminary Objection of the 1st Respondent, the appellants Senior Counsel also went at length to proffer reply to the two issues for determination postulated by the 1st respondent in his Brief of argument which according to him, settled for determination of the appeal, in the event that his Preliminary Objection is overruled, Senior Counsel to the 1st respondent having been served with the appellants brief argument settled a brief of argument on behalf of his client, which was dated and filed on 29/6/2009, Therein, two issues were proposed by him for the determination of the appeal and those issues are as follows:-
1. Whether the Tribunal was correct when it held that the Appellant failed to establish that the 1st respondent was not qualified to contest the election and that the 1st Respondent was not sponsored the 2nd Respondent (Ground B and C).
2. Whether the Tribunal was right in refusing to admit Exhibit letter of 14/5/2007 through a persons (sic) who produced same on subpoena duces tecum but was not sworn as a witness and in holding that Exhibit RR3 established that 1st Respondents Form CF001 was validly sworn (sic) (Grounds A and second C).
Contrary to the assertion of the learned Senior counsel for the appellant on page 1 of his Appellants Reply Brief that the 2nd Respondent did not file any brief of arguments, with due respect, to the learned silk for the appellant, the 2nd Respondent infact did file Brief of argument on 5th of October 2009 dated same day which said Brief was deemed properly filed by this court on 19/10/2009. It also raised two issues for determination of the appeal which is the same or very much similar to those raised in the 1st respondent’s brief. I therefore do not deem it necessary to reproduce those issues again.
The second to sixth respondent also settled their Brief which was dated and filed on 26th June, 2009. In the said brief only one issue was distilled from the grounds of appeal for the determination of this appeal which said sale issue is:- Whether the learned Tribunal correctly resolved that the first Respondent was qualified to contest the election as a candidate or the Labour Party in Aguala Federal Constituency election held on 21/4/2007 as provided by the relevant laws.
It is noted by me that the appellant’s learned senior counsel did not marry his lone issue for determination to any or the three grounds or appeal filed by him likewise the learned counsel for the 3rd to 6th respondents. But the learned senior advocate of Nigeria for the 1st Respondent did marry the issues he raised to the grounds of appeal will come to that later. In keeping with the laid down procedure and it is even now well settled, that whenever preliminary objection is raised on appeal, an appellate court is duty bound to resolve it first before determining the appeal on merit. See All States Trust Bank vs. King Davidson Enter. Ltd. (2000) 12 NWLR (Pt. 680) 298; Uba v. Yawe (2000) 8 NWLR (Pt. 670)739; Begbe v. Tiza (2000) 4 NWLR (Pt, 652) 193. It is on that backcloth that I deem it apposite and necessary to deal with the Preliminary Objection first before considering the issue or issues raised by the parties if need be.
On the Preliminary Objection, it is the submission of the learned Senior Counsel for the 1st respondent that the sole issue for determination as framed by the appellant is incompetent as it ascribed to the tribunal what was not embodied in its judgment. He said the issue raised by the appellant as couched is different from what the tribunal actually decided, adding that there is difference between a postulation that the tribunal found that the first respondent was qualified on one hand and the statement that the appellant failed to prove that the 1st respondent was unqualified or not qualified on the other hand. He said, for the former, the tribunal would have made a positive statement in that regard, while for latter, the want of proof became the cause of failure on the part of the appellant.
The learned 1st respondent’s counsel further argued that all the tribunal merely ruled or decided that the appellant failed to prove the relief set out in the petition hence it will be erroneous on the part of the appellant to say as he did his sole issue for determination, that the tribunal found that the appellant was qualified. He cited and referred to the cases of Babalola vs. The State (1989)4 NWLR (Part 115) 264; Orodoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 174; Nkoko v. Akpeka (2000) 7 NWLR (Pt. 225) 241242 wherein it was decided that an appeal presupposes the existence of some decision appealed against an where there is absence of a decision on a point then there cannot be said to exist any appeal against what has not actually been decided.
With regard to ground No. C in the Appellant’s Notice of Appeal, the learned 1st respondent’s counsel submitted that ground of appeal as couched really captured what was decided by the tribunal to the effect that the appellant did not established that the 1st respondent was not qualified But alas, according to the learned 1st respondent’s counsel, the issue formulated by the appellant clearly misrepresented what the tribunal had actually decided. He therefore submitted with reference to ground C, that since the sale issue raised in the appellant’s brief failed to relate to the finding of the tribunal that the appellant failed to prove that the 1st respondent was not qualified. It can be concluded that there was no issue formulated Oil Ground No.3 as couched.
As a corollary therefore, the learned senior counsel for the first respondent it can be concluded that there was no issue raised on the second ground of appeal in as much as the sole issue raised by the appellant’s learned senior counsel failed to relate to the finding of the tribunal that the Appellant did not prove that the 1st respondent was not qualified to contest the disputed election.
With regard to ground C, it was argued on behalf of the 1st respondent that that ground simply complained of the pronouncement of the tribunal on the validity or otherwise of the affidavit which the appellant urged was not duly sworn to or that it was wrongfully accepted as document in contest. He said the sole issue raised did not completely deal with the effect accorded to the document hence, like the other grounds discussed supra, this also suffers the same fate with them hence the said ground should be deemed as abandoned. Again, with reference to Ground A which relates to alleged wrongful rejection of the letter purportedly produced by a staff of the High Court of the Federal Capital Territory, the learned Silk for the 1st respondent argued that the sole issue raised, totally failed to deal with the admissibility of a document hence the said ground of appeal must also be deemed abandoned by the appellant. It was further argued that there was no need to wind the issue as formulated to seek to accommodate or encapsulate any of the grounds of appeal as doing that would lead to manifest absurdity. He referred to the decisions of Onuoha v. Nwabueze (2001) 48 WRN 84 at 91; Bendel v. Aideyan (1989) 4 NWLR (PI 118) 646 at 665, Pacers Multi Dynamic Ltd v. Dunang Sisters (2000) 3 NWLR (Pt.648) 241.
In yet another submission, the learned counsel for the 1st respondent observed that the petition before the tribunal was not solely on or about qualification hence the general or sole issue raised by the appellant can not be said to have covered all the grounds of appeal filed and that is why it is trite law that issues raised for determination should be properly identified, tied or married to a particular ground or grounds of appeal. For instance, ground of appeal challenging admissibility of a document and also alleging misapplication of Section 192 of Evidence Act e.g. Grounds A and C should have distinct issue(s) raised on them which is not the case in this instant appeal. He further argued that issues for determination should not be raised at large but must be raised within the purview of the ground(s) of appeal. See Owosago v. Adebanjo (1988) 4 NWLR (PI 88) 275 at 283, Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt 51) 506 at 521/522. He finally urged this court to refrain from formulating Issues in this instant appeal as that can only be done where the issues raised by a party is inelegantly framed. But where the issue raised by a party as in this case failed to take cognizance of the specific grounds of appeal or specific and weighty legal issue, the appellate court should in that circumstance hold that the ground of appeal(s) were abandoned and the appropriate order it should make is to strike out such ground and he urged me to simply do same.
As I posited above, the brief of argument filed on behalf of the 2nd Respondent contained the same submissions and arguments with those in the 1st respondent’s brief of argument. Similarly, the preliminary objection argued in the said brief are the same with that in the 1st respondent’s brief do not therefore deem it necessary to summarise or repeat it here, in response to the preliminary objection argued in the 1st respondent’s brief; the appellant herein filed an Appellant’s Reply Brief of argument. The learned appellant’s senior counsel conceded that issue for determination formulated must arise and or be related to the ground(s) of appeal. He referred to the case of Elendu v. Ekwoaba (1995) 2 NWLR (Pt 386) 704 at 734. He argued that even if the issue he raised did not relate to the grounds of appeal, this court is not bound by the issues formulated by the parties as it has jurisdiction to modify, reject or refame the issues for determination formulated by the parties if; in its view, such issues will not lead to the proper determination of the appeal. On this submission he relied on the decisions of Ogbuinyinya v. Okudo No.2 (19990)4 NWLR (pt 146) 551, and Udo v. Cross River State Newspapers Corporation (2001) 14 NWLR (pt 732) 116 at 149 – 150. He said this court can always and is entitled to reformulate the issue or issues formulated by the so as to give it precision and clarity in order to lead to more judicious and proper determination of the appeal. Sec Dado v. Dosunmu (2006) 18 NWLR (pt.1010) 134 at Paragraph G; Agbarah v. Munra (2008) 2 NWLR (pt.1071) 378 at 410 Paragraph B, Unity Bank Plc v. Bouri (2008) 7 NWLR (pt.1086) 372 at 401.
The learned silk for the appellant further argued that this court will not ordinarily strike out an appeal even if it found that no the issues for determination as formulated in the brief are inelegant. He however maintained that the sole issue for determination he raised correctly captured the appellant’s complaints against the judgment of the tribunal as per the grounds of appeal, adding that the grounds of appeal he filed are competent. He said this court and indeed the Supreme Court had condemned proliferation of issues for determination adding that his sole issue for determination has captured the three grounds of appeal he filed. He cited the cases of Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 131 at 151 Araka v. Ejeagwu (1999) 2 NWLR (pt 258) 131 at 151; UBN Plc v. Ofori Molars Co Ltd (1998) 5 NWLR (pt 551) 652 and Unity Bank Plc v. Bouri (supra). It was also argued by the appellant’s learned senior counsel that upon calm examination of the three grounds of appeal and their particulars of error from which the sole issue was anchored, it was clearly shown that the substance of the appeal was whether the Election Tribunal reached correct and justifiable conclusions on the issues before it and that was the purport of the issue for determination as formulated by him. He finally concluded his argument on the Preliminary Objection by submitting that the sole issue he formulated had captured the essence of his complaints in the three grounds of appeal and that the issues so formulated really arose from the grounds or appeal. He urged me to dismiss the preliminary objection for being meritless. In resolving the ground raised in the Preliminary Objection filed by the 1st Respondent on one hand and by the 2nd respondent on the other though virtually the same, I think it is worthwhile to critically examine each of the three grounds of appeal filed by the appellant. Beginning with the first ground of appeal, i.e Ground A which is reproduced in the fore pages of this judgment, a close look at the said ground clearly shows that the appellant was challenging the tribunal’s alleged wrongful rejection of a letter produced by a staff of the Federal Capital Territory dated 14th May, 2007 written by the Chief Registrar or the High Court of the Federal Capital Territory. This observation is supported by the particulars to this ground of appeal.
However, the sole issue raised by the appellant in his brief of argument reads as below-
Whether the learned Tribunal correctly resolved that 1st Respondent was qualified to contest the election as a candidate of the 2nd Respondent in the Constituency for the election held on 21/4/2007 as provided by the Electoral Act 2006. To my mind, Ground A supra simply poses a challenge on the tribunal’s resolve to reject the letter in question, It therefore borders on or relates to admissibility or otherwise of the said letter. But looking at the sole issue raised as set out above, could it be said that it captured Ground of Appeal No. A? I do not think so, the sole issue can not by any stretch of imagination be said to relate to the admissibility of the letter or of any document for that matter. The issue in my view, did not flow from or covered by Ground No, A. It is trite law that every issue for determination raised must relate to a ground or grounds of appeal. It is also a well settled law that if an issue for determination is not formulated from a ground or grounds of appeal such ground of appeal should be deemed by the court to have been abandoned. See Bendel v. Aideyan (supra). Onuoha v. Nwabueze (supra); Okwejunior v. Itakeji (2008) 5 NWLR (pt 1079) 172.
Now coming to the second ground of appeal, it can be seen that the appellant’s grouse relates to the tribunal’s remarks on the affidavit which the appellant said was not duly sworn to. By this ground, the appellant attacked the tribunal’s remarks on its validity or otherwise which he alleged was not sworn, In direct, he is saying that it was wrongfully accepted by the tribunal because of the alleged defect for want of being sworn to. The ground therefore deals with wrongful acceptance or admission of documentary evidence. A cursory look at the issue raised by the appellant will leave no one in doubt that the sole issue raised did not relate to wrongful admission of evidence at all. It also did not deal with the tribunal’s finding, remarks or holding in the affidavit at all.
The third ground of appeal is to the effect that the tribunal was in error and had occasioned miscarriage of justice when it held that the Petitioner did not establish that the 1st respondent was not qualified to contest the election in question. I think the catch phrase of the tribunal’s finding which to my mind triggered the appellant’s complaint is where the tribunal simply slated that the appellant failed to prove that the 1st respondent was not qualified. But the sale issue as couched by the appellant is saying that the tribunal said or held that the 1st respondent was qualified to contest the election. To my mind, the issue as framed did not actually capture the finding or holding of the tribunal. The ground of appeal as such, did not actually represent the finding or pronouncement of the tribunal which is to the effect that the appellant failed to prove that the 1st respondent was unqualified or not qualified.
It is now well settled law that issues for determination in an appeal must be formulated or distilled from the grounds of appeal themselves und not from anywhere. See Basiriyu Akinlagun & Ors v. Taiwo Oshoboja & Anor (2006) 5 SCNJ 261. It is also a well established proposition of law in respect of which there can hardly be a departure, that a ground of appeal against a decision must relate to the decision and indeed should constitute a challenge to the ratio. See Saraki v. Kotoye (1990) 4 NWLR (pt 143) 44, Fasoro v Bajioku (1988) 2 NWLR (pt. 76) 263. Adejumo v. Ayantegba (1989) 3 NWLR (pt 110) 417, Affaka v. Amadi (1998) 11 NWLR (P 572) 16; Iweka v. SCOA (Nig) Ltd (2000) 7 NWLR (pt 664) 325 at 338.
I have closely considered the sole issue for determination raised or formulated by the appellant vis-a -vis the three grounds of appeal. As I posited above the issue did not relate to or has not captured any of the three grounds of appeal contained in the Notice of Appeal.
It is trite and well settled law that an issue for determination must be covered or must relate to any of the grounds of appeal. Any issue for determination which is not covered by or which failed to relate to any of the grounds of appeal filed is incompetent and is therefore liable to be struck out. Similarly, the law is equally settled that where a ground of appeal is not covered by an issue for determination set out in the brief of argument that ground of appeal must be deemed to have been abandoned and should be struck out. See Ngiaere v. Mothercat Ltd (1999) 13 NWLR (pt.636) 626; Ugo v. Obiekwu & Anor (1989) & NWLR (pt. 99) 566 Sha (Jnr) v. Kwann (2000) 8 NWLR (pt.670) 685. Having said this much therefore, the three grounds of appeal having no issue or issues raised on them are deemed abandoned and thus liable to be struck out. See Ndiwe v. Okocha (1992) 7 NWLR (pt.252) 129, Iyaji v. Eyigebe (1987) 3 NWLR (pt. 61) 523.
Now as I said supra, I observe that the sole issue raised by the appellant is not related or predicated on any of the three grounds of appeal.
It has been stated and restated by this court and the apex court of this land in a string of decided authorities too many to mention, that for an issue to be competent, it must be based on a ground of appeal. See also Jimoh & 2 Ors v. Dade & 3 Ors (2003) II NWLR (pt. 830) 174 at 197 Mobil Producing Nig Unlimited & Anor v. Chief Monokpo & Anor (2003) 12 SCNJ 206 @ 245; Captain Amadi v. NNPC (2000) 10 NWLR (pt.674) 76 or (2000) 6 SCNJ I @ 11. Again, where issue or issues are not formulated from a ground or grounds of appeal, it or they will either be deemed abandoned or discountenanced. See Alhaji Animashaun v. University College Hospital (1996) 10 NWLR (pt 476) 65; or (1996) 12 SCN,) 179; Nkedo & Ors v. Obiano & Anor (1997) 5 NWLR (pt.503) 31 or (1997) 5 SCNJ 23 and Godwin v. The Christ Apostolic Church & Ors (1998) 12 SC 1; (1998) 12 SCNJ 213 and many others. I wish to observe here that in his brief the learned senior counsel for the appellant failed to marry his sole issue to any of the three grounds of appeal. Perhaps he failed or neglected to do so simply because it (the issue) did not relate to any of the three grounds of appeal he filed, On this precinct, I uphold the Preliminary Objection as it is meritorious. The learned appellant’s counsel rightly conceded that an issue for determination is substantial question of law or fact both arising from the ground(s) of appeal which when resolved one way or the other will affect the result of the appeal. See Elendu v. Ekwoaba (1995) 2 NWLR (pt.386) 704 at 734. He also submitted that an appellate court is not bound by the issues formulated by the parties and can and is entitled to reformulate issue or issues formulated by the party in order to give it precision and clarity in order to lead to a more judicious and proper determination of the appeal. See Dado v. Dosunmu (2006) 18 NWLR (pt. 1010) 134; Agbarah v. Nwora (2008) 2 NWLR (pt.1071) 378 at 410. The learned senior counsel though continued to maintain that the sole issue he framed captured the three grounds of appeal, yet in another breath he urged us to reframe the issue instead of striking it out.
I am mindful of the fact that it is now settled law that a court has discretionary power to formulate issues for determination in an appeal. This can however be done in order to narrow down issue(s) in controversy in the interest of accuracy, clarity and brevity, Where a court chooses to do so, however such issue so formulated by it must be anchored on the ground or grounds of appeal. It must be which an opposite party may not complain against. See Unity Bank Plc & Anor v. Bouri (2008) 2 SCM 193 @ 210 Solomon Mnya v. Abdul M. Mshelizh & Ors (2004) 19 WRN at 142/143.
In the case of Bishiruju Akinlagun & Ors v. Taiwo Oshoboja (supra) the Supreme Court alter emphasizing per Kalgo .JSC, that a court has no power to set up a case different from that which the parties have brought before restated the established law that even though an appellate court has discretionary power to reframe or formulated issues for determination in an appeal different from those raised by the parties in their briefs, the reframed or formulated issues must be derived from or culled from the grounds of appeal filed by the parties.
In the instant case, I have struck out the issue for determination because it was not predicated on any of the three grounds of appeal which made it incompetent. Although I have no doubt in my mind regarding the competence of the said three grounds of appeal, but for reasons adumbrated above they are deemed to have been abandoned, Now, even if they stand as they are, this court as appellate court can not consider grounds of appeal in determining an appeal. Let me stress here, that since the introduction of brief writing in our civil trial procedures, the apex court and indeed this court are duty bound to consider and determine appeals on issues for determination raised by parties and not by considering grounds of appeal filed by parties in their notices of appeal. What these two courts consider now are the issues for determination which are properly distilled from these grounds and no more, See Akalogun v. Oshoboja (supra). Thus, in my view, the circumstance of this case does not call for reframing or formulating issue(s) for determination, since the purport of so doing namely, narrowing of issue in controversy or the interest of accuracy, clarity and brevity do not arise here. I shall therefore decline the call by the appellant’s counsel to formulate or reframe issues for determination, Moreso; since the 1st respondent and the 2nd and third respondents have in their respective briefs of argument formulated some issues which have captured the three grounds of appeal. I will come to that later.
Thus, on the Preliminary Objection, I find merit in same and I hereby sustain it. Having declared that the three grounds of appeal are deemed abandoned and also having struck out the sole issue raised on the appellant herein, nothing remains for me to do than to strike out the appeal. I hereby accordingly do same.
Be that as it may, I shall still venture to consider the appeal on the merit even though I am mindful or the fact that by virtue of the provisions of Section 246 (3) of the Constitution of the Federal Republic of Nigeria 1999, the decision of this court in respect of election appeal whether on substantive or interlocutory decisions shall not be subject to any further appeal or review by any other court. See Selede Eseme v. Chief Nelson Tebsghehagbe & 4Â Â Ors (1989) 5 NWLR (pt 93) 134 at 137; James Oruba v. NEC & 13 ors (1989) 12 SCNJ 254 or (1989) 2 NEPLR 24 at 26; Chief Sgt Agwuse v. Dr Peter Odili & 4 Ors (2003) 18 NWLR (pt 851) 116 at 151 (2003) & SCNJ 88 at 100. This is primarily in order to tread on the side of caution, in the event that my resolution to sustain the preliminary objection by the 1st respondent and 2nd to 4th Respondent are wrong.
In considering the appeal proper, I shall be guided by the two issues for determination raised in the 1st respondent’s brief of argument which said have issues captured all the three grounds of appeal filed by the appellant and also elegantly couched. Even at the risk of being repetitive, I shall still set them out them or reproduce them below. The two issues read thius:
1. Whether the tribunal was correct when it held that the Appellant failed to establish that the 1st respondent was not qualified to contest the e1ection and that 1st Respondent was sponsored by the 2nd Respondent (Grounds B and C)
2. Whether the tribunal was right in refusing to admit as Exhibit letter of 14/5/2007 through a persons (sic) who produced same on subpoena duces tecum but was not sworn as witness and in holding that Exhibit RR3 established that 1st Respondent’s from CF001 was validly sworn.
Before I start considering the two Issues for determination as formulated by the 1st Respondent, My Lords, permit me to make one vital observation on the Appellant’s Reply Brief filed on 30/7/2001 and supposedly as response to the Preliminary Objection filed by the first respondent’s counsel. It is noted by me, that the learned senior counsel for the appellant after advancing argument on the grounds raised on the preliminary objection he proceeded to proffer lengthy arguments on each of the two issues raised by the 1st respondent’s counsel in the said Reply Brief.
With due deference to the learned silk for the Appellant this procedure he adopted is very wrong and alien to the procedural rules or this court or even the apex court with regard to disposal of appeal through a Brief of Argument. To my mind and it is indeed trite law that the essence of filing a Reply Brief is simply to deal with all points arising from the respondent’s brief. I must say that it is not proper for an appellant to reargue his appeal in a Reply Brief. It is not an avenue for the appellant to improve upon his arguments or submissions in the main appeal or to line tune same in the Reply Brief. See the case of Ojong v. Duke (2003) 14 NWLR (pt.841) 581.
At any rate, since I have resolved to consider the appeal on the merit, I shall still in the interest of justice, consider the appellants arguments advanced in the said Appellant’s Reply brief of argument in response to the 1st respondent’s submissions on the two issues for determination. The two issues will however be considered together.
Issues No. 1 and 2
On the first issue, the learned senior counsel for the first respondent submitted that the two grounds upon which the appellant took his petition questioning the election on issue of disqualification and not non-qualification are not valid grounds under Section 145 (1) if the Electoral Act 2006. The petition at the tribunal is therefore incompetent or ought to have been struck out ab initio. He said the two grounds alleged firstly non swearing of the affidavit accompanying the submissions or 1st Respondent’s name before the Commissioner far Oaths and secondly that as at 28/11/2006 when PDP conducted its primary election, the 1st Respondent was a member of both PDP and Labour Party, are pre election matters and thus outside the issues the tribunal has jurisdiction to adjudicate on. He said these two grounds border on issue of disqualification and not non qualification on which the relief sought from the tribunal was rounded. The learned counsel referred to Section 65 of the Constitution of the Federal Republic or Nigeria 1999, especially sub section 2 (b) or the said provisions dealing with membership of a political party and sponsored by that party. On the issue or sponsorship he referred to Paragraphs 3 and 6 of the appellant’s petition and opined that the appellant conceded to the fact that the respondent was actually sponsored by the Labour Party. The learned counsel then submitted that since the appellant himself conceded that the 1st respondent was sponsored by Labour Party then the tribunal could not have erred on a point already conceded or admitted by the petitioner or appellant herein. He said the appellant’s complaint that the affidavit accompanying the 1st respondent’s personal particulars was not duly attested to is not an issue or non qualification in as much as it relates to documents submitted to INEC. He referred to the case of Alliance for Democracy v. Fayose & 6 Ors. (2005) 10 NWLR (Pt.932) 1st at 187 wherein this court drew distinction between non qualification and disqualification. He also referred to Sections 32, 145 of the Electoral Act 2006.
It is the submission of the learned 1st respondents counsel that the appellant elected to proceed under Section 145 (1) of the Electoral Act 2006 i.e. on non qualification even though the facts of his case disclosed that the materials submitted to INEC by the petitioner for clearance to contest the election are not up to the mark which simply relates to disqualification. This therefore can, in another way, be regarded as breach of Section 32 of the Electoral Act 2006 but he argued that the petitioner did not hinge his petition on non compliance with the provision of the Electoral Act which could be a ground to maintain a petition under Section 145 (1) (b) of the Electoral Act.
But this is not among the two grounds on which the petitioner/appellant grounded his petition upon. He said also that the tribunal was correct in holding that the appellant/petitioner failed to prove that the 1st respondent was not unqualified or not qualified to contest the said election. The learned silk also submitted that the facts presented by the petitioner border on disqualification and that the tribunal was correct when it held that facts disclosing disqualification do not come within its jurisdiction. He also argued that such facts come under the provisions of Section 32 of the Electoral Act 2006 since they are simple pre-election matters which only High Court has the jurisdiction to adjudicate on. He referred to my earlier decision in the unreported case in CA/42/48 Oraegbunnam v. Hon Chukwuku delivered on 23/6/2009. Again on the affidavit he said, the appellant is duty bound to prove that the affidavit was not duly sworn to before the Commissioner for Oaths and that the 1st Respondent belonged to two political parties at all times material to the election in view of the principle of law that he who asserts must prove. See Okechukwu v. Ndah (1967) NWLR 368, Buhari v. Obasanjo (2005) 12 NWLR (pt 941) 1 Nnachi v. Ibom (2004) 16 NWLR (pt 900) 614 at 637.
On the appellant’s/petitioner’s allegation that the 1st respondent belonged to two political parties i.e PDP and Labour party as per paragraph 15 of his petition, the learned 1st respondent’s counsel argued that the appellant at the trial filed to tender the register of members of Labour Party or that party’s membership card of the 1st respondent which are the only documents to rely on in proof of that allegation that he belonged lo the PDP as at 28th November, 2006 when the PDP primary elections were conducted.
He said the appellant also did not establish by credible evidence that the 1st respondent remained in PDP after the alleged primary election. Here the learned 1st respondents counsel argued that the appellant also filed to tender either the PDP Constitution or its membership registration Card issued at the 1st respondent’s ward to establish the assertion. He said these are matters requiring proof through documentary evidence and not merely through ipsi dexit of the Appellant. See Olaloye v. Balogun (1990) 5 MWLR (pt.148) 24 at 39; Tumo v. Murane (2000) 12 NWLR (pt.686) 370 at 390B; NIDB v. De Easy Life Electronics (1999) 4 NWLR (pt.597) 8 at 17 (A’97B).
The learned silk submitted on behalf of the 1st respondent that on the other hand, his client as DW2 gave evidence in line with what he averred in his Reply and had tendered his letter of resignation from PDP – Exh RR1; Affidavit of his personal particulars Exh RR3, Acknowledgement of his letter of Resignation from PDP issued by Secretary of PDP. Exh RIC and his Labour Party Card – Exhibit RR4. He said all these documentary evidence are clear proof that he was a member of Labour party and not PDP and those pieces of evidence were not only corroborated by his ipsi dixit but also the testimony of DW2 who identified the said documentary evidence i.e RR3 as what she had verified earlier at the INEC office. With regard to the 2nd issue for determination he raised, the 1st respondent on the refusal of the tribunal to admit as Exhibit the letter dated 14/5/2007 through who produced it on subpoena duces tecum but was not sworn as a witness and in holding that Exhibit R3 established that the 1st respondent’s Form CF001 was validly sworn, the 1st respondent submitted that when the appellant as petitioner sought to tender the letter dated 14/5/2007 pursuant to Section 192 of the Evidence Act he testified that he made inquiry at the High Court of FCT through a letter written by his solicitor inquiring about the identity of the person who signed the affidavit in 1st respondent’s Form CF00I. He said that the staff of the High Court replied to the solicitors letter confirming that it was a staff of the FCT High Court. The learned counsel for the 1st respondent copiously reproduced the petitioner/appellant’s Statement on Oaths in support of his Reply where it was stated that one Jibrin Maidawo was neither a Registrar of FCT High Court as at 14/12/2006 and had no authority to administer oath on 1st Respondent nor was he (Jibrin Maidawo) a stair in Accounts department a process unit of the FCT High Court as at 15/12/2006 and had no power to issue receipt for administration of oath/affidavit in the FCT High Court but confirmed that the said Jubrin Maidawa was a staff of the Chief Magistrate’s Court at zone 6, Wuse, Abuja.
The learned 1st respondent stated that even though not a Registrar of FCT High Court or process unit or was not authorized to administer oath, but the appellant as petitioner did not disclose his source of information as to the schedule of duty of Mr. Maidawa. It can also be deciphered from the said averment of the petitioner/appellant, that Jibrin Maidawa was a staff of the Magistrate Court during which period or when he became a staff of the Court and if so when did he become so or what department he served in especially when he administered the oath. The learned counsel argued further that the appellant who had the burden to prove all these facts did not do so through documentary evidence such as register of staff of the FCT High Court authorized to administer oath or that of the Magistrate Court disclosure schedule of Mr. Maidawa.
A further submission of the 1st respondent on this is to the effect that the letter reproduced in t he Appellant’s Brief was not admitted as exhibit likewise the affidavit of Maidawa, yet the said letter was reproduced in the Appellant’s Brief even though as public document the said letter was not certified under Section 109 of the Evidence Act. This is contrary to Section 111 (c) of the Evidence Act. See Analogu v. Iweka (1995) 8 NWLR (pt.415) 547. He went further to state that in the affidavit of Maidawa, he stated that he was an employee of the FCT High Court and that he administered oath to the 1st respondent in respect of an INEC Form CF001 on 14/10/2006. The learned silk went at length to argue on behalf of the 1st respondent, that the trial tribunal was correct in rejecting both the letter in question and the affidavit of Jibrin Maidawa. He cited many decided authorities to buttress his position that the said documents were not admissible in evidence. On the appellant’s submission that a court has power to look at document in the proceedings the 1st respondent’s counsel argued that those authorities relied on by the learned appellant’s counsel are not relevant since such principle of law did not deal with documents which are inadmissible. He urged the court to discountenance the letter in question as to consider it here will breach the principle of fair hearing because if it is countenanced he (the 1st respondent) would be denied the opportunity of cross examining the appellant on it. He also argued that by Section 150 (1) of Evidence Act, when any official or judicial act is shown to have been done in a manner substantially regular, it is presumed that formal requisite for its validity were complied with. He said in the instant case there is no evidence led beside the ipsi dixit, to rebut the presumption of validity of the act hence the tribunal was free as it did, to act on it. See Ondo State University v. Faloyan (1994) 7NWLR (pt.146) 551 at 559/560 .
Again on receipt collected by 1st Respondent as evidence for payment of Oath ie. Exhibit RR5 tendered during cross examination, the learned 1st respondent’s counsel argued that such evidence is admissible and as such rightly accepted and acted on by the tribunal and that it has same evidential or probative value with any other evidence admitted during examination in chief. He cited Ogbolo v. Fubura (2003) 11 NWLR (pt.831) 231; Ogbeide v. Osula (2004) 12 NWLR (pt. 886) 86 @ 118. He however argued that the only constraint on the use of evidence adduced under cross examination is that it must be led on issues joined. See Buhari v. Obasanjo (2005) 5 NWLR (pt.910) 241 @ 483; Wolecham v. Gudi (1981) 5 SC 291 Daggash v. Bulama & Ors (2004) 14 NWLR (pt.892) 144 @ 241; Bamgboye v. Olarenwaju (1991) NWLR (pt.184) 132 @ 155. The learned silk also argued that by the combine effect of Exhibits RR3 and RR5 which are official documents which are adorned with the toga of presumption of authenticity, and in the absence of any contrary evidence, the tribunal was right in arriving at its conclusion that the appellant failed woefully to prove his case and then preferred the case presented by the respondents. He finally urged this court to hold and accept the unchallenged and uncontradicted evidence of the 1st respondent which was based on the document presumed authentic.
As stated earlier, the brief of Argument filed by 2nd Respondent is carbon copy of that of the 1st Respondent and therefore there is no need to summarise their submissions here.
The 3rd to 6th respondent filed brief of argument on 26/6/2009 wherein he distilled only one issue for determination which is:-
‘whether the learned tribunal correctly resolved that the 1st respondent was qualified to contest the election as a candidate of Labour Party in Aguata Federal Constituency election held on 21/4/2007 as provided by the relevant laws. The learned counsel for the 3rd to 6th respondent while advancing argument on whether the 1st respondent was qualified to contest the election, referred to Sections 65, 66 and 68 (1) (9) of the 1999 Constitution and argued that Section 32 (1) and (2) of the Electoral Act 2006 is subject to the provisions of Sections 65 and 66 of the Constitution on the criteria for qualification as the provisions of the Electoral Act can not expand the provisions of the Constitution. He cited the case of Saidu v. Abubakar (2008) 12 NWLR (pt.1100) 201 at 265/266. He argued that the provisions of Section 66 of the Constitution overrides the provisions of Section 32 of the Act which is subject to the provisions of the Constitution. See also AD v. Fayose (supra); Obasanjo v. Yusuf (2004) 9 NWLR (pt 377) 144 at 183; ANPP v. Usman (2008) 12MWLR (pt.1100) 1 at 53.
In further submission, the learned counsel argued that the petitioner/appellant going by his averments and the evidence led in their support failed to prove that the 1st respondent had breached any of the provisions of Sections 65 and 66 of the 1999 Constitution. See Kolawole v. Folusho (2009) 8 NWLR (pt 1143) 338 at 286/387 and concluded that the tribunal was right in its finding, that Exhibits RR1, RR2 and RR2 tied together are clear proof that the 1st respondent at the time of the election was a member of only one political party, namely, the Labour Party and was sponsored by that party and that the petitioner failed to prove his case warranting the grant of his prayers as contained in paragraph 16 of the Petition. He further cited and relied on the case of Mohammed v. Mohammed (2008) 6 NWLR (pt.1082) 73 at 86; See also the case of Agbaje v. Fashola (2008) 6 NWLR (pt.1082) 90 @ 153 on failure of the petitioner to prove his case. He added that the petitioner is bound to rely on the strength, of his case NOT to rely on the weaknesses of the respondent’s case.
In conclusion the learned counsel for 3rd to 6th Respondents submitted that the arguments of the learned appellant’s Senior Counsel and the authorities cited and relied on by him in his Appellant’s Brief are irrelevant to the sole issue for determination and he urged this court to discountenance them as they do not relate to election petition at all. He cited Buhari v. INEC (2008) 4 NWLR (pt.1078) 546 at 643. He urged this court to affirm the decision of the Tribunal of 16/5/2008 and dismiss the appellant’s appeal for want of merit and substance.
In reply, the learned counsel for the appellant submitted in his Reply Brief that by Section 32 (1) and (2) of the Electoral Act 2006 political party and any candidate intended to be sponsored by political party must submit particulars of the candidate in the prescribed form and if such form submitted is defective that would amount to a breach of Section 32 (1) and (2) of the said Act. .He further submitted that the provisions of Section 32 (4) of the Act requiring person having reasonable grounds to believe Information given by the candidate in all affidavit is false to file suit in the High Court is inapplicable in the instant case, since both the political party and the candidate have breached the mandatory provisions of the section by failing to file any affidavit since the purported affidavit was not sworn at the High Court and therefore it is not an affidavit per se in the real sense He argued that Section 32(4) of the Act simply applies to a situation where false information was given which is not the position in this instant case.
It is also the submission of the learned appellant’s counsel that where the sponsorship or a candidate by a political party is defective by reason of non-compliance with the provision of the Act, such a political party and the candidate will not be qualified to contest the election under the Electoral Act 2006
With reference to the submissions of the 1st respondent’s counsel on Section 145 (a) of the Act, the learned appellant’s counsel rightly highlighted the grounds upon which an election can be challenged in a petition and further argued that since the 1st respondent is in breach of  Section 32 of the same Act then he can not claim to be qualified to contest the election per se. He went further to say that the case of Alliance for Democracy v. Fayose & ors cited and relied on by the 1st respondent’s counsel on the one issue of disqualification and the unqualification is distinguishable from the instant case as this case relates to supply of inadequate materials while Fayose’s case dealt with non possession of requisite academic qualification to contest election. He further countenanced that his client did really hinged, found or based his petition on violation/non compliance with Section 32 of the Election Act 2006.
Again, while respondent to the submissions of the learned counsel for 3rd to 6th Respondents, the learned appellant’s senior counsel argued that the provision of Section 32 of Electoral Act which prescribed the steps to be taken towards contesting for an election cannot be said to be contrary to Section 65 and 66 of the Constitution.
It is instructive to note that by Paragraph 8 of the petition, the petitioner now appellant herein, based the petition he filed at the tribunal on the following ground, that is to say-
that the first respondent was at the time of the election not qualified and hence this purported return was invalid as per the provisions of (i) The Electoral Act Section 32 (1) and (2), and (ii) The Constitution Federal Republic of Nigeria 1999, Section 65(2)(b) interpreted in the context of Section 68(1)(g).
The particulars given in by the petitioner/appellant in support of the ground of the petition as contended by him are that the sponsorship of the 1st respondent by the 2nd respondent was invalid because the affidavit that accompanied the nomination form of the 1st respondent was invalid as it was not sworn to in the High Court as required by Section 32 (1) and (2) of the Electoral Act. Another contention by the petitioner is that at the time material to the election the 1st respondent belonged to two political parties namely the PDP and Labour Party because as at 28-11-2006 when the 1st Respondent contested the PDP primaries with the appellant/petitioner he was a member of Labour Party.
Section 145 (1) of the Electoral Act 2006 provides grounds on which election may be questioned which are as follows-
(a) that a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of the Act.
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
I think a clear reference to the ground of the petitioner’s grounds of the petition vis-a-vis the provision of Section 145(1) of the Electoral Act 2006 one can say that petitioner’s complaint comes under Ground (A) of the provisions of Section 145(1) (a) which relates to disqualification. This could so because in the petition it is being suggested that the sponsorship of 1st respondent by his party (the 2nd respondent) was invalid by reason of the submission of an affidavit accompanying his nomination form (CF001) to 4th respondent which was not sworn to in High Court of FCT. Also because by 28/11/2006 the date of PDP primaries, the 1st respondent was a member of both PDP and Labour Party at the same time. Despite the petitioner/appellants complaint on sponsorship it is noted by me from the pleadings especially petitioner’s averments in paragraph 3 and 6, that the petitioner even admitted or conceded:
(1) that the 3rd respondent is the political party that presented and sponsored the 1st respondent till the said election and the
(2) that the 1st respondent of Labour Party was returned as the winner of the election by the 5th respondent and upheld by the 3rd respondent.
It is clear from these averments that the petitioner himself conceded to these facts. The appellant cannot therefore approbate and reprobate at the same time. It is trite law that what is admitted needs no further proof. A close look at the complaints of the petitioner as per the grounds of his petition in my view borders basically on Section 145(1)(a) which simply relates to non-qualification even though the gravamen of the complaint was that insufficient or inadequate materials were supplied on the nomination papers or to put it in another way, for non compliance with Section 145(1) of the Electoral Act.
This brings me to the provisions of Section 32 (1) and (2) of the Electoral Act 2006 which provides that party sponsoring a candidate for an election must comply with the requirements such as submission of list of candidates the party intended to sponsor at election and that the list had to be accompanied by an affidavit sworn to in the High Court of a state or FCT registry. The learned appellant’s counsel insists that the provisions of Section 32 (1) and (2) are of mandatory effect and must be complied with or must not be jettisoned. The learned Senior counsel for the appellant also submitted that the provisions of the said section were not complied with. It is pertinent to note however that the 1st respondent while testifying as DW1 at the tribunal tendered the following documents which were admitted in evidence by the tribunal. These documents include:
a)Letter of resignation from the PDP ” Exh RR1″
b) Acknowledgment letter of acceptance of his designation issued by state secretary of  PDP – RR2
c) Affidavit of Personal particulars i.e Form CF001 Exhibit RR3 and
d) Labour Party Card ” Exh RR4″
Perhaps the only grudge of the appellant is that the affidavit accompanying the documents mentioned supra was not sworn to in the High Court of FCT as required by sub section (2) of Section 32 of the Electoral Act 2006. The appellant is not saying that the vital document which were supposed to be sent to INEC were totally not sent or submitted by the 1st respondent. He is also not insinuating that no affidavit at all was sent to INEC to accompany those documents. That would have been very fatal to his candidature. The appellant is hinging his complaint merely on the alleged want of swearing in of the affidavit at the High Court. It is however worthy of note that the respondent tendered a receipt evidencing payment of oaths administered on the said affidavit. Under Section 150 of Evidence Act, where an act is shown to have been done in a manner substantially Act. Where an act is shown to have been done in a manner substantially regular, a court of law can presume that formal requisites for its validity were complied with. See Ondo State University v. Faloyan (1994) 7 NWLR (pt.146) 551 at 559/560. Also Mr. Jibrin Maidawa testified as to the administration of oath when he testified in court and he confirmed that he was a staff of the judiciary of FCT High Court and all these particulars of his were not challenged controverted at the trial as such the tribunal therefore can act on his evidence and believe same as it did.
When considering the purport or effect of Section 32 of the Electoral Act 2006. I think it will always be worthwhile or apposite to consider it along side with the provisions of Sections 65 and 66 of the 1999 Constitution which also deal with qualification of candidates. For ease of reference, I shall reproduce below the said Constitutional provision.
Section 65 of the 1999 Constitution provides thus:-
65(1) – Subject to the provisions or Section 66 or the Constitution, a person shall be qualified for election as a member of the House of Representative, if he is a citizen of Nigeria and has attained the age of thirty years
(2) A person shall be qualified for election under subsection (1) or this Section if:
(a) he has been educated up to at least School Certificate level or its equivalent and
(b) he is a member of a political party and is sponsored by that party.
Section 66 of the Constitution 1999 reads thus:
66 (1) – No person shall be qualified for election to the Senate the House of Representatives if:-
(a) subject to the provisions of Section 28 of this Constitution, he voluntarily acquired the citizenship or a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country.
(b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind.
(c) he is under sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence or offence imposed on him by a competent authority for any other sentence imposed on him by such a court;
(d) within a period less than ten years before the date of the election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code or Conduct.
(e) he is an undercharged bankrupt, having, been adjudged or otherwise declared bankrupt by any law in force or any part of Nigeria
(f) he is a person employed vice of the Federation or of any state and has resigned, withdrawn or retired from such employment thirty days before the date of the election.
(g) he is a member of a secret society
(h) he has been indicted for embezzlement or fraud by a judicial commission of Inquiry or an Administrative panel of Inquiry of Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal of State Government, respectively; or (i) he has presented a forged certificate to the Independent National Electoral Commission’.
Closely perusing the provisions of both the Electoral Act, 2006 and those of the 1999 Constitution set out hereinbefore, one can say that Section 32(1) and (2) of the Act is subject to the constitutional provisions set out above. The latter provisions are however more elaborate but also more expanding than the provisions of Section 32(1) and (2) of the Act. See Saidu v. Abubakar (2008) 12 NWLR (pt.1100) 201 at 265/266. There is no gainsaying that the Constitutional provisions are superior to the provisions of the Electoral Act which to my mind are even subject to the Constitutional, provisions. See also Obasanjo v. Yusuf (supra). This penultimate court in fact stated at page 53 in the case of ANPP v. Usman (2008) 12 NWLR (pt.1100) that Section 32 of the Electoral Act) 2006 supports the view that the Electoral Act 2006 does not lay down any criteria for qualification to contest any election outside those provided for under the Constitution of the Federal appellant by his averments in the petition and the evidence he led had filed to establish that the 1st respondent breached the provisions of Section 65 and 66 of the 1999 Constitution. See also Kolawole v. Folusho (2009) N NWLR (pt. 1143) 338 at 386/387.
Then coming to the 2nd leg of the appellant’s complaint that the 1st respondent belonged to the PDP and Labour Party, there is documentary evidence i.e Labour Party Card Exh RR4 tendered by the 1st respondent to justify that he belonged to that party, there are also exhibits RR1 and RR2 showing that he resigned from the PDP and that his resignation was acknowledged or accepted by the State Secretary of PDP. Although, it was being insinuated by the appellant that he did not resign at his ward level the appellant did not tendered the PDP Constitution to explain the way or manner of resignation by a member of the party could be done or yet still he did not tender the ward register to show that he remained a member at the time material to the election, In absence of such evidence led to prove such vital facts by the petitioner. I think the acknowledgement of the resignation from the PDP its the State Secretary will suffice. To my mind, the combined effect of Exhibits RR1, RR2 and RR4 amount to clear and unshaken proof that as at the time of the election, 1st Respondent was a member of the Labour Party only and that he duly resigned from the PDP which said resignation was duly acknowledged or accepted by the PDP, Similarly, Exhibit RR.3 clearly established that Form CF001 was duly sworn to at the FCT High Court and it was duly evidence payment of oath administration also abound vide Exh RR5 which was duly informed by DW2 and DW1. Again, there is reliable evidence that the 1st respondent was paying monthly subscription all geared towards establishing that he was not having dual membership of the two parties as alleged by the Appellant.
Thus, the resultant effect of my discourse above is that the tribunal is correct when it held that the petitioner/appellant failed to prove that the 1st respondent was unqualified or not qualified to contest the election, this finding of the tribunal is in my view unassailable, as no credible evidence was led by the petitioner to establish his claims. The two issues formulated by the 1st respondent are therefore resolved in his (the 1st respondent’s) favour. On the whole, it is my judgment that the appeal is devoid of any merit.
It fails and is hereby accordingly dismissed by me. The judgment of the National Assembly Governorship and Legislative Houses Election Tribunal sitting in Awka. Anambra State, delivered on 16th of May, 2008 in petition No. EPT AN/NAE/HR/21/2007 is hereby affirmed. Costs follow events.
N30.000 costs is awarded to the 1st Respondent only and to be paid by the appellant herein.
MOHAMMED L. TSAMIYA, J.C.A.: I had the privilege of reading the draft or the lead judgment prepared by my learned brother AMIRU SANUSI, JCA. The facts or the case and all the issue raised in this appeal are fully set out and painstakingly discussed therein. The crucial point, in this appeal is whether the 1st respondent was qualified to contest the election as a candidate of labour Party in the dispute election held on 21/4/2007. The appellant was in other words, challenging the qualification of the 1st Respondent to contest the said election, and the tribunal rightly, in my view, found that the 1st respondent is qualified as the appellant failed to proof otherwise. And no reasons brought by the appellant, before this court to warrant its interference in the tribunals judgment. I therefore agree with the conclusion reached in the lead judgment that the appeal lacks merit. I too dismiss the appeal and abide by the order on costs made in the lead judgment.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
P.I.N Ikwueto SAN with IVE Okwulechi and Mrs E.N Anyeonu For Appellant
AND
Dr O. Ikpeazu SAN with Ben Osakwe, E. Nzegwu and P. Ojo 1st Respondent.
O. Anumonye for the 2nd Respondent
3rd to 7th Respondent absent and not represented though their counsel was duly served with hearing notices. For Respondent
