EGWUOYIBO OKOYE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & Ors
(2010)LCN/3986(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of July, 2010
CA/E/EPT/61/2008
RATIO
PRELIMINARY OBJECTION: WHETHER WHERE A PRELIMINARY OBJECTION IS RAISED IN RESPECT OF AN APPEAL , IT MUST BE CONSIDERED BEFORE THE SUBSTANTIVE APPEAL
Before I consider the appeal on the merit (if need be) I will first deal with the preliminary objections argued by the 1st – 3rd and 4th Respondents respectively in their Briefs of Argument. This is in accordance with the settled position of the law that when a preliminary objection is raised in respect of an appeal, the same should be considered first. This is because if the said preliminary objection attacks the competence of the appeal and it is upheld there will be no need to consider the appeal on the merit. This is particularly so when the appeal in question is before the final Court seised of the same. It is clear from Section 246(3) of the 1999 Constitution that this Court is the final Court in respect of appeals in election matters. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
NOTICE OF APPEAL: WHETHER A PARTY CAN FILE TWO OR MORE NOTICES OF APPEAL
The filing of more than one Notice of Appeal by a party aggrieved with the judgment of a court within the period provided for the lodging of an appeal is not prohibited by law. This is because an aggrieved party can file two or more Notices of Appeal ex abundantia cautela. It is however also clear that when an aggrieved party files more than one notice of appeal, the party definitely cannot prosecute the appeal in question upon all the notices of appeal so filed. The party is expected to withdraw the superfluous one or ones and prosecute the appeal on the one he finds most appropriate. See in this regard the decision of this Court in HON. ABRAHAM ADEOLU ADELEKE V. OYO STATE HOUSE OF ASSEMBLY & ORS [2006] All FWLR (Pt.319)862 in which some of the decisions of the Supreme Court on the issue were applied. See also TAHIR V. BANK OF THE NORTH LIMITED [2007] All FWLR (Pt. 388) 1072 and INTEGRATED DATA SERVICES V. ADEWUMI [2006] All FWLR (Pt. 292) 145. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
ELECTION TRIBUNAL: WHO CAN PRESENT AN ELECTION PETITION BEFORE AN ELECTION TRIBUNAL
Election Petition is basically presented before an Election Tribunal complaining of an undue election or undue return in respect of an election or return at an election; and therein the person elected or returned is joined as a party. See Section 140 of the Electoral Act, 2006. Election Petition Tribunals are established pursuant to the provisions of Section 285(1) and (2) of the 1999 Constitution. Those who can present a Petition before an Election Petition Tribunal established pursuant to the provisions of the said Section 285(1) and (2) are not provided for in the Constitution. Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election. Section 144(2) of the Act in question further provides for those who are to be Respondents in a Petition if more than the person returned, and the circumstances which would warrant this. Section 145(1)(a) – (d) of the Electoral Act, 2006 equally sets out the grounds of an election petition. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
CANDIDACY IN AN ELECTION: WHAT A PETITIONER MUST PROVE TO ESTABLISH THAT HE WAS A CANDIDATE AT AN ELECTION
To establish that he was a candidate at the election the petitioner must prove the following: -1. Valid nomination by a political party. 2. Submission of his name and affidavit to INEC pursuant to Section 32 of the Electoral Act, 2006. 3. Publication by INEC pursuant to Section 35 of the Electoral Act 2006. 4. Contested the election pursuant to section 40 of the electoral (sic) Act 2006. In order to establish (1) and (2) above, the petitioner must tender the nomination papers and relevant INEC forms duly completed. See unreported judgment of election petition tribunal Bauchi state (sic) in Mahmood & 1 OR v. Nazif NAGLH/EPT/BA/25/07 delivered on 24th September, 2007 at page 43. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
EGWUOYIBO OKOYE Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER FOR ANAMBRA STATE (NASIRU AYILARA)
3. RETURNING OFFICER, NNEWI SOUTH CONSTITUENCY II/ELECTORAL OFFICER
4. IKENNA AMAECHI ESQ. Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment) This appeal is against the judgment delivered on delivered on 3rd June, 2008 by the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Awka, Anambra State in PETITION NO. EPT/AN/SAE/85/07 – EGWUOYIBO OKOYE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 3 ORS. The Petition was instituted by the Petitioner therein against the Respondents challenging the return of the 4th Respondent therein – Ikenna Amaechi. The National Assembly/Governorship and Legislative Houses Tribunal Awka, Anambra State (hereinafter to be simply referred to as “the Tribunal”) in its judgment dismissed the Petition of the Petitioner.
The facts of this matter put briefly are that the Petitioner (who will hereinafter be referred to as “the Appellant”) claimed to be the nominated candidate of the Peoples Democratic Party (i.e. PDP) for the Anambra State House of Assembly, Nnewi South Local Government Area Constituency II, election held on 14/4/2007 and which was rescheduled for 28/4/2007. The Appellant claimed that his name along with those of other PDP candidates was forwarded to INEC i.e. the 1st Respondent as the candidate for the election. He not only claimed that he was thereafter invited for verification and screening exercise held in January, 2007 but also that he was cleared and issued with INEC Form 4 B(iii) and equally listed as number 23 in the list of duly nominated candidates of PDP for the said election. The Appellant disclosed that Suit No: FHC/EN/CS/80/07 in which he was the 2nd Plaintiff was instituted to challenge the decision of the PDP and INEC to effect his proposed substitution following attempt by some group of people to jettison the duly constituted list of candidates of PDP for the election. The Appellant claimed that in the judgment of the Court delivered on 27/4/2007 it was directed that he should contest the election being questioned in the instant appeal. The judgment was tendered and marked as Exhibit P7 at the trial before the Tribunal. The Appellant claimed that he therefore contested the election by virtue of the judgment but that rather than declare him the winner of the votes cast for the PDP, the 1st Respondent – INEC returned the 4th
Respondent who was not the legitimate candidate of the PDP as his purported substitution had been declared null and void by the Federal High Court Enugu in Suit No: FHC/EN/CS/80/07.
The grounds of the Petition as set out therein are: –
“(i) The 4th Respondent at the time of the questioned election was not qualified to contest the election.
The Petitioner also brings this petition on the ground that the purported return of the 4th Respondent as the winner of the repeat election for Nnewi South 2 State Constituency, Nnewi South LGA Anambra State held on 28/4/2007 was invalid and unlawful by reason of non-compliance with and violation of the provisions of Section 34(1) & (2) of the Electoral Act, 2006 and Sections 36 & 287(3) of the 1999 Constitution”.
As earlier stated the Tribunal dismissed the Appellant’s Petition in its judgment. The judgment of the Tribunal is at pages 1252 – 1284 of the Records of Appeal. In dismissing the Petition, the Tribunal held at page 1283 of the Records of Appeal thus: –
” that 4th Respondent was the candidate that contested the election and that he was rightly returned or declared the winner of the election.”
The Appellant being dissatisfied with the judgment of the Tribunal lodged an appeal against the same by a Notice of Appeal dated 12/6/2008 and filed on the same date. The Notice of Appeal contains six grounds of appeal. The said grounds shorn of their respective particulars read thus: –
Grounds of Appeal
(1) The tribunal erred in law in contradicting itself in its judgment by holding to the contrary of its earlier interlocutory decision that the appellant was the only valid candidate of the Peoples Democratic Party, that the 4th respondent was the person who contested the election on the platform of PDP and basing its judgment on that contradiction.
(2) The decision of the tribunal that the appellant was not the candidate of the PDP at the said election is null and void for purporting to overrule an existing judgment of this court on the same subject matter which confirmed the decision of the Federal High Court in suit (sic) No. FHC/EN/CS/80/2007 that the appellant was the candidate of PDP and not the 4th respondent whom the tribunal held was the PDP candidate.
(3) The tribunal erred in law in aiding a contemnor of the order of a court of competent jurisdiction to reap the benefit of his contempt by its judgment.
(4) The tribunal erred in law in dismissing the appellant’s petition on the ground that he did not prove that votes cast for him as the PDP candidate were unlawfully credited to the 4th respondent instead of to (sic) the appellant as PDP candidate.
(5) The tribunal misdirected itself on the facts when it held it against the appellant that he did not depose to the affidavit prescribed in Section 32(2) of the Electoral Act when in fact he did.
(6) The decision is against the weight of evidence.”
The relief which the Appellant seeks from this Court is “to set aside the decision of the court below and substitute therefor a judgment declaring the appellant the winner of the election of 28th April, 2007, in Nnewi South constituency II following the Supreme Court decision in Rotimi Amechi v. INEC & ors”.
The Appellant later lodged another Notice of Appeal against the judgment of the Tribunal vide a Notice of Appeal dated 23/6/2008 and filed on 24/6/2008.
Unlike the Notice of Appeal dated 12/6/2008 and filed on the same date which contained six grounds of appeal, this Notice of Appeal contains 7 grounds of appeal. It is however to be noted that grounds 1 – 5 of the Notice of Appeal dated 12/6/2008 and filed on the same date are ipsissima verba with those of grounds 1 – 5 of the Notice of Appeal dated 23/6/2008 and filed on 24/6/2008, while ground 6 of the Notice of Appeal dated 12/6/2008 and ground 7 of the Notice of Appeal dated 23/6/2008 are also ipsissima verba.
The relief sought in the two Notices of Appeal is also the same. The only new ground of appeal contained in the Notice of Appeal dated 23/6/2008 is ground six thereof. The ground shorn of its particulars reads thus: –
Ground (6)
“The tribunal below erred in law by descending into the arena and scouting for reasons to dismiss the petition.”
In compliance with the practice and Rules of this Court, parties to the appeal filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 15/8/2008 and filed on the same date was settled by A.N. Anyamene, SAN; 1st – 3rd Respondents’ Brief of Argument dated 22/8/2008 and filed on 25/8/2008 was settled by S.O. Ibrahim (Asst. CLO, INEC) while the 4th Respondent’s Brief of Argument dated 25/8/2008 and filed on the same date was settled by Mike Okoye.
The appeal was entertained on 7/6/2010. At the hearing of the appeal a Reply Brief of Argument dated 27/8/2008 filed by the Appellant was struck out by the Court, upon the application of Dr. J.O. Ibik SAN, learned senior counsel for the Appellant in that regard and the same having not been opposed by both S.O Ibrahim of counsel for the 1st – 3rd Respondents and Chief Mike Okoye learned lead counsel for the 4th Respondent. Also both S.O. Ibrahim of counsel for the 1st – 3rd Respondents and Chief Mike Okoye learned lead counsel for the 4th Respondent having drawn the attention of the Court to the Notice of Preliminary Objection they each filed in the instant appeal, further said that the arguments in respect of the preliminary objections are contained in the Briefs of Argument of their respective clients.
Having first procured the leave of Court, they duly argued the said preliminary objections. In this regard, each of the learned counsel adopted and relied on the arguments contained in the Briefs of Argument of their respective clients in urging the Court to uphold their preliminary objections. S.O. Ibrahim of counsel for the 1st – 3rd Respondents in arguing the preliminary objection set out in the said Respondents’ Notice of Preliminary Objection stated that he was withdrawing reliefs ‘B’ and ‘C therein and also urged the Court to discountenance the arguments proffered in relation to the said reliefs ‘B’ and ‘C’ in the Brief of Argument of the aforementioned Respondents. Thereafter learned senior counsel for the Appellant adopted and relied on the arguments in the Appellant’s Brief of Argument in urging the Court to allow the appeal.
He however made oral submissions in elucidation of the Brief of Argument.
Responding to the appeal proper, learned counsel for the 1st – 3rd Respondents adopted and relied on the said Respondents’ Brief of Argument in urging the Court to dismiss the appeal. Learned lead counsel for the 4th Respondent likewise adopted and relied on the said Respondent’s Brief of Argument in urging the Court to dismiss the appeal.
The Appellant formulated three Issues for the determination of the appeal in his Brief of Argument. The Issues are hereby re-produced: –
“(1) Whether the tribunal was right to dismiss the petition of the petitioner/appellant on the ground that he did not contest the election when his name was the only name on INEC list of Contestants of the PDP in respect of Nnewi South Local government constituency II at the election.
(2) Whether the tribunal was right in declaring the 4th Respondent a winner in an election he did not contest.
(3) Whether the trial tribunal properly evaluated the evidence put before it by the parties in reaching its conclusion.”
The 1st – 3rd Respondents equally formulated three Issues for the determination of the appeal in their Brief of Argument. The three Issues read thus: –
“(1) Whether the Tribunal was right to have dismissed the petition of the petitioner/appellant on the ground that he was not the candidate that contested the 2007 election under the platform of the PDP in respect of Nnewi South Local Government Constituency II.
(2) Whether the Tribunal was right in declaring the 4th Respondent a winner in the election conducted into the Anambra State House of Assembly seat in Nnewi South Constituency II.
(3) Whether the trial Tribunal properly evaluated the evidence adduced by the parties in reaching its conclusion.”
In his Brief of Argument, the 4th Respondent stated that he wholly adopted the 3 Issues for determination of the appeal as formulated by the Appellant in his Appellant’s Brief of Argument with respect of the subsequent Notice of Appeal dated 23rd of July, (sic) 2008.
Before I consider the appeal on the merit (if need be) I will first deal with the preliminary objections argued by the 1st – 3rd and 4th Respondents respectively in their Briefs of Argument. This is in accordance with the settled position of the law that when a preliminary objection is raised in respect of an appeal, the same should be considered first. This is because if the said preliminary objection attacks the competence of the appeal and it is upheld there will be no need to consider the appeal on the merit. This is particularly so when the appeal in question is before the final Court seised of the same. It is clear from Section 246(3) of the 1999 Constitution that this Court is the final Court in respect of appeals in election matters.
The 1st – 3rd Respondents (hereinafter simply referred to as “the Respondents”) filed a separate Notice of Preliminary Objection in respect of the objections argued in their Brief of Argument. The Notice of Preliminary Objection brought pursuant to Order 10 Rule 1 and Order 6 Rule 6 of the Court of Appeal Rules, 2007 is dated 22/8/2008 and filed on 25/8/2008.
Therein the Respondents gave the Appellant notice that they shall ask to be permitted to raise at the hearing of the appeal “by way of preliminary objection and seeking the following prayers:”
“B. Withdrawn
C. Withdrawn
D. An order striking out Grounds 1 and 3 of both Notices of Appeal dated 12th June, 2008 and 23rd June, 2008 respectively appearing on pages 1286 – 1287 and pages 1290 – 1291 of the records.
E. An order striking out Ground 6 of the Notice of Appeal dated 23rd June, 2008.
F. And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.”
The Respondents argued the objections they have in respect of the instant appeal at paragraphs 3.3 – 3.80 of their Brief of Argument. However having abandoned ‘B’ and ‘C of the preliminary objections, learned counsel for the Respondents equally urged the Court to discountenance the arguments in relation to the same at paragraph 3.3 – 3.7 of the said Brief. The arguments in respect of the two objections now to be considered are therefore in paragraph 3.8 at pages 14 -16 of the Respondents’ Brief of Argument.
I must observe that the Appellant has expressly stated in his Brief of Argument at paragraph 2.06 on page 3 that he abandons the Notice of Appeal dated 12/6/2008 and filed on the same date. That he is relying on the Notice of Appeal dated 23/6/2008 and filed on 24/6/2008 in this appeal. If the Respondents are still asking for the striking out of any of the grounds of appeal in a Notice of Appeal which an appellant has expressly stated that he has abandoned, then all would appear not to be well. Whatever the case is, this Court would however not look into an abandoned process.
Dwelling on the two objections, the Respondents said to the effect that grounds 1 in the Notice of Appeal dated 23/6/2008 is incompetent as it does not arise from the judgment of the Tribunal but is premised on an interlocutory decision of the said Tribunal. In the same vein, ground 3 was said not to be competent as it is hinged on an allegation of contempt against the Respondents which was never part of the judgment appealed against. It is the submission of the Respondents that the issues are fresh issues which the Appellant ought to have sought the leave of court to raise.
Learned senior counsel for the Appellant as earlier stated in this judgment withdrew the Appellant’s Reply Brief of Argument. Accordingly, the Appellant clearly did not respond to the preliminary objection under consideration. This would however appear to be of no moment. This is because the law would appear to be that the failure to file any response to a preliminary objection does not mean that the preliminary objection must succeed automatically. In other words the default of a party to react to a preliminary objection does not preclude the court from considering the merit and demerit of the same for the purpose of either overruling the objection or sustaining it. See BOB V. AKPAN 20101 All FWLR (Pt. 501) 896 at 941 and in which I applied the ratio in the case of Odunze v. Nwosu (2007) All FWLR (Pt. 379) 1295 at 1314.
The Appellant in filing a ground of appeal generally is giving notice to the other parties in the appeal of the part of the decision he is complaining against and in doing so he must give sufficient information about the complaint and the issue that will arise before the appellate court hence the grounds of appeal and their particulars. See EMSIL V V. EMUNEMU [2007] All FWLR (Pt. 374) 354 at 362. In other words, in order to appreciate the complaint in a ground of appeal there is need to consider both the ground and particulars furnished in relation to the ground. When the propriety of a ground of appeal is under attack, it is also the duty of an appellate court to see whether the ground of appeal reveals a misunderstanding by the lower court or tribunal, of the law or a misapplication by it of the law to the facts already proved or admitted. The complaint in ground 1 of the grounds of appeal in the Notice of Appeal dated 23/6/2008 to the extent that it indicts the conclusion of the Tribunal vis-a-vis its earlier conclusion in respect of the Appellant in the same proceeding albeit in an interlocutory decision is only to actuate with precision the contradiction in the conclusion reached by the Tribunal as to who is the candidate of the PDP. The complaint is not against the conclusion of the Tribunal in its interlocutory decision. The complaint in ground 1 of the grounds of appeal in my considered view is sufficiently related to the judgment of the Tribunal as it relates to the conclusion it reached in respect of the 4th Respondent. The argument that the ground raises fresh issue is clearly tenuous in as much as the complaint therein is clearly related to the conclusion of the Tribunal in relation to the 4th Respondent.
The issue of a contemnor benefiting from his act of contempt clearly arises from the judgment of the Tribunal from a consideration of the said ground and its particulars. The Tribunal itself raised the issue when it stated in its judgment at page 1282 of the Record of Appeal thus: –
But he has tendered exhibit P7 which is an order of the Federal High Court declaring that the substitution of the petitioner by INEC and the PDP in the manner it was done is null and void. He was ordered to be restored by INEC and PDP as the duly nominated candidate.
Had the petitioner been restored as learned counsel for the respondents pointed out, the petitioner would have been a candidate at the election. But there is no evidence that he was restored. That is why he has not tendered any relevant INEC document showing compliance with sections 32, 35 and 40 of the electoral (sic) Act, 2006.”
It is clear from a further reading of the judgment that what the Tribunal stated as quoted above, weighed on the mind of the Tribunal in coming to the decision it reached at the end of the judgment. I therefore see no basis for arguing that ground 3 does not arise from the judgment of the Tribunal or that it is an issue in respect of which the Appellant must first seek leave before he can raise it.
The complaint in ground 6 of the grounds of appeal in the light of its particulars is no more than that the conclusion of the Tribunal upholding the declaration of the 4th Respondent as the winner of the election being questioned is without factual basis. This is a direct attack on the conclusion of the Tribunal and its reasons in reaching the same. Ground 6 in question, in my considered view, eloquently arises from the judgment of the Tribunal.
Given the conclusions I have hereinbefore reached in respect of grounds 1, 3 and 6 of the grounds of appeal in the Notice of Appeal dated 23/6/2008 and which is that they all arise from the judgment of the Tribunal, the question of the Appellant seeking the leave of Court before raising the same does not arise. Similarly, the question of the Appellant having argued issues arising from competence and incompetent grounds of appeal does not arise.
In conclusion, the preliminary objections of the Respondents in respect of grounds 1, 3 and 6 of the aforementioned Notice of Appeal are overruled and hereby dismissed.
The 4th Respondent’s Notice of Preliminary Objection brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007 is dated 25/8/2008 and was filed on the same date. Therein the 4th Respondent gave Notice to the Appellant that he shall at the hearing of the instant appeal raise preliminary objection that grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice and Grounds of Appeal dated 23rd June, 2008 copied at pages 1290 to 1293 of the Record of Appeal be struck out for being incompetent. The grounds of objection as set out in the Notice of Preliminary Objection read thus: –
“(1) The appellant filed a Notice and Grounds of Appeal dated 12th June, 2008 copied at pages 1286 – 1289 of the Record and a subsequent Notice and Grounds of Appeal dated 23rd of June, 2008 copied at pages 1290 – 1293 of the Record of Appeal on the same subject matter and same parties.
(2) The Notice and Grounds of Appeal dated 23rd of June, 2008 and copied at pages 1290 to 1293 constitute an abuse of court process.”
Dwelling on the objection in his Brief of Argument, the 4th Respondent submitted to the effect that the Appellant cannot file two Notices of Appeal in respect of the same parties, in the same matter and on the same subject matter as a notice of appeal is the originating process which confers jurisdiction on this Court to entertain an appeal. It is the submission of the 4th Respondent that the filing of the Notice of Appeal dated 23/6/2008 while the Notice of Appeal dated 12/6/2008 was still pending amounts to an abuse of process and the appeal liable to be dismissed in the circumstance. The 4th Respondent submitted to the effect that what the Appellant ought to have done in order to avoid abusing the process of court, having first filed the Notice of Appeal dated 12/6/2008, was to have sought for the leave of court to file an amended notice of appeal incorporating therein additional grounds of appeal since he was within time to have filed additional grounds of appeal without seeking for the leave of court. That such an amended notice of appeal would have related back to the initial date of the filing of the original Notice. It is the submission of the 4th Respondent that the filing of a new Notice of Appeal such as the one dated 23/6/2008 and filed on 24/6/2008 presupposes a second originating process after the first originating process had been filed. This, the 4th Respondent said definitely amounts to abuse of court process and the case of FRN v. Abiola (1997) 2 NWLR (Pt. 488) 444 at 468 was cited in aid.
Learned senior counsel for the Appellant as already stated in this judgment withdrew the Appellant’s Reply Brief of Argument. Accordingly, the Appellant clearly did not respond to the preliminary objection under consideration. I have also earlier stated that default in this regard does not mean that the preliminary objection must succeed automatically.
The filing of more than one Notice of Appeal by a party aggrieved with the judgment of a court within the period provided for the lodging of an appeal is not prohibited by law. This is because an aggrieved party can file two or more Notices of Appeal ex abundantia cautela. It is however also clear that when an aggrieved party files more than one notice of appeal, the party definitely cannot prosecute the appeal in question upon all the notices of appeal so filed. The party is expected to withdraw the superfluous one or ones and prosecute the appeal on the one he finds most appropriate. See in this regard the decision of this Court in HON. ABRAHAM ADEOLU ADELEKE V. OYO STATE HOUSE OF ASSEMBLY & ORS [2006] All FWLR (Pt.319)862 in which some of the decisions of the Supreme Court on the issue were applied. See also TAHIR V. BANK OF THE NORTH LIMITED [2007] All FWLR (Pt. 388) 1072 and INTEGRATED DATA SERVICES V. ADEWUMI [2006] All FWLR (Pt. 292) 145.
In his Brief of Argument the Appellant expressly stated at paragraph 2.06 on page 3 thus: –
“The appellant being dissatisfied with the judgment appealed to this court by virtue of a notice and grounds of appeal dated 12th day of June, 2008 and filed on the same day. Still within time the appellant filed another notice and grounds of appeal dated 23rd day of June, 2008 and filed on the 24th day of June, 2008. The appellant abandons the notice and grounds of appeal filed on the 12th day of June, 2008, and shall rely on the notice and grounds of appeal dated 23rd June, 2008.”
It is my considered view that the Appellant being aware of the settled position of the law relating to the filing of more than one notice of appeal in respect of the same appeal, has done all that is required of him in law. In the circumstances the filing on 24/6/2008 of the Notice of Appeal dated
23/6/2008 by the Appellant cannot qualify as an abuse of court process as argued by the 4th Respondent.
The preliminary objection of the 4th Respondent in this regard is simply cosmetic to say the least. It is totally lacking in merit and is hereby overruled.
The preliminary objections of the 1st – 3rd and 4th Respondents respectively having been overruled, I will now proceed to consider the appeal on the merits. The appeal will be resolved upon the Issues for its determination as formulated by the Appellant. This is in the light of the fact that the Issues formulated by the Respondents are the same in purport with those formulated by the Appellant although differently couched; while the 4th Respondent (who will hereinafter be simply referred to as “the Respondent”) adopted the Issues formulated by the Appellant in his Brief of Argument.
ISSUES 1 AND 2
The Appellant argued these two Issues together in his Brief of Argument. The Appellant said that the purported substitution of his nomination as the candidate of the PDP with the Respondent for the election in question was declared unconstitutional null and void by the Federal High Court, Enugu in Suit No. FHC/EN/CS/80/2007, in which himself and the Respondents were parties. The Appellant also said that the court ordered INEC to ensure that he was the PDP candidate in the repeat election held on 28/4/2007. According to the Appellant both INEC and the Respondent were in court with their respective counsel when the order was made and that INEC did not appeal against the said judgment. The Respondent appealed against the judgment to this Court in Appeal No. CA/E/155/2007 vide Exhibits P6 and P8 but the appeal was dismissed. This, the Respondent admitted at page 1107 of the Records of Appeal. The Appellant said that on 23/8/2007 the Tribunal made orders in his favour in the application brought by the Respondent to strike out the petition. The orders are (i) that he (i.e. Appellant) was a candidate at the election and so can present an election petition under section 144(1) of the Electoral Act, 2006; and (ii) that as a candidate at the election, PDP needed not be joined as a necessary party particularly as the judgment of the Federal High Court in Suit No. FHC/EN/CS/80/2007 delivered on 27/4/2007 subsisted in his (Appellant’s) favour and against the PDP. The Appellant again referred to pages 1279 – 1280 of the Records of Appeal wherein the Tribunal stated thus: –
“Learned counsel for the 1st – 3rd respondents raised a preliminary objection on the competence of the petition. With respect to learned counsel the issue was vigorously contested at pre-trial and the tribunal in its ruling dismissed the preliminary objection”
It is the submission of the Appellant that the Tribunal, having confirmed that he was a candidate in line with its earlier ruling, could not have properly dismissed the petition on the ground that he was not the candidate that contested the same election. The Appellant further submitted that the Tribunal cannot approbate and reprobate and that it was absurd for the Tribunal to somersault in its judgment that the Respondent and not him (Appellant) was the PDP candidate that contested the election; the same Tribunal having ruled on the 23/8/2007 that he (Appellant) was the PDP candidate. The Appellant contended that if his petition was competent, and he was the candidate of the PDP for the election as per the order of the Federal High Court which order was confirmed by this Court, and which position was accepted by the Tribunal in its ruling of 23/8/2007, then the decision of the Tribunal dismissing his petition is clearly perverse and should not be allowed to stand. The Appellant said that the situation in the instant case was worsened by the fact that the position of the Tribunal aided the Respondent who is a contemnor to defy with impunity the order made by a superior court. The case of Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560 at 561 was cited in relation of the attitude of the courts to the treatment of their processes. The Appellant said that for the Tribunal to have dismissed his petition on the ground that he did not prove that he contested the election because INEC did not carry out the order of the Federal High Court before the election showed a misapprehension by the Tribunal of the legal position arising from the evidence at the trial. The Appellant said that there was unrebutted evidence before the Tribunal that the Respondent be restrained from being put forward as a contestant and that INEC admitted this much in paragraphs 8, 21 and 22 of its Reply to the petition. The Respondent according to the Appellant also impliedly admitted that he was restrained from being put forward as a contestant given the averment in paragraph 21 of his Reply to the petition. The Appellant said that what INEC used for the election were the political parties and their respective logos. That neither the photographs of candidates nor their names appeared on ballot papers and that this clearly showed that it was the political parties that contested the election and subsequently gave the certificate of return to the candidates they sponsored. The case of Amaechi v. INEC (2007) 7 – 10 SC 172 at 173 – 174 was cited in aid. The Tribunal was accused of not taking judicial notice of the important pronouncement in the Amaechi case concerning the position that who contested and won an election, is the candidate of the political party that polled the highest votes. It is the submission of the Appellant that the pronouncement of the Supreme Court in question took care of the opinion expressed by the Tribunal that had INEC obeyed the order of the Federal High Court, he (Appellant) would have had a right to contest the election. The Appellant further submitted that the Tribunal was obliged under Section 287(3) of the 1999 Constitution to have ignored the candidacy of the Respondent. The Appellant submitted that since the act of substitution of his nomination was declared unconstitutional null and void, it is as if nothing had happened to his nomination.
Dwelling on the gravamen of Appellant’s Issues 1 and 2, the Respondents submitted to the effect that the onus was on the Appellant to prove that he was a candidate at the election. The cases of Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436 at 467 and Sokwo v. Okpongbo (2008) 7 NWLR (Pt. 1086) 342 at 362 were cited in aid. The Respondents said that the Tribunal identified the basic evidential hurdle the Appellant must satisfy in establishing that he was a candidate at the election and these were itemized
1. Valid nomination by a political party.
2. Submission of his name and affidavit to INEC pursuant to section 32 of the Electoral Act 2006.
3. Publication by INEC pursuant to Section 35 of the Electoral Act 2006.
4. Contested the election pursuant to Section 40 of the Electoral Act 2006.
It is the submission of the Respondents that as the Tribunal found the Appellant not to have tendered any valid list to show that he was a candidate at the election, the Tribunal in the circumstance, properly dismissed the Appellant’s petition. Cases considered relevant were cited in the Brief of Argument of the Respondents in this regard. The Respondents submitted that the case of Amaechi v. INEC cited by the Appellant was not relevant to the instant matter and in this regard referred to what Oguntade, JSC, said in that case. The Respondents urged that Issues 1 and 2 be resolved against the Appellant and in their favour.
Dwelling on Appellant’s Issues 1 and 2, the Respondent submitted to the effect that the arguments of the Appellant on the Issues are misplaced in law for the reason that he failed to appreciate that pre-election matters are limited to the review of primary elections and not general election which relates to the conduct of election amongst different political parties and their candidates. That it is the failure to appreciate the distinction between dispute arising from primary election and disputes arising from general election that has led the Appellant to conclude that the Tribunal was wrong in its decision.
It is the submission of the Respondent that the judgment of the Federal High Court in Suit No. FHC/EN/CS/80/2007 as affirmed by this Court but in which an appeal is presently pending before the Supreme Court, is a legal action which excluded the general election of 28/4/2007 in Nnewi South Local Government Constituency II of Anambra State. Stating that a petitioner who submits a petition before the Tribunal on any of the grounds specified in section 145(1)(a) – (d) of the Electoral Act, 2006 must establish the same in order to be entitled to the limited reliefs as prescribed by Sections 147(1) and
(2) of the same Act, the Respondent submitted that it is not the law for the Appellant to rely solely on the judgment of the Federal High Court. That the issue of whether the Appellant did in fact contest the election and/or won the election or was deprived of the right to contest the election after a court had held that he was the appropriate candidate will depend on the ground upon which his petition is founded, the evidence led by the Appellant and the reliefs which he seeks before the Tribunal.
The Respondent submitted to the effect that a Tribunal is not an all purpose court but created for election matters only, hence it cannot entertain all sorts of claims or reliefs. That an aggrieved person such as the Appellant can only channel his grievances and seek remedy under common law before the ordinary courts. That he cannot substitute same by asking the Tribunal to grant a remedy which it cannot grant or invite this Court sitting as an appellate court over the decision of the Tribunal to grant a remedy which the Tribunal is not entitled to grant. The cases of Obi v. INEC (supra) and Uba v. Etiaba (2008) 6 NWLR (Pt. 1082) 154 at 183 were cited in aid.
It is the submission of the Respondent that the reliance by the Appellant on the decision in the Amaechi case in aid of the submission that in the eyes of the law it is the person properly nominated by the political party that wins an election overlooks the fact that the Appellant is thereby saying that he filed a petition against a non-candidate and against a person who did not win an election. That in that event the Appellant ab initio cannot sustain a petition against him (i.e. 4th Respondent). The decisions of this Court in Appeal No. CA/PH/EPT/8/08 between Awuse v. Omehia delivered on 2/7/2008 and Appeal No. CA/PH/EPT/391/2007 between Soberekon v. Amaechi delivered on 21/4/2010 and in which the judgment in Amaechi case was considered were cited in aid. The Respondent submitted that the claim of the Appellant before the Tribunal was bound to fail since he (Appellant) did not discharge his obligation to prove that INEC complied with the order of the Federal High Court to restore his name and that he contested and won the election. That the Tribunal was therefore right in dismissing the Appellant’s petition.
ISSUE 3
Dwelling on this Issue the Appellant accused the Tribunal of descending into the arena of conflict and scouting therefrom, reasons to support the perverse view it held that the Respondent was the candidate of the PDP for the election being questioned. He said that the judgment of the Federal High Court in Suit No. FHC/EN/CS/80/2007 laid to rest any uncertainty that he (Appellant) was the validly nominated candidate of the PDP for the election as against the Respondent and that the judgment relieved him of any onus of proving that he was a candidate. It is the submission of the Appellant that the Tribunal wrongly embarked on the evaluation of the evidence of the Respondent which was utterly uncalled for and which had been dealt with by the Federal High Court before it handed down its judgment on 27/4/2007.
Dwelling on this Issue the Respondents said that the Appellant failed to prove his case by the required evidential standards and that this resulted in his not satisfying sections 135 and 137 of the Evidence Act. The cases of B. Manfag. (Nig) Ltd v. M/S O.L. Ltd (2007) 14 NWLR (Pt. 1053) 109 at 139 and SPDC v. Okonedo (2008) 9 NWLR (Pt. 1091) 58 at 125 – 126 amongst others were cited on the issue of evaluation of evidence.
Dwelling on the Issue the Respondent adopted his arguments in respect of Issues 1 and 2. He also submitted that since the question of the Appellant’s nomination for the election is pending before the Supreme Court having regard to the records, this Court in compliance with the law will not do anything that would have the effect of pre-empting the decision of the Supreme Court. That the Appellant will surely get his remedy as happened in the Amaechi case in the unlikely event he turns out to be the successful party before that Court.
Election Petition is basically presented before an Election Tribunal complaining of an undue election or undue return in respect of an election or return at an election; and therein the person elected or returned is joined as a party. See Section 140 of the Electoral Act, 2006. Election Petition Tribunals are established pursuant to the provisions of Section 285(1) and (2) of the 1999 Constitution. Those who can present a Petition before an Election Petition Tribunal established pursuant to the provisions of the said Section 285(1) and (2) are not provided for in the Constitution. Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election. Section 144(2) of the Act in question further provides for those who are to be Respondents in a Petition if more than the person returned, and the circumstances which would warrant this. Section 145(1)(a) – (d) of the Electoral Act, 2006 equally sets out the grounds of an election petition.
In Section 145(1)(a) of the Electoral Act, 2006 it is provided that an election petition can be presented on the ground – “that a person whose election is questioned was at the time of the election, not qualified to contest the election”. One of the grounds of the Appellant’s Petition is that – “the 4th Respondent at the time of the questioned election was not qualified to contest the election.” This ground is glaringly in conformity with the ground provided for in Section 145(1)(a) of the Electoral Act. It is also indisputable given the provisions of Sections 140 and 144(2) of the Electoral Act, 2006 that the Appellant must join the Respondent (i.e. 4th Respondent) being the person whose election and/or return is being questioned, as a party in the instant Petition as he (Appellant) has done.
In the case of INEC V. AC decided on 26/2/2008 and reported in [20091 All FWLR (Pt. 480) 732, this Court dwelling on the provisions of Section 144(1) of the Electoral Act, 2006 as they relate to who can present a petition said at pages 765 – 766 per Salami, JCA; (now PCA) who delivered the lead judgment thus: –
It can therefore, be deducted from the three instances set out above that the issue of candidature, transcends contesting an election.
The words used seem designed to cover something wider than contemplated in Okonkwo V. INEC. The issue of election respectfully, goes beyond merely casting votes. It is a process commencing with delimitation of constituency, nomination and accreditation of candidates, voting itself, counting and collation of votes culminating in return or declaration of result.
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Consequently, I agree with the learned counsel for the cross-appellant that a person who was duly nominated by his political party and whose name was submitted to the Independent National Electoral Commission as a candidate and whose name was accordingly published pursuant to section 35 of the Electoral Act, does not cease to be a candidate for the purposes of bringing an election petition simply because he had been disqualified. He is not a busy body or a meddling interloper. His right to contest the election as a candidate had vested and would be entitled to defend that right. A person who secured the nomination of his party and show name was submitted to the body statutorily charged with responsibility for the conduct of the election and accepted as a nominated candidate is entitled to petition under section 144(1)(a) if he is unlawfully excluded”
Also in the case of Sunday v. INEC decided on 15/8/2008 and reported in (2008) All FWLR (Pt.431) 985, this Court in considering the provisions of section 144(1) of the Electoral Act 2006 as they relate to who can present a petition vis-a-vis the provisions of section 145(1) of the same Act relating to grounds of petition said at pages 1002 – 1003 per Mukhtar, JCA; who delivered the lead judgment thus:-
“One is left with no iota of doubt that a person who has a legal ground and therefore a right ex debito justitie to question an election has no other means of exercising such right than by way of a petition before an appropriate Election Tribunal. One can therefore say, with mathematical exactitude that a candidate who was duly nominated to contest an election but, unlawfully excluded from the conduct of the polls is properly within the scope of section 144(1) of the Election Act, 2006. although “a candidate in an election” includes candidates who contested at the polling exercise but, it will tantamount to turning the law head-down to restrict the scope of that phrase to only candidates who participated in the polling process. Such restrictive and narrow scoped interpretation only renders the provision of section 145(1) of the Electoral Act, 2006, a complete nonsense…
The words “at” an election, and “in” an election used in the Electoral Acts, 2002 and 2006, though similar, are different in scope and meaning. The preposition “at” is used to say, “when something happens.” While “in” means “forming the whole or part of something”. Thus, while candidate at an election is a term of considerable elasticity and not quite definite “a candidate in an election” or “a political party which participated in the election” is an encompassing phenomenon with respect to candidates or political parties that partake in the process of election of which the balloting is only one of the components of such process. ……………..”
It my considered view that the fact that the Appellant was the proper candidate of the PDP for the election a at the time it was held (i.e. 28/4/2007 cannot be controverted given the judgment of the Federal High Court delivered on 27/4/2007 and which was tendered and marked as Exhibit P7 before the Tribunal. The said judgment has not been set aside. Rather it has been affirmed by this Court. Even though the case is said to be on appeal to the Supreme Court, the law is settled that the decision of a court remains valid and must be complied with until it is set aside. See Onyekweli v. INEC (2008) 14 NWLR (Pt.1107) 317.
As earlier stated, one of the grounds upon which the Appellant brought the petition before the Tribunal is that the 4th Respondent being the person returned as the winner of the election being questioned at the time of the election was not qualified to contest the said election. The Tribunal in arriving at the conclusion that the 4th Respondent was the candidate that contested the election and rightly returned or declared the winner of the election said at pages 1281 – 1284 of the Record of Appeal thus:-
A candidate in an election has been referred to as no other person other than a person who contested an election. See Okonkwo V. INEC (2004) NWLR (pt 554) 212.
To establish that he was a candidate at the election the petitioner must prove the following: –
1. Valid nomination by a political party.
2. Submission of his name and affidavit to INEC pursuant to Section 32 of the Electoral Act, 2006.
3. Publication by INEC pursuant to Section 35 of the Electoral Act 2006.
4. Contested the election pursuant to section 40 of the electoral (sic) Act 2006.
In order to establish (1) and (2) above, the petitioner must tender the nomination papers and relevant INEC forms duly completed. See unreported judgment of election petition tribunal Bauchi state (sic) in Mahmood & 1 OR v. Nazif NAGLH/EPT/BA/25/07 delivered on 24th September, 2007 at page 43. From exhibits P1 – P9 tendered by the petitioner only exhibit P9 seems relevant INEC document. But this Tribunal cannot place any probative value on it for the following reasons. Firstly no reliable INEC document would be handwritten. But more importantly we have taken judicial notice of the fact that many of the names in the list were not the PDP candidates in the election. For example for (sic) the first name on the list Anayo Enebe present Hon. Speaker was the candidate for Awka South 1 and not Kelue Molokwu. Petitioner admitted this under cross-examination. Also 5th name on the list, the candidate for PDP in the election was Lilian Okosi for Njikoka II and not Anieke Chukwudi. See also numbers 28 and 30 on the list exhibit p9.
The Petitioner has therefore not tendered any valid list to show that he was a candidate at the election.
But he has tendered exhibit P7 which is an order of the Federal High Court declaring that the substitution of the petitioner by INEC and the PDP in the manner it was done is null and void. He was ordered to be restored by INEC and PDP as the duly nominated candidate.
Had the petitioner been restored as learned counsel for the respondents pointed out, the petitioner would have been a candidate at the election. But there is no evidence that he was restored. That is why he has not tendered any relevant INEC document showing compliance with sections 32. 35 and 40 of the electoral (sic) Act, 2006.
On their part the respondents tendered exhibits R1 – R8 among which is Independent National Electoral Commission nominated candidates for governorship election 2007 exhibit R1 which the PW2 said he used to conduct the election. Unlike exhibit P9 we think that it is the authentic list of nominated candidates. Exhibits R5, form EC4B(iii) is the INEC form for nomination of member of House of Assembly for the 4th respondent. Exhibit R6 certificate of return is evidence that the 4th respondents (sic) contested the election.
In his evidence in court as contained in his written statement on oath the PW3 stated that petitioner was present the day he launched his campaign. He petitioner urged those present to support him and work for his victory. The petitioner campaigned and spoke for him in eight (8) out of eleven (11) wards in the constituency. The petitioner publicly campaigned for him in Ukpor during the constituency visit of the Andy Uba campaign director at the time. Petitioner volunteered the use of his premises in Ezinifite for 4th respondents (sic) during his campaign. That the petitioner was not in any official list of INEC at the material time. This witness was never discredited under cross-examination.
We therefore have no reason to disbelieve him.
It is clear from all that we have stated above that 4th respondent was the candidate that contested the election and that he was rightly returned or declared the winner of the election.
In the circumstances the petition should be dismissed. It is accordingly hereby dismissed in its entirety.”
(Underlining supplied by me).
I am of the settled opinion that the Tribunal, having premised its consideration of the word “candidate” vis-a-vis the evidence adduced in the petition on the case of Okonkwo V. INEC (which, as stated in the case of INEC V. AC (supra) never interpreted the word “candidate” in the light of section 144(1)(a) of the Electoral Act, 2006) unwittingly did not accord the judgment or order of the Federal High Court the weight or credibility bestowed on it by law, in finding the Appellant not to have been a candidate in the election of 28/4/2007 and consequently declaring the 4th Respondent as the candidate of the PDP for the said election. The Tribunal also did not make appropriate deductions or inferences (which actually required no further proof) from the said judgment/order.
The Federal High Court, in its judgment admitted as Exhibit P7 before the Tribunal, ordered the 1st and 7th Respondents in Suit No. FHC/EN/CS/80/2007 to restore the 2nd Plaintiff therein as the duly nominated candidate of the PDP for election into the Anambra State House of Assembly in respect of Nnewi South II, State Constituency of Anambra State. There is no dispute on the evidence before the Tribunal that 1st Respondent in the aforementioned suit was INEC; while the 7th Respondent was PDP. Now by Section 132 of the Evidence Act, the judgment of a court tendered in a proceeding is sufficient evidence/proof of what the court has decided. The inferences from the judgment of the Federal High Court which were lost on the Tribunal include the indisputable fact that the name of the Appellant at all material times before it was substituted had been submitted to INEC as being the candidate of PDP for the election and its acceptance by INEC. This is irresistibly so because, if there had not been a prior submission of the name of the Appellant as the candidate of the PDP for the election in question and its acceptance by INEC, then a case of unlawful substitution which the judgment nullified could not have arisen. There can only be substitution of the name of a candidate submitted to INEC by a political party as its nominated candidate upon the acceptance of the name by INEC. Nomination for an election entails sending the candidate’s name to the electoral body after the candidate had been screened by his party and an election conducted by the party. See IDRIS V. ANPP (2008) 8 NWLR (Pt. 1088) 1. It is inconceivable that INEC can substitute the name of a candidate for an election when such a name was never submitted to it by a party. It is therefore my considered view that if the Tribunal had made the appropriate inferences from the judgment of the Federal High Court, it would have seen clearly that the Appellant proved that he was a candidate in (and not at) the election even if he was not the candidate that stood for the election. And the Appellant having been substituted with the 4th Respondent who stood for the election can hardly be expected to prove conditions (3) and (4) set out by the Tribunal in its judgment.
Indeed the case of the Appellant is not that he actually stood as the candidate of the PDP for the election of 28/4/2007 but that the law deems him to have stood for the said election as the candidate of the PDP because he was the proper candidate of the PDP for the election. The evidence adduced before the Tribunal through the judgment of the Federal High Court clearly established this case. The Appellant having established his case in this regard, in my considered view, also established the ground of the petition that the 4th Respondent was at the time of the election not qualified to contest the election. This is because he was not the candidate of the PDP for the election. The issue of qualification raised by the Appellant can properly be countenanced by the Tribunal in an election petition and a fortiori by this Court. See KWARRA V. INNOCENT (2009) All FWLR (Pt. 460) 719; and DINGYADI V. WAMAKO (2008) 17 NWLR (Pt. 1116) 395. And it is for this very reason that the return of the 4th Respondent can properly be questioned on the ground that he was at the time of the election not qualified to contest the same as he was not the candidate of the PDP for the election. The question of the 4th Respondent not being qualified to contest the election as he was not the candidate of the PDP in the election does not qualify as a pre election matter in the instant petition as it remained a live issue at the time of the election. Indeed it would tantamount to turning the law head-down to say that the Appellant’s petition cannot be countenanced by the Tribunal and this Court and that he should proceed to the regular courts for his remedy having found him in the first place to be a candidate in the election of 28/4/2007. The question as to who was the candidate of the PDP in the election of 28/4/2007 had been settled by the judgment of the Federal High Court delivered on 27/4/2007 before the election was held. The Tribunal and a fortiori this Court do not have to determine in the instant petition that which the Federal High Court had already decided. Reliance by the Appellant on the decision of the Federal High Court in the proof of his case before the Tribunal does not tantamount to adjudication over pre-election matter.
From all that has been said before now, and particularly having concluded that the Appellant was a candidate in the election of 28/4/2007 and that he had successfully established the ground of the petition that the 4th Respondent who was returned as winner of the election into the Anambra State House of Assembly for Nnewi South II Constituency was at the time of the election not qualified to contest the same, it follows that the conclusion of the Tribunal that the 4th Respondent being the candidate that contested the election was rightly returned or declared, is wrong. A return or declaration of a person not qualified to contest an election can never be right.
From all that has been said above, I resolve the three Issues for determination of the appeal in favour of the Appellant. In paragraph 12 of the Petition the Appellant prays of the Tribunal to declare as follows: –
“12(i) The purported and wrongful return of the 4th Respondent (Ikenna Amaechi) as the winner of the repeat election for Nnewi South 2 State Constituency held on 28th April 2006 (sic) is pro tanto undemocratic null and void and of no effect.
(ii) That the Petitioner, Egwuoyibo Okoye Esq. be declared validly elected as the lawful candidate of the Peoples Democratic Party (PDP) in the repeat-election and be issued with certificate of return for Nnewi South 2 State Constituency having polled the highest number of votes cast in that election.
(iii) An order directing the 1st, 2nd and 3rd Respondents to issue certificate of return to the Petitioner Egwuoyibo Okoye Esq. forthwith.”
In paragraph 13 of the petition the Appellant in the alternative prays the Tribunal to nullify the questioned election for non-compliance with the Electoral Act, 2006.
It would now appear to be settled law that it is political parties that actually contest elections. It is upon that proposition of law as enunciated in the case of Amaechi v. INEC (supra) that the Appellant has premised his prayers in paragraphs 12 (i) – (iii) of the Petition reproduced above. The 4th Respondent has argued that the said proposition of law can only be invoked by the regular courts and not a Tribunal established for the resolution of election disputes only. I do not see anything in the case of Amaechi V. INEC that restricts the application of the proposition of law in question to the regular court only. Most principles of law that have evolved from the regular courts have been routinely invoked by the Tribunal and this Court in election matters in appropriate circumstances. Indeed in the case of ONYEKWELI V. INEC (supra) at 373 this Court in applying the case of Amaechi v. INEC (supra) said per Ogunwumiju, JCA thus: –
“In Amaechi v. INEC (supra), the Supreme Court held that there is no room for a person who did not contest in primaries to emerge as party candidate and emphasized the need to enthrone intra-party democracy. The apex court also held that the candidate of a party at an election is deemed to be the person validly nominated by the party and is also deemed to remain so and must be treated as the person who won the election de jure and de facto inspite of whatever INEC may declare. In this instance all the materials needed to declare that the petitioner won the election on the platform of the PDP are before us.
We do so declare. XXXXXXXXXXXXXXX”
The situation in the instant appeal is also such that all materials needed to declare the Appellant who must be treated de jure and de facto as having won the election of 28/4/2007 are before this Court. This being the case, the prayers of the Appellant as set out in paragraph 12 (i) – (iii) of the Petition are grantable by this Court. In the circumstances the appeal is meritorious and it succeeds. The judgment of the Tribunal delivered on 3/6/2008 in PETITION NO. EPT/AN/SAE/85/07 – EGWUOYIBO OKOYE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 3 QRS stating “that the 4th Respondent was the candidate that contested the election and that he was rightly returned or declared the winner of the election” and dismissing the petition, is hereby set aside. In its stead, judgment is hereby entered declaring the Appellant, being the candidate of the PDP in the election, as the winner of the election of 28/4/2007 in the Nnewi South Constituency II of the Anambra State House of Assembly. Consequently the Certificate of Return issued the 4th Respondent – Ikenna Amaechi stands nullified and it is hereby ordered that the 1st 2nd and 3rd Respondents acting jointly or severally shall forthwith cause a Certificate of Return in respect of the said election to be issued to the Appellant – Egwuoyibo Okoye.
I make no order as to costs.
AMIRU SANUSI, JCA: I Agree.
OLUKAYODE ARIWOOLA, JCA: I was privileged to have read in draft the lead judgment
just rendered by my learned brother, LOKULO-SODIPE, JCA. His Lordship dealt beautifully with all the issues that arose in the appeal. I am therefore in agreement with the reasoning and conclusion of the said judgment. I have nothing more to add.
I abide by the consequential orders including the order on costs.
Appearances
Dr. J.O. Ibik SAN with O. J. Ibik, G.C. Iguh and V.O. AmiloFor Appellant
AND
S.O. Ibrahim (Asst. CLO, INEC)
Chief Mike Okoye with Pat Igwebuike (Mrs)For Respondent
