EMENIKE OWANTA & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2011)LCN/4943(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of December, 2011
CA/OW/EPT/12/2011
RATIO
PRELIMINARY OBJECTION: WHETHER WHERE A PRELIMINARY OBJECTION IS RAISED AS TO THE COMPETENCE OF AN APPEAL IT MUST FIRST BE DETERMINED
‘It is trite law that where a Preliminary Objection is raised as to the competence of an appeal, the Preliminary Objection has to be determined first. See UBA v. A.C.B. (NIG.) LTD (2005) 12 N.W.L.R (PT 939) 232: NGIGE vs OBI (2006) 14 N.W.L.R (PT 999) 1. PER UWANI MUSA ABBA AJI, J.C.A
GROUND OF APPEAL: NATURE OF A GROUND OF APPEAL
It is trite that grounds of appeal are supposed to be succinct and right to the point avoiding narrative verbosity and arguments. PER UWANI MUSA ABBA AJI, J.C.A
GROUND OF APPEAL: INSTANCES WHERE VAGUENESS OF APPEAL MAY ARISE
Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. I am fortified in this view with the decision of the Apex Court in OGE v. EDE (1995) 3 NWLR (PT 385) 564 AT 577: AND C.B.N. vs OKOJIE 0002) 8 NWLR (PT 768) 48 AT 61. PER UWANI MUSA ABBA AJI, J.C.A
LEAVE OF COURT: WHETHER A PARTY TO AN APPEAL CAN,WITHOUT LEAVE OF COURT, RAISE A FRESH ISSUE ON APPEAL
‘It is trite position of the law that a party to a suit cannot without leave of Court raise an argument not canvassed in the Court below However, a party can rely upon any new line of argument or new authorities, judicial as well as statutory to support his argument in an issue which is properly before the Court. See OGUNBADEJO vs OWOYEMI (1993), 1 NWLR (Pt.271) 517; OGUMA ASSOCIATED COMPANIES (NIG.) LTD vs IBWA LTD (1988) 1 NSCC VOL. 19 (PT 1) 395: APENE vs BARCLAY’S BANK OF NIGERIA (1977) NSCC (VOL.11) 29 AND STOOL OF ABINABINA vs ENYIMADU (1953) 12 WACA 171. PER UWANI MUSA ABBA AJI, J.C.A
NOMINATION OF A CANDIDATE: CONDITION UPON WHICH THE VALID NOMINATION OF A GOVERNORSHIP CANDIDATE IS DEPENDENT UPON
It is trite that the valid nomination of a Governorship candidate is dependent upon a valid nomination of a deputy Governorship candidate. SECTION 187 (1) OF THE 1999 CONSTITUTION (as amended) enacts it in a very clear terms as follows: ”In any election to which the foregoing provisions of this part of this chapter related candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates .another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions. PER UWANI MUSA ABBA AJI, J.C.A
NOMINATION OF A CANDIDATE: CONDITION THAT MUST BE MET FOR A NOMINATION TO BE VALID
It is now settled law that for a nomination to be valid, it must meet statutory procedures. See PPA v. INEC (2010) 12 NWLR (Pt.1207) 70 (a) 105-106 and DINGYADI VS WAMAKQ (2008) 17 NWLR (Pt.1116) 315. PER UWANI MUSA ABBA AJI, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. EMENIKE OWANTA
2. DEMOCRATIC FRONT FOR A PEOPLE’S FEDERATION Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY
3. THEODORE ORJI Respondent(s)
UWANI MUSA ABBA AJI, J.C.A (Delivering the Leading Judgment): This appeal stems from the judgment of the Governorship Election Petition Tribunal Sitting at Umuahia Abia State in Petition No. EPT/AB/G/16/2011 delivered on the 10th August, 2011 wherein the Tribunal dismissed the Appellant’s petition against the return of the 3rd Respondent as the Governor of Abia State in the April 26th 2011 Governorship election.
The 1st Appellant herein, Emenike Owanta was a candidate of the 2nd Appellant, the Democratic Front for a Peoples’ Federation at the election held on the 26th day of April, 2011. The 3rd Respondent, Theodore Orji contested the said election on the platform of the 2nd Respondent, Peoples Democratic Party (PDP). The 1st Respondent, Independent National Electoral commission (INEC) declared the 3rd Respondent, the winner of the election as having polled the highest number of votes cast at the election and returned him accordingly as the winner of the Governorship election of Abia state.
The Appellant not satisfied with the election and return of the 3rd Respondent filed a petition before the Abia State Governorship Election Petition Tribunal, sitting at Umuahia upon this exclusive ground:
1. That the 2nd Petitioner validly nominated the 1st Petitioner to contest as the 2nd Petitioner’s candidate at the Election but was unlawfully excluded from the Election by the 1st Respondent.
The Petitioners prayed for the Honourable Tribunal to determine as follows:
1. That the Petitioners were unlawfully excluded from the Abia State Governorship Election held on April, 26th, 2011.
2. That the Abia State Governorship Election held on April, 26th 2011 where the 3rd Respondent was declared winner be nullified.
3. That the return of the 3rd Respondent as the winner of the Abia state Governorship Election held on April, 26th 2011 be set aside.
4. That a fresh election for the office of the Governor of Abia State be ordered with the 1st Petitioner participating with the inclusion of the 2nd Petitioner’s symbol inscribed on the ballot paper to be used for the fresh election.
Upon being served with the petition, the 1st Respondent filed its Memorandum of Conditional Appearance and Reply to the Petition dated June 4th, 2011 (See pages 130 -161 of the Records). A Notice of preliminary objection indicating that the 1st Respondent intended to challenge the competence of the Appellants, petition in limine was incorporated into the 1st Respondent’s Reply. The 2nd and 3rd Respondents also filed their Replies to the Appellant’s petition dated 6th June, 2011 and June 28th, 2011 respectively and equally incorporated Notices of preliminary objections to their respective Replies, challenging amongst others, the locus Standi of the Appellants to present the Petition. (see pages 170 – 200 and, 276 -314 of the Records).
The Appellants, in their Reply to the respective Respondents Replies, attached the Appellant’s 2nd Witness Statement on oath, in support of the Reply as well as other additional documents.
Upon the agreement of counsel to the parties, the Tribunal ordered all the Respondents to file and serve their formal applications to set down the preliminary Objections for hearing. Each of the Respondents filed Motion on Notice and written Address challenging the competence of the petition. Upon service of same, the Appellants fired counter Affidavit and Written Address in opposition to each of the said motions.
In a considered Ruling delivered on the 10th of August 2011, the Tribunal dismissed the Petition of the Appellants. This is what the Tribunal said in dismissing the petition at pages 726 -727 of the Records:
In the final analysis, we hold that.
”1. Petitioner had not nominated a candidate to run as his associate as Deputy – Governorship candidate as at 31st January, 2011 the published deadline for the submission of Frorm CF 001.
2. That the 1st Petitioner was not nominated by 50 persons whose names appear on the register of voters as stipulated by law. The number of the 1st Petitioner’s nominators fell short of fifty (50). In addition, many of the nominators supplied fake and impossible dates and dubious particulars which rendered the nomination of the 1st Petitioner defective, questionable and invalid. There is considerable merit in these grounds of the consolidated applications. The result is that the Respondents’ Preliminary Objection that the 1st Petitioner was not validly nominated and that both Petitioners lack the locus standi to present this petition is meritorious and uphold by this Tribunal. The Petition is accordingly dismissed as lacking in merit.”?
The Appellants are aggrieved and appealed to this court vide a Notice of Appeal dated and filed on the August 22nd, 2011. The grounds of appeal without their particulars are hereby reproduced.
GROUNDS OF APPEAL
1. The Tribunal erred in Law when it held that the 1st petitioner had no locus standi to present the Petition on the basis of its evaluation of material other than the petition.
2. The Tribunal erred in law when it dismissed the Petition on the basis of an interlocutory application.
3. The Tribunal erred in law when it failed to ascribe a presumption of regularity to the conduct of the 1st Respondent who accepted the Petitioner’s nomination and included the party on the ballot although it excluded their party symbol.
4. The Tribunal erred in law when it considered the qualification requirements of the 1st Petitioner without due regard to the absence of a cross-petition to raise this issue.
5. The Tribunal misdirected itself in law when it held, at page 28 of its instant Ruling as follows:
”Section 32 places a burden on a nominator to supply his full voter’s identification Number with all particulars and signature. This would enable the 1st Respondent and the Tribunal if need be, to ascertain the validity of the particular nominator in the event of dispute. ”We agree with the Respondents counsel that in view of the foregoing, the nomination of the 1st Petitioner is invalid.”?
6. The Tribunal misdirected itself in law when it wrongly relied on paragraphs 16(1) (a) of the First Schedule to the Electoral Act 2010 to hold, at pages 26 – 27 of the Ruling, that the copy of Form EC4B (ii) annexed to the Petitioners’ respective Replies to the 2nd and 3rd Respondents’ Replies constituted new facts which ought to be discountenanced having been annexed to the said Replies without leave of the Tribunal.
7. The Tribunal erred in law when at page 27 of its Ruling, it considered the evidential value of form EC4B (ii) annexed to the Petitioners’ respective Replies to the 2nd and 3rd Respondents’ Replies at an interlocutory stage and without, in the first instance, admitting the said document in evidence in an admissible form.
8. The Tribunal misdirected itself in law when it held at page 28 of the Ruling as follows:
”The effect of all these anomalies is that the 1st Petitioner was not nominated by 50 persons whose name appear on the register of voters as stipulated by the1st Respondent for the Governorship Election pursuant to SECTION 32 (1) of the Electoral Act.”?
9. The Tribunal misdirected itself in law at page 24 of the Ruling, when it held as follows:
”We hold that the Petitioners were still shopping for a deputy governorship candidate as at 31st January, 2011, the deadline for the submission of this form according to INEC time-table.
We hold also that this is the reason why the Petitioners deliberately refused to frontload this form along with their petition. The Tribunal is entitled to and we hereby invoke Section 149(d) of the Evidence Act against the Petitioners.”?
In the Appellant’s brief of argument settled by Prof. Yemi Osinbajo (SAN), and filed on the 5th of September, 2011 following four (4) issues were formulated for determination:
i. Whether the Lower Tribunal was right in evaluating other materials other than the Petition itself in determining Locus Standi and whether it could determine substantive issues at a preliminary stage (Grounds 1,2).
ii. Concerning the issue of nomination, did the Tribunal’s Evaluation of facts and evidence accord with settled legal principles or were perverse (Grounds, 5, 8, 3)
iii. Whether the decision of non-nomination of a deputy raised preliminarily, was proper and or supported by the pleadings and materials before the Tribunal (Grounds 7, 9, 2, 4).
iv. Was leave of the Lower Tribunal required by the Appellants before they could annex the correct copy of Form EC4B(ii) to their Reply to the 2nd and 3rd Respondents’ respective Replies (Ground 6).
In the 1st Respondent’s brief settled by Dr. Livy Uzoukwu, OON, (SAN) three (3) issues were formulated namely:
1. Whether the Tribunal was right when it held that the 1st Appellant was not validly nominated to contest the Abia State Governorship election (Grounds 1 and 2 of appeal).
2. Whether the Tribunal was right when it held that the Appellants lacked the locus standi to present the petition (Ground 3, 4, 5,7, 8, and 9 of the Appeal).
3. Whether the Tribunal was right when it held that the additional documents attached to the Appellants’ Replies, having been filed without leave were not properly before the Tribunal and should be discountenanced (Ground 6 of Appeal)
In the 2nd Respondent’s brief, settled by E. A. Esiaba Esq, a lone issue was formulated for determination to wit:
”Whether or not the Election Tribunal is right in its decision that the 1st Petitioner was not validly nominated to contest the governorship election in issue.”?
The 2nd Respondent also incorporated arguments to the Notice of Preliminary Objection to his brief upon the following six (6) grounds namely:
1. All grounds in the Notice of Appeal offend the provision of Order 6 Rule 2(2) and (3) and Order 6 Rules 3, in that they are narrative; argumentative, vague and general in terms.
2. Ground three of the Notice of Appeal on presumption of regularity is a fresh issue which was not taken before the Election Tribunal and on which no leave of this Honourable Court or the Election Tribunal has been sought or obtained.
3. Issue three (3) in the Appellant’s Brief of Argument is incompetent in that it incorporates and argues ground 2 of the Notice of Appeal which has been argued in issue 1.
4. Issue two (2) in the Appellants’ Brief of Argument is incompetent for incorporating argument on ground 3 of the Notice of Appeal on presumption or regularity which is a fresh issue on which no leave of Court has been obtained.
5. That the Brief of Argument offends practice direction and
6. The Appellants’ Brief of Argument is incompetent for not having been duly signed.
In the 3rd Respondent’s brief settled by Dave Okwun-Kalu Esq, three (3) issues were raised for determination, namely:
Having regard to the clear and mandatory provisions of paragraph 53(5) of the 1st Schedule to the Electoral Act 2010, coupled with the fact that the application before the Lower Tribunal challenged its jurisdiction and competence to adjudicate or countenance the Petition before it, whether the Lower Tribunal was not right by first taking the application and in its Ruling, dismissing the petition. Grounds 2 and 7.
ii. Having regard to the clear and mandatory provision of Sections 177, 186 and 187 and (2) of the 1999 Constitution (as amended) read together with the relevant provisions of the Election Act, whether the Lower Tribunal was not right in holding that the 1st Petitioner was not validly nominated to contest the election to the office of Governor of Abia State and as such lacking the locus standi to present a petition to challenge the return of the Respondent. Grounds 1, 4, 5, 6, 7, 8 and 9.
iii. In the face of clear provisions of the Constitution as well as those of the Electoral Act applicable to the issues in contention before the Lower Tribunal, whether the said Tribunal could have ascribed any presumption of regularity or validity to the purported nomination of the 1st Appellant. Ground 3.
The 3rd Respondent also incorporated in his brief arguments on the preliminary Objection filed l6e day of September, 2011 upon the following grounds:
1. Grounds 1, 2, 3, 4, 5, 6,7, 8 and 9 of the appeal and their particulars are argumentative.
2. Ground I does not arise from the decision of the Lower Tribunal and same is academic.
3. Grounds 5, 6, 7, 8 and 9 are grounds against a part of the decision of the Lower Tribunal which the Appellants by their own admission in paragraphs 1 and 2 of their Notice of Appeal are not dissatisfied with
4. An Appellant can only appeal against a decision or a part thereof, if he is dissatisfied with it.
5. There is no valid appeal and or grounds before this Honourable Court
At the hearing of the appeal on the 26th of September, 2011, Learned counsel adopted and relied on their respective briefs of argument.
The Appellants adopted their brief of argument filed on the 8th of September, 2011 and their reply briefs to the 1st, 2nd and 3rd Respondents briefs each filed separately on 23rd September, 2011 and urged the Court to allow the appeal.
The 1st Respondent adopted and relied on his brief of argument dated and filed on the 16th day of September, 2011 and urged this Court to dismiss the appeal.
The 2nd Respondent equally adopted and relied on the brief of argument dated and filed on the 16th day of September, 2011 and the arguments on the preliminary objection and urged this Court to uphold the objection and dismiss the appeal.
Learned counsel to the 3rd Respondent also adopted and relied on the 3rd Respondents brief dated and filed on the 16th day of September, 2011 as well as the arguments on the Preliminary objection and urged the court to uphold the Preliminary objection and dismiss the appeal.
It is trite law that where a Preliminary Objection is raised as to the competence of an appeal, the Preliminary Objection has to be determined first. See UBA v. A.C.B. (NIG.) LTD (2005) 12 N.W.L.R (PT 939) 232: NGIGE vs OBI (2006) 14 N.W.L.R (PT 999) 1.
Accordingly, we will consider the Preliminary Objection to the competence of this appeal raised by the 2nd and 3rd Respondents in their various briefs of argument. By a Notice of Preliminary Objection filed on the 266 day of September, 2011, the 2nd Respondent Objected to the hearing of this appeal that:
1. This Honourable Court lacks the jurisdiction to entertain or determine this appeal as each of the Nine (9) grounds of appeal contained in the Appellants’ Notice of Appeal as well as the issues for determination raised in the Appellants’ briefs of argument is defective, incompetent and invalid in law.
2. This Honourable Court will be urged to strike out each of the said Nine (9) grounds of appeal in the Appellants Notice of Appeal and consequently strike out the appeal as each and every ground of the grounds of appeal is incompetent thereby depriving this Honourable Court of the jurisdiction to entertain each of them and the appeal.
3. This Honourable Court will also be urged to strike out the incompetent issues for determination in the Appellants Briefs of Argument.
4. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this appeal.
The 3rd Respondent also objected to the hearing of this appeal by way of a Preliminary Objection filed 16th day of September, 2011 to wit:
1. This Honourable Court lacks the requisite jurisdiction to hear and or determine this appeal because each of the Nine (9) grounds contained in the purported Notice of Appeal is defective, incompetent and invalid in law.
2. An order of this Honourable Court striking out the said Nine (9) grounds i.e. grounds 1,2,3,4,5,6,7,8 and 9 of the Notice of Appeal as same are incompetent and deprive this Court of the jurisdiction to entertain them.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this appeal.
The grounds upon which the two Preliminary Objections were predicated have already been spelt out in the earlier part of this judgment and it will be unnecessary to repeat same.
In view of the fact that the two Preliminary objections are questioning inter-alia, the competence of the Nine (9) grounds of appeal, accordingly, only the preliminary objection of the 2nd Respondent will be considered as same would also answer the questions raised by the 3rd Respondent.
The Grounds of the 2nd Respondent’s Preliminary objections are spelt out hereunder:
1. All the grounds in the Notice of Appeal offend the provision of Order 6 Rule 2 (2) and (3) and Order 6 Rule 3 in that they are narrative, argumentative, vague and general in terms.
2. Ground three of the Notice of Appeal on presumption of regularity is a fresh issue which was not taken before the Election Tribunal and on which no leave of this Honourable Court or the Election Tribunal has been sought or obtained.
3. Issue three (3) in the Appellant’s Brief of Argument is incompetent in that it incorporates and argues ground 2 of the Notice of Appeal which has been argued in issue 1.
4. Issue two (2) in the Appellant’s Brief of Argument is incompetent for incorporating argument on ground 3 of the Notice of Appeal on presumption of regularity which is a fresh issue on which no leave of Court has been obtained.
5. The brief of Argument offends practice direction, and
6. The Appellant’s Brief of Argument is incompetent for not having been duly signed.
ARGUMENTS ON THE PRELIMINARY OBJECTION
In arguing ground one (1) of the Preliminary Objection, Learned Counsel for the 2nd Respondent submitted that all the grounds of appeal are argumentative, narrative, vague and or too general in terms, which is clearly prohibited by Order 6 Rule 2(3) of the Court of Appeal Rules 2011. His view is that these grounds of appeal are incompetent and therefore liable to be shuck out. He referred to the case of KHALIL v. YAR’ADUA (2003) 16 N.W.L.R (PT 847)446 AT 459. He urged this Court to strike out the grounds of appeal.
In his response, Learned Counsel for the Appellant submitted that the 3rd Respondent did not elaborate on how the grounds of appeal offend Order 6 Rule 2 (3) of the Court of Appeal Rule 2011. He submitted further that the whole purpose of grounds of appeal is to give Notice to the other side as noted by the Court in OGE vs EDE (1995) 3 N.W.L.R (PT 385) 564 AT 577. paras D – E. Learned Counsel further argued that a vague ground of appeal is such that leaves the Respondent and the Justices to unavoidably speculate as to the Appellant’s complaints and this is hardly the case with the Appellant’s grounds of appeal. He referred to the case of CBN vs OKOJIE 2002) 8 N.W.L.R (PT 768) 48 AT 61, and urged this court to discountenance the 3rd Respondent’s arguments.
In his grounds two (2) and four (4), learned counsel for the 2nd Respondent submitted that there was nothing in the Ruling of the Tribunal to show that the issue of irregularity was raised by the Appellants’ or decided by the Election Tribunal.
His further view is that this ground is clearly incompetent as it was not derived from the decision of the Election Tribunal and it also raises a new issue not arising from the decision of the Election Tribunal and same was raised without the leave of either the Election Tribunal or the court of Appeal. He relied on the case of DEACON J. K. OSHATOBA v. CHIEF JOHNSON OLUJITAN (2000) 5 NWLR (Pt.665) 159 at 171 – 172 and submitted further that where a ground of appeal is incompetent’ the issues arising therefore are also incompetent. He relied on the case of GEO SOURCE (NIG) LTD v. BIOGBARA (1997) 5 NWLR (Pt.506) 607 AT 615. He therefore urged this Court to strike out ground 3 of the Notice of Appeal and issue 2 of the Appellant’s Brief of Argument which incorporates arguments in ground 3 of the Notice of Appeal.
In his response, Learned Counsel for the Appellants submitted that the issue of presumption of regularity is not a fresh issue but a fresh line of argument in support of its case, the backdrop of which falls within the ambit of the decision of the Lower Tribunal. He relied on the case of OGUNBADEJO v. OWOYEMI (1993) 1 NWLR (Pt.271) 517. He further submitted that the rule seeking leave before arguing fresh issues in an appellate Court is not sacrosanct as certain exceptions have been recognized by the courts. He referred to the case of OGUMA ASSOCIATED COMPANIES (NIG) LTD vs I. B. W. A LTD (1988) 1 NSCC VOL. 19 (PT 1) 395.
He also referred to APENE vs BARCLAYS BANK OF NIGERIA AND ANOR (1997) NSCC (VOL.II) 29. STOOL OF ABINABINA vs ENYIMADU (1953) 12 WACA 71.
His further view is that where the question involves substantial points of law, either substantive or procedural, the Court may entertain the appeal and prevent an obvious miscarriage of justice. The question of presumption of regularity being one of law, it is clearly a substantial point of law to merit the favourable consideration of this Honourable Court. He urged this Court to so hold.
In arguing ground 3 of the Preliminary Objection, Learned Counsel for the 2nd Respondent submitted that a perusal of the Appellants’ Brief of Argument shows that ground 2 of the Notice of Appeal which was included in the argument on issue I was also included in the argument on issue 3. This, according to him is a proliferation of issues as the formulation of two or more issues from a ground of appeal renders the issue incompetent. He referred to the case of DR. ARTHUR AGWUNCHA NWANKWO vs ALHAJI UMARU YAR’ADUA (2010) 518 AT 533 and urged this court to strike out issue 3 in the Appellant’s Brief of Argument.
Learned Counsel to the Appellants in his response to this ground of objection argued that there is no resemblance of similarity between the arguments in issues I and III of the Appellant’s Brief of Argument. The mere inclusion of a ground of appeal in the heading of an issue does not automatically translate to a discussion of that ground in the ensuing argument of that issue. He urged this Court to discountenance the 2nd Respondent’s arguments on this ground.
In his ground five (5), Learned counsel for the 2nd Respondent argued that the Appellants’ Brief of Argument violates Paragraph 14 (a) and (b) of the Election Tribunal and court Practice Directions, 2011, since the brief is in excess of 40 pages. He urged the Honourable Court to uphold the Preliminary Objection and dismiss the appeal.
In his response to this ground, Learned Counsel to the Appellants submitted that the Appellant’s Brief is numbered in 38 pages and not in excess of 40 pages. He urged this Honourable Court to discountenance and strike out the grounds of Preliminary Objection as well as the ground 6, the 2nd Respondent having failed to proffer any argument on same.
I have carefully studied the grounds of the Preliminary Objection vis-a-vis the grounds of appeal to ascertain the competence of these grounds of appeal. Learned Counsel for the 2nd Respondent’s argument is that the grounds of appeal are narrative, argumentative and vague and an infringement of ORDER 6 RULE 2 (2) AND (3) AND ORDER 6
RULE 3 OF THE COURT OF APPEAL RULES 2011.
ORDER 6 RULE 2 (2)
”Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
ORDER 6 RULE 2 (3)
”The notice of appeal shall set forth concisely and under to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
ORDER 6 RULE 3
”Any ground which is vague or general in terms or which – discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”?
Clearly, the rule provides that Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. Order 6 Rule 3 further provides that any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground of appeal that the judgment is against the weight of evidence…
It is trite that grounds of appeal are supposed to be succinct and right to the point avoiding narrative verbosity and arguments.They are supposed to be couched in such a way that an advocate can as soon as they are read, be put into notice and understand their purport without any ambiguities and strains whatsoever. The Rule is indeed aimed at the ensuring that Counsel on the other side as well as the Court should be able to understand the purport of the ground of appeal as soon as it is read.
The Respondent has not stated anywhere in his brief that he has been mislead by the way the grounds of appeal are couched. The Appellants’ complaint on the grounds of appeal is well defined in relation to the subject matter and very well particularized and cannot be said to be vague in the circumstances. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. I am fortified in this view with the decision of the Apex Court in OGE v. EDE (1995) 3 NWLR (PT 385) 564 AT 577: AND C.B.N. vs OKOJIE (2002) 8 NWLR (PT 768) 48 AT 61. This ground of objection is therefore discountenanced.
It is trite position of the law that a party to a suit cannot without leave of Court raise an argument not canvassed in the Court below However, a party can rely upon any new line of argument or new authorities, judicial as well as statutory to support his argument in an issue which is properly before the Court. See OGUNBADEJO vs OWOYEMI (1993), 1 NWLR (Pt.271) 517; OGUMA ASSOCIATED COMPANIES (NIG.) LTD vs IBWA LTD (1988) 1 NSCC VOL. 19 (PT 1) 395: APENE vs BARCLAY’S BANK OF NIGERIA (1977) NSCC (VOL.11) 29 AND STOOL OF ABINABINA vs ENYIMADU (1953) 12 WACA 171. This ground of objection is therefore overruled.
It is clear to me that there is no semblance of similarity between the Appellants’ issues I and III and the mere inclusion of a ground of appeal in the heading of an issue-does not automatically translate to a discussion of that ground in the ensuring argument of that issue. On the Appellant’s brief of argument it is true that it is numbered 38 pages. It does not therefore contravene paragraph 5 of the Election Tribunal and Court Practice Direction, 2011.
The entire objection of the Learned Counsel for the 2nd and 3rd Respondents are baseless and without merit and are accordingly dismissed.
We now go to the issues for determination. Since the issues raised by the Respondents are all subsumed in the issues raised by the Appellants, the issues as formulated by the Appellants shall be adopted for the determination of this appeal.
Issue 1:
”Whether the Lower Tribunal was right in evaluating other materials other than the Petition itself in determining Locus Standi and whether it could determined substantive issues at a Preliminary stage”?
Learned Senior Counsel for the Appellants, Prof. Yemi Osinbajo (SAN), submitted that in the consideration of whether or not a litigant has disclosed Locus Standi to institute an action, the Court must confine itself to the claim of the plaintiff and nothing more. Reliance was placed on the following cases: SUNDAY v. INEC (2009) 12 NWLR (PT 1154) 194 AT 216, PEOPLE’S VOICE COMMUNCIATION LTD vs ALHAJI LAWAL (2005) ALL FWLR (PT 246) 1207 AT 1222 -3; KANU vs INEC (2010) 1 NWLR (PT 1174) 125 AT 142, OJO vs INEC (2008) 13 NWLR (PT 1105) 577 AT 629.
Senior Learned counsel referred to the petition at pages 1 – 14 of the records and submitted that the Appellants had locus standi to present its petition founded on the ground of unlawful exclusion under section 138 (1) (d) of the Electoral Act 2010. He relied on IDRIS vs ANPP (2008) 8 NWRL (PT 1088) 1 where the right to present a petition by a candidate and the sponsoring party was delineated and submitted further that from the authorities cited above, the Appellants had the losus to present the petition but the Lower Tribunal perversely proceeded to reach an erroneous conclusion that the 1st Appellant has no locus to present the petition that the Lower Tribunal failed to look exclusively at the petition but rather based its decision on the allegations of the Respondents contained in their interlocutory applications with materials attached thereto.
Learned Senior Counsel further submitted that the Lower Tribunal had no authority make substantive and conclusive pronouncements of the case without trial. It submitted that the error of the Lower Tribunal arose from giving consideration to materials and documents that the Lower Tribunal ought not to have taken into consideration in determining the Appellant’s Locus Standi. It is also submitted that the Lower Tribunal took the Respondents’ depositions in support of the Preliminary Objection into consideration as well as documents attached thereto including form EC25C. (iii) attached to the 1st Respondent’s affidavit in support of the motion, which the Lower Tribunal heavily relied on to reach its decision Learned Senior Counsel further submitted that the Lower Tribunal decided the case on the bases of copies of documents that were not admitted in evidence and by ascribing probative value to copies of yet to be admitted copies of documents, the Tribunal engaged in a pre-trial adjudication of the merit of the petition when all that was required was to ascertain the petition on its face value, showed sufficient interest in the Petitioners. Reliance was placed on the following cases: UNITED SPINNERS LTD v. C.B. LTD (2001) 14 NWLR (PT 732) 195 AT 220 that a Court should not make any finding in an interlocutory application which may prejudice a pending substantive case. He also relied on the case of NWANKWO vs YAR’ADUA (Supra). The Learned Senior Counsel concluded that the Tribunal was clearly in error to have decided substantive issue at preliminary stage.
ISSUE 2:
Concerning the issue of nomination, did the Tribunal’s evaluation of the facts and evidence accord with settled legal principles or were perverse?
In arguing this issue, Learned Senior Counsel for the Appellants submitted that the Lower Tribunal fell into error of misdirection by shifting the time honoured burden of proof on the Appellants who have not alleged a certain set of facts. That the burden was on the Respondents who challenged the valid nomination of the 1st Appellant to prove same but the Tribunal maintained that the onus was on the Appellants to prove their valid nomination. It is submitted that the mere assertion of valid nomination is sufficient to confer locus standi on the Appellant to present his petition and that the standard is a prima facie and not conclusive proof that the Tribunal required which must await trial.
Learned Senior Counsel further submitted that in compliance with INEC prescriptions, the Appellants obtained a copy of Form EC4B(ii) from INEC and procured same to be filled out by 50 of the 1st Appellant’s nominators and that the duly completed form was submitted to INEC on February 21st, 2011 and INEC acknowledged receipt (item 7 on Appellants list of documents, referred to as form EC4B(ii).
However, the form EC4B(ii) frontloaded was not what was submitted to INEC. That to set the Appellants’91 record straight annexed the proper copy of form EC4B(ii) to their reply to the 2nd and 3rd Respondents’ replies to the petition that there was no denial of this document by INEC. It is however submitted that the Lower Tribunal held that the 1st Petitioner was not nominated by 50 persons whose names appear on the register of voters as stipulated by Section 32 (1) of the Electoral Act 2010 as amended. He relied on the case of INEC vs ACTION CONGRESS (2009) 2 NWLR (PT 1126) 52. He thus submitted that the Lower Tribunal was wrong to have held that the Appellant’s 50 nominators were not persons whose names were on the voters register without even admitting the voters’ register of a single unit in evidence. He placed reliance on the case of AREGBESOLA VS OYINLOLA (2009) 14 NWLR (PT 1162) 429 AT 478 to contend that documents in election matters containing facts relevant to the issues in a petition are the best form of evidence in resolving election matters.
Learned Senior Counsel also submitted that the presumption of regularity ought to be applied by the Tribunal to the evidence of INEC (1st Respondent) who accepted the Petitioners’ nomination and included the party on the ballot, ought to have been recognized by the Tribunal in its decision. In other words, that the Tribunal ought to have applied the presumption of regularity to the issue of the petitioner’s nomination after the 1st Respondent had admitted that it included the 2nd petitioner in the ballot for Abia State Governorship Election. The case of JIMOH ADEKOYA ODUBEKO v. VICTOR OLADIPO FOWLER AND ANR (1993) 7 NWLR (Pt.637) 655 on the presumption of regularity, particularly in respect of official acts and documents. He further referred to the cases of MAGNUSSON vs KOIKI (1991) 4 NWLR (PT) 119, INTEGRATED RUBBER PRODUCTS (NIG.) LTD vs IRABOR OVIAWE (1992) 5 NWLR 572: BENSON vs ONITIRI (1960) 5 FSC 69: ONDO STATE UNIVERSITY vs EZEKIEL ODEKUNLE FOLAYAN (1994) 7 NWLR 1; OBIANWANA OGBUANYINYA v. OBI AKUDO (NO.2) (1990) 4 NWLR 55. The Court was urged to hold that there was no factual basis before the Tribunal warranting the finding of the Tribunal that the Appellants’ 50 nominators w.ere not persons whose names were on the register of voters for Abia State. The Court was urged to resolve this issue in favour of the Appellants.
ISSUE 3:
Whether the decision of non-nomination of a deputy, raised Preliminarily, was proper and or supported by the pleading and materials before the Tribunal?
In arguing issue 3, Learned senior counsel submitted that the decision of the Lower Tribunal that the Appellants lacked the locus standi to present the petition on the basis that the 1st Appellant failed to nominate a running mate for the said election within stipulated time is flawed and entirely baseless. He referred to sections 187 (i) of the 1999 constitution (as amended) and section 31 (1) of the Electoral Act 2010 as amended and the summation of the Tribunal and submitted that the Lower Tribunal placed reliance on document which had absolutely no bearing on the question of locus standi of the Appellants to present the petition.
It is further submitted that the contention of the Respondents was that the 1st Appellant had not nominated a running mate as required by section 187(1) of the constitution within the prescribed period and cannot therefore be deemed to have been validly nominated. He further submitted that this presumption was erroneously based on the notion that the documents annexed to the Appellant’s reply i.e. forms EC4B(ii) and CF001 are not admissible to show that the 1st Appellant properly nominated his running mate and was therefore discountenanced by the Tribunal. The Learned Senior Counsel thus contended that Section 187 (i) of the Constitution does no more than direct for Governorship candidates to nominate running mates and that no mention was made to the timeline within which the said candidates must fulfil this condition and that no section of the Electoral Act equally stipulates such timeline.
On the contrary, it is submitted that the Appellants were not bound to submit the name of the1st Appellant’s running mate before February, 21, 2011, which was the date for submission of the Nomination Form. It is further submitted that forms EC8E and EC8D attached to the 1st and 2nd Respondents’ reply reflect votes scored against the names of candidates only without running mates that the name of the 1st Appellant appeared therein, yet the Tribunal concluded that the 1st Appellant had no Locus Standi.
Learned Senior Counsel also referred to Section 177 (c) of the Constitution on the sponsorship of a candidate by a Political Party and Section 187 (i) for running mate and submitted that a running mate does not contest election but a mere appendage to the candidate for Governor and must swim or sink with his electoral fortunes. Reliance was placed on the case of ABUBAKAR v. INEC (2004) 1 NWLR (Pt.854) 207 AT 233.
It is thus submitted that the Tribunal was wrong to hold that the 1st Appellant has no locus standi on the basis that the 1st Appellant had not dominated a running mate as at January 31st, 2011 when he submitted his form (F001).
Learned Senior Counsel referred to Section 31(1) of the Electoral Act and submitted that the section provides for the manner in which a party can submit names of candidates to INEC in the prescribed Forms issued by INEC thus submitted that the list cannot be forwarded to INEC by a letter or any other means. He placed reliance on the Supreme Court case of NWANKWO vs YAR’ADUA (2010) 12 NWLR (PT 1209) 518 AT 559. It is thus submitted that before submitting the Form to INEC on February 21st, 2011, the Appellants inserted the name Kennedy Ikenna E. on the paragraph indicating that the said Kennedy Ikenna E. had b.een nominated by the 14 Appellant as his running mate. He therefore argued that the Lower Tribunal was in error to have considered irrelevant forms and dates as the relevant dates and forms for which the Appellants should have notified INEC of the 1st Appellant’s nomination of a running mate. It is submitted that the findings of the Tribunal are perverse and the Court was urged to set same aside citing in support the case of EFFIONG vs IKPEME (1999) 6 NWLR (PT 606) 260 AT 274.
Learned Senior Counsel urged the Court to hold that the issue of the purported invalid and belated nomination of the 1st Appellant’s running mate was not a point that the Lower Tribunal was competent to adjudicate at all or in any event that the Respondents’ did not properly raise it before the Lower Tribunal. He referred to the case of CHIME vs ONYIA (2009) 2 NWLR (PT 1124) 1. It is also further stated that the nomination of the 1st Appellant’s running mate is a constitutional issue of qualification of a candidate to contest an election and can only be raised through a cross petition and not the method utilized by the Respondents. The case of IDRIS vs ANPP (2008) 8 NWLR (PT 1088) 1
AT 97 was cited in support. The Court was urged to allow the appeal on this ground.
ISSUE 4:
Was leave of the Lower Tribunal required by the Appellants before they could annex the correct copy of form EC4B(ii) to their Reply to the 2nd and 3rd Respondents’ respective Replies?
Learned Appellant’s Counsel submitted that by annexing the correct copies of forms CF001 and EC4B(ii) to the Appellants Reply cannot by any stretch constitute new facts or grounds or prayers tending to amend or add to the contents of the petition filed by him as contemplated by paragraph 16(1) (a) of the first Schedule to the Electoral Act. It is submitted that a Court or Tribunal cannot discountenance a document in an election petition, if such document has either been frontloaded with the petition or has been listed on the accompanying list of documents as one of the documents which the petitioner intends to rely at the trial and that a document that has been listed can be annexed to the petitioner’s reply without leave of Court and would not constitute fresh fact or new document.
Learned Senior Counsel referred to paragraphs 15 and 16 of the petition and submitted that the Appellants pleaded the documents for which the Appellants intended to rely upon at the trial. However, the Appellants in a haste, annexed wrong copies of Forms CF001 and EC4B(ii) to the petition even though they were neither pleaded nor listed on the list of documents and had no indication of receipt by INEC.
He further submitted that having pleaded the duly filed out and submitted copies of the referenced documents and listing them on the list of documents, the Appellants should not be foreclosed from annexing the correct copies of the pleaded and listed documents to their reply merely because they omitted to annex same to the petition. It is his view that there is neither statutory nor judicial authority supporting such position He relied on the authority of HARUNA vs MODIBBO (2004) 16 NWLR (PT 900) 487 AT 536, ORJI vs PDP (2009) 14 NWLR (PT 1161) 310 to submit that the Lower Tribunal was in great error to have held that the Appellants required leave in order to annex forms CF001 and EC4B(ii) to their reply. He also referred to the case of AREGBESOLA vs OYINLOLA (Supra) at 478 to submit that the Lower Tribunal was in error to have rejected the forms CF001 and EC4B(ii) annexed to the Appellants’ reply but not annexed to the petition and to hold that the Appellants had no locus standi on the basis of such error. He referred also to the case of DINGYADI vs WAMAKO (2008) 17 NWLR (PT 1116) 395.
In his response, the Learned Senior Counsel for the 1st Respondent, Chief A. S. Awomolo, (SAN), referred to paragraph 6 of the petition and the 1st Appellant’s statement on oath at page 16 of the record and submitted that the basis of the right the 1st Appellant asserts in the Petition is principally predicated on his claim to having been validly nominated by the 2nd Appellant. Therefore if the 1st Appellant is shown not to have been validly nominated, the right the Appellant’s asserts in presentation of the petition, being the pivot upon which the petition stands; would have collapsed thereby rendering the petition incompetent. It is submitted that by the ground of the petition and the pleadings, the Appellants have put the valid nomination of the 1st Appellant to contest the election in issue. Learned Senior Counsel submitted that jurisdiction of a Court can be challenged at any time depending on what materials are available.
The following cases were relied upon: NDIC v. CBN (2002) 7 NWLR (PT 766) 272 AT 296; ARJAY vs A. M. S. LTD (2003) 7 NWLR (PT 820) 577; NATIONAL BANK NIGERIA LTD vs SHOYOYE (1977) 55C 181 AT 194; AND ATTORNEY GENERAL KWARA STATE vs OLAWOLE (1993), 1 NWLR (PT 272) 645 AT 674 – 675.
Learned Senior Counsel submitted that the valid nomination of the 1st Appellant is dependent on due compliance with Section 32(1) of the Electoral Act 2010 (as amended) which is mandatory having regard to the use of the word shall in the said subsection. It is submitted that the Appellants claim that the 1st Appellant duly filled the form EC4B(ii) with (50) fifty nominators endorsing and nominating his candidacy, it meant that the form was filled in a proper manner in accordance with legal requirements i.e. legally in accordance with the provisions of the law. He cited NGIGE vs OBI (2006) 14 NWLR (PT 999) 106 – 107.
Learned senior counsel submitted that the Appellants frontloaded form EC4B(ii) in their petitions i.e. INEC form for nomination of Governor and in part B thereof shows that a candidate for the office of Governor/Deputy Governor shall be nominated by 50 (Fifty) registered voters. The Learned senior counsel posed the question whether the 1st Appellants alleged 50 nominators fill out the form with every requisitioned particulars supplied that is, whether form EC4B(ii) frontloaded by the Appellants and filled out by the 1st Appellant alleged 50 nominators met the requirements of supplying the particulars duly identified by the Appellants? It is submitted that the duly filed form reveals, contrary to the claim of the Appellants the following fundamental defects.
a) None of the 1st Appellant’s alleged 50 nominators supplied voter’s identification numbers
b) None of the alleged 50 nominators filed out voters registration particulars regarding elimination and date of issue
c) 34 of the alleged nominators, namely the 3rd – 6th, 11th, 15th -22nd, 25th – 34th and 40th – 50th nominators did not supply particulars regarding their wards.
d) 5 of the alleged nominators, namely, the 9th, 10th 14th, 23rd and 35th nominators supplied no voter’s registration particulars whatsoever.
It is thus submitted that it is gravely misconceived for the Appellants to have claimed in paragraph 41 of their brief that ”all the requisite particulars are fully supplied.” He further submitted that having regard to the failure of the alleged 50 nominators of the Appellants to supply requisite particulars or every requisitioned particulars of their alleged voter’s registration, it would be vain and misconceived to assume or argue that they are registered voters and that the Tribunals finding in that respect cannot be faulted. It is also submitted that even on the new form heavily relied upon by the Appellants in opposing the 1st Respondents Preliminary Objection, the claim that the submitted copy was fully filed out and complete with all requisitioned particulars provided including the particulars of the 50 nominators is grossly misleading and the Lower Tribunal rightly held in its findings that the said documents having been filed without leave, were not properly before the Tribunal and were discountenanced.
Learned Senior Counsel identified what they called fundamental and incurable defects that axe manifest on the face of form EC4B(ii) and submitted that the 1st Appellant was not validly nominated by 50 persons whose names appear on the register of voters as stipulated by Section 32(1) of the Electoral Act and also as found by the Lower Tribunal. It is therefore submitted that it is futile for the Appellants to claim or argue that they satisfied the requirement of Section 32 (1) of the Electoral Act and also to claim that they established a prima facie case on the issue and that the Appellants did not appeal the finding of the Tribunal on the issue which remains binding and conclusive. He referred to the case of OKOTIE EBOH vs MANAGER (2004) 18 NWLR (PT 905) 242 AT 284: P. N. UDOH TRADING CO. LTD vs ABERE (2001) 11 NWLR (PT 723) 114 AT 146. The case of PPA vs INEC (2010) 12 NWLR (PT 1207) 70 AT 98 was referred to and submitted that a candidate at an election is an individual who was validly nominated by its party.
On the 1st Appellant having a validly nominated associate as his running mate at the close of nomination it is submitted that the valid nomination of a Governorship candidate is dependent upon a valid nomination of a Deputy Governorship candidate and that there is a timeline for the nomination of all candidates for National Election. Section 187 (1) of the 1999 Constitution was referred to, and submitted that the provision is mandatory and the lawmaker, deliberately used the word ”shall” and consequently, a Governorship candidate of a state shall not be deemed to have been validly nominated for such office unless he nominates a running mate who will occupy the office of Deputy Governor. Reliance was placed on the case of INAKOJU v. ADELEKE (2007) 4 NWLR (PT 1025) 423 AT 590 AND DINGYADI vs IYAMAKO (2008) 17 NWLR (PT 1116) 395.
It is also further submitted by the Learned Senior Counsel that it is beyond the realm of doubt that the nomination of a running mate by a governorship candidate is a condition precedent to the valid nomination of the Governorship Candidate. Reliance was placed on the case of A. G. FEDERATION vs ABUBAKAR (2007) 10 NWLR (PT 1041) 1.
On the claim whether the invalid nomination of the 1st Appellant is a pre-election matter, it is submitted that the Tribunal rightly held that the issue of valid nomination is not a pre-election matter but an issue arising from the petition itself and that it raises the issue of jurisdiction. It is the view of Learned Senior Counsel that it will amount to contradiction in terms and not within the intendment of the law for a petitioner to assert that he was validly nominated but excluded from the election and a Respondent is prevented from challenging that claim of valid nomination on the ground that it is a pre-election issue. He submitted that in DINGYADI vs WAMAKO (2008) 17 NWLR (PT 1116) 395 AT 454 – 455 the Court rejected the claim that the issue of nomination is a pre-election matter which a Tribunal lacks the jurisdiction to entertain. It is thus submitted that the cases of CHIME vs ONYIA (2009) 2 NWLR (PT 1124) 1: KOLAWOLE vs FOLUSHO (2009) 8 NWLR (PT 1143) 338 AND ZIMIT vs MOHMOND (1993) 1 NWLR (PT 267) 71 the Appellants relied in their claim that the issue of nomination is a pre-election matter, is that in the above cases, the issue was raised by the Petitioners and that the finding in the case of PDP v. HARUNA (2004) 16 NWLR. (PT 900) 487 AT 610 cited in the Appellants brief negates the contention of the Appellants that the issue of nomination under Section 138 (1)(d) of the Electoral Act, 2010 is non-justifiable before a Tribunal.
On the claim that the presumption of regularity in the nomination of the 1st Appellant ought to apply as a result of the screening and acceptance by the 1st Respondent, it is submitted that under Section 150(1) of the Evidence Act when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. Reliance was placed on the case of ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT 1120) 1 AT 55. It is thus submitted that the presumption of regularity in the instant case does not arise. That the Appellants claimed that the 1st Appellant was validly nominated but it turned out to be a farce on the basis of the documents the Appellant relied on which was also further confirmed by other documents before the Court. The Court was urged to resolve issue 1 thereof against the Appellants in that the 1st Appellant was not validly nominated to contest the Abia State Governorship Election.
On its 2nd issue for determination, the Learned Senior Counsel submitted that the Appellants expressly and unequivocally anchored their right to present the petition on the valid nomination of the 1st Appellant. Relying on the authority of ELENDU vs EKWOABA (1995) 3 NWLR (PT 386) 704 AT 757. Learned Senior Counsel submitted that what constitutes a legal right sufficient special interest or interest adversely affected will, depend on the facts of each case and whether an interest is worthy of protection is a matter of judicial discretion which may vary according to remedy asked for.
It is submitted that the Appellants’ pleading, particularly the right they assert and their claim of valid nomination, it is certain that they have put their locus to present the petition in issue, and hence the Tribunal’s finding that by the very nature of this petition, the 1st Petitioner has put the validity of his nomination in issue. He submitted that the ‘E2”right” the Appellants assert translate into their locus to present the petition. It is further submitted that on the basis of the Appellants’ documents namely Form EC4B(ii), Form CF001, Form EC25(iii) frontloaded with their petition, the Appellants have failed in establishing that the 1st Appellant was validly nominated. He submitted that the finding of this Lower Tribunal on this issue is impeccable.
It is also submitted that it is not sufficient for the Appellants to assert that the 1st Appellant was validly nominated but must establish that they have the locus or the right they assert. He placed reliance on the following cases; CONTRACT RESOURCES (NIG.) LTD vs WENDE (1998) 5 NWLR (PT549) 264: EZEAFULUKWE vs JOHN HOLT LTD (1996) 2 NWLR (Pt.432) 519; PPA v. INEC (2010) 12 NWLR (PT 1207) 76; AND OJUKWU vs YARADUA (2009) 12 NWLR (Pt.1154) to AT 106.
On the Appellants complaint that the Tribunal relied on the Respondent’s depositions in support of the objection as well as documents attached thereto in reaching a decision, the cases of NDIC vs CBN (2002) 7 NWLR (Pt.766), 272 AT 296 -297: AND ARJAY LTD v. A.M.S. LTD (2003) 7 NWLR (PT 820) 572 AT 625 – 626 were relied upon on materials necessary to raise objection to jurisdiction of a Court or Tribunal. The Court was urge to resolve issue 2 against the Appellants in favour of the 1st Respondent.
On issue 3, it is submitted by Learned Senior Counsel that the Tribunal was right when it held that the additional documents attached to the Appellants’ replies having been filed without leave were not proper before the Tribunal and were rightly discountenanced.
The contention of the Appellants is that the Tribunal was wrong when it held that the documents attached to the Appellant’s reply to the 2nd and 3rd Respondents respective replies were so attached without leave of this Tribunal.
Learned Senior Counsel submitted that there is no provision in the first Schedule of the Electoral Act 2010 (as amended) that allows a Petitioner to add to a list of documents and the depositions of his witnesses through a purported reply to a Respondent’s reply without leave. That there is also no provision of the Electoral Act 2010 (as amended) that allows a Petitioner to amend his petition other than as prescribed in paragraph 41 of the first Schedule to the Electoral Act 2010 (as amended). Therefore that the purported procedure adopted by the Appellants is not predicated upon any leave duly granted by the Tribunal or upon any known provision of the law.
It is further submitted that the surreptitious manner the Appellants attempted to smuggle new facts into the petition or amend same, add new documents and depositions of additional witnesses thereto is in breach of paragraphs 14 and 16(1) (a) of the First Schedule of the Electoral Act 2010 (as amended). It is submitted that the Appellants futile effort is not different from what a petitioner did in the cases of ORJI vs UGOCHUKWU (2009) 14 NWLR (PT 1161) 207 AND ORJI vs PDP (2009) 14 NWLR (PT 1161) 310. It is thus submitted that the claim that the new documents did not add to the petition or what was already before the Tribunal is unfounded and the Court was urged to resolve issue 3 hereof in favour of the 1st Respondent and against the Appellants and to dismiss the appeal.
In his response, as contained in his brief of argument, the Learned Senior Counsel for the 2nd Respondent Lateef O. Fagbemi (SAN) submitted that an appellate Court will not disturb a decision merely because the reason for the decision is not correct if the decision or the conclusion is correct, citing in support the case of DICKSON ARIBA vs THE STATE (1988) 3 NWLR (PT.83) 389 AT 399. He submitted that the finding of the Tribunal that the 1st Appellant was not validly nominated for the election being a crucial finding of fact is not challenged by the Appellants and submitted that where a finding of fact of the trial Court is not challenged, the appellate Court will not disturb the finding citing the cases of ENAGI vs ENUWA (1992) 3 NWLR (PT 231) 54, AND MADUABUM vs NWOSU (2010) 13 NWLR (PT 1212) 623 AT 656.
On the procedure adopted by the Tribunal to arrive at its decision, it is submitted that the Appellants cannot be heard to complain where they failed to show that same has occasioned any miscarriage of Justice, citing the case of THEOPHILLUS ONUOHA vs THE STATE (1988) 3 NWLR (PT 83) 40 and also that the Appellants having acquiesced in the use of the procedure will not be allowed to complain against same on appeal. He referred to the case of AMAECHI vs INEC (2008) 5 NWLR (PT1080) 227.
On the complaint of the Appellants that the Tribunal decided the substantive matter in an interlocutory application, it is submitted that this is not applicable to applications which are capable of determining the suit completely or in limine as with the case of the applications determined by the Election Tribunal. He referred to the case of STATE vs ONAGORUWA (1999) 3 NWLR (PT 221) 33. It is thus submitted that an application challenging jurisdiction of the Court is not an interlocutory application since it has the effect of determining the case.
On the propriety of mode of decision on locus standi and other grounds, Learned Senior Counsel submitted that the Appellants failed to appreciate the decision of the Tribunal based on the fact that the 1st Appellant was not validly nominated to contest the election and thus have no locus standi to maintain same as the petition also does not disclose any cause of action. On what is a cause of action, the case of THOMAS vs OLUFOSOYE (1986) 1 NWLR (PT 18) 669 was referred to.
On the complaints of the Appellants that the Lower Tribunal made use of extraneous evidence in deciding the application the Learned Senior Counsel submitted that the Lower Tribunal did not rely on extraneous evidence to decide the matter but relied only on the petition filed by the Appellants and the documents attached to the same to determine the application. That the Appellants did not apply at any time to replace the documents attached to the petition by them with any other ones. It is also submitted that it is not necessary for evidence, oral or documentary to be admitted before the Election Tribunal can rely on them to take a decision whether the petition discloses a cause of action or not. He placed reliance on the case of OKEREKE v. YAR’ADUA (2008) 12 NWLR (PT 1100) 95.
On the sui generis nature of election petitions, Learned Senior Counsel referred to the cases of PRINCE ABUBAKAR AUDU vs INEC (2010) 13 NWLR (PT 1212) 431 AT 454; AND SILAS BOUNWE v. R.E.C. DELTA STATE (2006) 1 NWLR (Pt.961) 286 AT 312 -313.
The Learned Senior Counsel submitted that the decision of the Tribunal is correct as no prospective contestant for the governorship election can be regarded as having been validly nominated for the election unless he nominates another person as his deputy governorship candidate. He referred to section 187 (1) of the 1999 Constitution (as amended). It is submitted that from the forms frontloaded by the Appellants, the name of the purported deputy governorship candidate was not on any other nomination forms attached to the petition and concluded that the Lower Tribunal was correct when it held that the 1st Appellant was not validly nominated in that he did not name anybody as his deputy governorship candidate as required by the Constitution.
On failure to appeal against the findings of fact contained in the judgment of a Court or Tribunal, the following cases were referred to MADUABUM vs NWOSU (2010) 13 NWLR (PT 1212) 523 AT 656; ALHAJI MAHAMMADU EGBA ENAGI vs DR MUSA INUWA (1992) 3 NWLR (PT 231) 548 AT 588; UNION BANK OF NIGERIA LTD vs MICHAEL NNOLI (1990) 4 NWLR (PT 145) 530 AT 547.
On the contention of the Appellants that the issue whether they fielded a deputy governorship candidate or not is an issue of qualification which the Respondents cannot raise without filing a cross appeal, it is submitted that the Appellants approached the Lower Tribunal on the basis of Section 138(1) (d) at the Electoral Act 2010 (as amended) which requires them to establish that the Petitioner or its candidate was validly nomination but was unlawfully excluded from the election. The following cases were relied upon PPA vs INEC (2010) 12 NWLR (PT.1207) 70 AT 98; PETER OKOCHA vs INEC (UNREPORTED COURT OF APPEAL BENIN DIVISION) in appeal No. CA/B/EPT/321/09, delivered on 29th February, 2011.
On the alleged presumption of regularity it is submitted that the issue was not canvassed at the Lower Tribunal and that it is a fresh issue for which no leave of court has been obtained. It is submitted that the issue is incompetent and this Court lacks the jurisdiction to entertain it. The following cases referred to; BENSON OBIAKOR vs THE STATE (2002) 10 NWLR (PT 776) 612 AT 626-7; OSHATOBA vs OLUJITAN (2000) 5 NWLR (PT 655) 199: PPA vs INEC (Supra) AND THE UNREPORTED CASE OF PETER OKOCHA vs INEC (supra). The Court was urged to dismiss the appeal.
In his own response, the Learned Senior Counsel for the 3rd Respondent, Chief Wole Olanipekun, (SAN); referred to paragraph 53 (5) of the first Schedule to the Electoral Act 2010 (as amended) and submitted that when the word ”
shall” is used in a legislation, it connotes mandatoriness, peremptoriness of the thing to be done leaving no room for discretion cited OLANIYAN v. OYEWOLE (2008) 5 NWLR (Pt.1079) 114 at 137; AND AMADI v. NNPC (2000) 10 NWLR (Pt.674) 76.
It is submitted that there is no dispute that pleadings have been closed and the Respondent in his reply raised a preliminary objection to the competence of the petition and filed a motion to that effect supported by an affidavit and some documents. That the Appellants duly responded to the motion and filed a counter affidavit as well as written address. That the Preliminary objection challenged the competence of the petition as well as the jurisdiction of the Lower Tribunal to entertain the petition at all. Learned Senior Counsel submitted that the jurisdiction of a Court is so vital and crucial to its entertaining or adjudicating on any matter and when the jurisdiction is challenged the court must first of all determine whether or not it has jurisdiction before taking any further step in the proceeding. He placed reliance on the cases of MADUKOLU vs NKEMDILIM (1962) 1 ALL NLR (PT4) 587; DOSUMU VS A. G. LAGOS (1989) 3 NWLR (PT 111) 552; EGBELE vs TEE POSTMATER GENERAL (2011) ALL FWLR(PT 576) 575 AT 583.
It is therefore submitted by the Learned Senior Counsel that the Appellants complaints and arguments that the Lower Tribunal made conclusive pronouncements on the main case at interlocutory stage are totally misplaced and misconceived and submitted that the cases cited have no bearing to the issue. That in NWANKWO vs YAR’ADUA (2010) 12 NWLR (Pt 1209) 518, the Supreme Court did not interpret a similar provision like Section 53(5) of the Schedule to the Electoral Act. It is submitted that the Supreme Court upheld the decision of the Court of Appeal arising from or striking out of Election petition based on a similar provision as contained in paragraph 54 (5).
He placed reliance on the following case; OJUKWU v. YAR’ADU’A (Supra); NWANKWO VS YAR’ADU’A (SUPRA) AND ABUBAKAR VS YAR’ADU’A (2008) ALL FWLR (PT 404) 1409; ABRAHAM ADESANYA vs PRESIDENT OF THE FEDERATION (1981) 12 NSCC 146. It is further submitted that this Court in KHALL vs YAR’ADUA (2003) 16 NWLR (PT 487) 446 AT 485 held that any Election Tribunal must hear and determine any Preliminary Objection brought challenging the regularity and competence of the election petition. It is thus submitted that it is fallacious for the Appellants to be pontificating on trial when by their own showing, the petition brought by them is dead on arrival. The Court is urged to resolve the issue against the Appellants.
On the second issue for determination the Learned Senior Counsel referred to Sections, 177, 186 and 187 (1) of the 1999 Constitution (as amended) with regard to the qualification to the office of Governor or Deputy Governor to submit that the entire petition of the Appellants does not make any pretence to show compliance with the Constitutional imperatives as it has not been pleaded in any paragraph of the petition that the 1st Appellant nominated anybody as his Deputy Governorship candidate. It is submitted that the Appellants Form EC4B (ii) frontloaded to the petition does not have a Deputy Governorship candidate or nominee as required in paragraph 5 of the said form and that this goes to show that the 1st Appellant was not validly nominated. He referred to the case of A.G. FEDERATION vs ABUBAKAR (2010) 10 NWLR (PT 1041) 1 AT 172 – 173. It is thus submitted that a condition precedent to the valid nomination of the 1st Appellant for the position of Governor of Abia State is nomination of an associate for the office of Deputy Governor. Reliance was placed on the cases of: ATOLAGBE vs AWUNI (1999) 9 NWLR (PT 522) 536 AT 562: AND SULE vs NIG. COTTON BOARD (1985) 2 NWLR (PT 5) 17. Learned Senior Counsel also considered Sections 32 (1) and 32 (5) of the Election Act 2010 (as amended) with regard to the nomination of the 1st Appellant and submitted that none of the purported nominators has any voter’s identification number and that the voter’s identification number demanded by Form EC4B (ii) is a product of Section 32(1) of the Electoral Act which stipulates for persons whose names appear on the Register of voters and further submitted that the finding of the Lower Tribunal that Appellants by their own showing have failed to show prima Facie that the 1st Appellant duly nominated a running mate as required by Section 187 (1) of the 1999 Constitution cannot be faulted.
On the contention of the Appellants that the issue of the valid nomination of the 1st Appellant’s running mate was a pre-election matter, it is submitted that the issue is a Constitutional matter apart from the fact that it arises directly from the petition and also that it is tied the locus standi of the Appellants to present the petition. Learned Senior Counsel referred to Section 137(1) (a) and (b) of the Electoral Act and submitted that by Section 133 (1) (d) of the Act; the only ground on which this petition was based can only avail any party with a locus standi to present the petition which is rooted in the valid nomination of the 1st Appellant; The cases of ADESANYA vs PRESIDENT OF NIGERIA (Supra)-AND THOMAS v. OLUFOSOYE (Supra) were referred to.
The Learned Senior Counsel also submitted that it is misleading for the Appellant to contend that a cross petition is needed to object to the competence of a petition wherein Appellants presented documents and materials and pleaded facts which clearly showed that they were not validly nominated. The Court was urged to resolve the issue against the Appellants.
On issue three (3), Leaned Senior Counsel submitted that the Appellants erroneously contended that the Lower Tribunal should have presumed the regularity of the nomination of the 1st Appellant while no Court of law can presume the regularity of an irregular act as the irregularity robs the Court of jurisdiction and derobes the Appellants of locus standi. That for Section 150(1) of the Evidence Act to apply the act done must have been done in a manner that is substantially regular. The cases of NKEIRUKA v. JOSEPH (2008) LRECN 317 AT 334, AND SANUSI vs AYOOLA (1992) 9 NWLR (PT 265) 275 AT 295 were referred to.
Learned Senior Counsel also referred to what he called un-appealed finding of the Lower Tribunal and submitted that the mere fact that an appeal succeeds on the grounds of appeal filed by an Appellant would amount automatically to the Appellate court setting aside the decision of the Lower Court where germane findings of the Lower court are not appealed against and when such findings abide and subsist. The following cases were referred to ONIFADE vs OLANIYOLA (1990) 7 NWLR (PT 161) 130 AT 157 – 158; AND ADEYENI vs A. G. OYO STATE (1984) SCNLR 525. In Conclusion, the Court was urged to dismiss this appeal.
In his reply to the 3rd Respondent’s brief of argument Learned senior counsel for the Appellants submitted that arguments on paragraph 53 (5) of the first Schedule to the Electoral Act, 2010 (as amended) is irrelevant as the Appellants did not challenge the Tribunal authority or competence to entertain the Preliminary Objection but rather that the Tribunal applied the wrong judicial standard in its determination.
It is clear from the submissions of Learned counsel that the main grudge of the Appellants in this appeal is the locus standi of the Appellants to present the petition the determination and consideration of substantive issues in the petition by the Lower Tribunal at an interlocutory stage without the benefit of a trial and dismissing the Appellants petition in limine, and the decision of the Lower Tribunal on the proper nomination of the 1st Appellants running mate.
I shall examine the Appellant’s pleading on their right to present the petition and the statement on oath of the 1st Appellant on the alleged right.
In paragraph 6 of the petition the Appellants pleaded as follows:
6. The petitioners assert a right to present this petition on the following essential basis:
a. The 1st petitioner was the validly nominated candidate duly sponsored by the 2nd Petitioner to contest the Election; and
b. The 2nd Petitioner validly nominated and sponsored the 1st Petitioner in accordance with the relevant laws in Nigeria.
The 1st Appellant in his statement on oath at page 3 of the record stated as follows:
6. The basis of the right I assert in this petition are:
a) That I was validly nominated and duly sponsored by DFPF to contest the election and
b) The DFPF validly nominated and sponsored my candidature in accordance with all relevant laws in Nigeria.
The Respondents at the Lower Tribunal challenged the competence of the petition and the locus standi of the Appellants to present the petition on the grounds that the 1st Appellant was not validly nominated to contest the election by 50 persons whose names appear on the register of voters and that the 1st Appellant did not have a validly nominated associate as his running mate for the election. In fact, the Lower Tribunal in a considered ruling delivered on the 10th August, 2011 upheld this objection and dismissed the petition which is now the subject of the present appeal before us.
The basis of the right the 1st Appellant asserts in the petition is predicated on his claim to having been validly nominated by the 2nd Appellant to contest the said election and it is contended by the Respondents that the 1st Appellant was not validly nominated by 50 persons as prescribed by Section 32 (1) of the Electoral Act 2010 (as amended).
It is trite that the valid nomination of the 1st Appellant is dependent on due compliance with Section 32 (1) of the Electoral Act, 2010 (as amended) which prescribes as follows:
32 (1) A candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the commission may prescribe.
The use of the word ”shall” by the legislature in the above provision connotes mandatoriness, peremptoriness of the thing to be done leaving no room for discretion.
It is compulsory that the Court must abide and toe the line of the legislation regarding that thing to be done. The poser here is, whether the 1st Appellant was validly nominated by the prescribed number of voters in the constituency.
The Appellants had contended that the Lower Tribunal went into grave error from giving consideration to materials and documents that it ought not to have taken in determining the Appellant’s locus standi. It is seriously contended by the Appellants that the Lower Tribunal abandoned its duty to look exclusively at the petition and decided to base its decision on the allegations of the Respondents contained in their interlocutory applications with materials attached thereto instead of confining itself to the claim of the Appellants as disclosed in the petition
The main grudge of the Appellants is that the Lower Tribunal took the Respondents depositions in support of their Preliminary Objection into consideration as well as documents attached thereto including Form EC25C(iii) attached to the 1st Respondents affidavit in support of its decision, that the Tribunal decided the case on the basis of copies of documents that were not admitted in evidence by ascribing value to copies of yet to be admitted documents in evidence.
In paragraph 16 of the petition, the Appellants inter alia claimed that the 1st Petitioner duly filled the Forms CF 001, EC4B (ii) with (50) nominators endorsing and nominating his candidacy. Now, what were the documents relied upon by the Lower Tribunal to arrived at its decision?
The Appellants submitted that they obtained a copy of Form EC4B (ii) from INEC and procured same to be filled out by 50 of the 1st Appellants nominators with every requisitioned particulars supplied. That they duly completed forms were thereafter submitted to INEC on February 21st, 2011 and INEC acknowledged receipt thereof and that the form was listed as item 7 on the Appellant’s list of documents and frontloaded to the petition. However, the Appellants admitted that this form was never submitted nor received by INEC contrary to their averment in paragraph 40 of their brief of argument.
That when the error was detected, the Appellants now attached a list of additional documents incorporating a new Form CF 001 signed and sworn and Form EC4B (ii) nomination of Governorship Form to their reply to the 2nd and 3rd Respondents replies to the petition. It is submitted that the required particulars to be filled out by the nominators are names, addresses, occupations, voters identification numbers, Local Government Area Ward, Delimitation, Dates of issue and signatures. The Respondents contended that the Form EC4B (ii) frontloaded by the Appellants purportedly filled out by the 1st Appellant’s alleged 50 nominators failed to meet the requirements of particulars duly identified in the form. That the form reveals the following fundamental defect:
a) None of the 1st alleged 50 nominators supplied voters identification number.
b) None of the alleged 50 nominators filled out voter’s registration particulars regarding Delimitation and date of issue.
c) 34 of the alleged nominators, namely 3rd -6th, 11th, 15th – 22nd, 25th – 34th and 40 – 50 nominators did not supply particulars regarding their wards.
d) 5 of the alleged nominators, namely, the 9th, 10th 14th, 23 and 35th nominators supplied no voters registration particulars whatsoever.
It is therefore submitted by the Respondents that it is misleading for the Appellants to have claimed in paragraph 41 of their brief that all requisite particulars were supplied and it is therefore misconceived to assume or argue that they are registered voters.
The Appellants relied on the case of INEC vs ACTION CONGRESS (Supra) to contend that the 1st Appellant was validly nominated and the only way to contend otherwise is to tender the entire voter’s register for the entire constituency for the nominator to be ruled out as not a registered voter.
The case of INEC vs ACTION CONGRESS (Supra) relied upon by the Appellants did not give any decision over the issue of a nomination form, that is Form EC4B(ii). In that case, none of the parties challenged the validity of the nomination form which was tendered in the proceedings. The challenge was whether the names of nominators appear on the register of voters which means that they are not even registered voters.
The only inference to be drawn in the circumstances is that the nominators were not registered voters or at all. So, the issue is not whether the names of the nomination are on the register of voters as was the case of the INEC vs ACTION CONGRESS CASE.
In the instant case, the contention is that they did not validly fill out Form EC4B (ii), so the nomination could not stand as they have not presented themselves as genuine registered voters. Their nomination cannot therefore stand and the 1st Appellant cannot be said to be validly nominated.
The alleged nominators did not provide voter’s identification number and none of them filed out voters registration particulars regarding delimitation and date of issue. Most of them did not fill out voter’s registration particulars or supply particulars regarding their wards. How could they then be identified in the register of voters as registered voters?
This case and the INEC vs ACTION CONGRESS are not therefore on all four. It is true that for a nomination to be valid, it must meet statutory procedures. It is no doubt that there must be due compliance with the provision of Section 32(1) of the Electoral Act, 2010 (as amended) among other provisions before the nomination of a candidate is regarded as valid. See PPA vs INEC (Supra). It is clear from the facts of this case that the Appellants did not comply with any of the requirement for valid nomination more especially in view of the defects so identified in the Form EC4B (ii).
The Lower Tribunal refused to countenance the so called additional documents filed by the Appellants on the 15th day of June, 2011, having been filed without leave and not proper before the Tribunal. The Learned Senior Counsel for the Appellants submitted that the referenced documents were on the list of documents frontloaded to the petition and the Appellant should not be foreclosed from annexing the correct copies of the pleaded listed documents to their reply because they omitted to annex them to the same petition. He argued &at on no account should a party be denied the opportunity to place before the Court all the documents that would assist him in proving his case and that no litigant must incur the penalty of not having his case heard on the merit for reason of any blunder made by his counsel in the preparation of his case. see ORJI VS PDP (2009) 14 NWLR (PT 1161) 310.
It is trite that the case of ORJI VS PDP (supra) relied upon by the Appellants to contend that the additional documents supplied by them are akin to exhibit, ”HS” brought in through PW 5, that the said documents be rejected as the court did for Exhibit ”HS” has no utility value to the case of the Appellants. In ORJI VS PDP (Supra), this Court stated per OGUNBIYI, JCA, AT PAGE 404, thus: ”Exhibit ‘HS’ was not listed among the Exhibits to be tendered. The testimony of PW5 was therefore not frontloaded but only brought in though the petitioner’s reply.
In the instant appeal, the listed documents were not those frontloaded to the petition. Other sets of documents were frontloaded. By the Appellants reply to the 2nd and 3rd Respondents they now sought to bring the actual listed documents but not frontloaded through the reply. The point here is that the listed documents were not frontloaded but sought to be brought in through a reply to the Respondents brief for argument. In ORJI vs UGOCHUKWU (Supra) at page 296 the Court held as follows:
”This approach to start with is utterly irregular and as an affront to paragraph 1 (1) (a) (b) and (c) above as the petitioner cannot at reply stage be allowed to bring in without leave an amendment sought and got from the Court any. Substantial point that ought to have been raised in the petition itself. It is unfair and prejudicial for the Petitioner/Respondent to bring in the PW5 and through him (PW5) Exhibit ”HS” into petition No. ABS/GOV/EPT/9/2007 at the Petitioner’s reply stage being the time when the Respondent/Appellant could no longer reply to the substantial allegations and far reaching evidence.”
The Appellants’ contention that the documents sought to be brought in through their reply was listed on the list of the document but was not frontloaded in error, instead another not signed and not submitted was frontloaded is of no moment. What the Appellants therefore seek to do is to a-end the pleading by introducing the correct documents already listed, without the leave of the Court.
What the Appellants were doing at that stage was to amend their petition through the back door without leave of the Court. The Appellants cannot introduce the new documents without withdrawing the earlier one frontloaded to the petition as the two separate documents cannot be in the same place at the same time. The Appellants by introducing the new documents have taken a step further to amendment their pleading.
Paragraph 16 (1) (a) of the first Schedule to the Electoral Act prohibits such amendment because by bringing in the new documents they are adding to the contents of the petition filed by them, and at least the leave of the Court is required to put them through and or withdraw the frontloaded one.
After due consideration of the arguments of Learned Counsel, it is my view that the Lower Tribunal did not rely on any extraneous evidence to decide the application before it. The Lower Tribunal only made use of the petition filed by the Appellants and the documents attached thereto to determine the application. This the Lower Tribunal is permitted to Co because the frontloading procedure ensures that oral and documentary evidence upon which the parties build their cases are available to enable the Election Tribunal decide abinitio whether the petition discloses a cause of action or not. It is true that Election Tribunals can exercise their jurisdiction to dismiss petitions when evidence frontloaded to it does not disclose any cause of action. See OKEREKE v. YAR’ADUA (2008) 12 NWLR (PT 1100) 95. The Lower Tribunal is therefore right to have considered and made use of documents presented to it or attached to applications made before it in the determination of Locus standi of the Appellants to present the petition. This is so because where the challenge succeeds, the petition is dismissed in limine as there would be no recourse to any trial where evidence will be led, i.e. that is no decision of the substantive matter or any main issue to be decided by the Court. The Lower Tribunal was therefore right in its approach in the consideration of the documents frontloaded or attached to applications made before it. This does not contravene or contradict the time honoured principle of our law that a court should not make any finding, comment or decide substantive matters in an interlocutory proceedings. I rest this issue here.
Another main grudge of the Appellants in this appeal is the issue of nomination of an associate or running mate as Deputy Governor. It is seriously contended by the Appellants as argued in their brief of argument that the decision of the Lower Tribunal that the Appellants lacked locus standi to present the petition on the basis that the 1st Appellant failed to nominate a running mate within the stipulated time is flawed and entirely baseless as there is no timeline.
It is trite that the valid nomination of a Governorship candidate is dependent upon a valid nomination of a deputy Governorship candidate. SECTION 187 (1) OF THE 1999 CONSTITUTION (as amended) enacts it in a very clear terms as follows:
”In any election to which the foregoing provisions of this part of this chapter related candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates .another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.”
The above provision is clearly mandatory as the law maker deliberately used the word ”shall”. Consequently, a Governorship candidate of a state ”shall” not be deemed to have been validly nominated for such office unless he nominates a running mate who will occupy the office of Deputy Governor.
In the instant appeal, in the list of documents attached to their petition, the Appellants in paragraph 5 thereof stated as follows:-
”Form EC4B (iv) (Sic) with acknowledgment of receipt submitted by the Petitioner to INEC (Notice is given to INEC to produce). The correct form is form (EC4BCii) and Appellants in support of their petition front loaded the said form and the 1st Appellant failed to fill in the name of the person he wished to nominate as his running mate” It is thus contended by the Respondents that the 1st Appellants failure to nominate a running mate as shown in Form (EC4BCii) and Form EC25C (iii) is consistent with Exhibit 2 which has only the name of the 1st Appellant as a candidate for the Abia Governorship Election.
Under the Electoral Act 2010 (as amended) a time frame is presented for various activities regarding the Electoral process including the nomination of candidates. See sections 31(1) AND (3), 3a and 35 of the Electoral act, 2010 (as amended). See Exhibit 3, The INEC timetable at pages 547 – 550 of the Records of Appeal. Items 7, 8,10,11,12, 14 and 18 therein details the activities and dates as prescribed in those items. The prescriptions in items 7 and 8 are to the effect that for all elections, the Form CF001 of the candidates and the list of the candidates for the parties, Form CF002 must be submitted to the 1st Respondent not later than 3lst January, 2011. The Appellants have failed to submit the forms as stipulated which means that the candidates involved were not validly nominated as the personal particulars of the candidates would not have been published by 6th February, 2011 as stipulated by item g thereof, with respect, the contention of the Learned senior counsel for the Appellants at paragraph 60 of their brief of argument that, what section 187 (1) of the 1999 constitution (as amended) does is no more than direct Governorship candidates to nominate running mates and that neither the Electoral Act and INEC made any mention of timeline within which candidates must fulfil, regarding nomination in Forms CF002 and EC25C (iii) and that the Appellants were not bound to submit the name of the 1st Appellant’s running mate before February 21st, 2011, is utterly deceitful and uncharitable.
It is clear as borne out from the records that, by the deadline of 31st January, 2011, no Form CF001 relating to the 1st Appellant’s associate or running mate, Kennedy Ikenna Enyia, was submitted to the 1st Respondent. Exhibit 2, the 2nd Appellants list of candidate for the 2011 Governorship Election (Form CF002) was submitted on 31st January 2011 as shown by the endorsement and the name of the 1st Appellant’s associate or running mate is not on Exhibit 2. Also it is not shown that E. Kennedy Enyia was a substituted candidate and no document relating to him was submitted to INEC earlier than February 21st, 2011.
The lower Tribunal is very much consistent in its evaluation of the evidence before it. It held as follows at page 719 of the records, ”under item 7 of the time table, the last date for the submission of forms CF001 (Affidavit/personal particulars of candidates) and CF002 (party’s list of candidates) for all elections was 31st January, 2011. The Petitioners confirmed this in paragraph 15 of their Petition and averred that forms CF001 and CF002 were duly filed and submitted to the 1st Respondent on January 31st, 2011. We have perused the documents front loaded with the Petition Form CF001 filed along with the Petition is unsigned and unsworn. Form CF002 not file along with the Petition but the Petitioners filed form EC25 (iii) list of dominated candidates.”?
The Tribunal continued its findings at page 720 of the records, thus:
”The Respondent’s Counsel drew our attention to the fact that the name Kennedy Enyia, the purported running mate of the 1st Petitioner was not listed on form EC25C (iii). We also observed that the said form EC25C (iii) was signed and dated 28/2/2011. This form could therefore not have been submitted to the 1st Respondent on 31st January, 2011. It is important to note at this stage that the Petitioners in their reply to the 2nd Respondent’s reply formulated another case by saying that 21st February, 2011 and not 31st January, 2011, was the deadline for the submission of nomination forms and that the 1st Respondent issued only form EC4B (ii) as nomination forms for Governorship Election in Abia State and not forms CF001 and CF002. We shall say more on this presently.”?
The 2nd Appellant was under a legal obligation to submit Kennedy Ikenna Enyia’s Form CF001, within the stipulated time of 31st January, 2011, it desired to sponsor him as a candidate for the sad election. It also had the statutory responsibility of including his name in form CF002 it submitted to the 1st Respondent within the prescribed deadline of 31st January, 2011.
To underscore the point made by the Appellants in an attempt to rebrand heir case, the lower Tribunal found at page 723 of the records as follows:-
”One of the stages in the process is the publication of names and personal particulars of candidates (Form CF001). The date set for that event in Nigeria by INEC in Exhibit 3 was 6th February, 2011. We now ask what was the name of the Deputy Governorship candidate of the 2od Respondent (Sic) published by INEC on 6th February, 2011? The answer is NONE. Because as at the close of submission of Form CF001 on 31st January, 2011 the respondent (sic) had no such candidate. It is the candidate(s) whose names had been submitted in Form CF001 by 31st January, 2011 and published by INEC on 6th February, 2011 or the name (s) of any validly substituted candidate (s) that may be submitted to INEC by 21st February, 2011. The above shows the futility in the petitioner’s case. We hold that 16e April 2011. was the date appointed by the 1st Respondent for the Governorship Elections in Nigeria, including Abia State pursuant to Section 31 (1) of the Electoral Act.”
This finding of the Tribunal cannot be impeached. It is now settled law that for a nomination to be valid, it must meet statutory procedures. See PPA v. INEC (2010) 12 NWLR (Pt.1207) 70 (a) 105-106 and DINGYADI VS WAMAKO (2008) 17 NWLR (Pt.1116) 315.I therefore hold the view and found in this appeal that the non nomination of a running mate as Deputy Governor touches on the qualification of a candidate to contest an Election under the Electoral Act 2010 (as amended) and is also a clear breach of the provisions of section 187 (1) of the 1999 Constitution (as amended) which makes it mandatory for a person wishing to run for the position of a Governor of a State to first nominate another candidate as his associate who will occupy the office of the Deputy Governor which is a condition precedent to his running for the office of Governor. It is therefore beyond any realm of doubt that the nomination of a running mate by a Governorship candidate is a condition precedent to the valid nomination of a Governorship candidate.
The claim therefore by the Appellants that the nomination of the 1st Appellants is a pre-election issue and that the only way in which it could be contested would have been to file a cross appeal is totally misconceived. It is the law that without a valid nomination, the question of unlawful exclusion cannot arise. The Lower Tribunal was therefore right when it held that the issue of valid nomination is not a pre-election matter but in issue arising from the petition itself and therefore raises the issue of jurisdiction.
Where a petition is based on valid nomination but unlawful exclusion, one of the issues that must be proved is that the candidate was validly nominated. The claim by the Appellants that the issue of valid nomination is a pre-election matter will amount to contradiction for the Petitioner to claim that he was validly nominated but excluded from the election and a Respondent is prevented from challenging that claim of valid nomination on the ground that it is a pre-election matter. The cases of CHIME vs ONYA (2009) 2 NWLR (PT1124) 1; KOLAWOLE vs FOLUSHO (2009) 8 NWLR (PT1143) 338; AND ZIMIT vs MAHMOUD (1993) 1 NWLR (PT267) 71 relied upon by the Appellants to contend that the issue of nomination is a pre-election matter is of no relevance to the Appellants stand on this issue.
The Appellants have also contended that as a result of the screening and acceptance by the 1st Respondent, that presumption of regularity that all formal requirements for the nomination of the 1st Appellant were followed ought to have been applied citing Section 150(1) of the Evidence Act.
The Section provides as follows:
150(1) ”when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”
The Supreme Court in the case of ABUBAKAR v. YAR ADUA (2008) 19 NWLR (PT 1120) 1 AT 155, PER TOBI, JSC (as he the was) said.
”A presumption of law is merely an invocation of a rule of law compelling a fact finder to reach a particular conclusion in the absence of evidence to the contrary. It otherwise means a mandatory deduction which law directs to be made having regard to rules of law and practice laid down for Courts use. It is procedural devise, which takes the place of evidence in certain cases until the facts in lieu of which the presumption operates are shown. Presumption of law is in fact a preliminary rule of law which may disappear in the fact of rebutted evidence. However, in the absence of evidence to the contrary, the presumption stands….. A presumption of law will, however fossilize into thin air if it is rebutted”
It is therefore not the law that the mere fact that irregular act takes place whether noticed or unnoticed, that the regularity of it will be presumed. In NKEIRUKA vs JOSEPH (Supra) Court held that a petition which was not accompanied by witness depositions in compliance with practice directions is of no effect and cannot be countenanced despite the fact that Registrar/Secretary of the Tribunal accepted it for filling. Similarly, in SANUSI vs AYOOLA (Supra). the Supreme Court held that a process filed out of time by a party without that party applying for extension of time to regularize it should not countenanced.
Having regard to the entire circumstances of this case the Appellants’ pleading, particularly the ”right” they assert and their claim of valid nomination, it is certain that they have put their locus to present the petition in issue. Therefore, the Lower Tribunal rightly found that ”By the very nature of this petition, the 1st petitioner has put the validity of his nomination in issue”. Therefore I agree with the Learned Senior Counsel for the 1st Respondent that it necessary follows that the right the Appellants assert in presenting the petition will be empty if it is shown that the 1st Appellant was not validly nominated. On the basis of the Appellants’ documents namely Form EC4B (ii) Form CF001, and Form EC25C (iii) frontloaded with their petition, the Appellants have failed in establishing that the 1st Appellant was validly nominated to contest Abia State Governorship election. The Lower Tribunal’s finding that:
This finding of the Lower Tribunal cannot be impeached.
”Looking at the petitioner documents alone, in determining the Validity of the nomination of the 1st petitioner and that locus standi of both petitioners, by their own showing, having failed to show prima facie, that the 1st respondent (sic) duly nominated a running mate as required by Section 187(1) of the 1999 Constitution”.
The Lower Tribunal held further at page 726 of the records that:
”Locus standi is the key with which a claimant or petitioner may open the door of adjudication. Where the defendant or respondent confronts a petitioner that he has no such key, it is incumbent on the petition/claimant to float the key. If the Court agrees with him, the case survives and moves to the next stage of adjudication, otherwise the proceedings are terminated in limine.” This is a sound preposition of the law.
The Lower Tribunal was entitled to rely on the Appellants petition and the documents attached in reaching its decision. The Supreme Court in the case of OJUKWU vs YAR’ADUA (2009) 12 NWLR (PT 1154) 50 AT 106 held as follows:
”If a respondent in an election petition feels strongly that, on the face of it, the petition is patently unsustainable in the sense that it does not meet the requirements of the Electoral Act or the First Schedule to the Act or that it is tacking in materials to sustain it and therefore incompetent, he is at liberty to raise it and timeously too. And because it is an issue of jurisdiction which determination can be decisive of the whole litigation, the Election Tribunal or that Court has the jurisdiction to entertain it.”?
Based on the foregoing, all the issues formulated by the Appellants are therefore resolved against them.
The above represents our reasons for dismissing this appeal on the 7th October, 2011 and affirming the judgment of the Lower Tribunal delivered on the 10th day of August, 2011.
Therein also we made an order of costs of N50,000.00 only in favour of the Respondents against the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I agree with the judgment just delivered by my learned brother Uwani Musa Abba Aji, JCA.
HARUNA M. TSAMMANI, J.C.A.: I had the privilege to read in draft the lead judgment delivered,by my learned brother, Uwani Musa Abba Aji, JCA.
My Lord admirably summerised the facts leading to this appeal and the submissions of counsel thereon. I totally agree therefore with the reasoning and conclusion arrived by learned brother that this appeal has no merit. Indeed, I only wish to add that by the tenor of Section 138(1) (d) of the Electoral Act, 2010(as amended) which is the provision under which the Appellant hinges his petition, his locus standi to present the petition on that ground could be challenged on the ground that he was not validly nominated to contest the election in dispute. The said section provides:
”138. (1) An election may be questioned on any of the following grounds, that is to say:
a. …
b. …
c. …
d. That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election”.
It therefore means that for a Petitioner to present a valid petition under Paragraph (d) of Section 133(1) of the Electoral Act (Supra), there must be some evidence that he was validly nominated. Thus, if he was not validly nominated, then he could lawfully be excluded. The facts as pleaded in this petition, including documentary evidence front loaded by the Petitioner show that he was not validly nominated. They therefore had no locus standi to present the election petition on the basis of unlawful exclusion. It is for this reason and the more articulated reasons given in the lead judgment that agreed that the Appeal should be dismissed. It is therefore dismissed by me.
I abide by the orders as to cost.
Appearances
Prof. Yemi Osubajo (SAN), with Ikem Isiekwena (ESQ) and Fidel Albert (ESQFor Appellant
AND
Chief Adegboyega S. Awomolo (SAN), Dr. Livy Uzoukwu (SAN) with A. A. Kalu
(ESQ), A. S. Kolawole (ESQ), and C. K. Uba (ESQ) for 1st respondent.
Lateef O. Fagbemi (SAN), with Ukpai Ukairo (ESQ), Gab Igboko (ESQ), O. Dare (ESQ)
and E. A. Esiaba (ESQ) for 2nd Respondent. Chief Wole Olanipekun (SAN) with Uche
Ihediwa (ESQ), Kenneth Ugwuokpe (ESQ) for 3rd Respondent.For Respondent
