AHMED SANI STORES v. SENATOR IBRAHIM IDA & ORS
(2011)LCN/4892(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of November, 2011
CA/K/EP/NA/24/11
RATIO
ROLE OF THE RESPONDENT: ROLE OF A RESPONDENT IN AN APPEAL; POSITION OF THE LAW WHERE A RESPONDENT TO AN APPEAL HAS NEITHER FILED A CROSS-APPEAL NOR A RESPONDENT’S NOTICE
It is elementary law that the Respondent’s role in an appeal is to support the judgment appealed against. Any Respondent’s Notice – see UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR (Pt.965) 447, Imoniyame Holdings Ltd. & Anor. v. Soneb Ent. (2010) LPELR-SC.114/2002, Obi v. INEC (2007) 7 SC 268, wherein the Supreme Court held as follows-“It is also the law that a Respondent to an appeal who neither files a cross-appeal nor a Respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. Therefore without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an Appellant they have attempted to play in this appeal. The affect of the action of these Respondents in the present appeal is that all the arguments in their Respondent’s brief in support of the case of the Appellant in this appeal, shall be ignored in its determination. See Oguma Associated Companies Limited v. IBWA Ltd. (1988) 1 NWLR (Pt.73) 658; (1988) 3 SCNJ 113.” PER AMINA ADAMU AUGIE, J.C.A.
NON-QUALIFICATION OF A CANDIDATE: WHETHER THE ELECTION TRIBUNAL HAS NO JURISDICTION TO ENTERTAIN PETITIONS ARISING FROM THE DOMESTIC NOMINATION EXERCISE OF A POLITICAL PARTY
…and Ucha v. Onwe (2011) 4 NWLR (Pt.1237) 386 wherein the Supreme Court per Tabai, JSC, categorically stated as follows:- “A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the election Tribunal has no jurisdiction.” PER AMINA ADAMU AUGIE, J.C.A.
ELECTION PETITION: WHETHER THE RECOGNIZED GROUNDS FOR PRESENTING AN ELECTION PETITION ARE ACTS OR OMISSION THAT WERE “CONTEMPORANEOUS” WITH THE CONDUCT OF THE ELECTION; WHETHER THE TRIBUNAL HAS POWER TO INVESTIGATE MATTERS THAT TOOK PLACE BEFORE THE CONDUCT OF THE ELECTION
The law is settled that the grounds recognized for presenting an election/Petition are acts or omission that were “contemporaneous” with the conduct of the election, and that an election Tribunal has no power to investigate matters that took place before the conduct of the election – see ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 at 55 and Ibrahim v. INEC (1999) 8 NWLR (Pt.614) 334. “Contemporaneous” simply means – “occurring during the same period of time” – sees Dictionary.com. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
AHMED SANI STORES Appellant(s)
AND
1. SENATOR IBRAHIM IDA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
5. CONGRESS FOR PROGRESSIVE CHANGE (CPC) Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): Dissatisfied with the declaration of the Appellant as the elected Senator for Katsina Central Senatorial District, the 1st and 2nd Respondents herein filed a Petition at the Katsina State National and State House of Assembly Election Tribunal praying that it may be determined as follows:-
i. That the 1st Respondent (Appellant herein) was not duly elected by majority of lawful votes cast at the election.
ii. That the 1st Petitioner (1st Respondent herein) who scored the majority of lawful votes at the election be declared validly elected and returned be winner of the election.
Or in the Alternative to i and ii above:
iii. That the 1st Respondent was not duly elected or returned.
iv. That the election of the 1st Respondent was null and void and a fresh or bye-election ordered to be conducted by the 2nd Respondent for the Katsina Central Senatorial District
The “Grounds on which the Petition is based” are as follows:-
(i) That the 1st Respondent (Appellant herein) was not duly elected by majority of lawful votes cast at the election.
OR IN THE ALTERNATIVE
(iii) That the 1st Respondent was at the time of the election not qualified to contest the Election as he was not sponsored by a political party at the election.
(iii) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act as amended.
They further averred as follows in paragraph 9B of the said Petition-
“FACTS IN SUPPORT OF GROUND TWO – That the 1st Respondent (Appellant herein) was at the time of the Election not qualified to contest the Election as he was not sponsored by a political party at the Election.
i. The (Appellant) was not sponsored by any political party at the Election as requiem by Section 65(2)(b) of the Constitution-
(ii) The 4th Respondent (CPC), which the (Appellant) claimed to be his sponsor, at all material time refused to sponsor (him) for the Election as required by Section 65(2)(b) of the Constriction-
(iii) The (Appellant) and some other persons however wrongfully compelled (INEC) and (CPC) to accept (him) as the candidate sponsored by (CPC) for the Election on the force of the Judgment/order of the Federal High Court, Abuja Division of 25th February, 2011 delivered in Suit No. FHC/ABJ/CS/126/2011 – Senator Yakubu Garba Lado & 44 Ors v. CPC & 5 Ors commenced by Originating Summons – after the expiration of the time prescribed for political parties to submit the names of their sponsored candidates for the Election.
iv. The (1st and 2nd Respondents) shall use and rely on the Originating Summons filed by the (Appellant) and others in the said Suit and the Judgment of the Federal High Court in the Suit delivered on the 25th day of February, 2011 at the trial of this Petition.
v. The 2nd Respondent (INEC) published the Final List of Candidates for the Election at the INEC Katsina State Office at Katsina and on its website before the Election wherein it included the (Appellant) as the candidate of (CPC) for the Election. The (1st and 2nd Respondents) shall use and rely on the said Final List of Candidates for the Election at the trial of this Petition and the 2nd and 3rd Respondents are hereby given notice to produce it at the trial of the Petition.
vi. However, pursuant to an appeal filed by (CPC) and others against the said Judgment of the Federal High Court, the Court of Appeal, Abuja Division in its Judgment delivered on the 20th day of April, 2011 set aside the Judgment of the Federal High Court and inter alia held and/or declared that the (Appellant) was not the candidate sponsored by the (CPC) for the Election. The (1st and 2nd Respondents) shall use and rely on the said Judgment of the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/133/2011 – Congress for Progressive Change & Others v. Senator Yakubu Garba Lado & Others.
The Appellant entered a conditional appearance, and thereafter filed a Reply to the Petition, wherein he raised a preliminary objection to the competence of the Petition, and prayed that it be struck out because-
1. The substance of the Petition relates to and involved pre-election matters; in consequence of which the Tribunal lacks Jurisdiction and power to entertain and grant the reliefs sought.
2. The Petitioner failed to comply with the Provisions of Section 138(1) of the Electoral Act 2010 in that the grounds of the Petition are in the alternative.
3. The Petitioner has no locus standi to challenge the election and return of the 1st Respondent (Appellant herein) and subsequently sought to be declared validly elected and returned on the purported ground that the 1st Respondent was not sponsored by a Political Party.
4. Grounds 8(i) and (ii) of the Petition put as an alternate to each other renders the grounds as incompetent for not being in consonance and not within the contemplation of Section 138 of the Electoral Act as amended.
The 1st Respondent herein filed a Reply to the preliminary objection in the Appellant’s Reply to the Petition, wherein he countered as follows-
1. The substance of the Petition does not retain to or involve pre-election matter as the pre-election matter that arose between the (Appellant) and (CPC) and others had been resolved and decided by the Court of Appeal in its Judgment in Appeal No. CA/A/133/2011 – CPC and Others v. Sen. Yakubu Garba Lado and others delivered on 20th April, 2011; in consequence of which the Tribunal has the jurisdiction and power to entertain and grant the reliefs sought by the Petitioners vide section 285 of the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 133, 137(1) and 138 of the Electoral Act, 2010 as amended.
2. Section 138(1) of the Electoral Act 2010 as amended does not prohibit a Petitioner from stating the grounds of his Petition to the alternative.
3. Section 285 of the Constitution – 1999 as amended read in conjunction with Sections 133, 137(1) and 138 of the Electoral Act, 2010 as amended gives the Petitioners the locus standi to challenge the election and return of the (Appellant) on the prescribed grounds of the Petition.
The 5th Respondent (CPC) also filed a Reply wherein they raised an objection to the competence of the Petition on the grounds that:-
1. The Tribunal has no jurisdiction to entertain the petition as the said petition is also incompetent as the two grounds on which the Petition is hinged revolves around the issue of nomination and sponsorship of candidates by the 4th respondent (CPC) to contest the election.
2. The Grounds upon which the election – is challenged are interwoven as the 1st Ground which complains of the (Appellant) not having been elected by majority of lawful votes is hinged on the assumption by the Petitioners that the (Appellant) was not sponsored by the 4th Respondent (CPC).
3. The petitioner did not comply with the provisions of section 138(1) of the Electoral Act 2010 as amended by anchoring the Grounds of the Petition in the alternative, which renders the entire petition incompetent.
4. The Petitioner has no locus standing to challenge the election and consequentially seek s to be declared validly elected and returned on the ground that the 4th Respondent (CPC) did not sponsor the (Appellant) as the issues involved are the internal affairs of the 4th Respondent (CPC).
The 1st and 2nd Respondents herein, however, countered as follows in their Reply to the 5th Respondent (CPC)’s Reply to the Petition, that –
1. The Tribunal has jurisdiction to entertain the Petition; the Petition is competent and the Grounds on which the Petition is hinged are also competent.
2. The Petition is based on two separate Grounds stated in the alternative. The two grounds are recognized by the Electoral Act and the Petition is not based on any assumption but on facts, which are clearly stated.
3. Section 138(1) of the Electoral Act 2010 as amended does not prohibit stating the grounds of the Petition in the alternative.
4. The Petitioners have the requisite locus standi to challenge the election and return of the 1st Respondent (the Appellant herein) and the 4th Respondent CPC (5th Respondent herein) and to seek the reliefs stated in the Petition.
The 3rd and 4th Respondents as 2nd and 3rd Respondents at the Tribunal filed their Reply to the Petition, without challenging same. The Tribunal opted to take the preliminary objections together with the main Petition.
The 1st and 2nd Respondents as the Petitioners called one witness, whose Statements on Oath were admitted in evidence as Exhibits AA and AA1 and they also tendered the following documentary evidence –
– Exhibit A – Originating Summons in Suit No. FHC/ABJ/CS/126/2011 dated 3rd February, 2011.
– Exhibit A1 – The judgment of the Federal High Court in Suit FHC/ABJ/CS/126/2011 delivered on 25th day of February, 2011.
– Exhibit B – The Judgment of this Court in Appeal No. CA/A/133/2011 delivered on the 20th of April, 2011.
– Exhibit Y – Declaration of Result (Form EC8E)
– Exhibit Z – Final list of Candidates – Exhibit Z
The Appellant testified for himself, and did not call any other witness. His statement on oath was admitted as Exhibit EE, and he tendered a Notice of Appeal to the Supreme Court that was admitted as Exhibit DD. The 3rd & 4th Respondents and 5th Respondent did not call any witness.
In its Judgment delivered on the 28th of September 2011, the Tribunal considered the preliminary objections first, and held as follows –
“We agree with the submission that the issues of nomination and sponsorship of Candidates of political parties are the internal affairs of political parties and are pre-election matters with the result that this Tribunal will have no jurisdiction over it. In the instant Petition, the issues of nomination and sponsorship had been settled by the Judgment of the Court of Appeal, therefore, this Petition is not on the issue of nomination and sponsorship but on qualification. In this petition, the alternative ground is hinged on the issue of qualification of the 1st Respondent to contest the election. In accordance with the authorities, it t:s our firm view that this Tribunal has jurisdiction to entertain the petition as the issue of qualification is a post-election issue and we so hold. The preliminary objections raised against the Petition therefore fail and they are accordingly dismissed.
As to Petition itself, the Tribunal reasoned and concluded as follows –
“- – We would like to state that this Petition is not on the facts as related to the election but it has to do with question of law on the effect of the Federal High Court Judgment and the Court of Appeal Judgment on the election and Return of the 1st Respondent as a Senator. The question to now ask ourselves is whether in view of the Judgment of the Court of Appeal can it be said that the 1st Respondent is sponsored by the 4th Respondent, that is the CPC? From Exhibit B, it could be seen that ii was the 4th Respondent with others that filed the Appeal against the Judgment of the Federal High Court which enabled the 1st Respondent to contest the 9th April 2011 election under its platform and got judgment in its favour. The argument of Counsel to the 1st Respondent that this Tribunal cannot consider the effect of the Court of Appeal’s Judgment on the election is without proper foundation in law. We shall refer to Section 287(2) of the Constitution. It states as follows:
“The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdictions to that of the Court of Appeal.”
We wish to state clearly that this Tribunal is inferior to the Court of Appeal and it is bound to enforce any order or judgment of that Court. It is our bounden duty to give effect to the Court of Appeal Judgment as no Court gives its decision in vain. The question to now answer is whether in view of Section 65(2)(b), 138(1)(a) and 285(1) (a) of the 1999 Constitution – the 1st Respondent has been validly elected as a Senator. Our answer is that since the Court of Appeal has declared in its Judgment that the primary party election conducted on the 15th January, 2011 at which the 1st Respondent has been validly elected as a Senator – Our answer is that since the Court of Appeal has declared in its Judgment that the primary party election conducted on the 15th January, 2011 at which the 1st Respondent emerged as Candidate of CPC for the election had been set aside, it means in effect that the 1st Respondent as a party to the Suits cannot be said to have been qualified to contest the election having not been sponsored by the CPC for the election. However, we are not unaware of the pendency of an appeal against the judgment of the Court of Appeal at the Supreme Court. The fact that an appeal is pending at the Supreme Court would not disentitle us from enforcing the judgment of the Court of Appeal now. Whatever we may decide in this Petition or by the Court of Appeal can be upturned by necessary implication by the judgment of the Supreme Court anything it is given. It is our view borne out by the authorities that the decision of the Supreme Court on the Appeal before it will begin to take effect from the date it is pronounced. For now, it is the judgment of the Court of Appeal that is subsisting and binding. Based on what we have said above, we have no hesitation in holding that the 1st Respondent was not qualified to contest the election in view of the Court of Appeal judgment, having not been sponsored by a political party. The effect of this holding is that the 1st Respondent was not duly or validly elected or returned as the winner of the election. His election or return is therefore nullified. Having nullified the election of the 1st Respondent, what is the order to be made. The Petitioners in their paragraph 11(iv) of the Petition are praying the Tribunal to order for a fresh or bye-election for the Senatorial District. We have painstakingly and soberly considered the surrounding facts and we are of the view that in the interest of justice. We so hold. Accordingly, the 2nd Respondent (INEC) is hereby ordered to conduct a fresh election for Kaduna Central Senatorial District within 90 days from the date of this judgment.”
Dissatisfied with the decision of the Tribunal, the Appellant filed a Notice of Appeal in this Court containing six (6) Grounds of Appeal. The 1st and 2nd Respondents are also dissatisfied with the final order of the Tribunal that fresh election be conducted and cross-appealed with a Notice of Cross-Appeal containing two (2) Grounds of appeal. Briefs of arguments were duly filed and in the Appellant’s Brief prepared by Festus Okoye, Esq., it was submitted that the issues that call for determination are –
1. Whether the Hon. Tribunal had the jurisdiction to entertain and determine the petition before it.
2. Was the alternative Ground on which the Petition was premised valid and was the Hon. Tribunal right in considering same without first and foremost considering the main Ground.
3. Whether the Hon. Tribunal was right in enforcing the judgment of the Court of Appeal in Appeal No. CA/A/133/2011 CPC & Ors. v. Sen. Yakubu Garba Lado in favour of the Petitioners.
The 1st and 2nd Respondents adopted the Appellants’ Issues as formulated in their brief settled by Uyi Igunma, Esq., M.I. Abubakar, Esq., and Napoleon O. Idenala, Esq. the 3rd and 4th Respondents did not file any. The 5th Respondent, however, filed a brief settled by Abubakar Malami SAN, Sulaiman Usman, Esq., and M. H. Adamu, Esq., which will have to be discountenanced because it asked this Court to allow the appeal.
It is elementary law that the Respondent’s role in an appeal is to support the judgment appealed against. Any Respondent’s Notice – see UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR (Pt.965) 447, Imoniyame Holdings Ltd. & Anor. v. Soneb Ent. (2010) LPELR-SC.114/2002, Obi v. INEC (2007) 7 SC 268, wherein the Supreme Court held as follows-
“It is also the law that a Respondent to an appeal who neither files a cross-appeal nor a Respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. Therefore without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an Appellant they have attempted to play in this appeal. The affect of the action of these Respondents in the present appeal is that all the arguments in their Respondent’s brief in support of the case of the Appellant in this appeal, shall be ignored in its determination. See Oguma Associated Companies Limited v. IBWA Ltd. (1988) 1 NWLR (Pt.73) 658; (1988) 3 SCNJ 113.”
The 5th Respondent did not file a cross-appeal or Respondent’s Notice, thus, this appeal will be resolved as per the argument canvassed by the Appellant and the 1st and 2nd Respondents in their respective briefs.
Be that as it may, I have gone through the Tribunal’s Judgment, and considering the complaints against same in the Grounds of Appeal, it is my view that the issue that will dispose of the appeal is – whether the Tribunal had the jurisdiction to hear and determine the Petition before it.
The Appellant says it had no jurisdiction, and citing Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554 and Onuora v. KRPC Ltd. (2005) 6 NWLR 9Pt.921) 393, submitted that “jurisdiction is the spinal cord of every litigation and a Court that is not vested with jurisdiction to entertain a particular claim and goes ahead to assume and vest itself with jurisdiction is marooned in the web of nullity and adjudications in vain”; that realizing that nomination and sponsorship are pre-election matters, the 1st and 2nd Respondents “deliberately tailored the Petition to foist on the Tribunal jurisdiction that it does not have”; that a litigant is at liberty to call his claim by any name but the Courts have to look at the averments and facts in support thereof to enable it place the claim where it rightly belongs, citing Dingyadi v. INEC (2011) 10 NWLR (1255) 347 at 395; that 1st and 2nd Respondents’ case as articulated in their Petition “were anchored and subsumed on the fact that the Appellants was not validly nominated and sponsored by his political party (CPC)”; that the facts relied on by the Tribunal, ostensibly to prove the alleged disqualification, were purely based on the pre-election matter before the Federal High Court to this Court and now pending before the Supreme Court, and that the Supreme Court has held that where qualification or disqualification is based on the nomination exercise of a political party, it is a pre-election matter and the Tribunal has no jurisdiction to entertain the Petition, citing Ucha v. Onwe (2011) 1 MJSC (Pt.11) 52 and Odedo v. INEC (supra).
He also argued, citing Ogboru v. Ibori & Ors (2004) All FWLR (Pt.225) 173 that the burden of proving disqualification under Section 65(2) of the 1999 Constitution (as amended) rests squarely on the 1st and 2nd Respondents, and could only be discharged independent of the pre-election Court proceedings as they were not parties to the proceedings, which relate to intra-party dispute between him and members of his party; and since they were not parties to the matters, the Tribunal ought not to have felt bound by this Court’s Judgment as the issue is still sub judice and has not been brought to finality by the Supreme Court, citing Okafor V. INEC & Ors (2006) All FWLR (Pt 316) 382. He further submitted that as at 9th April 2011, when he contested the election, he did not suffer from any disqualifying ailment, and referred us to the Tribunal’s reasoning at page 312 of the Record of Appeal, as follows –
“However we are not unaware of the appeal against the judgment of the Court of Appeal pending at the Supreme Court. It is our view that the decision of the Supreme Court on the appeal before it will begin to take effect from the date it is pronounced. See Olatunji v. Owena Bank Plc & Anor (2008) 6 SCM 198. For now it is the judgment of the Court of Appeal that is subsisting and binding”
He argued that this will also mean that the Judgment of this Court took effect from the 20th of April 2011 after the election, and could not have affected his qualification to contest the election of 9th April 2011, since he was backed up by a valid and subsisting Judgment of a competent court at the relevant time and cannot be said not to have been sponsored by a Political Party; that if he did not suffer any disability at the time of the election, whatever he happened after the conduct of the elections on the 9th April 2011 could not have been said to nullify or stultify his election; and that even if the Judgment of this Court be said to have retrospective effect to cover the time of the election, it means that the beneficiaries, who are also members of the CPC, are the only ones to benefit from it and not strangers like the 1st and 2nd Respondents herein, citing Odedo v. INEC (Supra) & Agbakoba v. INEC (2008) 18 NWLR (Pt.1119) 489.
He further submitted that this Court did not determine that the 5th Respondent had no candidate and did not pronounce the 1st and 2nd Respondents as the duly nominated candidates of the 5th Respondent; that the Tribunal had no jurisdiction to conclude that the issue had been determined by this Court without going on to declare who the candidate of the 5th Respondent was and whether the 5th Respondent participated in the April 9 2011 election; that the only Order: the Court could make if it had jurisdiction, is to insist that the only persons that can step into his shoes are those the Tribunal claimed were properly nominated in the said primaries, citing Odedo v. INEC (supra): that the cognizable and recognized Grounds for presentation of election petitions are acts or omissions that are contemporaneous with the conduct of elections and not pre-election matters that took place before the conduct of elections and that is why Sections 31(1) – (6) of the Electoral Act, 2010 (as amended), which is jurisdictional, specifically vests in the Federal or State High Court power to disqualify any candidate or aspirant who is otherwise disqualified by virtue of the reasons submitted to Court for adjudication, citing Orji v. Ugochukwu (2009) 14 NWLR (Pt.1161) 207, and Kolawole v. Folusho (2009) 8 NWLR (Pt.1143) 338; that the 1st and 2nd Respondents cannot complain that it was not him the CFC sponsored and it is only the CPC that can lodge such a complaint, citing Ukpo vs. Adede (2001) FWLR (PT 77) 850; that the Tribunal failed to appreciate the holistic nature of the case of the 1st and 2nd Respondents, which was based on and predicated on his alleged non qualification on grounds of what they termed invalid nomination processes; and that it is therefore –
“Not open to the Tribunal to severe the Petition of the 1st and 2nd Respondents’ and reformulate the case of the 1st and 2nd Respondents to make it look as if the issue of qualification stands alone and not anchored on the question of nomination and sponsorship. The Tribunal also sought to and did reformulate the case of the 1st and 2nd respondents to have the color and complexion of a post-election dispute of qualification of the candidates alone while that was not the case presented by the 1st and 2nd Respondents before the Tribun.al”.
At the end of the clay, the Appellant urged this Court to hold that the Tribunal had no jurisdiction to entertain and determine the Petition before it on the ground that it was premised on the pre-election disputes of the CPC and its candidates, and that the Petition is premised on the issue of nomination and sponsorship masked as qualification of candidates.
The 1st and 2nd Respondents’ standpoint is that the Tribunal has jurisdiction over the matter, citing Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Waziri v. Ali (2009) 4 NWLR (Pt.1130) 178, Sections 285(1) and 65(1) & (2) of the Constitution, Section 138(1) of the Electoral Act & S.P.D.C. (Nig.) Ltd. v.
Ezeukwu (2010) All FWLR (Pt.541) 1501. They submitted that each case must be decided on its own facts, citing Aguomba v. Uwais (2007) All FWLR (Pt.346) 440 & Babatunde v. P.A.S. & T.A. Ltd. (2007) All FWLR (Pt.372) 1721; that the pre-election issues in this case had been resolved by this Court, and there was no need for the Tribunal to delve into such issues as the decision of this Court thereon “was not made for fun nor was it intended to be in vain”, citing Waziri v. Ali (supra) Saulawa v. Kabir (2011) 2 NWLR (Pt.1232) 417; Ojo v. INEC (2008) 1 LRECN 599, Idris v. ANPP (2008) 4 LRECN 54 & Ijagbemi v. Ige (2011) All FWLR (Pt.560) 1314 and that the Appellant wants to wish away the Judgment and is playing the proverbial ostrich that tries to bury its head in the sand. They posed the questions –
“If the Judgment had favoured him, would he not have placed reliance on it in this Petition? And if the Judgment is of no consequence, why then did he appeal against it to the Supreme Court and is now contending before this Court that there is an appeal pending against it at the Supreme Court?
And submitted that the Tribunal was right to rely on the cases Onejeme v. Anazodo (2005) 2 LRECN 488 and Bayo v. Njidda (2003) 3 LRECN 144 to hold that the Petition does not deal with pre-election matters, and in a situation like this one where the regular Court has determined that a person is not the sponsored candidate of a party it becomes a relevant and constitutional fact, which the Tribunal cannot close its eyes to.
They further submitted, citing Obot v. Etim (2007) LRECN 737, that the thrust of the Petition and the duty of the Tribunal thereto is not to reopen issues that have been conclusively decided by a competent court of record but the Tribunal had a duty to apply and enforce the decision of this Court on the matter by virtue of Section 287(2) & (3) of the 1999 Constitution (as amended), which is what it did; and that the arguments proffered by the Appellant and the authorities he cited are misconceived, and do not decide that when the regular Courts have exercised their jurisdiction under the Constitution and delivered a Judgment on a pre-election matter, the Tribunal should ignore or jettison he judgment so delivered simply because it does not have jurisdiction over pre-election matters, so the Tribunal was right not to rely on Ucha v. Onwe (supra).
They further argued that the pending appeal at the Supreme Court does not negate or invalidate the valid and subsisting Judgment of this Court unless and until the Supreme Court decides otherwise, citing Ojo v. INEC (supra), Idris v. ANPP (supra), and Ijagbemi v. Ige (supra) that the Judgment of this Court on the pre-election matter took effect from the date of the Federal High Court’s decision, citing Waziri v. Ali (supra) and that the Appellant’s argument overlooks the fact that CPC was the 1st Appellant in the appeal in which it was contended that the Appellant was not its candidate, and this Court entered Judgment in CPC’s favour; it overlooks the fact that he has filed an appeal to the Supreme Court against the CPC, which is the 1st Respondent vide Notice of Appeal to the Supreme Court; it overlooks the fact that CPC was the 4th Respondent to the Petition leading to this appeal wherein it abandoned its pleadings by failing to adduce evidence at the trial, and is deemed to have admitted the Petitioner’s claim that it did not sponsor the Appellant; and that the Appellant cannot hold brief for CPC, which is a party to the Petition and this appeal, and was represented by counsel throughout.
Now, I have earlier on today delivered the lead Judgment in Appeal No. CA/K/EP/NA/23/11 – Umar Adamu Katsayan v. Sani Sa’idu Fago & 4 Ors., which is based on the same facts, and I reasoned therein as follows –
“None of the parties are disputing the fact that it is only a regular Court that is vested with the necessary jurisdiction to hear and determine the issue of nomination of a candidate for an election which is clearly a pre-election matter – see Zaraiyda v. INEC (2008) 10 NWLR (Pt.1094) 184 at 210, Amaechi v. INEC (2007) 18 NWLR (Pt.1065) 170 at 196, and Ucha v. Onwe (2011) 4 NWLR (Pt.1237) 386 wherein the Supreme Court per Tabai, JSC, categorically stated as follows:-
“A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the election Tribunal has no jurisdiction.”
In this case, in overruling the said objections, the Tribunal held-
“The Petition is not a pre-election matter of nomination and sponsorship but on qualification to contest which vest the Petitioners with locus standi to challenge the election and the Tribunal has the Jurisdiction to hear and determine same and we so hold. The preliminary objection is overruled.”
The Tribunal’s decision, obliviously, flies in the face of the facts before it. The Petitioners’ alternative Ground (i) for their Petition emphatically says that the 1st Respondent was at the time of the election not qualified to contest the election as he was not sponsored by a political party”, and as the Appellant pointed out, the entire paragraph 9B of the Petition, which contains facts in support of the alternative Ground (ii), show that the Petitioner grouse is that the Appellant was not sponsored by any political party”; that CPC refused to sponsor him, and that he and some other persons wrongfully compelled INEC and CPC to accept him as the candidate sponsored by CPC by force of the Judgment aforementioned. If these facts are not hinged on the nomination and sponsorship of the Appellant by a political party, which is definitely a pre-election matter, don’t know what else can exemplify what a pre-election matter is. The law is settled that the grounds recognized for presenting an election/Petition are acts or omission that were “contemporaneous” with the conduct of the election, and that an election Tribunal has no power to investigate matters that took place before the conduct of the election – see ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 at 55 and Ibrahim v. INEC (1999) 8 NWLR (Pt.614) 334.
“Contemporaneous” simply means – “occurring during the same period of time” – sees Dictionary.com. This brings us to the Judgment of this Court, which the Tribunal relied on to assume jurisdiction over what is clearly a pre-election matter. Apparently, there was a dispute within the CPC (5th Respondent) as to who its candidate should be at the election held on the 9th of April, 2011. The dispute ended up at the Federal High Court, Abuja, which gave Judgment in favour of the Appellant, and he contested the said election on the 9th of April, 2011. But on appeal to this Court the tables turned. This Court set aside the Judgment of the Federal High Court, the tables turned. This Court set aside the Judgment of the Federal High Court and declared that the Appellant was not the candidate of the CPC after all. What is of particular importance to this case is that the Judgment of this Court was delivered on the 20th of April, 2011, after the election. The Tribunal in justifying its decision to assume jurisdiction, held thus-
The 1st and 2nd Respondents have echoed the same sentiments; that the Tribunal has a “duty to abide by, apply or enforce” our Court’s decision. But who appointed the Tribunal the “enforcer” of this Court’s decision? The Tribunal has its path well cut out for it; it is not an all-purpose Court that can entertain just any claim; it is created for election matters alone – Obi v. INEC (2007) 11 NWLR (Pt.1046) 565. Surely, the issue of who and how the candidate of CPC was nominated, is not an election matter. Obviously, the Tribunal had no jurisdiction to entertain the Petition on the alternative Ground on which it hinged its decision, and I so hold. The main Ground of the Petition which complains that the Appellant was not duly elected by majority of lawful votes case at the election, is an election matter, on which the Tribunal should have focused its attention, rather it went on a frolic of its own and dabbled into a pre-election matter. The end result is that it wasted its time and efforts on a matter for which it had no jurisdiction, and neglected or overlooked the matter that it had jurisdiction over-an election matter that it was created to look into. The only order that this Court can make in the circumstances is to uphold the said preliminary objections filed by the 1st and 5th Respondents, and set aside the proceedings and decision of the Tribunal for being a nullity”.
Apart from the fact that this appeal is on all fours with the said appeal, parties are represented by the same set of counsel, and I see no reason to change my decision. I, therefore, adopt my reasoning and conclusion in the said Appeal No. CA/K/EP/NA/23/11 and I also allow this appeal.
The proceedings of the Tribunal, and its Judgment delivered on the 28th of September, 2011 are set aside. The cross-appeal with the preliminary objection raised thereon are based on a decision that is null and void, and is therefore of no moment. The cross-appeal filed by the Cross Appellants is, therefore, struck out. No order as to costs.
ABDU ABOKI, J.C.A.: I agree.
THERESA N. ORJI-ABADUA, J.C.A.: I agree.
Appearances
Festus Okoye Esq., with K. Shadrack Esq.For Appellant
AND
Uyi Igunma Esq. with M.I. Abubakar Esq and Napoleon O. Idenala, Esq for the 1st and 2nd Respondents/Cross Respondents
A.S. Suleiman, Esq., for the 3rd and 4th Respondent
Sulaiman Usman Esq., for the 5th RespondentFor Respondent
