APP v. BELLO & ORS (2020)

APP v. BELLO & ORS

(2020)LCN/14502(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Saturday, July 04, 2020

CA/ABJ/EPT/413/2020

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ACTION PEOPLES PARTY (APP) APPELANT(S)

And

YAHAYA BELLO 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

WHETHER OR NOT A GROUND OF APPEAL WHICH DISCLOSES THE NATURE OF THE COMPLAINT OF THE APPELLANT WILL BE SUSTAINED NOTWITHSTANDING THAT IT IS VAGUE OR NARRATIVE

Consequently, where the grounds of appeal with the particulars sufficiently discloses the nature of the complaint of the appellant, the ground of appeal will be sustained, notwithstanding that it is vague or narrative. See NWOSU –V- PDP & ORS (2018) LPELR – 44386 (SC). PER SHUAIBU, J.C.A.

CONDITIONS A PETITIONER TOS HOW THAT HE WAS NOMINATED BY HIS POLITICAL PARTY

The starting point is from the evidence led by the appellant at the lower Tribunal did it prove valid nomination and unlawful exclusion from the election in question? I do not think so because to prove that a petitioner nominated by his political party but was unlawfully excluded from the election, the petitioner must show the following:
(a) that he was validly nominated by his political party.
(b) that an election was conducted.
(c) that a winner was declared; and
(d) that his name was not included in the list of contestants.
See IDRIS V ANPP (2008) 8 NWLR (Prt 1088) 1 and ABUBAKAR V YAR’ADUA (Supra). Also in EFFIONG V IKPEME (Supra), it was held that the petitioner must not only state all the above requirements in his petition, he must specifically prove them at the trial. See also EZEOBI V NZEKA (1989) 1 NWLR (Prt 98) 473.
In the instant case, the appellant did not state the above requirements in his petition and also failed to lead evidence to specifically prove them at trial. A trial Court or Tribunal is not expected to go on a wild goose chase embark on academic exercise in which all sorts of questions are discuss at will without reference to pleadings on issues and admissible evidence. See UKPO V NGAJI (2010) 1 NWLR (Prt 1174) 175. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kogi State Governorship Election Petition Tribunal sitting at Abuja on Coram Honorable Justice Gumna Kasim Kaigama, Honorable Justice Ohimai or Biagele and Honorable Justice Baraka I. Wali delivered on the 22nd day of May, 2020 wherein some interlocutory reliefs of the 1st and 3rd respondents were granted and appellant’s petition was dismiss at page 483 of the record of appeal as follows: –
“The petitioner has failed to prove valid nomination of its candidates, it follow that the issue of unlawful exclusion does not arise at all. Consequently, we find no cogent and compelling evidence to invalidate the election. This petition is frivolous, vexations and devoid of any merit. The petition is accordingly dismissed. N100,000.00 costs is awarded against the petitioner in favour of 1st and 2nd Respondents each.”

Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 10th June, 2020. The said notice of appeal at pages 485 – 495 of the record of appeal contains thirteen (13) grounds

of appeal.

Distilled from the said thirteen (13) grounds of appeal, Learned Counsel for the appellant, Chikaosolu Ojukwu Esq., formulated five issues for the determination of this appeal as follows:
1. Whether the appellant on the facts and circumstances of this case had any valid reliefs before the lower Tribunal? (Distilled from grounds 2 and 3).
2. Whether the lower Tribunal was wrong and denied the appellant its right to fair hearing when it proceeded to strike out several paragraphs of the appellant’s reply? (Distilled from ground 1).
3. Whether or not the lower Tribunal had the Jurisdiction at all to delve into the issue of qualification and nomination of the candidate of the appellant when the Respondents did not file a cross-petition? (Distilled from ground 12).
4. Whether or not the lower Tribunal evaluate Exhibit P2 (a) and whether its evaluation of Exhibit P1 (a) is not perverse? (Distilled from grounds 6, 7 and 8).
5. Whether by the totality of the evidence before the lower Tribunal the Appellant did not validly nominate its candidate and was therefore unlawfully, excluded from the said election by the 3rd

Respondent? (Distilled from grounds 4, 5, 9, 10, 11 and 13).

On the part of the 1st respondent, P.B. Daudu, Esq., formulated three issues for the determination of this appeal thus:
1. Whether the lower Tribunal could be faulted in the way and manner it struck out paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 (i), 13(iii) of the appellant’s reply to the 1st and 3rd respondent’s reply to the petition witness statement on oath and from CF001 attached thereto?
2. Whether the trial Tribunal could be faulted for arriving at the conclusion that the appellant on the preponderance of admissible evidence was unable to establish that it validly nominated any candidate who was unlawfully excluded by the 3rd respondent from contesting the 2019 Kogi State Governorship Election?
3. Whether the appellant’s petition is not academic in the absence of a relief seeking nullification of the Governorship Election of 16th November, 2019?

In addition, Learned Counsel raised a preliminary objection seeking for an order striking out the appellant’s notice of appeal for being incompetent. He also prayed for an order striking out issues 1,

2, 3, 4 and 5 in so far as they are distilled from the incompetent grounds of appeal. The grounds upon which the 1st respondent predicated the preliminary objection are: –
i. The entire 13 grounds of the appellant’s Notice of Appeal filed on the 10th day of June, 2020 challenge the decision of the 3rd Respondent in respect of the nomination and participation of the Appellant’s candidate in Kogi State Governorship election held on the 16th of November, 2019.
ii. That from the facts contained in the Appellant’s petition same constitute a pre-election matter which ought to have been filed by Appellant within 14 days by virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 of the acts complained of the 3rd Respondent being complained of.
iii. The Appellant’s failure to do so robs this Honorable Court of jurisdiction to hear and determine the instant appeal filed on the 10th days of June, 2020.

The 2nd respondent adopt the five issues formulated by the appellant but on behalf of the 3rd respondent the following two issues are formulated for the determination of this appeal. These are:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Whether in view of the facts pleaded by the Appellant and the evidence led, Tribunal was right in law in dismissing the Appellant’s petition.
2. Whether the decision of the Tribunal granting some of the reliefs claimed in the 1st and 3rd Respondents’ Interlocutory Applications was not right in law.

The 3rd respondent has through a Motion on Notice filed on 27th June, 2020 prayed this Court for the following Orders; –
1. An Order of this Honorable Court striking out Grounds 1, 3, 5, 9, 10, 11 and 12 contained in the Appellant’s Notice of Appeal filed on the 10th June, 2020 in APPEAL NO. CA/A/EPT/413/2020 BETWEEN ACTION PEOPLES PARTY (APP) V YAHAYA BELLO & 2 ORSfor being in competent.
2. An Order of this Honorable Court striking out issues 1, 2, 3 and 5 all distilled from Grounds 1, 3, 5, 9, 10, 11 and 12 of the Appellant’s Notice of Appeal.
3. AND for any such Order or Further Orders this Honorable (sic) Tribunal may deem fit to make in the circumstances.

The grounds on which the said motion on notice is predicated are as follows: –
1. Grounds 1, 3, 5, 9, 10, 11 and 12 of the Notice of

Appeal filed on the 10th of June, 2020 are argumentative narrative conclusive and contain extraneous issues which do not flow from the judgment of the trial Tribunal therefore they offend the provisions of Order 7 Rule (2) and (3) of the Court of Appeal Rules, 2016.
2. The said Ground 12 of the Appellant’s Notice of Appeal does not arise from the decision of the trial Tribunal delivered on the 22nd May, 2020, subject matter of this present appeal.
3. The said Ground 12 as contained in the Notice of Appeal filed by the Appellant in APPEAL NO. CA/A/EPT/413/2020 BETWEEN ACTION PEOPLES PARTY (APP) –V- YAHAYA BELLO & 2 ORS does not raise substantive issue of jurisdiction but a procedural issue which this Honorable Court cannot countenance on appeal same having not been raised at the trial (sic) Court.
4. Issues Nos. 1, 2, 3 and 5 and all arguments connected thereto in so far as they are distilled from Grounds 1, 3, 5, 9, 10, 11 and 12 of the Notice of Appeal are incompetent.
5. It will serve the interest of justice to strike out the aforesaid Grounds of Appeal and the issues formulated there from and the Respondent shall not be

prejudicial by the grant of this application.

In support of the said Motion on Notice is an affidavit of 6 paragraphs deposed to by one AGNES OGBU a litigation Secretary in the Law Firm of 3rd Respondent’s Counsel.

At the hearing of this appeal on 30th June, 2020, learned Counsel for the appellant, Chikaosolu Ojukwu Esq., adopted and relied on the appellant’s brief of argument filed on 24th June, 2020 together with the Appellant’s reply briefs to the 1st and 3rd respondents both filed on 29th June, 2020 in urging this Court to allow the appeal. P. B. Daudu, Esq., adopted and relied on the 1st respondent’s brief of argument filed on 26th June, 2020 incorporating the preliminary objection in urging this Court to dismiss the appeal. Abdulwahab Muhammed, Esq., adopted and relied on the argument filed on 26th June, 2020 in urging the Court to dismiss the appeal. B. K. Abu Esq., adopted and relied on the 3rd respondent’s brief of argument filed on 27th June, 2020 incorporating argument in support of the motion to strike out grounds 1, 3, 5, 9, 10, 11 and 12 of the notice of appeal. He also prayed this Court to dismiss the appeal.

I have carefully gone through the various issues formulated by leaned Counsel on both sides which are identified in nature but couched differently. The two issues formulated by the 3rd respondent is preferred for being concise and quite apposite. I shall therefore determine this appeal in the light of the two issues formulated by the 3rd respondent.

Before proceeding to consider the appeal based on the said issues, it is prudent to first of all deal with the preliminary objections raised by the 1st and 3rd respondents. The purpose of a preliminary objection to an appeal if successful is to terminate the hearing of an appeal in limini either partially or in toto. This purpose will however be defeated if the objection is not taken timeously as a preliminary issue. See NDIGWE V NWUDE (1999) 11 NWLR (Prt 626) 314 at 331.
Where a notice of preliminary objection is filed or argued in the respondent’s brief challenging the jurisdiction of the Court or the competence of the appeal, the Court is duly bound to consider the preliminary objection first and determine same before considering the appeal on merit if the need arises. See

A.P.C. V UMAR (2019) 8 NWLR (Prt 1675) 514 at 572 – 573.

Proffering argument on the preliminary objection, learned counsel for the appellant referred copiously to the provisions of Section 285 (9) and (14) (b) and (c) of the 1999 Constitution as amended and paragraph 20 of the petition to contend that the appellant was aware and had prior notice that its nomination forms of its proposed substitute Governorship candidate (Lucky Egbonu) was allegedly rejected by the 3rd respondent as at 24th of September, 2019 but waited until the 7th of December, 2019 to file the petition and hence caught up by Section 285 (9) and 14 (b) and (c) of Constitution which stipulates that every pre-election matter shall be filed not later than 14 days from the occurrence of the event, decision or action complained of in the suit. The appellant according to the learned counsel are estopped from challenging INEC’s refusal to accept the nomination forms of its proposed substitute as same is statute barred. He referred to ADEKUNLE ABDULKADIR AKINLADE & ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (unreported) with SC No. 1438/2019.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

In response to the above, learned counsel for the appellant submits that the 1st respondent’s preliminary objection constitutes an abuse of process because the 1st respondent been a party to the proceedings at the lower Tribunal whereby this issue was raised by the 3rd respondent and ruled upon by the Tribunal. The 1st respondent is thus bound by the Tribunal’s ruling and as a respondent if he is desirous of challenging the said ruling, he is mandatorily enjoined to file of cross-appeal. He referred to OBASANJO V BUHARI (2003) 17 NWLR (Prt 850) 510 at 554, INAKOJU V ADELEKE (2007) 4 NWLR (Prt 1025) 423 and UDOM v MICHELETTI & SONS LTD (1997) LPELR – 3310 (SC).

In further contention, Learned Counsel submits that a party to an election is entitled as of right to appeal against the final decision of Tribunal seized with the proceedings. He referred to AMGBARE V SYLVA (2007) 18 NWLR (Prt 1065) 1 at 19.

Arguing the motion to strike out grounds 1, 3, 5, 9, 10, 11 and 12 of the notice of appeal, learned counsel to the 3rd respondent submits that ground 12 of the appellant’s notice of appeal did

not arise from the judgment of the trial Tribunal and thus incompetent. He referred to C.C.B. PLC V EKPERI (2007) 3 NWLR (Prt 1022) 493 at 509, BABA IYA V SIKELI (2006) 3 NWLR (Prt 968) 508 at 523 and MADUEKE V MADUEKE (2000) 5 NWLR (Prt 655) 130 at 135 to the effect that where a ground of appeal as formulated does not arise from the judgment and purports to arise to attack an issue not decided by the judgment appealed against, same is incompetent.

He submits further that the issue raised by the appellant does not relate to substantive jurisdiction but merely procedural which this Court cannot entertain same having not been raised at the trial Tribunal or contained in the judgment of the Tribunal. And being an issue of procedural jurisdiction, the appellant has acquiesced to the procedure and cannot now be heard to complain on appeal having fully participated in the proceedings at the trial Tribunal. He referred to BUHARI & ANOR V OBASANJO & ORS (2005) 13 NWLR (Prt 941) 1 at 161.

On the second objection to grounds 1, 3, 5, 9, 10, 11 and 12 of the notice of appeal, learned counsel to the 3rd respondent contend that

they are argumentative, verbose and conclusive and thereby offends Order 7 Rule 2(2) and (3) of the Court of Appeal Rules 2016. He referred to OLADOKUN & ORS –V- IFA IJMKAH AUTOMOBILE SERVICE ENGNEERING (NIG) LTD & ORS (2019) LPELR – 41864 (CA) and WILKEY –V- OGIEBAEN & ANOR (2001) LPELR – 7028 (CA). Still in argument, learned counsel submits that where an incompetent ground, the issue distilled there from is liable to be struck out. He referred toCHINWUBA V ISIAGU & ORS (2009) LPELR – 3976 (CA).

In answer to the above, learned appellant’s counsel first applied orally to withdraw its challenge to the competence of the 3rd respondent’s preliminary objection as contained in pages 1 – 3 of the reply to the arguments on the preliminary objection. That being the case, the said arguments are hereby struck out.

Learned counsel submits that grounds 1, 3, 5, 9, 10, 11 and 12 of the notice of appeal as well as Issues 1, 2, 3 and 5 distilled there from arise from the decision appealed against and also frontally attacked the ratio of the trial Tribunal’s decision and hence competent.

He referred to AKEREDOLU V MIMIKO & ORS (2013) LPELR – 21413 (SC).

On ground 12, learned counsel submits that same questions the jurisdiction of the Tribunal to adjudicate on issue of the qualification of the appellant’s candidates to contest the election which was raised by the respondent without filing a cross-examination which is a necessary pre-condition for the activation of the Tribunal’s jurisdiction on that issue. He also submits that the disqualification of the appellant’s candidates was the precursor to their unlawful exclusion and thus forms the substantive basis of both the petition and this appeal.

Assuming but not conceding the facts that grounds of appeal are verbose and or argumentative, learned counsel submits that a ground of appeal is not incompetent merely because the particulars in support are argumentative or prolix in so far as it raises triable issue of law. He referred to HARUNA & ORS V KOGI STATE HOUSE OF ASSEMBLY (2010) LPELR – 4231 (CA) and OLUBUKOLA & ORS V A.G. OF LAGOS STATE (2016) LPELR 41451 (CA).

RESOLUTION OF PRELIMINARY OBJECTIONS
The main plank of the 1st respondent’s objection is that the appellant’s cause of action at the trial Tribunal being a pre-election matter ought to have been commenced not later than 14 days from the date of the occurrence of event, decision or action complained in the suit.
The provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provide as follows:
“Notwithstanding anything to the contrary contained in this Constitution every pre-election matter should be filed not later than 14 days from the date of the event decision or action complained of in the suit.”
The provisions of Sub-section 14 (b) and (c) therefore emphatically provides that pre-election matters includes issues of disqualification, nomination, substitution and sponsorship of candidates for an election and other sundry violation of the provisions of the Electoral Act which occur before the Election.
It was the appellant’s contention therefore that this very issue was raised by the 3rd respondent at the lower Tribunal and a considered ruling on it has finally brought it to an end. I have looked through the

record and indeed the lower Tribunal has indeed held the view that the question of nomination by way of substitution though a pre-election matter but same had been filed after the election. I agree with the submission of the learned counsel to the appellant that having neither filed a cross-appeal nor respondent’s notice challenging the decision of the lower Tribunal on whether the petition is a pre-election matter or not has been foreclosed. The 1st respondent’s objection is unmeritorious and is accordingly dismissed.

The substratum of the 3rd respondent’s objection in the motion to strike out the appellant’s grounds of appeal are of two folds. The first being that ground 12 did not arise from the judgment. I take liberty to reproduce the said ground 12 of the appellant’s ground of appeal thus: –
“GROUND FOUR (4)
The lower Tribunal erred in law which occasioned on the appellant a miscarriage of justice when it held at P.84 of the judgment that it was the respondent’s letter of 23/09/2019 addressed to the Chairman of Chairman of the Petitioner that instigated the withdrawal of the former candidates and

thereafter invoked S. 167 (D) of the Evidence Act.
PARTICULARS
(i) The lower Tribunal failed to allow the documents the appellant used in the said withdrawal of candidates to speak for it.
(ii) That there is no unfavorable inference drawable from Exhibit R9 as no unfavorable is present herein.
(iii) That the appellant has the right of substitution within 45 days to the election as long as the candidates resigned voluntarily.
(iv) That Exhibit R9, cannot invalidate or exclude the nominated candidate of the Appellant for any reason without a Court order.
(v) That this failure denied the Appellant his right to fair hearing.”

The pertinent question here is did above ground of appeal arises from the decision of the lower Tribunal but before then, let me attempt to understand the meaning of a ground of appeal. A ground of has been defined as error of law or facts alleged by an appellant as the defect in the judgment appealed against upon which reliance has been placed to set the judgment aside. See ALBERT AKPAN V- SENATOR EFFONG BOB & ORS (2010) 43 NSCQRC 409 at 441.
Now reverting back to my earlier question,

the answer has its root in the decision of the lower Tribunal now on appeal. I have deeply considered ground 12 of the ground of appeal which also contains the portion of the judgment and in deference to the submission of learned appellant’s counsel that there is no synergy between the judgment and the said ground 12 thereof. In other word, the said grounds 12 is not derived from the judgment and therefore incompetent.

On grounds 1, 3, 5, 9, 10, 11 and 12 as argued on the second arm of the objection, the contention is that they are argumentative narrative and vague.
Order 7 Rule 2 and 3 of the Court of Appeal Rules, 2016 stipulates that the notice of appeal shall set forth concisely and under the 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. Sub-rule 3 thereof states that any ground which is vague or general in terms or discloses no reasonable ground of appeal shall not be permitted under this rule. In essence, any ground of appeal which is not permitted under this rule shall be struck out by the Court on its own motion or

upon an application by the respondent. See FALUYI & ORS –V- OGUNSEYE & ORS (2019) LPELR – 48015 (CA).
I have carefully and meticulously perused the relevant grounds 1, 3, 5, 9, 10, 11 and 12 of the appellant’s grounds of appeal. Although some appears argumentative and or narrative but when considered together with their respective particulars, they have sufficiently disclosed the nature of the appellant’s complaint. I have elsewhere in this judgment stated that the essence of the grounds of appeal is to convey to the Court and the respondent the complaint against the judgment. Consequently, where the grounds of appeal with the particulars sufficiently discloses the nature of the complaint of the appellant, the ground of appeal will be sustained, notwithstanding that it is vague or narrative. See NWOSU –V- PDP & ORS (2018) LPELR – 44386 (SC).
In the instant case, the said offending grounds of appeal having disclosed the appellant’s complaint against the judgment of the lower Tribunal, same cannot be rendered incompetent.

However, having adjudged ground 12 of the grounds of appeal invalid by reasons

of not been related to judgment appealed against, the appellant’s issue 3 which was distilled there from is incompetent. This is so because issues for determination in an appeal must fall within the scope of the grounds of appeal filed and the grounds of appeal in turn must relate to the decision appealed against and should be a challenge to the validity of the ratio of that decision. See LEEDO PRESIDENTIAL HOTEL LTD –V- B.O.N. (NIG) LTD (1993) 1 NWLR (Pt 269) 334 and AMOBI –V- NZEGWU (2014) 2 NWLR (Prt 1392) 510 at 544. Aside from ground 12 of the grounds of appeal, all the remaining grounds are competent and I so hold.

Having disposed of with the preliminary objections, I will now proceed to determine the appeal on the basis of the two issues which I adopted as being apposite to the just determination of the appeal.

ISSUE 1
Whether in view of the facts pleaded by the appellant and the evidence led, the Tribunal was right in law in dismissing the appellant petition.

On the above, learned counsel for the appellant in asking the Tribunal to hold that the election in question is invalid or voided for unlawful exclusion of

the petitioner, the appellant had effectively sought the nullification of the said election. He referred to IBRAHIM –V- SHAGARI (1983) LPELR – 1412 (SC) to the effect that the terms “invalid” and “to invalidate and election” means nullification of an election.

Still in argument, learned counsel submits that having found the appellant’s ground II of the petition valid, it follows that the relief relating to the unlawful exclusion at paragraphs 22 (ii) and (iii) are valid reliefs and prayers sustaining the petition.

He submits further that the lower Tribunal was in grave error to have found that apart from INEC certificate there is nothing to suggest that Exhibit P1 (a) was endorsed as received by the 3rd respondent. He referred to Section 111 of the Evidence Act and the cases ofOGBUNYIYA & ORS –V- OKUDO & ORS (1979) LPELR – 2295 (SC) to contend that Exhibit P1(a) is from proper custody and the lower Tribunal ought to have countenance it as evidence of the candidacy of Hon. Egbunu Lucky Enemaku and Tender Samson U.P. He also submits that Exhibit P2 (a) Form CF001 of Ochmana Tender Samson

U.P. which was simultaneously submitted to the 3rd respondent is also credible and conclusive of nomination of his Deputy Governorship candidate. And had the lower Tribunal properly evaluated Exhibits P1 (a) and P2 (a), it would have arrived at a different conclusion relying on NKPA –V- NKUME (2001) 6 NWLR (Prt 710) 543 at 451.

Learned counsel finally submits that the fact that the appellant pleaded but did not tender Exhibit R9 does not necessitate the invocation of the presumption of withholding evidence as any of the parties are at liberty to tender it. The 3rd respondent has acted ultra vires its powers in disqualifying the appellant’s candidate as only a competent Court has the jurisdiction to disqualify a candidate nominated by a political party.

In response to the above, learned counsel to the 1st respondent submits that in order for a petitioner to succeed on the ground of unlawful exclusion in an election, such a petitioner must prove by cogent and compelling evidence valid nomination by a recognized political party and publication by INEC of his name as the candidate for the election. It is only after the petitioner has

established the investiture of legal right of a duly nominated and officially published candidate for an election that the burden of proving lawful exclusion can arise in relation to the returned candidate. He referred to ABUBAKAR & ORS V YAR’ADUA & ORS (2008) LPELR – 51 (SC).

He submits further that the validity of the nomination of a candidate for an election is dependent on whether the candidate had emerged in line with the provision of the Constitution, the Electoral Act, as well as the party guidelines. He referred to Section 31, 32 and 34 of the Electoral Act, 2010 (as amended) and the cases of EMENIKE V PDP (2012) 2 NWLR (Prt 1315) 556 at 603 and KUBOR –V- DICKSON (2013) 4 NWLR (Prt 1345) 534 at 574.

In further argument, learned counsel submits that by Exhibits P1 and P2, R3 and R4 same reveals that Hon. Sediq Nusa and Mr. Vincent Omeiza failed to meet the requirements of Section 31 (2) of the Electoral Act, 2010. And the appellant was aware that through the above Exhibits they made an invalid nomination and in the absence of any pleading and evidence led on the issue of substitution, same according to

the learned counsel remain moot and academic point. He referred toTALLEN & ORS V JANG & ORS (2011) LPELR – 9231 (CA) to the effect that address or argument of counsel no matter how lucid can never be used as substitute for pleadings or evidence.

Learned counsel has urged this Court to take judicial notice of the proceedings of the Federal High Court in Action Peoples Party (APP) V INEC in Suit No. FHC/ABJ/CS/1163/2019 delivered on the 21st of February, 2020 to contend that the appellant having elected to challenge the refusal of the 3rd respondent to accept its nomination of the said substitute candidate for the said election, the appellant by the petition and this appeal is merely seeking to have a second bite at the cherry. He thus, submits that the appellant has failed at the lower Tribunal to establish that it validly nominated candidate in 2019 Kogi Governorship Election and therefore cannot complain of unlawful exclusion.

On behalf of the 2nd respondent, learned counsel submits that nullifying an election is a Principal relief which must be specifically prayed for and credible evidence led in proof of it. Hence,

nullifying an election not having been prayed for amount to granting a prayer not sought. He referred to IDYO & ANOR –V- NUGWA & ORS (2015 LPELR – 41769 (CA) and PDP –V- INEC & ORS (2015) LPELR – 25669 (CA). He also referred to the appellant’s reliefs (ii) contained in paragraph 22 (ii) of the petition to contend that same is contrary to paragraph 4 (3) (a) of the 1st Schedule to the Electoral Act, 2010 (as amended).

On Exhibits P1 (a), learned counsel submits that in the light of the appellant’s own admission that the 3rd respondent refused to receive the said Exhibit, the finding of the lower Tribunal that there was no receipt stamp on the document is unimpeachable and Exhibit P1 (a) has no evidential value. He submits also that the lower Tribunal having struck out the replies containing the particulars as to the Deputy Governorship of Ochmana Tender Samson U.P., the lower Tribunal was no longer bound to evaluate every evidence concerning him. Thus, the lower Tribunal could not have evaluate Exhibit P2 (a) without supporting pleadings. He referred to ALH. OTARU & SONS LTD –V- IDRIS & ANOR

(1999) 6 NWLR (Prt 606) 330.

Learned counsel contend that INEC guideline, regulations and manual for the conduct of election have become part and parcel of the Electoral Act, which vested authority on it to make the guidelines, regulations and manual for the purpose of giving effect to the provisions of the Act. He thus submit that the appellant is bound to comply with scheduled dates contained in Exhibit INEC 1 that is, the Time Table and schedule activities for Kogi State 2019 Governorship Elections notwithstanding the days provided in Section 35 of the Electoral Act. He referred to FJP –V- INEC (2019) LPELR – 49370 (CA).

Aligning himself with the submissions of the 1st and 2nd respondents counsel on the above issue, learned counsel to the 3rd respondent submits that in view of the facts pleaded by the appellant and the evidence led at the Tribunal, the lower Tribunal was right in law in dismissing the appeal. He contend that although the decision of the Tribunal are on grounds of non-compliance with the provisions of the Electoral Act and valid nomination and unlawful exclusion, the appellant only appealed against the Tribunal’s

decision dismissing the appeal on ground of valid nomination and unlawful exclusion. He submits that to succeed in an election petition predicated on unlawful exclusion as provided under Section 138 (d) of the extant Electoral Act, the petitioner must show that: –
(i) he was validly nominated by his political party.
(ii) an election was conducted.
(iii) a winner was declare; and
(iv) his name was not in the list of contestants.

The petitioner according to the learned counsel must in addition to the above, he must specifically prove them at the trial. He referred to ABUBAKAR V YAR’ADUA (2008) 19 NWLR (Prt 1120) 1 at 94 – 95 andEFFIONG V IKPEME (Supra) in contending that the appellant neither plead nor led any evidence showing that Honourable Egbunu Lucky Enemaku who allegedly replaced Appellant’s erstwhile Governorship and Deputy Governorship candidate nominated any Deputy Governorship candidate pursuant to Section 187 (1) of the 1999 Constitution and thus there was no evidence before the lower Tribunal showing that the said Honorable Egbunna Lucky Enemaku nominated a Deputy Governorship candidate to

prove valid nomination. He referred to the unreported Appeal No. SC.1/2020 between PEOPLES DEMOCRATIC PARTY & ORS VS BIOBARAKUMA DEGI EREMIENYO & ORS to the effect that the absence of a Deputy Governorship candidate of the appellant was fatal to the case of the appellant.

Learned counsel further submits that on the strength of the appellants admission that INEC did not receive Exhibit P1 (a), the refusal of the Tribunal to place any probative value or weight on the said Exhibit P1 (a) is justifiable in law as nobody existed to be replaced. It was similarly submitted that the lower Tribunal rightly invoked Section 167 (d) of the Evidence Act as the consequences of withholding Exhibit R9 which is a letter dated the 13th day of September, 2019 by the 3rd respondent notifying the appellant that it had no valid Governorship and Deputy Governorship candidates for the election in question.

The main contention here is whether or not the appellant’s candidates for the 2019 Kogi State Governorship Election was validly nominated and unlawfully excluded to take part in the said election by the 3rd respondent that is the Electoral body. It

is beyond any peradventure that an election may be questioned on various grounds, one of which is the ground of unlawful exclusion. See Section 138 (1) (d) of the Electoral Act, 2010 (as amended).
In paragraph 22 of the petition at page 8 of the record of appeal, the appellant as petitioner before the lower Tribunal succinctly put its case thus:
“22. WHEREFORE, your petitioner may prays as follows:
(i) That it may be determined that the Kogi State Governorship election held on 16th November, 2019 is invalid or voided for substantial non-compliance with the provision of the Electoral Act.
(ii) That it may be determined that the Kogi State Governorship election held on 16th November, 2019 is invalid or avoided for the unlawful exclusion of the petitioner or its registered logo or its validly nominated candidate from the election.
(iii) That it may be determined that a fresh Governorship election be conducted for the office of Governor of Kogi State wherein the validly nominated candidate of the petitioner the petitioner’s name, acronym and its registered logo would be included or represented on the ballot papers.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

In its quest to establish its claim before the lower Tribunal, the petitioner (now appellant) called PW1 through whom Exhibits P1 – P6 were tendered. Although, the appellant predicated his petition on two grounds, the first ground was abandoned and the evidence led was in support of the second ground above. The question is therefore, whether or not the appellant had in view of the facts pleaded, led evidence relating valid nomination and unlawful exclusion?
The law is settled that parties are bound by their pleadings and evidence on matters not pleaded goes to no issue.
In paragraphs 3 – 5 of the statement of oath deposed to by PW1, he categorically stated that it conducted its primary election nominated and sponsored its candidates for the said Governorship election and forwarded to the 3rd respondent the name of its validly nominated candidate within the time allowed by law. However, its validly nominated Governorship candidates and Deputy Governorship candidates, namely Hon. Sediq Nusa and Mr. Vincent Omeiza were withdrawn and were duly replaced by Hon. Egbunu Lucky Enemaku within 45 days to the date of the election.
What stand

out clear from the above is that while the appellant’s pleadings contains processes which produced Hon. Sediq and Omeiza as Governorship and Deputy Governorship of the appellant through primaries, nomination and sponsorship before forwarding to the 3rd respondent, the only averment respecting Hon. Enemaku was his replacement within 45 days to the election that took place on 16th November, 2019.
In an answer to the question put to PW1 during cross-examination at pages 376 – 377 of the record of appeal, he stated in parts that:
“I am familiar with the time table for this governorship election. I cannot tell whether 9th September is the last date for submission of forms CF001 and CF002 is 9/09/2019 until I see the time-table. (witness shown Exhibit P1 and P2 and asked what date on the INEC stamp).
The INEC stamp is dated 09/09/2019. There is no endorsement of INEC acknowledgement on Exhibit P1 A.”
PW1 agreed that the minimum age requirement for contesting a Governorship is 35 years but when shown Exhibits P1 and P2, he emphatically stated as follows:
“The name on Exhibit P1 is Nusa Sediq and Exhibit P2

Omeiza Vincent. At page 2 of Exhibit P1 the age written is 34. Also on P2 the age written is 34. I agree that our candidate did not satisfy the constitutional requirement of age.”……
The starting point is from the evidence led by the appellant at the lower Tribunal did it prove valid nomination and unlawful exclusion from the election in question? I do not think so because to prove that a petitioner nominated by his political party but was unlawfully excluded from the election, the petitioner must show the following:
(a) that he was validly nominated by his political party.
(b) that an election was conducted.
(c) that a winner was declared; and
(d) that his name was not included in the list of contestants.
See IDRIS V ANPP (2008) 8 NWLR (Prt 1088) 1 and ABUBAKAR V YAR’ADUA (Supra). Also in EFFIONG V IKPEME (Supra), it was held that the petitioner must not only state all the above requirements in his petition, he must specifically prove them at the trial. See also EZEOBI V NZEKA (1989) 1 NWLR (Prt 98) 473.
In the instant case, the appellant did not state the above

requirements in his petition and also failed to lead evidence to specifically prove them at trial. A trial Court or Tribunal is not expected to go on a wild goose chase embark on academic exercise in which all sorts of questions are discuss at will without reference to pleadings on issues and admissible evidence. See UKPO V NGAJI (2010) 1 NWLR (Prt 1174) 175.

The next germane issue is whether the appellant has established through credible evidence the replacement of its erstwhile candidates with Hon. Enemaku within the time permitted by law? The evidence of PW1 did not reveal the last date when INEC was suppose to accept replacement of candidate for the said election. In paragraph 20 of the statement on oath, PW1 averred that he was told by the respondent that the date for the submission of replaced nominees elapsed on the 23/9/2019 but while crossed examined on that point he said: –
“Yes, we did not know that the last date for submission of Exhibit P1 and P2 was 9/9/2019.”
Learned counsel for the appellant has strenuously argued that it is unconscionable and untenable for the lower Tribunal to give effect to Exhibit P3 as

evidence of the valid withdrawal of the candidacy of Sediq Nusa and Vincent Omeiza but discountenanced Exhibit P1 (a) as evidence of Hon. Ebunu Lucky Enemaku and Ochmana Tender Samson U.P.
The provisions Section 33 of the Electoral Act, 2010 (as amended) provides:
“Section 33, political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act except in the case of death or withdrawal by the candidate.”
Section 35 of the Act states that:
“A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.”
The bane of contention here is not on the last date for replacing candidates but rather on whether the replacement was duly conveyed to the commission. What is however clear from the evidence of the subpoenaed witness RW1 is that the commission. (3rd respondent) had received P1 and P2 which are the same with Exhibit R3 and R4 as well as

Exhibit R5 (CF002 (B)) which is the petitioner now appellant’s list of sponsored candidate for the Kogi State Governorship election on the 9/9/2019, the last day for the submission of party’s sponsored candidates. And that Exhibit R5 was not tendered by the petitioner and neither did he receive Exhibit P1 (a) i.e. CF001 of the replacement Governorship candidate of the appellant’s herein.
In view of the above, I cannot but endorse the findings of the lower Tribunal at page 477 of the record of appeal as follows:
“The document presented by the petitioner i.e. CF 001 (Exhibit P1 (a) of Egbunnu Edwad Lucky which is without INEC stamp acknowledging receipt of documents has no evidential and probative value before this Tribunal.”
The issue is not that of the proper custody but on evidential value and weight which are entirely different. The issue of Deputy Governorship candidate of Mr. Emenaku not been a fact joined in the parties’ pleadings does not deserve the undue attention given to it by the respective parties. Thus, considering the facts pleaded by the appellant and the evidence led in proof of same, the lower

Tribunal was justified in law for dismissing the appeal. Issue 1 is therefore resolved against the appellant.

ISSUE 2
Whether the decision of the Trial Tribunal granting some of the reliefs claimed in the 1st and 3rd respondents Interlocutory applications was not right in law.

Arguing the above, learned counsel for the appellant submits that decision of lower Tribunal which struck out paragraphs 5, 7, 9, 11, 13 (i) and 13 (iii) of its reply to the petition and 6 paragraphs 4, 5, 6, 7, 8, 9, 10 and 12 of the appellant’s reply to the 3rd respondent reply to the petition upon the application has breached the appellant’s right to fair hearing and thus occasioned a miscarriage of justice against the appellant. He predicted his submission on the right encapsulated in the first limb paragraph 16 (1) of the 1st Schedule to the Electoral Act 2010 (as amended) which gives the appellant the right to respond to the new facts raised by the 1st and 3rd respondents in their respective replies to the petition. He referred toIDRIS V ANPP (supra)and ADEYELA V ADEYEYE & ORS (2010) LPELR – 3618 to contend that there is a

Constitutional duty on Courts and Tribunal to afford all parties before them equal opportunity to present their respective cases.

On behalf of the 1st respondent learned counsel submits that the effect of paragraph 16 (1) of the 1st Schedule to the Electoral Act cannot by any stretch of legal imagination by way of reply introduce into the petition new grounds prayers different from what is contained in the petition. He contend that nowhere in the 1st, 2nd or 3rd respondents’ reply to the appellant’s petition was the name of one Ochema Tender Samson U.P. or any other person as the substitute Deputy Governorship candidate was mention which would have warranted the appellant to reply. The respondents merely denied that the purported substitution of Hon. Sediq Nusa and Vincent Omeiza had any force of law. He referred to APC V PDP & ORS (2015) LPELR – 24587 (SC) to the effect that the petitioner’s reply is not an avenue for introducing new facts which a respondent will have no opportunity to respond to.

Learned counsel to the 2nd respondent re-iterated that the lower Tribunal having struck out the replies of the

appellant which contains particulars as to the Deputy Governorship candidate of Ochman Tender Samson U.P., the Tribunal was no longer bound to evaluate any evidence concerning him.

On the part of the 3rd respondent, learned counsel contend that paragraphs 5, 7, 9, 11, 13 (i) and 13 (ii) of the appellant’s reply to the 1st respondent’s reply to the petition contain new fact. He thus submits that the lower Tribunal did not go outside paragraph 16 (1) of the 1st schedule to the Electoral Act, 2010 (as amended) in striking out the said reply.

In further argument learned counsel submits that the appellant having not appealed against the said ruling, same remain valid and subsisting. He referred to APGA –V- UMEH (2011) 8 NWLR (Prt 1250) 544 at 562.

The learned appellant counsel has by and large conceded the fact that the issue as to the Deputy Governorship candidacy of Ochman Tender Samson U.P. was never part of the petition but was quick to add that same arise from the replies of the 1st and 3rd respondents’ replies to the petition.

To ascertain the basis of the appellant claim above, one needs to examine the 1st and 3rd

respondents’ replies to the petition which gave rise to the appellant’s reply in paragraphs 5, 7, 9, 11 and 13 (i) and 13 (ii) as well as paragraphs 4, 5, 6, 7, 8, 10 and 12 respectively.
In paragraphs 6 and 7 of the respondent’s reply to the petition it averred as follows:
“6. The 1st Respondent further avers that it is not in dispute that the petitioner failed to make a fresh nomination of Governorship or Deputy Governorship candidate before the deadline for submission of nominations set by the 3rd respondent in her time table for elections which was the 9th of September, 2019.
7. The 1st respondent further states that “Hon. Egbonnu Lucky Enemanu” was neither nominated nor sponsored as the petitioner’s candidate in the Gubernatorial election of 16th day of November, 2019 in Kogi State.”

The 3rd respondent in paragraph 9 (iii) of its reply to the petition states: –
(iii) The petitioner in the purported replacement of the two candidates sent in only the name of Hon. Egbunu Lucky Enemaka as her Governorship candidate without the accompanying name of her Deputy Governorship candidate as required by law.

(iv) That apart from the fact that the petitioner’s purported replacement of only the Governorship candidate position the time for doing so was against the 45 days allowed before the date for the election of 16th November, 2019. This position was communicated to the petitioner by the 3rd respondent through a letter dated 27th September, 2019 received by one Audu E. Abigi titled submission of invalid nominations for the Governorship election in Kogi State.”

The provisions of paragraph 16 (1) 1st Schedule to the Electoral Act, 2010 (as amended) states that: –
“16-(1) If a person in his reply to the election petition raises new issues of facts in defense of his case which the petition has not dealt with the petitioner shall be entitled to file in the Registry within five (5) days from the receipt of the respondent’s reply in answer to the new issues of fact, so however that-
(a) the petitioner shall not at this stage be entitled to bring in new facts grounds or prayers leading to the contents of the petition filed by him.”
It is instructive to note that a petitioner like a plaintiff in a regular Court, can

by virtue of paragraph 16 of the Schedule to the Electoral Act file a reply to meet fresh issues raised in an answer to the petition. In the instant case, the issue concerning replacement of Governorship candidacy by of the appellant having been introduced first by the appellant as petitioner in paragraphs 19 – 23 of the PW1’s statement on oath cannot be a fresh or new issue been raised in an answer to the petition. Also juxtaposing the replies of the 1st and 3rd respondent’s replies to the petition alongside the appellant’s replies, same in my humble view were meant to improve; re-in force and re argue the petition. Thus, the lower Tribunal was right in granting the said Interlocutory applications. Issue 2 is also resolved against the appellant.

In the result, the appeal is moribund and is accordingly dismissed with a costs which I assessed at N100.000.00 against the appellant and in favour of the 1st and 2nd respondents.

ADAMU JAURO, J.C.A.: I have the honour of reading before now the judgment just delivered by my learned brother, Muhammed Lawal Shuaibu, JCA. I am in entire agreement

with the reasoning and conclusion contained therein to the effect the appeal is lacking in merit and substance.
I adopt the judgment as mine in dismissing the appeal and abide by all consequential
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I agree

ONYEKACHI AJA OTISI, J.C.A.: I was privilege to read, in advance the draft copy of the judgment just delivered by my Learned brother, Muhammed L. Shuaibu, JCA in which this appeal was dismissed. All the issues arising for determination of the appeal have been comprehensively resolved and I am in agreement.
I also dismiss the appeal and I abide by the order in the lead judgment including the order as to cost.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have the privilege and opportunity to preview the draft of the lead judgment delivered by my learned brother MUHAMMED LAWAL SHUIABU JCA.
I am in complete agreement with the reasoning and conclusion reached therein and have nothing else to add.
I therefore also dismiss the appeal and affirm the judgment of the Tribunal.
I make no order as to costs.

Appearances:

Chikaosolu Ojukwu with him, Obed O. Agu and Fiki Segun For Appellant(s)

P.B. Daudu, Esq., with him, Monday Adjeh, K.F. Umenyi, B.B. Daudu and U.O. Obasi, Esq. for the 1st Respondent.

B.K. Abu, Esq., with him, K. O. Omoruan, O. A. Ibadin (Miss), Ungitoh Ayompe and Yewande R.E. Ahonaruogho (Miss) for the 2nd Respondent

Abdulwahab Muhammed with him, M. Y. Abdullahi, S.A. Abbas, Z.E. Abbas, H.S. Danjuma and M. O. Obakpolor for the 3rd Respondent. For Respondent(s)