BALA A. BAKO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2013)

BALA A. BAKO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2013)LCN/6206(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2013

CA/J/EP/SN/93/2013; CA/J/EP/SN/93A/2013

JUSTICES

RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

BALA A. BAKO Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. GYANG N. S. PWAJOK
3. PEOPLES’ DEMOCRATIC PARTY (PDP) Respondent(s)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE JUDGEMENT OF THE COURT APPEALED FROM

It is trite law that grounds of Appeal must arise or flow from or related to Judgment of the court appealed from. It must be against the ratio of the judgment. Any ground of Appeal which does not arise from the ratio of the Judgment appealed against is incompetent. See C.P.C. V. INEC & ORS (2011) 18 NWLR (PART 1279) 493 at 532-H per ADEKEYE JSC who held:-
“Any grounds of appeal which do not arise from the ratio of the Judgment appealed against equally cannot stand for reason of incompetency.” Issues formulated must also be tied to competent or viable ground of appeal See UNITY BANK PLC & ANOR V. BOUARI (2009) 2-3 SC (PT 11) 1 and UGO V. OBIEKWE (1989) 2 SC (PT 11) 41. PER IGE, J.C.A.

THE PURPOSE OF A PRELIMINARY OBJECTION

It must be stated that the Preliminary Objection filed by the 1st Respondent is not within the contemplation of Order 10 Rule 1 of the Court of Appeal Rules 2011. Any objection raised pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011 must be capable of bringing to an end the appeal against which the Preliminary objection is targeted. The said ORDER 10(1) of the Court of Appeal rules 2011 says.
“10(1) A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registry within the some time.”
See LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNOR NASARAWA STATE & ORS (2012) (PART 1328) 94 AT 124 D – F where RHODES-VIVOUR, JSC had this say:-
“A preliminary objection can be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal. The purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds the hearing of the appeal abates. See Odunukwe v. Ofomata 44 NSCQR page 379, 2010 18 NWLR (PART 1225) 404; NEPA V. ANGO (2001) 15 NWLR (PART 737) 627. PER IGE, J.C.A.

WHETHER OR NOT A CANDIDATE WHO HAS NEVER CONTESTED A PRIMARY ELECTION CAN EMERGE A PARTY CANDIDATE

WHETHER OR NOT THE COURT SHOULD TERMINATE A PROCEEDING WHERE IT IS CLEAR THE RESULT WILL NO LONGER SERVE THE END OF JUSTICE IF A PARTY WINS

It is settled law that where in the course of a proceeding or an appeal, election petition inclusive there is an intervening event or episode cutting at the root or foundation of a case or an appeal and the vested rights of the claimant or a Petitioner/Appellant, the Court concerned will do well to terminate or end the proceeding where it is clear that the ultimate result will no longer serve the end of justice even if the claimant or the Appellant wins.
See (1) MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & ORS V. ALHAJI ISIYAKU YAKUBU & ANOR (2013) 6 NWLR (PART 1351) 481 at 496H TO 497 A – B per MOHAMMED, JSC.
(2) UYAEMENAM NWORA & ORS V. NWEKE NWABUEZE & ORS (2011) 17 NWLR (PART 1277) 699 at 720 F-H to 721 A – C per CHUKWUMA – ENEH, JSC.
(3) CPC V. INEC & ORS (2011) 18 NWLR (PART 1279) 493 at 559 B-F per MUHAMMED JSC who said:-
“This is because the grant of reliefs 1, 2, 3 and 5 alone without vital and appropriate relief of directing 1st and 2nd respondents to conduct another election, would have served no useful purpose to the petitioner/appellant thereby in my view rendering the whole exercise of continuing with the hearing the petition, a rather academic exercise. In Odedo v. INEC (2008) 17 N.W.L.R. (Pt 1117) 554 AT 666, this court citing with approval its earlier decision in Plateau State V. A. G. Federation (2005) 3 N.W.L.R. (pt. 967) 346 where Niki Tobi, J.S.C. stated the meaning of academic question.
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.” PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the National and State Houses of Assembly Election Petition Tribunal Holden at Jos, Plateau State, Nigeria delivered on 20th day of March, 2013.
The brief facts of the case are that the Independent National Electoral Commission was constrained to hold a By Election for PLATEAU NORTH SENATORIAL DISTRICT on 6th day of October, 2012 following the demise of the Senator representing the said Senatorial District.
Prior to that date and that was precisely on 23rd day of August, 2012, the Independent National Electoral Commission issued out time table of activities for the said by election for Plateau North senatorial District and Barkin Ladi constituency of Plateau State. The Political Parties interested in taking part in the election were asked to conduct their party primaries to enable them to democratically nominate candidates for the elections as required by Section 87 of the Electoral Act 2010 between 24/8/12 to 15/9/2012. The last day for submission of candidates’ name by political Parties was fixed for the 24th day of September, 2012. See pages 34 – 35 of the Record. The Peoples Redemption Party (PRP) submitted the name of BALA A. BAKO (Originally 1st Petitioner in this matter at the court below) to the 1st Respondent in this Appeal as the party’s Candidate for the said Senatorial Election.
By a letter dated 26th September, 2012, Reference No. INES/LEG/PL/BE/7/32 the 1st Respondent wrote to inform the National Chairman of Peoples Redemption Party, Appellant’s party and Sponsor, as follows:-
“RE: PLATEAU NORTH SENATORIAL BYE ELECTION 2012.
Your letter of 21st September, 2012 on the above refers.
2. The Commission observed that your political Party neither issued notice to the Commission of its intention to conduct primary election for selection of its Senatorial candidate for Plateau North Senatorial District nor conducted any Primary Election for the selection of the Senatorial candidate for the upcoming bye election in the state.
The submission of the name of Bala A. Bako as the candidate of the People’s Redemption Party contravenes the provisions of section 87 of the Electoral Act 2010 (as amended.) and is accordingly not accepted by the Commission.
4. For the avoidance of doubt, neither the People’s Redemption Party nor its candidate will be on the ballot for the Plateau North Senatorial District Bye Election 2012.
Sgd
ABDULLAHI A. KAIGAMA.
Secretary to the Commission”
See page 36 of the Record.
There is nothing on the record to show what was the reaction of the Appellant and what his Party did in reaction to the above quoted letter from the 1st Respondent until the said Senatorial By Election was held on 6/10/2012. Upon the declaration of the 1st Respondent that the 2nd Respondent GYANG N. S. PWAJOK won the Election the Appellant and his Party as 1st and 2nd Petitioners presented their Petition against the 1st, 2nd and 3rd Respondents and sought for the following reliefs viz:-
“Whereof your Petitioners prays (sic) as follows:-
(a) That the by election conducted by the 1st Respondent on 06/10/2012 into Plateau North Senatorial District be declared null and void
(b) That this Honourable Tribunal order a fresh election wherein the Petitioners shall be included in the fresh election.
(c) That the election conducted by the 1st Respondent on 05/10/2012 into plateau North Senatorial District violated the Petitioner’s right to contest election and in total violation of the Electoral Act 2010 as amended and Section 65 of the Constitution of the Federal Republic of Nigeria 2010 as amended”
The Petition was predicated on the following ground namely:-
“Your Petitioners State that the grounds upon which this petition is based is that the 1st Petitioner was validly nominated to contest the 05/10/2012 Plateau North Senatorial District by election and the Petitioners were unlawfully excluded from the election by the 1st Respondent”
The Petition which was dated 24th day of October, 2012 was served on the Respondents and pleadings were duly exchanged.
On 10th day of January 2012, the 1st Respondent in this Appeal filed an application before the lower Tribunal pursuant to section 65(2) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), Section 137(1) of the Electoral Act 2010 and paragraph 47 (1) of the First Schedule to the Electoral Act 2010 as Amended praying for the following:-
“(1) An order granting leave to the 1st Respondent/Applicant to move this motion outside the Pre-hearing session.
(2) ORDER striking out this Petition No. NASE/EPT/J/02/2012 for want of jurisdiction to entertain same.
(3) Such further Orders as this Honourable Tribunal May deem fit to make in the circumstances of this Petition”
The application was predicated on the following grounds viz:
“(1) Pre-Hearing in this Petition closed on 11th December, 2012.
(2) The 1st Respondent/Applicant required leave to move this motion after the close of Pre-Hearing.
(3) The Petitioners lack the locus standi to maintain this petition.
(4) The Petitioners lack of locus standi has robbed this Honourable tribunal of jurisdiction to entertain this Petition.”
A close perusal of the Affidavit in support revealed that a significant point of law was raised in paragraph 9 thereof thus:
“9 That the Peoples Redemption Party (PRP) is no longer a registered Political Party in Nigeria, following it’s deregistration on 06/12/2012. The documents issued by the 1st Respondent/Applicant to the effect that 31 Political Parties have been de-registered, the Peoples Redemption Party inclusive are hereby attached and marked Exhibits INEC 1 and INEC 2”
See pages 104 – 106 of the Record.
The People Redemption Party (2nd Petitioner now defunct) was listed as Number 24 in the Press Release issued by INEC on Thursday 6th December, 2012.
Issues were joined on the application. It was heard by the lower Tribunal on 18th day of January, 2013 but the Tribunal reserved its ruling and stated it would be embodied in its final Judgment. See page 317 of the record. While ruling on the said Application in its Judgment on the Petition on 20th day of March 2013 on page 336 of the Record the lower Tribunal held thus:-
“As stated earlier, we are not concerned with neither is it our business to consider whether the deregistration of the 2nd Petitioner effected vide Exhibit ‘INEC 1′ is legal or not. Also, we have not been told that there is even nothing before us that the 2nd Petitioner had contested or is contesting the legality of it’s deregistration by the 1st Respondent in the appropriate court of law. Therefore, premised on the foregoing and in view of the overwhelming evidence before us we are not at all persuaded by mere denial of the Petitioners in paragraph 3(a) of their counter Affidavit that the 2nd petitioner has not been deregistered. We hold the view that the 2nd petitioner has been deregistered.”
On page 344 of the Record the lower Court concluded the Ruling thus:-
“In sum, our inescapable conclusion is that the application succeeds in part we hold that white the 2nd Petitioner no longer has the locus standi to maintain the petition on the account of its deregistration, the 1st petitioner however has locus standi to maintain the petition. Consequently, we order that the 2nd petitioner be struck out while the 1st Petitioner will continue to maintain/prosecute this petition as the sole petitioner. Having struck out the 2nd Petitioner, henceforth whenever and wherever it becomes necessary to refer to it in this Judgment.
It shall be referred to as the peoples Redemption Party.”
Notwithstanding the finding of the lower/tribunal on the 1st Respondent’s application that the Appellant could continue to maintain and prosecute the Petition, it found against him that he failed to establish any of the reliefs claimed and so his Petition was dismissed.
The lower Tribunal held:-
“The question that calls for answer now is whether the exclusion of the Petitioner is lawful. The Respondents contended that the exclusion of the petitioner from the election of 6th October, 2012 was lawful whereas the petitioner’s Counsel held a contrary view. The determination of this question hinges on the issue as to the validity or otherwise of the nomination of the petitioner. Earlier in this Judgment, we have found and held that the petitioner was not validity nominated by the Peoples Redemption Party. It follows therefore that the exclusion of the Petitioner from Plateau North Senatorial District by election held on 6th October, 2012 was lawful…
Therefore, the reliefs/prayers claimed as set out earlier in this Judgment fail the petition is hereby dismissed. We affirm the election of Gyang N. S. Pwajok as the Senator representing Plateau North Senatorial District in the National Assembly, Petition dismissed”
The Appellant was dissatisfied and he filed Notice and Grounds of Appeal dated 8/4/2013 on 9th April, 2013 consisting of seven grounds. The Grounds of Appeal without their particulars are as follows:-
“The trial Tribunal erred in law when it held as follows:
“We hold that the mere submission of the name and nomination forms of the Petitioner by the Peoples Redemption Party to the 1st Respondent without the Petitioners Political Party first holding a special congress does not amount to a valid nomination and no unlawful exclusion can take place without valid nomination which error occasioned a miscarriage of justice.
2. The trial Tribunal erred in law when it held that… it follows therefore that the exclusion of the Petitioner from the Plateau North senatorial seat held on 6th of October, 2012 was lawful” which error occasioned a miscarriage of Justice.
3. The Trial Tribunal erred in law when it held as follows:
“We hold that the Petitioner has failed to prove before this Tribunal the ground alleging that he was validly nominated by Peoples Redemption party but was unlawfully excluded from the bye election into Plateau North senatorial seat held on the 6/10/2012. Therefore the Reliefs/Prayers claimed as set out earlier in this Judgment fail” which error has occasioned a miscarriage of justice.”
4. The trial Tribunal erred in law when it held that the evidence adduced of the trial with regard to the Peoples’ Redemption Party is at variance with the facts pleaded and that such evidence did not therefore go to any issue.
5. The trial Tribunal erred in law when it held that: “Section 31 (1) of the Electoral Act, 2010 (as amended) relates to a situation after the political party must have conducted their primaries which is governed by section 87 of the Act” which error occasioned a miscarriage of justice.
6. The Trial Tribunal erred in law when it held that: “we affirm the election of Gyang N. S. Pwajok as senator representing Plateau North Senatorial District in the National Assembly” which error has occasioned a miscarriage.
7. The Trial Tribunal erred in law when it held that:
…therefore having regard to all we have stated on issue under consideration, our irresistible conclusion is that the Petitioner has failed to prove that he was validly nominated by the Peoples Redemption party having failed to prove that his political party (Peoples Redemption Party) complied with the requirements provisions of the Electoral Act, 2010 (as amended). To be precise, the Petitioner has failed to prove that his Political Party (Peoples Redemption Party) complied with the requirements of the provisions of section 87 (1) and (6) of the Electoral Act 2010 (as amended) which error has occasioned a miscarriage of justice.
The 2nd and 3rd Respondent on their part filed cross appeal consisting of ten grounds. The grounds without particulars are:-
1. The learned Judges of the Tribunal erred in law when they found as follows:
“Therefore, since either the candidate or the political party that sponsored him can separately file a petition, it shows that each has the right to do so independently or the other. In view of this, if both of them decide to file a joint petition like it was done in the instant petition, the fact of the deregistration of the 2nd Petitioner which means that she is dead in law would not in our view prevent the 1st Petitioner from continuing with or maintaining the petition.”
2. Learned Judges of the Tribunal erred in law when after having found that the petitioner did not tie his exhibits to the oral evidence he led, turned round to hold that the 2nd and 3rd Respondents’ witnesses under Cross-Examination testified as to what exhibits 1 and 5 were and that the documents spoke for themselves.
3. The Learned Judges of the Tribunal erred in law when they held that even though PW1 does not know the process for nominating a candidate for the office of Senator as he is not a lawyer and that same was not within his knowledge, however held that it as the documentary evidence that matters and not necessarily the evidence of PW1 that does not know the process for nominating a candidating a candidate for the office of Senate.
4. The learned Judges of the Tribunal erred in law when they held that the Respondents did not plead late submission of the Petitioners’ nominating form as a ground for invalid nomination.
5. The Learned trial Tribunal erred in law when they held thus:
“From Exhibit ‘8’. The Commission stipulated 24th September, 2012 as the last day for submission of form CF001 to INEC. We would like to point out that there is nothing in Exhibit ‘8’ which made the said last day for submission of Form CF001 i.e. 24th September, 2012 mandatory.”
6. The Learned Trial Tribunal erred in law when it descended into the arena of conflict by holding that it was not Form CF007 that should not be submitted to INEC within the time-line as stipulated in Exhibit ‘8’ and that Exhibit ‘8’ was contrary to Section 31(2) of the electoral act, 2010 (as amended) and therefore null and void; thereby occasioning miscarriage of justice.
7. The Learned Trial Tribunal erred in law when it held that the late submission of Exhibit ‘1’ Form CF001 or any nomination form of the Petitioner to the 1st Respondent cannot render the nomination of the Petitioner invalid by placing reliance on the proviso to Section 31(1) of the Electoral Act, 2010 (as amended).
8. Having found and held that the Petitioner was not validly nominated and that he was not a candidate at the by-election held on the 6th October, 2012 the Learned Trial Judges of the Tribunal erred in law when they failed to hold that the Petitioner lacked locus standi.
9. The Learned Trial Judges of the Tribunal erred in law when they failed to decline jurisdiction to entertain the Petition.
10. THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE”
The Appellant filed his Appellant’s Brief of Argument on 23/4/2013. It is dated 23rd April, 2013.
The 1st RESPONDENT filed 1st RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION AND BRIEF OF ARGUMENT in this Appeal on 30th day of April, 2013. It is dated 29th day of April, 2013. The 1st Respondent also file 1st Respondent’s Notice of Preliminary Objection on 30th day of April, 2013. It is also dated the 29th April 2013.
The 2nd and 3rd Respondents filed their Brief of Argument on 3rd day of May, 2013. It is dated the 3rd day of May, 2013. The Appellant on 3rd May, 2013 filed Reply to the Preliminary objection of the 1st Respondent. It is dated the 3rd May 2013. The 1st and 2nd Cross Appellants filed their CROSS APPELLANTS BRIEF OF ARGUMENT on 30th day of April, 2013. It was dated the same date.
The 1st CROSS RESPONDENT’S BRIEF OF ARGUMENT was filed on 3rd May 2013. It is dated 3rd May, 2013.
This appeal was heard on Friday the 10th day of May, 2013 when Stephen Byem Esq., FOR 1st RESPONDENT moved his Notice of preliminary objection on behalf of the 1st Respondent and urged this court to uphold the Preliminary Objection.
L. E. Anyia Esq., for the 2nd and 3rd Respondents told the court that the 2nd and 3rd Respondents did not want to say anything about the Notice of Preliminary Objection.
Professor Shikyil for the Appellant informed the Court that the Appellant filed Reply to the Preliminary Objection on 3rd day of May, 2013 dated the same date. He adopted the written submission and urged the court to dismiss the Preliminary Objection as lacking in merit.
On the main appeal Prof. Shikyil adopted the Appellant’s Brief of Argument filed on 23/4/2013. He informed the court that the Appellant did not file appellant’s Reply Brief of Argument. He urged the court to allow the appeal and enter Judgment in favour of Appellant in terms of the reliefs sought. Before Professor Shikyil for the Appellant took his seat the court asked him this question:-
“COURT: Professor Shikyil, you have asked us to ovoid the Judgment of the lower court. In addition, in your prayer No. 2 you have asked us to order fresh election. Your Party, the Peoples Redemption Party was deregistered during the pendency of your Petition. Can your prayer 2 still avail you?”
In Reply to the question posed by the court. Professor Shikyil said:-
“I will leave the determination of that issue to the court”
In response to the Appeal, Stephen Ibyem Esq., for the 1st Respondent adopted the 1st Respondent’s Brief of Argument dated the 29th day of April, 2013 filed on 30th day of April 2013 in urging the court to dismiss the Appeal.
On the question posed by the court, Stephen Ibyem Esq., for the 1st Respondent submitted that this court cannot in the face of deregistration of Peoples Redemption Party grant relief two (2) as sought by the appellant. That it is no longer available to the Appellant. He relied on Section 65 (2) (b) of 1999 Constitution as amended. That the Appellant is no longer qualified to obtain that relief on the case of AMAECHI V. INEC. On the whole he urged the court to dismiss the appeal.
L. E. Aniyia Esq., for the 2nd and 3rd Respondents in response to the appeal stated that the 2nd and 3rd Respondents filed their Brief of Argument dated 3rd May, 2013 on the same date. He adopted it and urged the court to dismiss the appeal.
On the issue raised by the court, L. E. Anyia Esq., for the 2nd and 3rd Respondents submitted that in view of the deregistration of the Appellant’s Political Party – Peoples Redemption Party the appellant cannot be granted that relief. That this so because there is no longer any Political Party known in that name whose flag the Appellant, would fly in case he succeeds. He submitted the there is no room for Independent Candidate. That there is no Pedestal upon which Appellant could stand. He urged us to strike out the relief and dismiss the Appellant’s appeal.
Now on the Cross Appeal (CA/J/EP/SN/93A/2013) filed by the 2nd and 3rd Respondents L. E. Anyia informed the Court that the Cross Appeal is against the Judgment of the lower Tribunal delivered on 20/3/2013. The Cross Appeal can be found on pages 424 – 431 of the Record having tem grounds. He referred to the Cross Appellants Brief filed on 30/4/2013 wherein nine issues were formulated for determination. He relied on the Cross Appellants’ Brief of Argument and adopted same in urging the court to allow the cross Appeal.
Professor Shikyil in response to the Cross Appeal informed the court that the 1st Cross Respondent filed his Brief of Argument dated 3rd May 2013 on the same date. He adopted the issues set out for determination in the Cross Appellants Brief of Argument and adopted the 1st Cross Respondent’s Brief of Argument in urging this court to dismiss the Cross Appeal and to allow the appeal of the 1st cross Respondent.
Ibyem Esq., for the 1st Respondent did not file any Brief in response to the Cross Appeal.
It is pertinent to observe that the 1st Respondent filed Notice of Preliminary objection dated 29th April, 2013 seeking to strike out Grounds 1, 2, 3, 5, 6 and 7 contained in the Notice of Appeal filed by the Appellant on 9th April, 2013 and the issues distilled or formulated from the said grounds in the Appellant’s Brief of Argument filed on 23rd April 2013 for their being incompetent.
This court must in line with settled principles of law take the Notice of Preliminary Objection first and Rule on it. The application was brought pursuant to Order 10 Rule 1, Order 2 (2) and 3 and ORDER 6 Rule 3 of the Court of Appeal Rules 2007.
I wish to point out straight away that the extant Rules of this court is the Court of Appeal rules 2011 which became operative in this court since 1st day of April, 2011 by virtue of ORDER 1 Rule 1 of the said Court of Appeal Rules 2011. The Court of Appeal Rules 2007 was by Order 1. Rule 2 of the Court of Appeal Rules 2011, repealed. However, notwithstanding the fact that the application was brought under a non-existent Rules of court the 1st Respondent’s application can still be considered. See FALOBI V. FALOBI (1976) 9-10 SC 1 AT 13-14 per FATAYI – WILLIAMS JSC later C.J.N Rtd of blessed memory.
The main grouse of the Applicant was that the impugned grounds of appeal were argumentative, repetitive, vague and bear no direct challenge to the ratio of the Judgment of the Court.
The ground of the application also complained that issues 1, 3 and 4 of the Appellants Brief of Argument were framed from incompetent grounds of Appeal. The 1st Respondent argued the Preliminary Objection along with the Notice and at the same time incorporated the objection into the 1st Respondent’s Brief and same was also argued in paragraphs 2 -2-12 of the 1st Respondent’s Brief of Argument. Stephen Ibyem Esq. submitted that ground 2 of the appeal of the appellant is a repetitive of ground 1 and is argumentative. That a ground of appeal must be a complaint against ratio of a Judgment. He also found fault with grounds 5 and 6 of the Notice and grounds of Appeal of the Appellant as being incompetent in that they are not directed against the Judgment of the lower Tribunal. He relied on the cases of DIRECT ON PC LTD. V. SOF TECHNI LTD (2011) 10 NWLR (PART 1256) 442; MUNGUNO V. BLUE WHALES & CO (2011) 2 NWLR (PT 1231) 275 and ANYAIKE V. ADI (1986) 3 NWLR (PART 31) 739 AT 741. On the vagueness of the Appellant’s grounds of appeal he cited the case of DAKOLO V. REWANE-DAKOLO (2011) 16 NWLR (pt 1272) 22 AT 59. He urged this court to strike out grounds 2, 5 and 6 of the said grounds of appeal. He relied on the case of UDOH v. REGISTERED TRUSTEES BC & STAR (2011) NWLR (PART 1276) 223. He in the same vein asked the court to strike out issues 1, 3 and 4 for having been distilled from incompetent grounds of Appeal relying on the case of L.S.W.C. V. SAKAMORI CONST. (NIG) LTD (2011) 12 NWLR (PT 1262) 659 AND; EZEANUMA V. ONYEAMA (2011) 13 NWLR (pt 1263) 36. He also submitted that grounds 1, 3 and 7 of the grounds of Appeal were not covered by competent issues for determination and that these grounds of Appeal are deemed abandoned relying on the case of SULE V. HABU (2011) 7 NWLR (PT 1246) 339.
He also submitted that where incompetent ground of appeal is argued with a competent ground of appeal the competent ground of appeal will become incompetent. He relied on the case of AKICHEE V. NWAMADI (1992) 8 NWLR (PART 258) 214 and KANO ILE PLC. V. A & H NIG. LTD (2002) 2 NWLR (PT 751) 420. He finally urged the court to uphold the Preliminary Objection.
In his Reply to the Notice of Preliminary Objection the Appellant argued in his reply to the Preliminary Objection of the 1st Respondent that Order 6 Rule 2 of the Court of Appeal Rules 2007 is no more in use by this court. That the 1st Respondent failed to state the defect that is inherent in ground 1 of the Appellant’s Notice of Appeal.
In respect of the 1st Respondent’s argument on grounds 5 and 6 of the Appellant’s ground of appeal, the Appellant submitted that those grounds of appeal constitute a challenge to the ratio of the Judgment of the lower Tribunal and disclosed reasonable grounds of appeal. According to the Appellant while ground 5 complains of misinterpretation of section 31(1) of the Electoral Act 2010 (as amended) vis-a-vis section 87 of the same Act ground 6 of the Appellant’s appeal complained of the trial tribunal giving what was not asked for. That the submission of the 1st Respondent that grounds 2, 5 and 6 of the Appeal are incompetent was erroneous and therefore submitted that issues 1, 3 and 4 are competent as they were distilled from competent grounds of appeal.
It was the submission of the Appellant as well that grounds 1, 3 and 7 of the Appellants grounds of appeal are covered by competent issues formulated by the Appellant for determination. The Appellant urged the Court to dismiss the Preliminary Objection as lacking in merit.
It is trite law that grounds of Appeal must arise or flow from or related to Judgment of the court appealed from. It must be against the ratio of the judgment. Any ground of Appeal which does not arise from the ratio of the Judgment appealed against is incompetent. See C.P.C. V. INEC & ORS (2011) 18 NWLR (PART 1279) 493 at 532-H per ADEKEYE JSC who held:-
“Any grounds of appeal which do not arise from the ratio of the Judgment appealed against equally cannot stand for reason of incompetency.”

Issues formulated must also be tied to competent or viable ground of appeal See UNITY BANK PLC & ANOR V. BOUARI (2009) 2-3 SC (PT 11) 1 and UGO V. OBIEKWE (1989) 2 SC (PT 11) 41.
The Appellant’s grounds of Appeal without the particulars have been reproduced hereinbefore in this Judgment. I have also read through the issues formulated by the appellant and I am of the firm view that the grounds of appeal filed by the Appellant are all competent as they flow from the ratio and Judgment of the lower Tribunal. I have also calmly perused the issues formulated or distilled from the Appellant’s Grounds of Appeal and I am of the view that the complaints of the 1st Respondent against the issue formulated are unfounded.
It must be stated that the Preliminary Objection filed by the 1st Respondent is not within the contemplation of Order 10 Rule 1 of the Court of Appeal Rules 2011. Any objection raised pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011 must be capable of bringing to an end the appeal against which the Preliminary objection is targeted. The said ORDER 10(1) of the Court of Appeal rules 2011 says.
“10(1) A Respondent intending to rely upon a preliminary objection to the hearing of the Appeal shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registry within the some time.”
See LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNOR NASARAWA STATE & ORS (2012) (PART 1328) 94 AT 124 D – F where RHODES-VIVOUR, JSC had this say:-
“A preliminary objection can be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal. The purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds the hearing of the appeal abates. See Odunukwe v. Ofomata 44 NSCQR page 379, 2010 18 NWLR (PART 1225) 404; NEPA V. ANGO (2001) 15 NWLR (PART 737) 627. In the instant case if the Preliminary Objection succeeded in the Court of Appeal that court would have discountenanced the offending brief, decline to entertain oral argument from counsel responsible for the defective brief, but proceed with the hearing of the appeal. This is a wrong use of preliminary objection. High lighting the State of the brief at the hearing of the appeal would have been enough”
Consequently the 1st Respondent’s Notice of Preliminary Objection dated 29th April 2013 and filed on 3/4/13 argued in the 1st Respondent Brief of Argument is hereby dismissed with N20,000 costs in favour of Appellant against the 1st Respondent.
Now coming to the question raised or posed by this court concerning relief two (2) contained in the prayers of the Appellant at the court below and which reliefs including prayer 2 the Appellant is now asking this court to grant to him if he should win the Appeal. It is imperative to consider the question because if the Appellant cannot be granted that relief the entire appeal will be moribund and become academic. For ease of reference the said relief two is reproduced hereunder viz:
“(b) That this Honourable Tribunal Order a fresh election wherein the petitioners shall be included in the fresh election.”
The lower tribunal had held that notwithstanding the deregistration of Peoples Redemption Party on whose platform the Appellant was sponsored to contest the Plateau North District senatorial Election on 6-10-2012, the lower Tribunal held that Appellant could pursue the petition and prosecute same to conclusion.
The controversy which the lower Court/Tribunal thought it had resolved is still very much alive and staring everyone in the face. In other words, in the absence of the People Redemption Party who is no more and who was the sponsor of the Appellant in the aforesaid election can the appellant feature in a FRESH ELECTION he is seeking to be ordered if he should win this appeal? In Order to answer this puzzle one must have recourse to the provisions of the Constitution dealing with qualifications for membership of National Assembly particularly Section 65 of the Constitution of the Federal Republic of Nigeria 1999 as amended or altered. It provides:-
“65(1) Subject to the provisions of Section 66 of this Constitution a person shall be qualified for election as a member:
(a) The senate, if he is a citizen of Nigeria and has attained the age of thirty five years, and
(b) The House of Representatives, if he is a citizen of Nigeria and has attained the age of thirty years;
2. A person shall be qualified for election under subsection (1) of this section if:-
(a) he has been educated up to at least school Certificate level or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.”
(underlined mine)
In addition to the above Constitutional provision a Candidate for elective office enumerated in Section 65 of the 1999 Constitution must subject himself to Party Primaries to be eligible for nomination to contest the election under Section 87 of the Electoral Act (2010) as amended in 2011.

This must of necessity be juxtaposed with the fact that in all election in this country it is the political parties that are actually contesting against one another and canvassing for votes and not the nominated candidates per se that are canvassing for votes. The Party is the active principal participant in the election while the nominated and sponsored candidates are agents of the Political Party in the election.
See Section 221 of the 1999 Constitution of Nigeria interpreted in the case of RT. HON. ROTIMI CHIBUIKE AMAECHI V. INEC & ORS (2009) 5 NWLR (PART 1080) 227 AT 317 E – H to 318 A-B where the Supreme Court per OGUNTADE JSC who delivered the leading Judgment firmly held:-
“There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate. This seems to me a praise-worthy attempt to enthrone intraparty democracy in order to ensure that our democracy is truly reflective of the people’s choice. Now section 221 of the 1999 Constitution provides:-
“No association, other than a Political Party shall canvass for votes for any candidate of any election or contribute to the funds of any Political Party or to the election expenses of any candidate at an election”
The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on Political Parties. Without a Political Party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses on election. I think that the failure of respondents’ counsel to appreciate the overriding importance of the Political Party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms, we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election”.
I have quoted in extenso the findings of the Supreme Court in order to bring it out clearly that even if the Appellant should win this appeal the end result will not have any utilitarian or beneficial value to him in the face of the deregistration of Peoples Redemption Party. In effect the whole thing becomes an academic issue.
It is settled law that where in the course of a proceeding or an appeal, election petition inclusive there is an intervening event or episode cutting at the root or foundation of a case or an appeal and the vested rights of the claimant or a Petitioner/Appellant, the Court concerned will do well to terminate or end the proceeding where it is clear that the ultimate result will no longer serve the end of justice even if the claimant or the Appellant wins.
See (1) MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & ORS V. ALHAJI ISIYAKU YAKUBU & ANOR (2013) 6 NWLR (PART 1351) 481 at 496H TO 497 A – B per MOHAMMED, JSC.
(2) UYAEMENAM NWORA & ORS V. NWEKE NWABUEZE & ORS (2011) 17 NWLR (PART 1277) 699 at 720 F-H to 721 A – C per CHUKWUMA – ENEH, JSC.
(3) CPC V. INEC & ORS (2011) 18 NWLR (PART 1279) 493 at 559 B-F per MUHAMMED JSC who said:-
“This is because the grant of reliefs 1, 2, 3 and 5 alone without vital and appropriate relief of directing 1st and 2nd respondents to conduct another election, would have served no useful purpose to the petitioner/appellant thereby in my view rendering the whole exercise of continuing with the hearing the petition, a rather academic exercise. In Odedo v. INEC (2008) 17 N.W.L.R. (Pt 1117) 554 AT 666, this court citing with approval its earlier decision in Plateau State V. A. G. Federation (2005) 3 N.W.L.R. (pt. 967) 346 where Niki Tobi, J.S.C. stated the meaning of academic question.
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.”
An academic issue or question is one which does not require any answer or adjudication by a court of law because it is not necessary. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party.
And in the case of HON. BIMBO ADEPOJU & ORS V. OLONAIYINKA CHAIRMAN UNPP OYO STATE & ORS (2012) 1 SCM 38 at 51 Supreme Court per TABAI, JSC said:-
“Perhaps the case which is most appropriate to the facts and circumstances of the instant case is Badejo V. Federal Ministry of Education (1996) 8 NWLR (PART 464) 15. Therein the Plaintiff/Appellant initiated an action which sought an order to compel the defendant to permit her to be interviewed for admission into one of the Federal Government College. As at the 20th of October, 1988 when the application for the mandatory injunction was being heard the interview for the successful candidates had already been held on the 8th of October, 1988. In the premise the application was dismissed. The dismissal was confirmed by the Court of Appeal and the Supreme Court. In its Judgment, this Court per Kutigi JSC (as he then was) had this to say at pages 40-41 of the record:-
“Certainly if the declaration and the orders sought by the appellant were all founded and based on the appellant’s eligibility to be called for interview on the 8/10/88 for admission into Secondary in Federal Government College in 1989, the Court of Appeal must be right when on the 8th January, 1990, some 15 months after the interviews, it was held that the subject matter of the appeal had been overtaken by events and that there was nothing left for the High Court to try and therefore struck out the suit in its entirely….. It will in my view be subversive for a court of law to claim to determine disputes where none existed or had ceased to exist”
In the instant case, the Appellants’ terms of office as Chairman of their various Local Government Councils ceased to exist at the end of 24th May, 2010 and as at the 18th of June, 2010 when the application to strike out or dismiss the claim was filed there were no longer enforceable rights and obligations. In such circumstances granting all or any of the declaratory and injunctive reliefs would be an exercise in futility.”
The lower Court/Tribunal ought to have put an end to the petition when it became evident that the People Redemption Party that sponsored and purported to have nominated the Appellant was deregistered.
My position is that this court cannot grant prayer two (2) of reliefs sought or claimed asking this court to order fresh election wherein the petitioners shall be included in the fresh election even if the Appellant in this appeal wins. A court does not make order in vain or embark on an adventure in futility. This court has no such appellate jurisdiction.
See UYAEMENAM MWORA & ORS V. NWEKE NWABUEZE & ORS (2017) 17 NWLR (PART 1277) 699 at 720 E-G. Therefore this appeal ought to be dismissed and same is hereby dismissed.
Assuming this court can treat all the issues raised by the Appellant this appeal would still be dismissed by me. The reason is not far-fetched.
The issues formulated from the Appellants seven Grounds of Appeal on page 4 of the Appellant’s Brief of Argument are these viz:-
“1. Whether the Tribunal in view of the evidence adduced by the Appellant was right in holding that the nomination of the Appellant by his Political Party (Peoples Redemption Party) was not valid and therefore the exclusion of the appellant was lawful? (Distilled from Grounds 1, 2 and 3).
2. Whether the Tribunal was right to hove held that the discrepancy between the pleadings and evidence as to the date the primary election was conducted by the Peoples Redemption Party to nominate the Appellant was substantial enough to warrant the conclusion that the Appellant was not validly nominated by the Peoples Redemption Party” (Distilled from Ground 4).
3. Whether the Tribunal had the jurisdiction to entertain and determine the validity of the nomination of the appellant having regards to Section 87(9) of the Electoral Act, 2010 (as amended)? (Distilled from Grounds 5 and 7).
4. Whether the Trial Tribunal was right to have affirmed the Election of the 2nd Respondent as Senator representing Plateau North Senatorial District? (Distilled from Ground 6).”
A close examination of the record of Appeal glaringly revealed that the defunct Peoples Redemption Party that sponsored or claimed to have nominated the Appellant never and did not hold any Primary to enable the Appellant qualify to contest the Senatorial Election held on 6/10/2012 for Plateau North Senatorial District. The Appellant purported nomination was invalid. Appellant pleaded in paragraph 12 of his Petition that his defunct party.
“…on the 15th of October, 2012 the 2nd Petitioner during its delegate congress/meeting for the purpose of choosing its candidate confirmed the nomination of 1st Petitioner who was the only aspirant as 2nd petitioner’s candidate for 5/10/2012 Plateau North Senatorial District Election…”
The election in question actually took place on 6/10/2012. In any event his Party did not comply with section 87 of the Electoral Act 2010 as amended concerning his nomination. I agree with the lower Tribunal that INEC was justified in rejecting his nomination.
Looked at from any angle this appeal is completely devoid of merit. It is hereby dismissed in its entirety.
The Judgment of the lower court dismissing the Petition on all grounds is hereby confirmed. The 1st Respondent is hereby awarded the sum of N30,000 as costs against the Appellant. The 2nd and 3rd Respondents are also awarded N30,000 cost against the Appellant.

CROSS APPEAL
CA/J/EP/SN/93A/2013
NASE/EPT/J/02/2012

BETWEEN:
1. GYANG N.S. PWAJOK
2. PEOPLES DEMOCRATIC PARTY (PDP)
AND
1. BALA A. BAKO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
By their NOTICE OF CROSS APPEAL dated 9th April, 2013 and filed on the same date the Cross Appellants filed ten (10) grounds of Appeal against the Judgment of the Lower Tribunal. Under the part of decision complained of the Cross Appellants said:-
THE WHOLE DECISION EXCEPT THE PART WHERE THE LEARNED TRIAL TRIBUNAL DISMISSED THE PETITION AND AFFIRMED THE ELECTION OF GYANG N. S. PWAJOK A. SENATOR REPRESENTING PLATEAU NORTH SENATORIAL DISTRICT IN THE NATIONAL ASSEMBLY.
The grounds of Appeal by the Cross appellant could be found on pages 424 – 431 of the Record. The said grounds of the Cross Appeal without their particulars have already been quoted earlier in this Judgment.
The Cross Appellants formulated 9 (nine) issues with regard to the Cross Appellants Notice and Grounds of Appeal aforesaid.
I have read the whole gamut of the Record of Appeal, the Notice of Cross Appeal and its grounds. I have also read the CROSS APPELLANTS’ BRIEF OF ARGUMENT and 1st CROSS RESPONDENTS BRIEF OF ARGUMENT. The Cross Respondent adopted all the nine issues distilled by Cross Appellants. I am of the view that the Cross appeal can be determined on issue one contained in paragraphs 3.01 page 2 of the CROSS APPELLANTS’ BRIEF OF ARGUMENT. It reads:-
“1. Whether the Learned Judges of the trial Tribunal were right to hold that the 1st Petitioner inspite of the deregistration i.e. (death) of the 2nd Petitioner could still maintain the petition particularly when the reliefs sought by the said 1st petitioner had become academic upon deregistration (death) of the 2nd Petitioner (DISTILLED FROM GROUND 1)”
In his argument under issue 1 the learned counsel referred to the motion dated 25th day of December, 2012 brought by 3rd Respondent seeking for an order at the trial tribunal to strike out the petition for want of jurisdiction to entertain same that the application was heard on 18/1/2013 but Ruling adjourned to be delivered in the course of final Judgment I have earlier on in this Judgment laid out the tenor of similar application and the holding of the Tribunal on the said application. The Cross Appellants learned Counsel L. E. Ayia Esq., drew attention to the three prayers contained in the petition. That the learned Judges of the Tribunal having come to the conclusion or findings that 2nd Petitioner was dead or had been deregistered the petition has thereby lost its sting and had become academic in the light of the petitioners prayers that
“…this Honourable Tribunal order a fresh election wherein the petitioners shall be included in a fresh election.”
Learned counsel submitted that in view of section 65(2) (b) of the constitution of the Federal Republic of Nigeria 1999 as amended and Section 44 (1) of the Electoral Act dealing with qualification of a candidate and the need to include the symbol of political Party on the ballot papers, that the combined effect of the provisions of the Constitution and the Electoral Act quoted made it mandatory that a person must be a member of a Political Party and must be sponsored by a Political Party. That relief two had ceased to be a live prayer or relief and therefore became academic by virtue of the provisions of the laws cited. He also relied on section 82 (3) (b) of the Electoral Act 2010 (as amended) dealing with the power of INEC to remove the Party’s symbol or logo of any Political Party deregistered by INEC from the record. He also contended that there was no provision in the Electoral Act for independent candidate. That the prayer of the Appellant had become otiose and academic. On the meaning of a suit that has become academic he cited the case of ADEOGUN V. FASOGBON (2008) 17 NWLR (PART 1115) 149 AT 180 per NIKI TOBI JSC.
The learned counsel to the Cross Appellants submitted that even if the Appellant should win, the prayer he is seeking is no longer real or attainable since People Redemption Party has ceased to exist and the Appellant would not be able to present himself for a fresh election. That a court has no jurisdiction to entertain academic or hypothetical issue. He cited the cases of AKANO V. ILORIN EMIRATE COUNCIL (2001) FWLR (Pt 42) 59 AT 98 and EZENWA V. UNIVERSITY OF NIGERIA (2007) ALL FWLR (Pt 348) 954 to contend that the question being pursued here is not the capacity or otherwise of the Appellant but the consequence of the deregistration of the People Redemption Party on the result of the entire suit. He urged the court to resolve this issue in favour of Cross Appellants.
Replying on issue one of the Cross Appellants, the Appellant stated that the lower court was right to have found that despite the deregistration of the 2nd Petitioner the 1st Petitioner could maintain the Petition. This he said was right because, according to him the applicable law to a ca use of action is the law applicable at the time the cause of action arose. He relied on the case of ADESANOYE V. ADEWOLE (2006) 14 NWLR (PART 1000) 204 AT 257 D-F and Section 137 (1) of the Electoral Act 2010 (as amended) as having clearly provided that either the candidate in the election or Political Party that participated in the Election or both of them have right to present Petition in an Election and that 1st Cross-Respondent is the surviving party to continue with the case. He relied on the case of AWOYEMI V. FASUAN (2006) 13 NWLR (Pt 996) 86 AT 115 B-E. He submitted that the Tribunal was in order.
To him the cases of ADEOGUN V. FASHOGBON; ARO V. LAGOS ISLAND LOCAL GOVT. COUNCIL; AKANO V. ILORIN EMIRATE COUNCIL AND EZENWAJI V. UNIVERSITY OF NIGERIA are inapplicable in this case and he urged the court to disregard them. He urge the court to resolve issue I in favour of the 1st CROSS RESPONDENT.
As can be seen above the cross Appellants’ issue 1 is in tandem with the issue raised by this Court during the hearing of the main appeal and which issue the learned counsel to the parties were given ample opportunity to address the court. The oral argument of L.E. Anyia Esq., are the same as submissions advanced under issue 1 of the Cross Appellants’ Brief of Argument, I am in full agreement with the submissions of learned counsel to the Cross Appellants to the effect that the Lower Tribunal ought to have held that the prayer contained in relief 2 of the Appellant’s petition was no longer feasible upon the deregistration of the peoples Redemption Party (originally 2nd Petitioner) now defunct or out of existence courtesy of the DEREGISTRATION BY INEC, the 1st Respondent to the main appeal. The matter became hollow from the moment INEC deregistered it on Thursday 6th December, 2012. The cause of the Petition became ruptured and terminated by the intervening act of INEC. The action dies with the defunct Peoples Redemption Party. As the main plank of the Petition is that the 1st Petitioner was validly nominated to contest the 6/10/2012 Plateau North Senatorial District by Election and the Petitioners were unlawfully excluded from the election by the 1st Respondent made the action a joint one and it cannot succeed without the presence and participation of the two petitioners in the prosecution of the appeal. A bird cannot fly with a wing it will crash on takeoff. The action of INEC effectively and disastrously destroyed the juristic existence of the 2nd Petitioner and decapitated the rights that accrued to the two Petitioners before the 6th of December, 2012.
In the result, the Cross Appeal succeeds. It is allowed. The parties are to bear their own costs.

RAPHAEL CHIKWE AGBO, J.C.A: I was privileged to read before now the judgment just delivered by my learned brother Ige, JCA and I agree completely with the reasoning and conclusions contained therein. I regard the judgment as mine. I have nothing useful to add.

IBRAHIM ISHATA BDLIYA, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, Peter Olabisi Ige, J.C.A. I am in total agreement with my lord’s reasoning and conclusion therein. However, I wish to say a few words for emphasis. The background facts leading to the filing of the petition before the Election Petition Tribunal which gave birth to this appeal have been ably summarized in the lead judgment. I therefore consider it unnecessary to have a summary of the facts of the petition, suffice to say that the ground upon which the petition was predicated is that the appellant was validly nominated by the defunct Peoples Redemption Party to contest the bye-election conducted on the 6th of October, 2012, for the Plateau North Senatorial District but was allegedly unlawfully excluded by the 1st respondent.
The reliefs sought by the appellant in the petition are:
(i) That it be determined that the 1st Petitioner was validly nominated to contest on 6/10/12 Plateau North Senatorial District bye-election and unlawfully excluded from the election by the 1st respondent.
(ii) That it be determined that the plateau North senatorial District bye-election held on 6/10/12 be declared null and void.
The appellant prayed the court for the following:
(i) That the bye-election conducted by the 1st respondent on 6/10/12 into the Plateau North Senatorial District be declared null and void.
(ii) That the tribunal order for a fresh election wherein the Petitioners shall be included.
(iii) That the election conducted by the 1st respondent on 6/10/12 into the plateau North Senatorial District violated the Petitioners right to contest election and in total violation of the Electoral Act, 2011 as amended, and section 65 of the Constitution of the Federal Republic of Nigeria, 2010 as amended.
The tribunal delivered its judgment on the 20th of March, 2013, after the hearing of the petition wherein the petition of the appellants was dismissed in the judgment on page 415 of the record of appeal in these words:
“Accordingly, we hold that the petition has failed to prove before this tribunal the ground alleging that he was validly nominated by the Peoples Redemption Party but was unlawfully excluded from the bye-election into the Plateau North Senatorial Seat held on 6th October,
2012. Therefore, the reliefs/prayers claimed as set out earlier in this judgment fail.
The petition fails and is hereby dismissed. We affirm the election of Gyang N.S. Pwajok as the Senator representing Plateau North Senatorial District in the National Assembly Petition dismissed.”
Dissatisfied with the judgment of the tribunal, the appellants appealed to this Court vide a Notice of Appeal filed on 9th of April, 2013, consisting of seven (7) grounds of appeal. The appellants filed Appellant’s Brief of Argument on 23rd of April, 2013. He also filed a Reply Brief to the 1st respondent preliminary objection and to the 1st respondent Brief of Argument. The 1st respondent filed a Notice of Preliminary Objection together with its Brief of argument on 30th April, 2013. The 2nd and 3rd respondents filed their Brief of Argument on 3rd of May, 2013. Issues were formulated and arguments canvassed thereon by the parties in their respective Briefs, on the 10th of May, 2011, the appeal were heard by this Court. Ibyem Esquire, for the 1st respondent intimated the Court that he had filed notice of preliminary objection to the competence and validity of the issues formulated for determination in the appellants’ Brief of argument. After identifying same, it was adopted as arguments canvassed on the preliminary objection. The court was urged to uphold the objection and struck out the issues objected to for being incompetent. Prof. Shikyil, of learned counsel of the appellant referred the Court to the Reply brief on the preliminary objection, adopted same, and urged the court to dismiss same, for it lacks merit. The 2nd and 3rd respondents did not file any brief on the Preliminary objection.
Prof. Shikyil Esquire, to the appellant then proceeded to identify the appellant’s brief of argument filed on 20/3/13. He adopted same as the arguments in the appeal, urges the court to allow the appeal, set aside the judgment of the tribunal and enter judgment in favour of the appellant per the reliefs sought in the petition. At this juncture, the court posed a question, even if the appeal succeeds, and the judgment of the tribunal is set aside, can prayer 2 of the reliefs sought in the petition be granted in view of the deregistration (which tantamount to the death of 1st respondent), which also directly affected the 2nd appellant who sponsored/nominated him for the said election held on 6th October, 2013, for the seat of plateau North Senatorial District?” Prof. Shikyil responded that he had nothing to say, but left it to the Court to do whatever is fair in the circumstances.
Ibyem Esquire, identified the 1st respondent’s brief of argument filed on 10/4/13, adopted same, and pointed out that issues were formulated therein for the determination of the Court. Urges the Court to dismiss the appeal for it lacks merit and affirm the judgment of the Election tribunal.
On the question posed by the Court, learned counsel was of the view that in view of the deregistration of the 2nd appellant, it is no longer a political party in law which can participate in an election or sponsor a candidate for an election. Therefore, prayer 2 in the reliefs sought cannot be available to the 1st appellant. To grant same would be an exercise in futility in that same cannot be of any useful benefit to the 1st appellant in view of section 65 (2)(b) of the constitution as amended. The case of Ameachi v. INEC (2008) All FWLR pt, 407 P. was cited to buttress the submissions supra. The Court was urged to dismiss the appeal in its entirely.
Anyia Esquire, identified the 2nd and 3rd respondents’ brief of argument filed on 3/5/13, wherein five (5) issues were formulated for the determination of the Court. Same was adopted. Urged the Court to dismiss the appeal and affirm the judgment of the tribunal. On the question posed by the Court, learned counsel submitted that prayer 2 in the reliefs sought in the petition can not avail the 1st appellant. It would
be an exercise in futility to grant same in that the 2nd appellant, Peoples Redemption Party had ceased to be a political party having been deregistrated by 1s respondent. That even if the appeal succeeds, and a bye-election is ordered, the appellant cannot take part in that there would be no parry to nominate or sponsor him for the election. Learned counsel urged the court to dismiss the appeal and affirm the judgment of the tribunal.
Before delving into the issue raised or the question posed by the court on whether prayer 2 of the relief sought in the petition can still be available and grantable for the appellant in view of the deregistration of the appellant by the 1st respondent, I am of the view that it is still desirable to consider how any why the tribunal held that the petitioner failed to prove that he was lawfully nominated but unlawfully excluded in the election held on 6th of October, 2012, to fill the vacate seat of a Senator for the plateau North Senatorial District. On pages 411 – 413 of the record of appeal, the tribunal found and held thus:
“Therefore, having regard to all that we have stated on the issue under consideration, our irresistible conclusion is that the petitioner has failed to prove that he was validly nominated by the Peoples Redemption Party having failed to prove that his Political Party (Peoples Redemption Party) complied with the requisite provisions of the Electoral Act, 2010 (as amended). To be precise, the petitioner has failed to prove that his Political Party, Peoples Redemption Party complied with the requirements of the provisions of section 87(1) and (6) of the Electoral Act, 2010 (as amended).
The petitioner having failed to prove that he was validly nominated to contest the by-election in dispute, we hold that he was not a candidate for the said by-election for Plateau North Senatorial District held on 6/10/12. This is because a candidate at election having regard to the provisions of Section 138(1)(d) of the Electoral Act, 2010 (as amended) read together with the provision of section 137(1) of the same Electoral Act, 2010 (as amended) as well as section 65(2)(b) of the 1999 constitution (as amended) is an individual who was validly nominated (sponsored) by his political party to contest an election. See P.P.A. v. INEC (2010) 12 NWLR (Pt. 1207) 70 at 98.
In the light of the above, we hold that the mere submission of the name and nomination forms of the petitioner by the Peoples Redemption Party to the 1st Respondent without the petitioner’s political party first holding a special congress does not amount to a valid nomination and no unlawful exclusion can take place without a valid nomination.”
Was the tribunal right or justified in arriving at the decision supra?
On pages 340 to 341 of the record of appeal, the tribunal held that the 1st appellant had the locus standi to maintain the petition filed before it notwithstanding the deregistration of the (2nd appellant), (the Peoples Redemption Party) by the 1st respondent. This is what the tribunal said:
“Therefore, since either the candidate or the political party that sponsored him can separately file a petition, it shows that each has the right to do so independently of the other. In view of this, if both of them decide to file a joint petition like it was done in the instant petition, the fact of the deregistration of the 2nd petitioner which means that she is dead in law would not in our view prevent the 1st petitioner from continuing with or maintaining the petition. The best that can happen is that the 2nd petitioner who is dead would be deemed in law not to be a party to the petition again. It is our view that the provision or Section 65 (2)(b) of the 1999 Constitution (as amended) relevant to the provision of the said section 65(2)(b) was the by-election of 6th October, 2012. It cannot be doubted that the 2nd Petitioner – Peoples Redemption Party (PRP) was existence as at 6th October, 2012.”
I am in full agreement with the tribunal in its findings and conclusion supra. The provisions of order 12 rule 31 of the Federal High Court (civil procedure) Rules, 2009 reinforces the stand taken by the tribunal on the legibility of the 1st appellant to maintain the action notwithstanding the deregistration of the 2nd appellant. The Rules of the Federal High Court referred to above Provides:
“If there are two or more Plaintiffs or defendants and one of them dies and if the cause of action survives the surviving plaintiff or plaintiffs … the suit shall proceed it the instance of the surviving plaintiff or plaintiffs…”
The cases of Awoyemi v. Fassaan (2006) 13 NWLR Pt. 996 P. 6 @ 115 and Olufeagba v. Abdulraheem (2009) 18 NWLR Pt. 1173 p.384 @ 431 cited by the petitioner’s counsel and relied upon by the tribunal are apt and instructive. The appellant, therefore, was still capable in law in maintaining the petition before the tribunal notwithstanding the deregistration of the (2nd Peoples Redemption Party).
The question that naturally flows therefrom is whether he was validly nominated but was unlawfully excluded from the by-election held on 6th of October, 2012. The issue calling for determination therefore is, “whether or not the petitioner was validly nominated by the Peoples Redemption party but was unlawfully excluded by the 1st respondent from contesting the by election for the Plateau North Senatorial District held on 6th of October, 2012”.
On pages 350 to 366 the tribunal dispassionately considered the submissions of all learned counsel to the parties on the issue calling for determination in the petition, vis-a-vis the evidence adduced and related thereto and stated that in view of the principles of law enunciated in a plethora of cases by the courts, to prove unlawful exclusion after a valid nomination in election petition disputes, a petitioner who has made it an issue, has the burden to Prove that:
(i) The petitioner was validly nominated
(ii) The election was conducted and concluded
(iii) That the winner was declared
(iv) That the name of the petitioner was not included in the list of contestants.
In support of the principles of law and what to be proved by a petitioner in an election petition where it is alleged by the petitioner that he was validly nominated but unlawfully excluded in the election, the following authorities were cited relied upon: Idris v. A.N.P.P. (2008) 8 NWLR Pt.1088 P.1 @ 123; Ezeobi V. Nzeko (1988) 1 NWLR Pt. 98 P. 473 and P.P.A. V. INEC (2010) 12 NWLR Pt. 1207 P. 70; Abubakar & Ors. V. Yar’Adua & Ors. (2008) 19 NWLR Pt. 1120 P. 19 @ 149; Adighije v. Nwaogu & ors. (2010) 12 NWLR Pt. 1209 P. 419 @ 478; Buhari V. Obasanjo (2005) 13 NWLR Pt. 941 P. 1 @ 22 and P.A.C. V. INEC (2009) All FWLR Pt. 478 P. 260 @ 317. The burden of proof is always on the petitioner who assets or alleges the lawful nomination but unlawful exclusion.
The tribunal considered the submissions of learned counsel to all the parties, the relevant principles of law and the evidence adduced by the parties and came to the conclusion that the provisions of Section 87 of the Electoral Act 2010 (as amended) particularly subsections (1) and (6) thereof must be complied with in order for any nomination of a candidate for an election to be valid. Section 87(1) and (6) of the said Electoral Act provides:
“87(1) Political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions,
(5) Where there is one aspirant in a Political Party for any of the elective positions mentioned in sub-sections 4(a)(b)(c) and (d) the party shall convene a special convention or congress at a designated centre on the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the Party.”
The tribunal considered the pleadings and the evidence led thereon by the appellant in support of his contention that there was compliance with the provision of Section 87 (1) and (6) of the Electoral Act, 2010 (as amended), and Exhibits 1 – 6 and held on page 403 that:
“We hold that a special congress for the confirmation the petitioners that would confer validity on his alleged nomination must be held before the by-election of 6/10/2012, and not over a week thereafter on 19/10/12 as the petitioner allegedly did in this petition.”
The tribunal went on to hold that the applicability of the provisions of section 31(1) of the Electoral Act, 2010 (as amended) is subject to the compliance of section 87(1) and (2) of the Act. That the provisions of section 31(1) of the Electoral Act relates to a situation after a Political Party must have conducted the primary which is governed by Section 87. That is to say that, before the provisions of Section 31(1) of the Act could apply, a political party in nominating a candidate for an election must have complied with section 87(1) and (6) of the Act. The tribunal relied on the position taken by the Supreme Court in the case of Uwazarike v. Nwachukwu (2012) 3 NWLR Pt. 1342 P.503 @ 522, 528 and 533, wherein Ogunbiyi, J.S.C. said:
“With reference to S. 31(1) of the Act, it simply states in summary that a political party should submit list of candidates it proposes to sponsor at the election. By the use of the word “shall” in the section it portrays a mandatory adjourning caveat restricting the commission from rejecting or disqualifying candidates for any reason. Whatsoever, the section relates to a situation after the political parties must have conducted their primaries. The section is not the concern of the commission and hence confirm against rejection or disqualification of a candidate for whatever reason. In other words the political parties are by this section given free hand to select the candidates they intend to sponsor.”
I agree with the tribunal for its findings and conclusion on page 403 of the record of appeal. I am not unmindful of the multitude of cases where the issue of pre-election matters such as nomination of candidates by political parties for an election was held not subject to adjudication by an Election tribunal or Court save as provided by Section 87(10) of the Electoral Act 2010 (as amended), but where there is a ground in an election petition questioning the validity of the nomination of a candidate sponsored by a political party, a Tribunal can adjudicate on it, it therefore follows that an appellate Court can also adjudicate on it in an election petition appeal to it. For instance Section 138(1) of the Electoral Act 2010 (as amended) provides the grounds upon which an election can be challenged as follows:
“138(1) An election may be questioned on any of the following grounds; that is to say-
(a) that a person whose election is questioned null, at the time of the election, not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non-compliance with the Provisions of this Act,
(c) That the respondent was not duly elected by majority of lawful votes cost at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
If an election tribunal cannot adjudicate on whether a person or a candidate has been validly nominated but unlawfully excluded from an election or not, as argued by learned counsel to the appellant, what then is the purport or essence of the provisions of Section 138 (1)(d) of the Electoral Act, 2010 (as amended)? This is where the reasoning and conclusion of Ogunbiyi, J.S.C. in the case of Uwazurika V. Nwachukwu supra, at pages 522, 528 and 533 is apt. Where the valid nomination but unlawful exclusion of a candidate at an election is a live issue after the conduction of the election, an Election Tribunal can be seized of jurisdiction to adjudicate. I think this is the intendment of the legislature in providing for the provisions of Section 138(1) (d) of the Electoral Act, 2010 (as amended). In such circumstances or situate the issue of valid nomination of a candidate but unlawfully excluded from the election becomes a post-election issue, and not a pre-election one. I think what the Supreme Court said in the case of Adeogun V. Fashogbon (2008) 17 NWLR pt. 1115 P. 149 @ 201 reinforces what I have tried to elucidate supra. Onnoghen, J.S.C. had this to say on page 201 of the case supra:
“It should always be remembered that the issue as to whether the substitution of a candidate in an election is within section 34 of the Electoral Act, 2006 or qualification of a candidate for an election remains a live issue before or after an election that is why a candidate who losses an election, is empowered to raise, as a ground for the nullification of the said election which is by law assigned to the Election Tribunal as a post-election matter for determination.”
It is to be noted that the appellant made an issue of his exclusion in the by-election that took place on 6/10/12 as unlawful having been validly nominated and sponsored by the Peoples Redemption Party when still in existence. This is supported by the provisions of Section 138(1) of the Electoral Act 2010 (as amended). It would be absurd to say that the Election Tribunal have no jurisdiction to adjudicate and determine this issue when the law allows it as a ground to challenge an election conducted as provided by the Electoral Act, itself: The contention of learned counsel to the appellant that the tribunal had no jurisdiction to determine whether or not the appellant was validly nominated but was unlawfully excluded in the by-election held on 6th of October, 2012 cannot therefore be correct in view of what have been allude to in the foregoing paragraph of the judgment. See also the case of P.P.A. V. Saraki (2007) LREN p. 138 @ 166 wherein the provisions of Section 138(1) (d) of 2006 Electoral Act which are not dissimilar to the provisions under Section 138 (1) (d) 2010 Act (amended) was considered and interpreted.
The law is trite that where a statute provides for the doing of a thing, that thing must be done in accordance with the law; else any act done contrary to it would be of adverse effect for the party in breach. See Adesakoye V. Adewole (2006) 14 NWLR Pt. 1000 P. 242 @ 269, Section 87 (1) and (6) provides what a political party should do before nominating, sponsoring and forwarding the name of a candidate to the 1st respondent before the conduct of an election. The tribunal had found that the appellant was not nominated by the Peoples Redemption Party in accordance with the provisions of Section 87 (1) and (6) of the Electoral Act, 2010 (amended). The provisions of section 31(1) of the Act would therefore not avail the appellant. The tribunal was therefore right or justified in its findings and decision on pages 474 – 415 of the record of appeal when it held that the exclusion of the appellant from the by-election held on 6/10/12 was lawful having not been lawfully and validly nominated in compliance with Section 87(1) and (6) of the Electoral Act, 2010 (amended).
Now let me venture into the question posed by the Court at the hearing of this appeal, that is whether in view of the deregistration of the Peoples Redemption Party (P.R.P.) by the 1st respondent who nominated and sponsored the appellant as its candidate for the by-election held on 6th of October, 2012, prayer 2 of the reliefs sought is still available to the appellant and could be granted by the Court. By Exhibit INEC ‘I’ the Peoples Redemption Party (P.R.P.) ceased to be a political party. Section 65(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) provides as follows:
“65(2)(b) he is a member of a Political Party and is sponsored by that Party.”
The question that arises is this:
Can the appellant contest or be a candidate at any election that is to be conducted if the appeal succeeds and grants prayer 2 of the reliefs, that is, to conduct a fresh by-election for the Plateau North Senatorial District. The Court invited learned counsel appearing for the all the parties to make submissions on this issue. Prof. Shikyil, for the appellant left it for the Court to decide what appropriate order to make in the event the appeal succeeds. Ibyem Esquire, for the 1st respondent was of the view that the deregistration of the 1st appellant by the 1st respondent vide Exhibit INEC I, means, that it is not one of the political parties who can nominate and sponsor a candidate for an election. That the appellant who cannot be nominated and or sponsored by political party cannot be a candidate at any election in view of Section 65(2)(b) of the 1999 Constitution (as amended). In his considered view, it would be a futile exercise for this Court to grant prayer 2 of the appellant sought in the reliefs. It will be purely an academic exercise for the Court to delve into the granting of the said prayer. The Court was urged not to grant the same even if the appeal succeeds.
Anyia Esquire, for the 2nd and 3rd respondents associated himself with the submissions of Ibyem Esquire, and further stressed that a Court of law does not make an order that is futile or in vain that cannot be of any beneficial consequence to the parties in the litigation before it. To do so would be an excuse in futility, an academic exercise with no beneficial result to the appellant. The Court was urged not to grant prayer 2 of the relief sought in the event of the appeal succeeding. Therefore the appeal be dismissed in its entirely.
What will be the legal effect of granting prayer 2 of the relief, if the appealed succeeds? Would the granting of prayer 2 be a hypothetical or academic one in that it will be of no benefit to the appellant? An act is said to be hypothetical or academic when it cannot help in the determination of the main issue in dispute. See Oladoye V. Administrator, Osun State (1996) 11 NWLR pt. 476 P. 38 @ 50 wherein this Court was faced with whether to construe the provisions of a repeated law or not.
In Buhari V. Obasanjo (2003) 17 NWLR Pt. 850 P. 587 @ 640 the Supreme Court per Belgore J.S.C. (as he then was) said:
“What is this Court to do knowing the event sought to be prevented had actually taken place. This appeal is a mere application for this Court to embark on adventure into academic discourser a function not constitutionally our own.”
Onu J.C.A. (as he then was) said:
“It is on the above premise that I regard the call to construe Section 22 the way the appellant has invited us to do, as hypothetical and academic (sic) it cannot help in the determination of the main issue…”
Can a Court of law entertain or make hypothetical or academic orders. This court in Aru V. Lagos Island Local Govt., Council (2002) 4 NWLR Pt.757 P. 385 @ 415 per Onnoghen J.C.A, (as he then was) said:
“I have already resolved the issue as to whether the 1976 law is an existing law. Having held that it is not the sub-issue under consideration, it becomes a purely academic or hypothetical issue which this Court like every other Court has no jurisdiction to entertain.”
Again in Ezemuaji V. UNN (2006) 3 NWLR Pt. 967 P. 325 @ 349 Adekeye, J.C.A. (as she then was) said:
“Courts of law, like nature do not act in vain but for a purpose, and the purpose must exist, identifiable and identified.”
In this case at hand, the Peoples Redemption Party who nominated and or sponsored the appellant was deregistrated by the 1st respondent sometime in December, 2012. It is no longer a political party in law. It cannot therefore nominate or sponsor any person as a candidate for an election. Without a nomination or sponsorship by a political party, a person cannot be qualified to contest or participate or vey for an elective post in an election. Of what use or benefit is prayer 2 sought in the reliefs by the appellant be to him since he cannot partake in any election even if ordered by the Court. In my view, it would be a futile exercise, which will be of no benefit to the appellant. As could be seen in the cases referred to supra courts of law do not and should not make orders in futility or in vain which are of no consequence or benefit to whoever is seeking it. It would be purely a hypothetical or an academic exercise to make an over which is of no consequence to the main issue or of any useful benefit. Courts of law do not made orders in vain. Orders made by the Court must be of legal effect or consequence. It is in view of the foregoing and the fuller reasons ably illustrated in the lead judgment that I am of the view that since the appellant cannot be nominated or sponsored by the defunct peoples Redemption Party, having ‘died’ with the deregistration of it, it would be only an exercise in futility to grant pray 2 of the reliefs sought by the appellant. This Court cannot and should not do so. It is on this premise that I am in full argument with the submission of Ibyem Esquire, that this Court cannot grant prayer 2 of the reliefs sought by the appellant. To do so would tantamount to making an order in vain or purely an academic or hypothetical exercise which a Court of law has no jurisdiction to do.
In the result, for the reasons given in the lead judgment and those herein I resolve the issue whether the tribunal was right in holding that the nomination of the appellant by the Peoples Redemption Party (P.R.P.) was not valid and therefore he was lawfully excluded from the election held on 6/10/12 for the Plateau North Senatorial District in favour of the respondents. The appellant’s appeal lacks merit. Same is hereby dismissed in its entirely, The judgment of the tribunal delivered on 20th March, 2013, is hereby affirmed, I abide by the order made as to cost in the lead judgment.
Regarding the cross-appeal, that is, suit No, CA/J/EP/SN/93A/2013, I entirely agree with the reasoning and conclusions in the lead judgment just delivered by my learned brother, Justice Ige J.C.A, having had the advantage of reading it before now, The learned Justice, Ige, J.C.A, has had eloquently, elaborately and lucidly dealt with all the relevant issues in the cross appeal, I do not have anything useful to add. I, too, would, and do hereby allow the appeal and affirm the well considered judgment of the tribunal. As to costs, I abide by the order of my Lord, Justice Ige, J.C.A. contained in the cross-appeal judgment.

Appearances

Prof. Sylvester S. Shikyil with S. G. Oyafemi Esq., B. S. Ahmed Esq., Z. M. Lashom Esq., S. B. Gazu Esq., and N. C. Ayuba Esq.For Appellant

AND

Stephen Ibyem Esq; with Polycap Datau Esq., Yusuf Apollos Esq; Miss Otubijo Agbo Esq., and Sam T. Deshi Esq. for 1st Respondent
L. E. Anyia Esq., with S. Oyawole Esq., A. A. Adewole Esq., Gyang Zi Esq., Joshua John Esq., Frank Daniel Esq., Miss Ahupa Maryam, P. E. Dakyen
Esq., S. D. Yiga Esq., J. K. Chris Esq., and S. O. Owdobi Esq. for 2nd and 3rd RespondentsFor Respondent

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