DR. EMMANUEL ONWE v. SENATOR JULIUS ALI UCHA & Ors (2010)

DR. EMMANUEL ONWE v. SENATOR JULIUS ALI UCHA & Ors

(2010)LCN/3985(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of July, 2010

CA/E/EPT/18/2007 (CON.)

 

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

DR. EMMANUEL ONWE – CA/E/EPT/18/2007

AND

AND PEOPLES DEMOCRATIC PARTY (PDP) – CA/E/EPT/18A/2008

(CONSOLIDATED) Appellant(s)

AND

1 SENATOR JULIUS ALI UCHA
2 RETURNING OFFICER, EBONYI CENTRAL SENATORIAL DISTRICT
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – CA/E/EPT/18/2007
4. PEOPLES DEMOCRATIC PARTY
5. CLERK OF THE NATIONAL ASSEMBLY

AND

1. DR EMMANUEL ONWE
2. SENATOR JULIUS ALIUCHA
3. RETURNING OFFICER, EBONYI CENTRAL SENATORIAL DISTRICT
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – CA/E/EPT/18A/2008

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal lodged by the 4th Respondent in PETITION NO EPT/EBS/SEN/AB/12/2007 – DR. EMMANUEL ONWE V. SENATOR JULIUS ALI UCHA & 4 ORS against the Ruling delivered on 2/7/2007 by the National Assembly/Governorship and Legislative Houses Election Petition Tribunal holden at Abakaliki, Ebonyi State (hereinafter to be
simply referred to as “the Tribunal”). In the Ruling, the Tribunal dismissed the application brought by the 4th Respondent – the Peoples Democratic Party dated 5/6/2007 and filed on 13/6/2007, in which an Order for the striking out of the Petition was sought. The grounds relied upon for the Order sought as set out in the application are: –
“1. The Tribunal lacks the jurisdiction to entertain the petition in that the subject matter cause of action therein are matters or events preceding the election of 21st April, 2007 and as well as intra party affairs.
2. The said petition is incompetent in that the petitioner has no locus standi to present the petition.
3. And for such other order or orders as the Honourable tribunal may deem fit and proper to make in the circumstances.”
The Tribunal in ruling on the application of the 4th Respondent said thus:
“RULING: – We have listened to all counsel in the application. We have read the addresses filed by counsel, and see no substantial difference between this application and the one earlier ruled on today.
Accordingly, in view of the Ruling of this Tribunal, (sic) Petition No. EPT/EBS/HR/AB/3/07 this present application lacks merit, and ought to be dismissed. It is accordingly dismissed. 11/07/07 for Pre-Trial and Hearing.”
This interlocutory appeal and the substantive appeal were both entertained by the Court on 9/6/2010 with the substantive appeal taken first in time. I am however considering the interlocutory appeal first in this judgment because if it is allowed, there would be no need to consider the substantive appeal on the merit. This must be so as the success of the interlocutory appeal would result in upholding the objection of the 4th Respondent (i.e. Appellant in the instant interlocutory appeal) before the Tribunal that the said Tribunal had no jurisdiction to have entertained the petition presented by the 1st Respondent as Petitioner before the Tribunal. A conclusion in this vein would automatically result in the striking out of the petition and a declaration of the proceedings and judgment subsequently delivered by the Tribunal as null and void.
The 4th Respondent (now Appellant) being aggrieved with the Ruling of the Tribunal filed a motion for leave to appeal against the said Ruling and also to deem both the Notice and Grounds of Appeal and Brief of Argument in respect of the appeal as properly filed and served. The Orders were granted by the Court on 7/12/2009. Later, the Appellant by a motion dated 7th June, 2010 and filed on the same date sought for the Orders of this Court: –
(i) Amending the Notice and Grounds of Appeal;
(ii) Deeming the Notice and Grounds of Appeal, Exhibit 2 hereto as duly filed and served; and
(iii) Deeming the Appellant’s Brief of Argument dated and filed on 23rd February, 2009 and Appellant’s Reply to 1st Respondent’s Preliminary Objection dated and filed on 9/3/2010 as duly filed and served.
The application was entertained by the Court on 9/6/2010. Dr. J.O. Ibik SAN learned senior counsel for 2nd Respondent as well as Ugwuocha, Esq., of counsel for the 3rd and 4th Respondents did not oppose the motion with any reservation. L.O. Fagbemi, SAN learned counsel for the 1st Respondent however did not oppose the motion subject to his subsequently raising and arguing the preliminary objection in the Notice of Preliminary Objection filed in the appeal by the 1st Respondent on 22/2/2010. Suffice it to say that on the same 9/6/2010 the Court granted the Orders sought by the Appellant in the aforementioned application dated 7/6/2010.
The Appellant’s Amended Notice and Grounds of Appeal dated 7/6/2010, and filed on the same date but deemed as properly filed and served on 9/6/2010, contains two grounds. There are four Respondents in the Amended Notice of Appeal. The 5th Respondent – THE CLERK OF THE NATIONAL ASSEMBLY was dropped as a Respondent therein. The two grounds of appeal in the Amended Notice of Appeal with their respective particulars read thus: –
Ground of Appeal
1. The Lower Tribunal erred in law when it assumed jurisdiction to hear Petition No. EPT/EBS/SEN/AB/12/07 when the central issue was on events that occurred before the election of 21/4/2007 and as to who was the legitimate candidate of Peoples Democratic Party for the Ebonyi Central Senatorial District for the National Assembly Election held on the 21st April, 2007.
Particulars of Error of Law
a) The Grounds of the Petition was lack of qualification by the 1st Respondent and unlawful exclusion of the petitioner.
b) The facts in support of the petition was (sic) that after the Primary Election of 2/12/2006, the petitioner emerged as the winner and his name was submitted to INEC.
c) In February, 2007 he heard of subterranean move to replace him and he went to Abuja and on 20/02/2007 he was informed of his substitution with the 1st Respondent.
d) By letter dated 20/02/2007 he protested in writing to his party PDP and INEC against his substitution.
e) The main defence by the 1- Respondent and PDP was that the petitioner was not a candidate of the party and that the re-run primary election conducted on December 14, 2006 produced the 1st Respondent as a consensus candidate.
f) Pre-Election matters can only be heard at regular courts while post pos-election (sic) matters are to be heard by Election Tribunal established by Section 285 of the 1999 Constitution. Amechi Vs. INEC 18 NWLR Pt. 1065,1065, (sic) 170 at 229 D-E.
g) By Section 285(2) of the Constitution of the Federal Republic of Nigeria 1999, the jurisdiction of the lower Tribunal was to decide whether the 1st Respondent was validly elected to the office of Senator representing Ebonyi Central Senatorial District.
h) When a political party replaces its candidate before election, such a person cannot sue his party and claim unlawful exclusion under Sec (sic) 145(1)(d) of the Election (sic) Act, 2006.
i) Having known that he had been substituted by 20/02/2007 instead of writing petition, he should have headed to the appropriate court under Sec (sic) 6(6) 1999 Constitution and Sec. 34 of Electoral Act 2006, to challenge his substitution.
j) That issues raised by the petition borders on who was the authentic candidate for PDP and this issue is not justifiable before an election tribunal but before any of the courts created by Section 6(6) of the 1999 Constitution.
2 The lower Tribunal erred in law in assuming jurisdiction to hear the petition when the petitioner had no locus standi to present the petition.
Error of Law
(a) By Section 141(a) & (b) Election (sic) Act, 2006, only a candidate at an election or a political party which participated in the election can present an election petition.
(b) By 20/2/2007 the Petitioner to his knowledge has been substituted by the 1st Respondent, hence he protested in writing to the Chairman of PDP.
(c) Having been substituted on 20/2/2007, the petitioner was not a candidate at the election.
(d) An election Tribunal lacks the jurisdiction to hear an election petition on grounds other than those in Sec 145 of the Electoral Act, 2006.”
The reliefs which the Appellant seeks in the appeal are: (i) to allow the appeal; and (ii) strike out the petition.
It would appear to have been sufficiently disclosed before now that Appellant’s Brief of Argument (Interlocutory Appeal) dated 23/2/2009 and filed on the same date as well as Appellant’s Reply to 1st Respondent’s Preliminary Objection (Interlocutory Appeal) dated 9/3/2010 and filed on the same date were both deemed as properly filed and served on 9/6/2010. The two Briefs were settled by G.O. Okafor, OON, SAN. The 1st Respondent’s Brief of Argument (Interlocutory Appeal) is dated 9/12/2009 and filed on the same date. The Brief was settled by L.O., Fagbemi SAN and Olisa Agbakoba OON SAN. The other Respondents in the appeal did not file any Brief of Argument. The appeal as already stated was entertained on 9/6/2010. At the hearing of the appeal, L.O Fagbemi, SAN having first drawn the attention of the Court to the Notice of Preliminary Objection filed on 22/2/2010 by the 1st Respondent in the appeal, adopted and relied on the arguments in the earlier identified Brief of Argument of the 1st Respondent in urging the Court to dismiss the appeal. G.O. Okafor, SAN equally adopted and relied on the arguments in the Appellant’s Reply to 1st Respondent’s Preliminary Objection (Interlocutory Appeal) in urging the Court to dismiss the 1st Respondents preliminary objection. Thereafter learned senior counsel adopted and relied on the Appellant’s Brief of Argument already identified above, in urging the Court to allow the appeal and strike out the Petition; while teamed no counsel for the 1st Respondent equally adopted and relied on the 1st Respondent’s Brief of Argument also already identified above, in urging the Court to dismiss the appeal in the event the preliminary objection failed.
The Issue calling for determination from the two grounds of appeal as set out in the Appellant’s Brief of Argument is: –
“Whether the Lower Tribunal was right in assuming jurisdiction to hear the petition despite the fact that the main issue was who as between the 1st and 2nd Respondent (sic) was the authentic candidate of PDP for the election and whether or not the 1st Respondent as Petitioner had the locus standi to present the petition.”
The Appellant set out an alternative Issue. It reads thus: –
“Whether the Petitioner had the locus standi to present the petition and if the answer is in the negative, whether the Lower Tribunal had the jurisdiction to hear the petition.”
The two Issues which the 1st Respondent formulated for the determination of the appeal, in his Brief of Argument in the event the Court decided to consider the same on the merit are:-
“(1) Whether the 1s’ Respondent, as Petitioner, has locus standi to present the petition
(2) Whether the Lower Tribunal had jurisdiction over the 1st Respondent’s petition.”
I will first consider the preliminary objection raised by the 1st Respondent in his Notice of Preliminary objection filed on 22/2/2010. This is against the backdrop of the position of the law that where a preliminary objection in an appeal succeeds, there is no need to dwell on the merit of the said appeal.
This is particularly so when the appeal is entertained by the final appellate court in respect of the subject matter of the appeal. It is indisputable that Section 246(3) of the 1999 Constitution prescribes this Court as the final appellate court in respect of appeals arising from election petitions.
The Notice by which the 1st Respondent (who will hereinafter be simply referred to as “the Respondent”) raised his preliminary objection is brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007. The grounds of the objection as set out in the Notice read thus: –
“(1) The appeal has not been brought by due process of law and thus fundamentally defective, incompetent and liable to be struck out, in that
(i) The appeal is caught by limitation having been brought outside the mandatory 21-day time limit for appeals from Election Petition proceedings,
(ii) The Notice of Appeal dated 23rd February, 2009 is fundamentally defective having been filed out of time without the prior leave of court.
(2) Election petition process being sui generis proceedings, does not cognize an “Interlocutory Appeal” which the present appeal is designed and packaged as.
(3) The Appellant has no standing to contend that the Lower Tribunal lacked jurisdiction over Appellant’s case of unlawful substitution, which amounts to the Appellant changing the case it put up before the Tribunal, having eloquently maintained that it (Appellant) made no substitution in Ebonyi Central Senatorial District for the 21st April, election.”
Dwelling on the ground of the objection in respect of “absence of due process initiation” the Respondent cited the case of Madukolu v. Nkemdiiim (1962) 1 SCNLR 341 as setting out the features to be possessed by a court before it can be said to have jurisdiction. One of the features being that a case must come before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
The Respondent said that the Appellant sought for leave of Court to file the Notice of Appeal dated 23rd February, 2009 as having been duly filed against a Ruling delivered on 2nd July, 2007. The Respondent said that the question of the jurisdiction of this Court to hear an appeal brought more than 21 days after a decision was delivered was not foreclosed although the Court granted the Appellant’s application which was right and proper in view of the urgency of election petitions, and the need for the Appellant to be first given the opportunity of ventilating its appeal.
Dwelling on the issue that the appeal is “time-barred”, the Respondent submitted that the Appellant by waiting from 2nd July, 2007 until 23rd February, 2009, a period of almost two years had foreclosed its right to bring the instant appeal. That the position of the law is that election petitions being sui generis, the Court altogether lacks the jurisdiction to hear such an appeal.
Section 149(1)(2) of the Election Act, 2006 and Paragraph 1 of Court of Appeal (Practice Direction) No. 2 of 2007 as well as the cases of Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119 were cited in aid. It is also the submission of the Respondent that the filing of the Notice of Appeal in the instant appeal by the Appellant without first obtaining the leave of Court renders the Notice incurably bad and cannot be deemed properly filed as there is nothing to deem. The cases of Olawunmi v. Mohammed (1991) 4 NWLR (Pt. 186) 516 and Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) 513 at 569 were cited in aid. The Court was urged to strike out the Notice of Appeal dated 23/2/2009 and filed on the same date but deemed as properly filed on 7/12/2009 as the same is incompetent. That the Appellant ought to have prayed to file a valid Notice of Appeal after 7/12/2009 as there was nothing in the existing Notice of Appeal to be deemed.
Before I consider the Appellant’s response to the first ground of the Respondent’s objection, I consider it pertinent to observe that the Appellant’s first reaction to the preliminary objection raised by the Respondent is to ask the Court to ignore the Respondent’s objection for non-compliance with Order 10 Rules 1 and 3 of the Court of Appeal Rules 2007. The Appellant said that the Respondent on 9/12/2009 filed his Brief of Argument and that in paragraphs 3.00 to 3.22 at pages 6 – 9 thereof, the Respondent raised his preliminary objection. It is the submission of the Appellant that the Respondent ought to have given the Notice of Preliminary Objection setting out the grounds of the objection, separately, three days before the hearing of the appeal. That it is after the notice has been given that the Respondent would argue the objection in the Respondent’s Brief of Argument. That it is in ordinary civil proceedings that superior courts have accommodated preliminary objection which is embodied in a Respondent’s Brief. It is the submission of the Appellant that Election Petitions being sui generis, the word “shall” in Order 10 Rule 1 must be strictly complied with. Stating that it is aware that even the Supreme Court has accommodated filing of preliminary objection together with a Brief of Argument, the Appellant however submitted that this is now time for the Court to insist that court procedure and rules of court must be respected and obeyed. In the circumstances, the Court was urged to strike out or ignore the Respondent’s preliminary objection.
Dwelling on the first ground of the Respondent’s objection on the merit, the Appellant submitted to the effect that the two cases of Okonkwo v. Ngige and Akinloye v. Araoye (both supra) cited by the Respondent in aid of his stand that the instant appeal is incompetent as it is time barred, are
distinguishable and duly highlighted the peculiar facts of the cases that distinguished them. The Appellant said that none of the Respondents in its application that was granted on 7/12/2009 opposed the said application. The Appellant referred to paragraph 51 of the First Schedule to the Electoral Act, 2006 as making the practice and procedure relating to appeals in the Court of Appeal as applying to election petition appeals. The Appellant further referred to Order 7 Rule 10(1) of the Court of Appeal Rules as empowering this Court to enlarge the time provided by the rules for the doing of anything to which the Rules apply except the filing of notice of intention not to contest an application under Rule 8 of the Order. The Appellant stressed that by the provision of Rule 10(2) of the said Order 7, the provision of Rule 1 applies to application for leave to appeal. Reference was also made to Section 25(4) of the Court of Appeal Act, 1976 as empowering the Court to extend the periods prescribed in Section 25(2) and (3) for the filing of notice of appeal. It is the submission of the Appellant that if this Court has the power to enlarge time in every civil cause or matter and there being no law providing to the contrary, this Court equally possesses the power to enlarge time in election matters. It is the view of the Appellant that the case of Akinloye v. Araoye is not binding on this Court being that of a court of co-ordinate jurisdiction and the cases of Anieke v Okoli (2009) 9 NWLR (Pt. 1147) 630; Olutola v. Unilorin (2004) 1 SC 214; and NDIC v. SBN Plc (2003) 1 NWLR (Pt. 801) 311 at 403 were cited in aid. The Appellant said that the argument of the Respondent that the instant appeal having been caught by the twenty one (21) days limitation period is incurably bad and ought to be struck out, tantamount to asking the Court to go back on its Order of 7/12/2009 validating the appeal. It is the submission of the Appellant that the Court has no power to review its Ruling of 7/12/2009 and that ignoring its order made on the said date would amount to this. The case of Nnaji v. Agbo (2006) 8 NWLR (Pt. 981) 199 at 208 was cited in aid.
Dwelling on the submissions of the Respondent as they relate to the incompetence of the Notice of Appeal filed on 23/2/2009 for the failure to have first obtained the leave of Court, the Appellant stated that the two cases of Olawunmi v. Mohammed; and Ejiogu v. Irona (both supra) are not relevant at all, upon their respective peculiar facts. The Appellant referred to Section 243(a) of the 1999 Constitution as not only vesting this Court with constitutional powers, but also that the Court has the inherent powers of a superior court of record. In this regard the cases of Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503 -512 and 518 and Ojora v. Agip Nig Plc (2005) 4 NWLR (Pt. 916) 515 – 541 amongst others were cited in aid. It is the submission of the Appellant that this Court has the power to have granted the order deeming the Notice of Appeal filed on 23/2/2009 to have been properly filed even though no prior leave of court was procured before it was filed.
My understanding of the initial reaction of the Appellant to the preliminary objection of the Respondent in urging the Court to ignore the same is that, it is only after the Respondent had first given it a formal Notice of Preliminary Objection setting out the grounds thereof therein, that the Objection can be competently argued in the Respondent’s Brief of Argument and countenanced by the Court. That the instant matter being sui generis it was high time the Court insisted on strict compliance with its rules.
It would appear that the Appellant is oblivious of the fact that the Responded did file a separate Notice of Preliminary Objection in respect of the instant appeal I am of the settled view that it has been sufficiently disclosed in this judgment before now that the Respondent filed a Notice to Rely on Preliminary Objection in the instant appeal pursuant to Order 10 Rule 1 of the 2007 Rules of this Court on 22/2/2010. The same Notice of Preliminary Objection had earlier been set out at pages 5 – 6 of the Respondent s Brief of Argument in the appeal dated 9/12/2009 and filed on the same date.
The preliminary objection was duly argued at pages 6 – 9 of the same Brief. It is not the complaint of the Appellant that it never had three clear days notice of the Notice of Preliminary Objection filed on 22/2/2010 by the Respondent.
Neither is it the Appellant’s complaint that it did not have three clear days notice of the Notice of Preliminary Objection incorporated by the Respondent in his Brief of Argument filed in the appeal on 9/12/2009.
The provisions of Order 10 Rules 1 and 3 of the Rules of this Court have been interpreted in a number of cases, including election cases which are undoubtedly sui generis as stated by the Appellant. There are decisions of this Court to the effect that it is now an accepted practice to incorporate arguments on preliminary objection in briefs of argument and that by so doing there would be no need to file a separate notice of preliminary objection. Two of such decisions delivered in election appeals by this Court (i.e. Court of Appeal) that readily come to mind are OLAFEMI v. AYO [2009] All FWLR (Pt 452)1111; and AREGBESOLA V.OYINLOLA (2009) All FWLR (Pt.472)1147 Barring certain circumstances, this Court (i.e. Court of Appeal) is bound by its previous decision irrespective of the division of the Court that delivered such a decision. The Respondent by giving the notice of his preliminary objection in his Brief of Argument and arguing the said objection therein has complied strictly with the acceptable practice in this Court concerning preliminary objection. This is aside from his filing a separate Notice of Preliminary Objection. The invitation by the Appellant that the Court should now ignore that which the Respondent has done and which, as earlier said is in strict compliance with the accepted practice in this Court is tantamount to the Appellant swimming against the flow of a river. While the Appellant has the luxury of such a choice, this Court does not. Accordingly the initial reaction of the Appellant to the Respondent’s Notice of Preliminary Objection is unmeritorious and time wasting. It is hereby discountenanced.
Is there any absence of due process in the initiation of the instant appeal? It is settled law that no right of appeal exists except as statutory prescribed or donated. See UKPONG V. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT, AKWA IBOM STATE (2007) All FWLR (Pt 350) 1246. The law is equally settled that a Notice of Appeal is the process by which an appeal is initiated or commenced in an appellate court.
See EJIOGU V IRONA [2009] 4 NWLR (Pt. 1132) 513 (cited in the Respondent’s Brief of Argument); and FIRST RANK OF NIGERIA PLC V. T.S.A INDUSTRIFS LTD (2007) All FWLR (Pt. 352) 1719. The law is also clear “that when a right of appeal is exercisable as of right and the party appealing files his notice of appeal containing at least one valid ground of appeal within the time prescribed for the filing of notice of appeal by the relevant enactment, an appeal initiated by such a notice of appeal is valid. It is also the law that if a right of appeal is exercisable only with leave of court a notice of appeal filed by a party appealing without first obtaining the requisite leave is incompetent and liable to be struck out. See KASHADADI V. NOMA (2007) All FWLR (Pt. 389) 1208. Indeed in the case of UKPONG V. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELPOMENT, AKWA IBOM STATE (supra) at pages 1266 and 1267 respectively, it was held to the effect that (i) where an appeal is required to be with leave of the court and none was obtained, the condition precedent for the validity of such an appeal has not been fulfilled and as a result the appeal is in law, incompetent and the appellate court is in consequence without jurisdiction to entertain the same; and (ii) a party cannot by action or conduct confer jurisdiction on a court which would otherwise have none and that the conduct of a party in not opposing or objecting to the grounds of appeal without leave which in law robs the court of the jurisdiction to entertain and determine the issue cannot legally confer jurisdiction on that court to determine the issues brought before it without the requisite leave.
The Respondent has submitted that the Appellant’s appeal is time barred as he waited until 23/2/2009 to file the same against the Ruling of the Tribunal delivered on 2/7/2007. That the Appellant ought to have filed the appeal within 21 days of the delivery of the Ruling appealed against and that the period of 21 days within which the Appellant had to appeal cannot be extended having regard to the fact that election petitions are sui generis.
Election petitions are no doubt sui generis and that they have distinct and peculiar procedures. This being the case, proceedings in an election petition normally has no affinity with steps taken or to be taken in common law or ordinary civil proceedings unless the electoral enactment is silent on the issue at hand or the same is incorporated by reference into the electoral enactment. As a result of this what may be regarded as mere irregularity or non-compliance in ordinary civil proceedings could lead to grave consequences in election petitions. See the cases of OKONKWO V. NGIGE; and AKINLOYE V. ARAOYE (both supra) and cited in the Respondent’s Brief of Argument.
Both the Appellant and the Respondent would appear to be ad idem that the period within which to lodge an appeal in the instant petition is donated by Section 149(1) and (2) of the Electoral Act, 2006 and Paragraph 1 of the Court of Appeal (Practice Direction) No. 2 of 2007. Where both Appellant and Respondent part ways is on the issue as to whether or not the period of 21 days can be extended. In other words whether the default of the Appellant in filing its appeal within 21 days of the delivery of the Ruling of 2/7/2007 (a period which the Respondent contended cannot be extended in law) can be cured or regularized by the Orders procured by the Appellant on 7/12/2009. The issue thrown up by this around of objection is without doubt jurisdictional and cannot be discountenanced by the Court having regard to the position of the law that a Notice of Appeal that can form the foundation of an appeal must be a valid one. (Underlining supplied by me for emphasis).
I have read the cases of OKONKWO V. NGIGE: and AKINLOYE V. ARAOYE (both supra) relied on by the Respondent in aid of his position that the period of 21 days within which the Appellant could have lodged its appeal against the Ruling of the Tribunal being appealed against cannot be extended. I have also given serious consideration to the submissions of the Appellant that the aforementioned cases are not applicable given their respective peculiar facts. And that this Court can properly extend the period it has within which to appeal pursuant to the provision of Section 25(4) of the Court of Appeal Act, 1976.
This Court no doubt made a clear pronouncement in the case of OKONKWO V. NGIGE (supra) that the period of 21 days provided by Section 138 of the Electoral Act, 2002 for the lodging of an appeal against the decision of an Election Tribunal cannot be extended. The pronouncement was made in relation to the interpretation to be accorded the provision of the said Section 138. The case of AKINLOYE V. ARAOYE (supra) was decided by the Ibadan Division of this Court on 30/10/2008. The learned Justices of this Court that entertained the appeal were unanimous that an appeal not lodged within the period of 21 days provided for in Paragraph 1 of the Court of Appeal (Practice Direction) No. 2 of 2007 cannot be extended. I have hereinbefore stated that this Court, no matter its division that decided a case, is bound by its previous decision barring certain situations. See in this regard the case of EKPENYONG V. DUKE [20091 All FWLR (Pt. 470) 755 where this Court per Omokri, JCA (of blessed memory) said at page 778 thus: –
“………..it is settled law that the Court of Appeal is bound by its previous decision, it can only depart from its previous decision in the following circumstances:
(1) Where two decisions of the Court of Appeal are in conflict the court must choose between them.
(2) Where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court.
(3) Where the Court of appeal comes to the conclusion that a previous decision was given per incuriam, or ignorance of a statute or other binding authorities, the court is not bound by it.
(4) Where the previous decision was decided without jurisdiction.”
See also KUPOLATIV. OKE [20091 All FWLR (Pt. 486) 1858, I know of no authority that has decided to the contrary of the decisions of this Court in the cases of Okonkwo v. Ngige and Akinloye v. Araoye (both supra) that the period within which to appeal as provided for under the Electoral Act, 2006 and the Court of Appeal (Practice Direction) No. 2 of 2007 cannot be extended. Even if there were any such decision of this Court in that regard, I will choose the decisions in the cases of Okonkwo v. Ngige and Akinloye v. Araoye. In this regard, I cannot but say that the decisions in the said cases are in consonance with, and indeed consistent with, the position of the law as it relates to the inability of the Court or Tribunal to extend the period stipulated by Section 141 of the Electoral Act, 2006 for the presentation of an election petition pursuant to any rule of court. In other words, just as the period stipulated for the presentation of an election petition under the provisions of the Electoral Act 2006 cannot be extended pursuant to any provision of any Rules of Court; a fortiori, the period for lodging of an appeal as stipulated under the same Act, ought not to be capable of any extension pursuant to the provision of any Rules of Court including the Rules of this Court. This is in keeping with the settled position of the law that the rules of procedure in respect of election petitions are made to facilitate their quick disposal and should be strictly observed.
From all that has been said above, I am in no doubt that the instant appeal which is predicated upon the Notice of Appeal dated 23/2/2009 and deemed as properly filed on the same date is in law incompetent. It has been consistently held that a court has competence over a matter before it when: it is properly constituted as regards the number of its members and their qualification; when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and the matter comes before the court initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction. (Underlining supplied by me for emphasis). See WAZ1RI V. ALI [20091 All FWLR (Pt. 465) 1712. As I have found the Notice of Appeal filed in the instant appeal by the Appellant to be incompetent, it definitely robs this Court of the jurisdiction to entertain the appeal. This is so notwithstanding the non-opposition of the application pursuant to which this Court granted the Appellant leave to appeal against the Ruling and deeming its Notice of Appeal in respect of the Ruling of the Tribunal which was filed outside the 21 days stipulated for the lodging of an appeal under the Electoral Act, 2006 as having been properly filed. The law is that parties by consent, or omission or conduct cannot confer jurisdiction on a court which it would otherwise not have had. A fortiori, the court cannot confer on itself jurisdiction which it would otherwise not have had by regularising an incompetent act done by a party. This is why in the case of UKPONG V. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELPOMENT. AKWA IBOM STATE (supra) it was held, amongst others, that the conduct of a party in not opposing or objecting to the grounds of appeal without leave, which in law robs the court of the jurisdiction to entertain and determine the issue, cannot legally confer jurisdiction on that court to determine the issues brought before it without the requisite leave. See also the case of ADAMS V. UMAR (2010) All FWLR (Pt. 513) 1289 at 1374. The Notice of Appeal dated 23/2/2009 and deemed to have been properly filed by the Order of this Court on 7/12/2009 having been found to be incompetent cannot be redeemed by the subsequent Order of this Court made on 9/6/2010 granting the Appellant leave to amend the incompetent Notice of Appeal dated 23/2/2009 and deeming the Amended Notice of Appeal as having been properly filed. An incompetent Notice of Appeal cannot be validated by its subsequent amendment.
In conclusion the ground of the Respondent’s objection that the instant appeal has been initiated in the absence of due process and in particular that it is time barred succeeds.
Dwelling on the ground in respect of “no interlocutory appeal in election petition” the Respondent submitted that the instant appeal is incompetent as election petition proceedings do not contemplate an interlocutory appeal.
That the Appellant has a right of appeal and the court only has jurisdiction in respect of a final decision of the Election Tribunal. In this regard reliance was placed on the provision of Section 246(1 )(b)(i) of the 1999 Constitution and the case of Amgbare & Anor v. Sylva & Ors APPEAL NO. CA/PH/EPT/261/2007 (Unreported) delivered on 13/7/2007 and in which this Court applied the decision in the case of Okon v. Obot (2004) 1 NWLR (Pt.854) 378 at 396. It is the submission of the Respondent that the Appellant is not entitled to bring an interlocutory appeal from a Ruling of the Tribunal as it has done- that it is only in ordinary civil proceedings that an interlocutory appeal can be brought by virtue of Section 241 of the Constitution. That even at that the type of interlocutory appeal herein required the leave of court as the grounds of appeal are those of mixed law and facts. The Respondent submitted that at the best the Appellant should have brought a cross-appeal on the complaint.
Dwelling on this ground of objection, the Appellant said that the issue of whether or not interlocutory decisions of election tribunals are appealable has been settled by the Supreme Court in the case of Abubakar v. Yar’adua (2008) 8 NWLR (Pt. 1078) 465 at 496 in which the Supreme Court held that an appeal is a constitutional right which cannot be taken away from or denied an  appellant and that no court has the jurisdiction to take away from or deny an appellant his constitutional right of appeal. The case of Babalola v. Sunday (2009) 3 NWLR (Pt. 1128) 414 at 462 – 463 was also cited in aid. It is not in doubt from a perusal of the law reports that there are conflicting decisions of this Court on the issue as to whether or not interlocutory appeals lie in election petitions. See the cases of AREGBESOLA V. OYINLOLA (supra); and KANTIOK V. ISHAKU [2009] All FWLR (Pt. 455) 1754 decided on 30/3/2009 and 15/7/2008 by the Ibadan and Kaduna Divisions of this Court respectively and in which this Court held to the effect that appeals lie to the Court of Appeal from the decisions of election petition tribunals in election petitions whether interlocutory or on the merits. On the other hand, in the cases of OLAFEMI V. AYO (supra) decided by the Abuja Division of this Court on 28/2/2008; and KALAGBOR V.  INEC [2009] All FWLR (Pt. 483) 1339 decided by the Port Harcourt Division of this Court on 24/11/2008, it was held to the effect that Section 246 of the 1999 Constitution does not provide for appeal from the decision of an election tribunal to the Court of Appeal on interlocutory applications which do not finally determine the rights of the parties in the petition but are merely decisions made within the election petition proceedings (i.e. decisions in election petition) and not decisions on the election petition (underlined by me for emphasis). I have also come across a decision of this Court to the effect that where an appeal is against any decision of an Election Petition Tribunal on grounds of law only, whether interlocutory or final, such an appeal requires no leave of court. See ALI v. OSAKWE (2009) All FWLR (Pt.467) 41 decided by the Benin Division of this Court on 28/5/2008.
Where two decisions of the Court of Appeal are in conflict the Court must choose between them. See EKPENYONG V. DUKE (supra). Therefore on my part I will elect to abide by the decisions of this Court to the effect that interlocutory appeals lie to this Court in respect of decisions of Election Tribunals. This is particularly so against the backdrop of the fact that the Court of Appeal (Practice Direction) No. 2 of 2007 by tenor of its provision in Paragraph 10 would not only appear to have impliedly donated the right to file or lodge an interlocutory appeal but also declares that the filing of such an appeal shall not operate as a stay of proceedings nor form a ground for stay of proceedings before a tribunal.
This ground of the Respondent’s preliminary objection is accordingly resolved against him. It is hereby overruled.
Dwelling on the ground of the objection that the instant appeal is inconsistent with the Appellant’s case, the Respondent submitted that the Appellant’s case before the Tribunal was forcefully and elaborately that it made no substitution in respect of Ebonyi Central Senatorial election and so that it owed the Respondent no obligation to inform him of any substitution.
Reference was made to paragraphs 23 and 24 of the Appellant’s Reply to the Petition in this regard. It is the submission of the Respondent that the aim of the Appellant to reduce judicial process to a parody is best exemplified in the particulars (h) of ground 1 of the grounds of appeal wherein it is stated thus: –
“When a political party replaces its candidate before election, such a person cannot sue his party and claim unlawful exclusion under Section 145(1)(d) of the Electoral Act.”
It is the submission of the Respondent that the Appellant cannot approbate and reprobate. That the Appellant therefore cannot be allowed to make a mockery of judicial process by canvassing on appeal that the Tribunal lacked the jurisdiction to entertain a case of substitution. The Respondent said that parties should be consistent with their case and that it is trite law that a party would not be allowed to make a somersault on appeal. The Respondent described the instant appeal ‘chameleonic’ as PDP which said that the problem with Ebonyi Central Senatorial election was not unlawful exclusion on appeal now wants to push a case of unlawful substitution.
Dwelling on the ground of Respondent’s objection that the Appellant cannot be allowed to make a case on appeal different from its case before the Tribunal, the Appellant said that paragraphs 23 and 24 of the Appellant’s Reply to the Petition relied upon by the Respondent are not appropriate. The Appellant said that the first ground of appeal is simply that the Tribunal had no jurisdiction to entertain the petition since the central issue was as to who was the legitimate candidate of the party. It is the submission of the Appellant that the submission that it cannot approbate and reprobate by making a case of substitution on appeal is unwarranted as it had been consistent in its position that the Tribunal had no jurisdiction to hear the petition ab initio. That this position was amply justified by the Tribunal in its judgment when it held that: –
“On the contrary it was the 1st Respondent that was a candidate.
Therefore since the petitioner was not the candidate of the 4th Respondent, he cannot be returned as elected.”
The Appellant submitted that if the Respondent was not a candidate he had no locus standi by virtue of Section 141(1) (sic) of the Electoral Act, 2006 and the Tribunal lacked the jurisdiction to entertain the petition. This, the Appellant said was the fulcrum of its defence at the Tribunal. The Appellant’s motion on notice in respect of which the Tribunal gave its Ruling on 2/7/2007 is dated 5/6/2007 and was filed on 13/6/2007. The Appellant in its motion prayed the Tribunal to strike out the petition filed by the 1st Respondent on the grounds that: –
“1. The Tribunal lacks the jurisdiction to entertain the petition in that the subject matter cause of action therein are matters or events preceding the election of 21st April, 2007 and as well as intra party affairs.
2. The said petition is incompetent in that the petitioner has no locus standi to present the petition.
3. And for such other order or orders as the Honourable tribunal may deem fit and proper to make in the circumstances.”
The supporting affidavit of the motion is not too long. It was deposed to by one Chief Okpani Ndukwe. I consider it pertinent to set out the depositions relied on by the Appellant in seeking for the striking out of the 1st Respondent’s petition. They read thus: –
Paragraph 1
That I am the deponent on record and Ebonyi State Secretary of the 4th respondent as such I am conversant with the facts of this petition.
Paragraph 2
That the 1st respondent was the Peoples Democratic Party candidate for Ebonyi Central Senatorial district in the 21st April, 2007 National Assembly (senate) election.
Paragraph 3
That he was duly nominated as the 4th respondent’s candidate for Ebonyi Central Senatorial District on Thursday December 14, 2006 having satisfied the necessary requirements for such nomination. The result of the said primary of December 14, 2006 (sic) hereby annexed and marked Exhibit ‘E’.
Paragraph 4
That the petitioner was not nominated by the 4th respondent or any other party.
Paragraph 5
That there is a detailed reports (sic) of the Electoral Panel for Ebonyi State on the conduct of the National Assembly (senate) primary election 2006/2007 on the unconcluded primary of December 2, 2006 and the later concluded primary of December 14, 2006 with which the 1st respondent was declared the winner with 604 votes for Ebonyi Central Senatorial District, photocopies of the said reports are hereby annexed and marked Exhibits ‘A’ and ‘B’ respectively.
Paragraph 6
That the legal adviser and lawyer to the 4th respondent Barr. Ikeuwa Omebeh informed me and I verily believed him that the petitioner not having been so nominated as a candidate for the Ebonyi Central Senatorial District seat of April, 21st 2007 has no locus standi to present this petition.
Paragraph 7
That the petitioner did not contest as a candidate of the 4th respondent or any other party in the April 21st 2007 National Assembly (senate) election.”
The 1st Respondent filed a counter affidavit in reaction to the Appellant’s supporting affidavit. Therein the Respondent deposed to the effect that an attempt was made to substitute his name with that of the 1st Respondent in the petition (i.e. the 2nd Respondent in this appeal) but that the attempt failed as it was countermanded, not with his consent, neither was it for any cogent and verifiable reasons within the time allowed for this. The Appellant filed no further affidavit in reaction to the issue of non-substitution raised by the Respondent in his counter affidavit.
It is my considered view that given the depositions in support of the Appellant’s motion in which the Ruling of 2/7/2007 was delivered, the question of the Respondent having been substituted with the 2nd Respondent simply did not arise. The processes that the Tribunal would have considered in the application of the Appellant if it had not summarily dismissed the same were the petition of the Respondent and the affidavit evidence before it. The Tribunal could not have considered the Reply of the Appellant filed on 20/6/2007 in arriving at a decision in the application brought for the striking out of the petition. The motion of the Appellant in which the Tribunal gave its Ruling on 2/7/2007 did not admit of the issue of the proper substitution of the candidature of the Respondent as Particulars (h) and (i) of ground 1 of the grounds of appeal and Particulars (a) – (d) of ground 2 of the grounds of appeal portend. The Appellant is clearly making a different case in the instant appeal from the one he placed before the Tribunal for its consideration in its motion entertained on 2/7/2007 inasmuch as it is in the main relying on the substitution of the Respondent with the 2nd Respondent to sustain the appeal.
This, as rightly submitted by the Respondent is not permissible in law. In conclusion the third ground of the Respondent’s objection succeeds.
The consequence of the success of a preliminary objection attacking the competence of an appeal is settled. It renders the consideration of such an appeal on the merit unnecessary. This being the position of the law, and having found the first and third grounds of the Respondent’s preliminary objection to succeed and thereby upholding the same, the instant appeal in the circumstances is not worthy of consideration on the merit. This is particularly so as the Notice of Appeal upon which the appeal is founded being incompetent and having been so found, has effectively robbed the Court of the jurisdiction to adjudicate on the merit of the appeal.
In conclusion the Appellant’s interlocutory appeal against the Ruling of the Tribunal delivered on 2/7/2007 dismissing its motion seeking the striking out of the Respondent’s petition is struck out. The Ruling of the Tribunal dismissing the said motion is affirmed.
APPEAL NO: CA/E/EPT/18/2008
This appeal is against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal for Ebonyi State delivered on 13th September, 2007 in PETITION NO: EPT/EBS/SEN/AB/12/2007 – DR. EMMANUEL ONWE V. SENATOR JULIUS ALI UCHA & 4 ORS. The National Assembly/Governorship and Legislative Houses Election Petition Tribunal for Ebonyi State (hereinafter to be simply referred to as “the Tribunal”) in its judgment dismissed the aforementioned petition.
The facts of the matter put briefly are that the Petitioner (who will hereinafter be referred to as “the Appellant”) in the Petition he presented before the Tribunal claimed to be the nominated candidate of the Peoples Democratic Party for the Ebonyi Central Senatorial District. The Peoples Democratic Party (i.e. PDP) is the 4th Respondent in the instant appeal. The Appellant claimed that he scored 1894 votes at the primary election of the 4th Respondent for Ebonyi Central Senatorial District held on 2/12/2006 to emerge as the winner of the primary election and that the 4th Respondent subsequently forwarded his name to the Independent Electoral Commission as its nominated candidate for the aforementioned Senatorial District. The Independent Electoral Commission (INEC) is the 3rd Respondent in the instant appeal while the Returning Officer, Ebonyi Central Senatorial District is the 2nd Respondent.
The 2nd and 3rd Respondents in their Joint Reply to the Petition did not deny that the name of the Appellant was submitted as the 4th Respondent’s candidate for the election in question. It is however their case that the name of the Appellant was later withdrawn by the 4th Respondent and replaced with the name of the 1st Respondent. That the Appellant’s name was deleted from the final list of nominated candidates even though he was initially screened for this reason. On the other hand the case of the 1st Respondent in the instant appeal – Senator Emmanuel Ali Ucha and the 4th Respondent (i.e. PDP) is that the Appellant was never a nominated candidate of the 4th Respondent for the election in question. That the primary election of 2/12/2006 was inconclusive, hence another one was held on 14/12/2006 and it was at this primary election that the 1st Respondent emerged as the candidate of the 4th Respondent for the election in question. The Appellant claimed that he was surprised when after the election of 21/4/2007; the 2nd Respondent purported to return the 1st Respondent as the winner of the election. The Appellant prayed in the Petition that it may be determined as follows: –
“a. A Declaration that the Petitioner is the valid candidate of the 4th Respondent.
b. A Declaration that the 1st and 4th Respondents did not validly substitute the Petitioner.
c. A Declaration that the Petitioner was the candidate of the 4th Respondent who ought to have been returned by the 2nd and 3rd Respondents as the winner of the Senate election for Ebonyi Central District of 21st April 2007.
d. An Order nullifying or invalidating the return of the 1st Respondent as the winner of the said election.
e. An Order that the Petitioner is the duly elected member representing the Ebonyi Central Senatorial District of Ebonyi State in that he is the person validly nominated by the 4th Respondent as its candidate for the election.
f. An Order directing the 2nd and 3rd Respondents to issue a Certificate of Return to the Petitioner as the winner of the election.”
As earlier stated the Tribunal dismissed the Petition of the Appellant.
The judgment of the Tribunal is at pages 215 – 227 of the Record of Appeal.
In its judgment the Tribunal condensed the issues arising for resolution in the petition having regard to the pleadings of the parties and their written addresses into two. The two issues as set out at page 220 of the Records of Appeal are: –
“1. Who was (sic) between the petitioner and the 1st Respondent was the candidate of the 4th Respondent for the said election.
2. Whether the petitioner can be returned as the elected candidate of the 4th Respondent for Ebonyi Central Senatorial District.”
In dismissing the Petition the Tribunal amongst others said thus at pages 225 – 226: –
“On the pleadings and the totality of evidence adduced thereon, the tribunal finds that the petitioner did not discharge the burden placed on him to prove that he was the candidate of the 4th Respondent at the election of 21/04/07. On the contrary, it was the 1st Respondent that was such a candidate. Therefore since the petitioner was not the candidate of the 4th Respondent, he cannot be returned as elected.
The Tribunal also finds that the petitioner was not unlawfully excluded from the election, and so there cannot be a nullification of the election.
Accordingly, the two issues raised in this petition are resolved against the petitioner in favour of the Respondents.”
The Appellant being dissatisfied with the judgment of the Tribunal lodged an appeal against the same by a Notice of Appeal dated 1/10/2007 and filed on 2/10/2007. The Notice of Appeal contains four grounds of appeal.
The said grounds of appeal shorn of their respective particulars read thus: –
“GROUNDS OF APPEAL
(1)The Election Tribunal erred in law in holding that, the Appellant lacked the locus standi to present an election petition, when from all the available materials, Appellant was the only candidate of the Peoples Democratic Party for the April 21, 2007 Senatorial Election for Ebonyi Central Senatorial District, thereby reaching a wrong conclusion.
(2) The Election Tribunal erred in law in failing to nullify the election of 21st April, 2007 for the Ebonyi Central Senatorial District on the ground of unlawful exclusion, thereby failing to uphold the tenets of the Electoral Act, 2006.
(3) The Election Tribunal erred in law in holding that, facts or events that took place before the election of 21st April, 2007 have no bearing to the petition and outside the operational scope of the Tribunal, thereby failing to appreciate the scope of the jurisdiction of the Tribunal.
(4) The Election Tribunal erred in concluding that, Appellant was not a candidate at the election, merely because he did not recount the exact score, he had at the election, without considering the totality of the case put forward by the Appellant.”
The reliefs which the Appellant seeks in the instant appeal as set out in the Notice of Appeal are:-
“(i) AN ORDER allowing the appeal.
(ii) AN ORDER nullifying the result, election and return of the 1st Respondent for the Ebonyi Central Senatorial election conducted on 21st April, 2007.
(iii) AN ORDER declaring the Appellant as the winner of the Ebonyi Central Senatorial election.
Alternatively
(iv) AN ORDER for fresh election for the Ebonyi Central Senatorial District.”
In compliance with the practice and Rules of this Court parties filed and exchanged Briefs of Argument. Appellant’s Amended Brief of Argument is dated 9/5/2008 and was filed on 12/5/2008 but deemed as properly filed and served on 25/6/2009. The Appellant responded to the Briefs of Argument filed by the 1st; 2nd and 3rd, as well as 4th Respondents respectively Appellant’s.
Reply Brief to the 1st Respondent’s Amended Brief of Argument is dated 5/10/2009 and was filed on 12/10/2009; that in respect of the Joint Brief of Argument of the 2nd and 3rd Respondents, is undated but was filed on 13/5/2009; and that in respect of the 4th Respondent’s Brief of Argument is dated 5/10/2009 and filed on 12/10/2009. All the Briefs filed by the Appellant were settled by Lateef O. Fagbemi SAN; and Olisa Agbakoba OON, SAN. The Amended Brief of Argument of the 1st Respondent dated 8/7/2009 and filed on the same date was settled by Dr. J.O. Ibik SAN; the Joint Brief of Argument of the 2nd and 3rd Respondents dated 6/5/2010 and filed on 12/5/2010 but deemed as properly filed and served on 3/6/2010 was settled by Matthew Ugwuocha; while the 4th Respondent’s Brief of Argument dated 2/3/2009 and filed on the same date but deemed as properly filed and served on 25/6/2009 was settled by G. Ofodile Okafor OON, SAN.
The appeal was entertained on 9/6/2010. At the hearing of the appeal on 9/6/2010 L.O. Fagbemi, SAN; learned senior counsel for the Appellant adopted and relied upon the various Briefs of the Appellant as identified above, in urging the Court to allow the appeal. He also made oral submissions in elucidation of the Briefs of Argument. Dr. J.O. Ibik, SAN and G.O. Okafor, SAN learned senior counsel for the 1st and 4th Respondents respectively as well as M. Ugwuocha of counsel for the 2nd and 3rd Respondents, each adopted and relied on the Brief of Argument filed on behalf of their respective clients in urging the Court to dismiss the appeal. Each of them also made oral submissions in elucidation of the Briefs of Argument they filed on behalf of their respective clients.  In his Amended Brief of Argument, the Appellant expressly stated that he was abandoning ground 1 of his grounds of appeal. Having also said in his said Brief that there might be some subsidiary Issues, the Appellant stated the main Issue calling for determination from the remaining grounds of appeal namely, grounds 2, 3 and 4, as: –
“Whether considering the facts, evidence and circumstances of this case, the Election Tribunal was right in dismissing the Petition filed and if not, what appropriate order should this Court make?
The 1st Respondent having first observed in his Amended Brief of Argument that the Appellant has expressly stated in his Amended Brief of Argument that he has was abandoning ground 1 of the grounds of appeal and urging the Court to strike the same out, formulated the Issues properly arising for determination in the appeal from the remaining grounds (i.e. grounds 2, 3 and 4) as: –
“(a) ISSUE 1
Whether the lower tribunal was right in declining to adjudicate on pre-election matter raised in the election petition as being outside its jurisdiction (grounds 2 and 3)
(b) ISSUE 2
Whether the verdict of the lower tribunal dismissing the election petition was perverse (ground 4)”
In the Joint Brief of Argument of the 2nd and 3rd Respondents (hereinafter to be simply referred to as “the Respondents”) three Issues are distilled from the grounds of appeal, to wit: –
“a. Between the appellant and 1st Respondent who was the 4th Respondent’s candidate at the said election.
b. Whether the lower Tribunal was right in holding that the Appellant was not unlawfully excluded.
c. Whether 3 (sic) Respondent cannot disqualify or reject any candidate forwarded to it by political parties for election purpose.”
The 4th Respondent in his Brief of Argument stated that he adopted the only Issue for determination set out in the Appellant’s Amended Brief of Argument with a different slant and came up with the Issue which reads thus: –
“Whether the judgment of the Lower Tribunal is sustainable having regard to the facts, evidence and surrounding circumstances of the case.”
The Appellant said that he could be returned as winner of the election as he was a candidate at the said election within the purview of Section 144(1) of the Electoral Act, 2006 and this is particularly so having regard to the provisions of the said Act in Section 145(1) which provide for the grounds on which an election petition can be brought. It is the submission of the Appellant that it is his claims that must be looked at in determining whether he has locus standi and/or whether the Tribunal has jurisdiction in respect of his petition. The case of NDIC V. CBN (2002 7 NWLR (Pt. 766) 272 at 296 was cited in aid. The Appellant submitted that he can properly present the petition before the Tribunal given the averments in paragraphs 1 and 3 thereof. This is particularly so as one of the grounds on which the petition is predicated is that of unlawful exclusion. The case of Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt. 854) 406 at 427 – 428 was cited in this regard. It is the submission of the Appellant that on the basis of the averments in the petition and particularly the ground of unlawful exclusion, the petition before the Tribunal is competent as he was a candidate at the election being questioned. The Appellant further submitted that where he proves his case, he can lawfully be returned as the candidate of the PDP in the election. Dwelling on the documentary evidence before the Tribunal, and having said that his contention is that he won the senatorial primary of the PDP and that he was nominated and sponsored for the Ebonyi Central Senatorial seat, the Appellant cited the case of Effiong v. Ikpene (1999) 6 NWLR 6 NWLR (Pt.606) at 274 – 275 as laying down the essential issues or elements to be established by a person claiming unlawful exclusion. It is the submission of the Appellant that there was sufficient documentary evidence to resolve the issue and that therefore oral evidence needed is quite insignificant. The case of Olujinle v. Adeagbo (1988) 2NWLR (Pt. 75) 238 at 254 was cited in aid. The Appellant referred to the averments in paragraphs 2(i), iii, (v), vi, vii, viii, ix, x, xi, xv and xvii of the petition as containing the facts showing how he emerged as the senatorial candidate of the PDP for Ebonyi Central Senatorial District. He also referred to Exhibits 3, 6, 7, 8, 9, 10 and 15 tendered in support of his written statement on oath. He submitted that the pieces of documentary evidence established that he obtained form, won PDP primaries and that his name was forwarded as the nominated candidate of the PDP. It is the submission of the Appellant that the admission of INEC that he was nominated by the PDP for the Ebonyi Central Senatorial District is clear from paragraphs 9, 10, and 12 of the 2nd and 3rd Respondents’ Reply. The Appellant urged the Court to hold from the position taken by INEC that he was the nominated candidate of the PDP for the Ebonyi Central Senatorial District. This is particularly so as what is admitted in the pleadings require no further proof and the case of Asafa Foods Factory V. Alraine (Nig) Ltd (2002) 12 NWLR (Pt. 781) 353 at 370 was cited in aid.
Dwelling on the defence of the PDP, the Appellant said that the party’s defence is not dissimilar to that of the 1st Respondent and that they both maintained that he was never nominated as a candidate for the election. That the primary of the PDP held on 2/12/2006 was inconclusive and that another one was conducted on 14/12/2006. That it was at this primary that the 1st Respondent emerged as the consensus candidate of the PDP. The Appellant submitted that both the pleadings and evidence of the 1st and 4th Respondents are afterthoughts and an attempt to pull the wool over the eyes of the Tribunal and that the Tribunal unfortunately allowed this. The Appellant referred to Exhibits 9,15 and 18 as not only showing that it is not open to the PDP to contend that the primary election of 2/12/2006 was not conclusive, but also that he won the election. It is the submission of the Appellant that the case of the 1st and 4th Respondents that there was another primary on 14/12/2006 as the one of 2/12/2006 was inconclusive is at variance with documentary evidence made by the PDP. It is the submission of the Appellant that it is trite that a witness is not entitled to any honour of credibility where there is material inconsistency in his evidence or case. The Appellant invited this Court to re-evaluate the pieces of evidence before the Tribunal and which are now before this Court, and that this Court should hold that his case is more probable in that he won the primary election of 2/12/2006 and that his name was forwarded to INEC. The Court was urged to reject the claim of the Respondents that the primary election of 2/12/2006 was inconclusive hence another one was held on 14/12/2006. The Appellant submitted to the effect that this Court is entitled to evaluate the evidence adduced before the Tribunal because it had failed to appreciate the same or made a wrong evaluation of the same. The case of Adefulu v. Okulaia (1996) 9 NWLR (Pt. 475) 668 was cited in aid. The Appellant made the observation that the 1st Respondent never tendered any nomination form to show that he was ever nominated. This the Appellant submitted called for the application of Section 149(d) of the Evidence Act. The Appellant stressed that the case of the 1st and 4th Respondents is not predicated on substitution. In other words that they have not sought to justify the substitution of his name; that their case is outright rejection of his (i.e. Appellant’s) contention that he was the nominated candidate of the PDP. The Appellant submitted that the 1st and 4th Respondents have not only disowned the position of INEC that his (i.e. Appellant’s) name was changed, but also that they have no defence to his claims once their claim that they never nominated the Appellant is found to be false.
It is the submission of the Appellant that the Tribunal was in serious error to have held that the facts pleaded in paragraphs 1 – 16 of the petition were more of intra-party affairs. This is because the Court in considering whether or not a candidate was unlawfully excluded must consider whether or not he was validly nominated.
The Appellant submitted that a Tribunal will not close its eyes to a breach of the Constitution or Act that has bearing on the election being considered, and submitted in the main that as the 1st Respondent was not sponsored by any political party he could not have been qualified to contest the election being questioned. Reference was made to Section 65(2)(b) of the 1999 Constitution and Section 145(1)(a) of the Electoral Act. It is the submission of the Appellant that the averments in paragraphs 1 – 16 of the petition are such that could have enabled the Tribunal to consider whether or not the 1st Respondent was indeed the PDP candidate. That in essence the averments are not intra-party affairs, rather they are relevant and material facts to be considered in determining whether the 1st Respondent’s purported election satisfied the provisions of Section 65(2)(b) of the Constitution. The Appellant not only submitted that the provisions of the Electoral Act 2006 relating to the procedure by which a party sponsors a candidate, have constitutional flavour, but also that invalid nomination implies non-qualification to contest an election notwithstanding the qualification of the candidate to hold public office such as a senatorial seat as in the instant case. The cases of Bayo v. Njida (2004) 8 NWLR (Pt. 876) 544 at 595 and Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 at 544 were cited in aid. It is the submission of the Appellant that in essence, events that happened before the election touched on the qualification of the candidates for an election and therefore they are not intraparty affairs as those events will serve as pointer in determining whether a petitioner was validly nominated but unlawfully excluded from the election.
The Appellant submitted again that the Tribunal was in serious error in holding that paragraph 2 sub 1 – 16 of the petition were intra-party matters.
The Appellant also submitted to the effect that the PDP cannot rely on Exhibit 18 to say that his name was duly substituted because the reason stated therein to wit: “without enough information” has not met the dictates of Section 34(2) of the Electoral Act 2006 which requires cogent and verifiable reason for substitution. The Appellant submitted that the purported substitution was null and void and cited in aid the case of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048)367.
Dwelling on the second and third elements or issues to be established by a person alleging unlawful substitution to wit: (i) that the election was conducted and concluded; and (ii) that the name of the petitioner was not on the ballot papers, the Appellant submitted to the effect that on the pleadings of the parties it was not in dispute that the election was conducted and concluded. In this regard the Appellant referred to paragraphs 2 and 4 of the petition; paragraphs 4 and 6 of the 1st Respondent’s Reply to the petition; and paragraphs 2 and 4 of the 2nd and 3rd Respondents’ Reply to the petition as well as the non-denial by the 4th Respondent of the averments in paragraphs 2 and 4 of the petition where the Appellant alleged the fact of the election having been concluded. The case of Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 was cited in aid of the submission that facts admitted need no further proof. On the issue of his name not being on the ballot papers, the Appellant again said that parties were ad idem that he did not participate at the election as it was the 1st Respondent that was fielded as against him (i.e. Appellant) who was the lawful candidate of the PDP. In the light of the above, the Court was urged to hold that the two elements/issue of unlawful exclusion hereinbefore mentioned were duly established by the Appellant.
Dwelling on the use to which the Tribunal put the averments in paragraphs 2 and 4 of the petition to wit: that the petitioner himself admitted the fact that 1st Respondent and not himself was the candidate of the PDP, the Appellant submitted that the reasoning of the Tribunal showed a serious
misconception of the pleadings and case he put forward. The Appellant said that his case admitted of no intricacy on the pleadings and the evidence adduced and which is that though he was the nominated candidate of PDP, his name was however supplanted with that of the 1st Respondent by the PDP and INEC. The Appellant submitted that by reason of such a complaint, it will be contrary to reasoning to have his name on the list of candidates and the result declared. That what he is saying in effect is that, rather than declaring him the winner of the election as the lawful candidate of PDP, the 1st Respondent was declared as winner by giving votes which accrued to the PDP to the 1st Respondent. The Appellant submitted that there was no basis for the Tribunal to have reached its conclusion discrediting his case on the basis of the pleadings as the facts averred in the petition put across the complaint that all the votes that should have accrued to him were given to the 1st Respondent. It is also the submission of the Appellant that there was no basis for the reasoning of the Tribunal that no witness was called to testify that he voted for him (i.e. Appellant) as it is not in doubt that PDP had the 245,945 votes ascribed to the 1st Respondent. It is the submission of the Appellant that whoever the Court finds to be the candidate of the PDP takes the benefit of the votes as it is a political party that electorate voted for and not the candidates per se. The case of Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 317 – 318 was cited in aid.
Dwelling on the appropriate order to make, the Appellant submitted to the effect that this Court pursuant to Section 15 of its Act has the wide powers to give appropriate reliefs that meet the justice of a case irrespective of whatever claims parties have made. The Appellant urged the Court to declare him the winner of the Senatorial Election for Ebonyi State Central Senatorial District and return him accordingly having regard to the contention that as his name was never changed, he remained the lawful nominated candidate of the PDP and hence the one to take the benefit of the victory of the PDP and not the 1st Respondent who was not duly nominated. The case of Amaechi v. INEC was again referred to.
Dwelling on the first of the Issues formulated by him for the determination of the appeal, the 1st Respondent, said that the facts pleaded at pages 3-11 of the record and in paragraphs (i) – (xxiii) and (xxxi) raise pre-election complaints on PDP primary and substitution of PDP sponsored candidate for the election into the Ebonyi Senatorial District seat which was held on 21/4/2007. It is the submission of the 1st Respondent that the Tribunal was perfectly justified in declining to embark on primary finding of facts on the contested question of primary election, nomination and substitution of the sponsored candidate which raged between the Appellant, and the 1st, 2nd, 3rd and 4th Respondents. This is because the Appellant was well aware that according to the pertinent pleadings and evidence adduced in support, the cause of action arising from the disputed nomination and substitution occurred in or about February 2007 whereas the election was fixed for April, 2007. It is the submission of the 1st Respondent that by the reason of the date of occurrence of the cause of action in question, the combined effect of Sections 34(1 )(2) and (3) and 85 of the Electoral Act, 2006 as well as Section 6(1), (2), (3) and (5) of the 1999 Constitution, the Appellant is clearly vested with the legal right to approach the Federal or State High Court with appropriate originating process to seek redress. The cases of Ugwu v. Ararume and Amaechi v. INEC (both supra) were cited in aid. The 1st Respondent said that it is trite that a tribunal without jurisdiction on any particular issue in contest is incompetent to determine such issue and it may either decline to engage in such fruitless exercise or decide to strike out such extra-jurisdictional matter. It is the submission of the 1st Respondent that in either way this Court cannot fault the Tribunal.
Dwelling on the second of the Issues formulated in his Brief of Argument, the 1st Respondent said the rationale which impelled the Tribunal to embark on the determination of the petition on the merit was stated by the Tribunal at page 224 of the Record of Appeal thus: –
“It is the other averments in the petition touching on allegation that the petitioner was a candidate that led the Tribunal into hearing the matter on the merit”
It is the submission of the 1st Respondent that on the totality of the pertinent pleadings and credible evidence adduced before the Tribunal, the Tribunal was perfectly justified in its ultimate decision to dismiss the Appellant’s petition as unsubstantiated. The 1st Respondent responded to the various submissions of the Appellant and particularly dwelled on why the case of Amaechi v. INEC relied upon by the Appellant is not relevant to the Appellant’s case as set up in the petition particularly having regard to the reliefs which he claims therein.
The 3rd and 4th Respondents (hereinafter to be simply referred to as “the Respondents”) having said that the Appellant and the 1st Respondent are in agreement that there was a substitution of candidates and which was duly attested by a letter emanating from the 4th Respondent, submitted that it was not their duty to query the reason for the substitution. That in the circumstance the 3rd Respondent was right in accepting the 1st Respondent as the 4th Respondent’s candidate for the election. The Respondents posed the question as to whether the substitution was in accordance with the law and answered that it was valid. In this regard, the Respondents said that the letter of substitution is dated 5th February, 2007 and that the election took place on 21/4/2007 a period of clear 74 days between the date of substitution and date of election. Section 34(1) of the Electoral Act was cited in aid.
Dwelling on the second Issue formulated in their Brief of Argument, the Respondents said that as the Appellant did not prove his that he was validly nominated as a candidate at the election he could by the same reasoning not have proved his unlawful exclusion from an election in respect of which he was not nominated as a candidate.
Dwelling on their third Issue, the Respondents referred to Section 2 of the Electoral Act, 2006 and submitted that their duties did not include picking, choosing or disqualifying candidates for political parties. The case of “Action Congress v. INEC (2007) Suit No. SC 69/2007” was also cited aid. The Respondents said that as the Appellant was validly substituted, it was for him if he had reasonable grounds to believe that any information given in respect of the 1st Respondent candidacy was false, to have challenged the same in court. It is the submission of the Respondents that since the Appellant failed to avail himself of the opportunity, the 3rd Respondent in the circumstances was right in including the name of the 1st Respondent as the 4th Respondent’s candidate in the election as the name of the said 1st Respondent was forwarded to the 3rd Respondent within the mandated statutory period.
Dwelling on the question as to whether the Appellant was a candidate for the for the election of 21/4/2007 and whether he possessed the locus standi to present the petition before the Tribunal, the 4th Respondent submitted to the effect that he (i.e. Appellant) was not, hence one of his statutory causes of action was hinged on Section 145(d) of the Electoral Act, 2006. The 4th Respondent submitted that the Appellant had knowledge of his substitution by 5/12/2006 or 20/2/2007 and that if he was minded of challenging the substitution or upturning the same, he should have headed to the appropriate court as was done in the case of Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554 at 584. It is the submission of the 4th Respondent that the Tribunal has no jurisdiction to inquire into the validity of substitution as it is not covered by Section 285 of the 1999 Constitution. It is the further submission of the 4th Respondent that the Appellant’s petition was ab initio incompetent having regard to the two deadly viruses of lack of jurisdiction and want of jurisdiction.
Dwelling on the question as to who was the candidate of the PDP for the election, the 4th Respondent having narrated the sequence of events that culminated in the emergence of the 1st Respondent at its primary held on 14/12/2006 submitted that the if the Appellant had been substituted by it, he was not a candidate at the election. The case of Okon v. Bob (2004) 1 NWLR (Pt. 854) 378 was cited in aid. The 4th Respondent catalogued the reasons why the cases of Bayo v. Njida and Anazodo v. Audu (both supra) were not applicable to the interpretation of the provisions of Section 145(1)(a) of the extant Electoral Act.
Dwelling on the issue as to whether invalid nomination/substitution is a disqualifying ground in election petition, the 4th Respondent submitted to the effect that the Court should decline the invitation to decide on alleged breach of Section 34(2) of the Electoral Act, 2006 as the Tribunal whose decision is on appeal is without jurisdiction to decide on the validity of substitution notwithstanding the provision of Section 145(1)(a) of the Electoral Act. The cases of Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184 at 210 and Bob v. Okon (supra) were cited in aid. Cases such as Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 183; ANPP v. Argungu (2009) 1 NWLR (Pt. 1171) 445 at 462; and Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1061) 207 at 301 – 302; amongst other were cited in support of the submission that issues of nomination and substitution around which the instant case revolves make it one of pre-election.
Dwelling on both the documentary and oral evidence before the Tribunal, the 4th Respondent urged the Court to hold that the so called valid nomination of the Appellant was not proved, but that on the contrary, he knew that he had been substituted long before the election. It is the submission of the 4th Respondent that even if the primary of 1/12/2006 produced a winner, it was still its prerogative to substitute or change its candidate for the election and that the Tribunal had no jurisdiction to inquire into why the first candidate was substituted. The case of Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 414 was cited in aid.
Dwelling on the appropriate order to make in the instant appeal, the 4th Respondent submitted that the case of Amaechi v. INEC (supra) is different from the instant appeal and stated the reasons for the submission. It is the submission of the 4th Respondent that the appropriate order this Court  could validly make in the instant appeal is one dismissing the same and affirming the judgment of the lower court.
As earlier stated all the learned counsel made oral submissions in elucidation of their respective Briefs of Argument and the Appellant filed Reply Briefs to the Briefs of Argument of the Respondents. Submissions made in oral elucidation of the Briefs of Argument and in the Reply Briefs would be referred to when considered appropriate in the course of this judgment. I will however strike out ground 1 of the grounds of appeal at this stage as the Appellant has expressly stated in his Amended Brief of Argument that he was abandoning the same. Accordingly the said ground of appeal is hereby struck out.
The 1999 Constitution in Section 285 makes provision for the establishment of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals. The National Assembly Election Tribunals by virtue of the provision of Section 285(1) have original jurisdiction to hear and determine petitions as to whether –
“(a) any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of a member of the Senate or a member of the House of Representative has become vacant.
(d) a question or petition brought before the election tribunal has been properly or improperly brought.”
The Governorship and Legislative Houses Election Tribunals by virtue of Section 285(2) of the same Constitution are to the exclusion of any other court vested with jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house. The Tribunal from which the instant appeal has emanated is a National Assembly/Governorship and Legislative Houses Election Petition Tribunal.

Election Petition is basically presented before an Election Tribunal complaining of an undue election or undue return in respect of an election or return at an election; and therein the person elected or returned is joined as a party. See Section 140 of the Electoral Act, 2006. Those who can present a Petition before an Election Petition Tribunal established pursuant to the provisions of the said Section 285(1) and (2) are not provided for in the Constitution. Persons entitled to present election petitions are set out in Section 144(1) of the Electoral Act, 2006 and they are (i) a candidate in the election; and (ii) a political party which participated in the election. Section 144(2) of the Act in question further provides for those who are to be Respondents in a Petition if more than the person returned, and the circumstances which would warrant this. Section 145(1)(a) – (d) of the Electoral Act, 2006 equally sets out the grounds of an election petition.

In Section 145(1)(a) of the Electoral Act, 2006 it is provided that an election can be questioned on the ground – “that a person whose election is questioned was at the time of the election, not qualified to contest the election”. Section 145(1)(d) also provides that an election can be questioned on the ground “that petitioner or its candidate was validly nominated but was unlawfully excluded from the election”. The two grounds of the Appellant’s are:-
“1. That the 1st Respondent was at the time of the election, not qualified to contest the election.
2. The Petitioner was validly nominated but was unlawfully excluded from the election.”
These grounds are glaringly in conformity with the grounds provided for in Section 145(1)(a) and (d) of the Electoral Act. It is also indisputable given the provisions of Sections 140 and 144(2) of the Electoral Act, 2006 that the Appellant must join the 1st Respondent being the person whose election and/or return is being questioned, as a party in the instant Petition as he (Appellant) has done.

In the case of INEC V. AC decided on 26/2/2008 and reported in (2009) All FWLR (Pt. 480) 732, this Court dwelling on the provisions of Section 144(1) of the Electoral Act, 2006 as they relate to who can present a petition said at pages 765 – 766 per Salami, JCA; (now PCA) who delivered the lead judgment thus: –
“It can therefore, be deducted from the three instances set out above that the issue of candidature, transcends contesting an election.
The words used seem designed to cover something wider than contemplated in Okonkwo V. INEC. The issue of election respectfully, goes beyond merely casting votes. It is a process commencing with delimitation of constituency, nomination and accreditation of candidates, voting itself, counting and collation of votes culminating in return or declaration of result.
………………………………………………….
………………………………………………….
Consequently, I agree with the learned counsel for the cross-appellant that a person who was duly nominated by his political party and whose name was submitted to the Independent National Electoral Commission as a candidate and whose name was accordingly published pursuant to section 35 of the Electoral Act, does not cease to be a candidate for the purposes of bringing an election petition simply because he had been disqualified. He is not a busy body or a meddling interloper. His right to contest the election as a candidate had vested and would be entitled to defend that right. A person who secured the nomination of his party and whose name was submitted to the body statutorily charged with responsibility for the conduct of the election and accepted as a nominated candidate is entitled to petition under section 144(1)(a) if he is unlawfully excluded.”
(Underlining provided by me.)
Also in the case of SUNDAY V. INEC decided on 15/8/2008 and reported in [2008] 1 All FWLR (Pt. 431) 985, this Court in considering the provisions of Section 144(1) of the Electoral Act 2006 as they relate to who can present a petition vis-a-vis the provisions of Section 145(1) of the same Act relating to grounds of petition said at pages 1002 – 1003 per Mukhtar, JCA; who delivered the lead judgment thus: –
“One is left with no iota of doubt that a person who has a legal ground and therefore a right ex debito justitie to question an election has no other means of exercising such right than by way of a petition before an appropriate Election Tribunal. One can therefore say, with mathematical exactitude that a candidate who was duly nominated to contest an election but, unlawfully excluded from the conduct of the polls is properly within the scope of section 144(1) of the Electoral Act, 2006. Although “a candidate in an election” includes candidates who contested at the polling exercise but, it will tantamount to turning the law head-down to restrict the scope of that phrase to only candidates who participated in the polling process. Such restrictive and narrow scoped interpretation only renders the provision of section 145(1) of the Electoral Act, 2006, a complete nonsense
………………………………
………………………………
……………………………….
The words “at” an election, and “in” an election used in the Electoral Acts, 2002 and 2006, though similar, are different in scope and meaning. The preposition “at” is used to say, “when something happens.” While “in” means “forming the whole or part of something”.
Thus, while candidate at an election is a term of considerable elasticity and not quite definite “a candidate in an election” or “a political party which participated in the election” is an encompassing phenomenon with respect to candidates or political parties that partake in the process of election of which the balloting is only one of the components of such process……………………………………..”
(Again underlining supplied by me.)
I am of the considered view that the evidence to be adduced at the trial of a matter must be such that go to establish the dictates of the law a party relies upon or has hinged his case upon. As earlier stated one of the grounds of the Appellant’s petition is that he was the validly nominated candidate of the 4th Respondent for the Ebonyi Central Senatorial seat but that he was unlawfully excluded from the election. Surely, for the Appellant to establish his valid nomination for the election in which he was unlawfully excluded, he must necessarily plead and prove at least (i) how he came to be nominated as a candidate in the said election; (ii) that his name was submitted to the electoral body as a candidate in the election and was duly accepted and (iii) that the election in which he was unlawfully excluded was actually held. It is inconceivable that the Appellant who claims that he was unlawfully excluded from the election being questioned would have to establish that he contested the election in which he was unlawfully excluded at the polls. In the instant petition it is not in dispute on the pleadings of the parties and totality of the evidence adduced before the Tribunal that the Appellant did not contest the election being questioned at the polls. It is equally clear from the case of the Respondents, that the 3rd Respondent as the body charged with the conduct of the election did receive and accepted the name of the Appellant as the candidate of the PDP for the questioned election but that the Appellant’s name was dropped because the PDP i.e. the 4th Respondent substituted the Appellant’s name with that of the 1st Respondent. The question then is, given the case conceived by the Appellant from the circumstances leading to his being dropped as a candidate of the PDP, how is he to prove his valid nomination save by pleading how he emerged as the candidate of the PDP. The PDP was not on his side and the party is still not. It would therefore appear that the circumstances of the Appellant’s petition dictated the pleading of and proof of the facts which went to show that how he emerged as the candidate of the PDP at the party’s primary in order to establish his valid nomination. The averments in these regard were therefore collateral to the main issue of valid nomination of the Appellant and I am of the considered view that the averments in these regard did not transform the Appellant’s petition to one seeking the determination of pre-election matters.
In other words the present judicial interpretation of the word “candidate” as used in Section 144(1) of the extant Electoral Act, admits of the pleading of facts by the Appellant as to how he came to be the validly nominated candidate of the 4th Respondent for the election being questioned.
Appellant has submitted to the effect that Exhibits 3, 6, 7, 8, 9, 10 and 15 all go to establish that he obtained nomination form, won PDP primary and that his name was forwarded as the nominated candidate of the PDP. I cannot but observe that all the documents tendered by the Appellant and marked as Exhibits 1 – 15 were admitted without objection. (See page 140 of the Record of Appeal). The Appellant also referred to the admission by INEC in  paragraphs 9, 10 and 12 of the 2nd and 3rd Respondents’ Reply of the submission to it, of the Appellant’s name as PDP candidate for the questioned election. I have read the paragraphs of the 2nd and 3rd Respondents’ Reply to the Appellant’s petition under reference and I cannot but agree that therein the 2nd and 3rd Respondents admitted (i) that the Appellant’s name was submitted to the 3rd Respondent first in time as the candidate of the 4th Respondent for the election being questioned; (ii) that the Appellant was duly screened as the candidate of the 4th Respondent (i.e. PDP) for the election and that his name was in the final list of nominated candidates for the election; and (iii) that the name of the Appellant was deleted from the final list of nominated candidates for the election being questioned upon its withdrawal by the 4th Respondent and substituted with the name of the 1st Respondent. These admissions made by the 2nd and 3rd Respondents definitely fortify the case of the Appellant that his name was submitted to INEC as the candidate of the 4th Respondent for the questioned election.
Now, the 4th Respondent did not set up a case of substitution in its Reply to the Appellant’s petition. As rightly said by the Appellant the case of the 4th Respondent upon its pleading, is that the Appellant was never nominated by it as its candidate for the election being questioned. This being the case of the 4th Respondent upon its pleading, it goes without saying that the 4th  Respondent cannot properly make a case of proper or valid substitution of the Appellant at the trial. This is because evidence which is at variance with a party’s pleading goes to no issue. See the case of BAMGBEGBIN V. ORIARE (2009) ALL FWLR (Pt. 484) 1460 at 1479. This is particularly so as the Appellant never set up a case that he was properly substituted in the petition. Likewise it is of no consequence if the fact of proper substitution is procured from the Appellant under cross-examination. This is because facts elicited from cross-examination to be relevant, must relate to pleaded facts. See OKWEJIMINOR V. GBAKEJI (2008) All FWLR (Pt, 409) 405.

It is also trite that a case of proper substitution not being the case of the 4th Respondent before the Tribunal, it is not now open for the said party to canvass such a case on appeal. In any event if the 4th Respondent set up a case of substitution of the Appellant’s name with the 1st Respondent’s name in its Reply to the petition, then a fortiori this is an admission of the aspect of the Appellant’s case that his name was forwarded to INEC. This is because one need not substitute what was never done. The 2nd and 3rd Respondents who set up the case that the Appellant’s name was substituted with that of the 1st Respondent led no evidence in proof of their case on the pleading at the trial. That aspect of their case that did not constitute admission of the Appellant’s case therefore stood abandoned. See BAMGBEGBIN V. ORIARE (supra).
The 4th Respondent submitted to the effect that the case of Ehinlanwo v. Oke (supra) has settled the right of political parties to change their candidates for an election and that the Tribunal has no jurisdiction to inquire into why the Appellant was substituted. I have painstakingly read the case of EHINLANWO V. OKE. It is indeed true that the case decides amongst other that a political party has the unfettered right to nominate or sponsor a candidate it likes for any election and that indeed a political party does not have to nominate the candidate who has the highest votes at its primary as its candidate for an election. It is however to be noted that it was also held in the case that once a candidate had been nominated and his name submitted to INEC within the prescribed time for submission of names, change of the nomination of such candidate cannot be effected except in strict compliance with Section 34(2) of the Electoral Act, 2006.
The Respondents have all submitted to the effect that the Tribunal was right in its finding that the Appellant did not discharge the burden on him to prove that he was the candidate of the 4th Respondent at the election of 21/4/2007.
However from all that has been said above, it would appear that the Tribunal did not properly appreciate the case of the Appellant as set out in the petition vis-a-vis the totality of the evidence before it, as well as the position of the law in respect of the nomination of a political party’s candidate once submitted to INEC. The Tribunal would also appear to have unwitting failed to make appropriate inferences having regard to the totality of the evidence before it vis-a-vis the position of the law as it relates to the issues it set out for its determination in the petition.
The only way the nomination of the Appellant as the 4th Respondent’s candidate in the questioned election could have been changed after his name had been submitted to and accepted by the 3rd Respondent (as admitted by the 2nd and 3rd Respondents) was by substitution done in strict compliance with the provisions of Section 34(2) of the Electoral Act, 2006. As earlier stated the 4th Respondent never claimed it substituted the name of the Appellant at any time, talk less of the substitution having been done in compliance with the dictates of the law. The question of the Tribunal inquiring into the reason for the substitution therefore does not arise. The 2nd and 3rd Respondents would appear to be under the impression that change of the name of a candidate of a political party submitted to them, can be effected for no reason at all once it is done within the period provided for substitution and that they have no choice but to comply when a political party directs or instructs the 3rd Respondent to change or substitute the political party’s candidate. There can be nothing farther from the truth having regard to the case of Ehinlanwo v. Oke and Ugwu v. Ararume (both supra).
I am of the settled opinion that the Tribunal in the appraisal of the respective cases of the parties (particularly that of the Appellant) on the pleadings vis-a-vis the totality of the evidence before it, ended up applying the parameter of determining “candidate” as enunciated in the cases of Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242; and Bob v. Akpan (supra). It has however been stated in the case of INEC V. AC (supra) that the case of Okonkwo V. INEC never interpreted the word “candidate” in the light of section 144(1) of the Electoral Act, 2006. Suffice it to say that if the Tribunal had made the proper inference from the admission of the 2nd and 3rd Respondents that the Appellant’s name was the name of the 4th Respondent’s candidate submitted to the 3rd Respondent first in time and that the name was duly accepted and the Appellant duly screened, the Tribunal would have had no difficulty in finding that the Appellant was the candidate of the PDP for the Ebonyi Central Senatorial District in the election of 21/4/2007, as the totality of the evidence before the Tribunal sufficiently established that his nomination in that respect was never changed as dictated by law. This rendered the Appellant to be the validly nominated candidate of the 4th Respondent in the questioned election. This is so notwithstanding the fact that he was not the candidate of the 4th Respondent at the polls. Indeed the very fact that the Appellant who was the validly nominated candidate of the 4th Respondent for the election being questioned never contested the same at the polls, but rather that it was the 1st Respondent who was not the candidate of the 4th Respondent in the election that did so, is also sufficient proof of the unlawful exclusion of the Appellant at the instance of the 4’th and 3rd Respondents respectively. The findings of the Tribunal that the Appellant was not the candidate of the 4th Respondent in the election and that he was not excluded from the questioned election are therefore wrong.
Again, the finding that the Appellant was the validly nominated candidate of the 4th Respondent in the questioned election eminently also establishes the ground of the petition that the 1st Respondent at the time of the said election was not qualified to contest the same as he was not the nominated candidate of the 4th Respondent for the election. The issue of qualification raised by the Appellant can properly be countenanced by the Tribunal in an election petition and a fortiori by this Court. See KWARRA V. INNOCENT (2009) All FWLR (Pt. 460) 719; and DINGYADI V. WAMAKO (2008) 17 NWLR (Pt.1116)395. And it is for this very reason that the return of the 1st Respondent can properly be questioned on the ground that he was at the time of the election not qualified to contest the same as he was not the candidate of the PDP for the election. The question of the 1st Respondent not being qualified to contest the election as he was not the candidate of the PDP in the election does not qualify as a pre-election matter in the instant petition as it remained a live issue at the time of the election. Indeed it would tantamount to turning the law head-down to say that the Appellant’s petition cannot be countenanced by the Tribunal and this Court and that he should proceed to the regular courts for his remedy having found him in the first place to be a candidate in the election of 21/4/2007.
Indeed the case of the Appellant is not that he actually stood as the candidate of the PDP for the election of 21/4/2007 but that the law deems him to have stood for the said election as the candidate of the PDP because he was the validly nominated candidate of the 4th Respondent who should have stood for the election.
From all that has been said before now, and particularly having earlier found the Appellant to be the validly nominated candidate of the 4th Respondent in the election of 21/4/2007 and that he has successfully established the grounds of his petition it follows that the conclusion of the Tribunal dismissing the Appellant’s petition cannot stand. The return or declaration of a person such as the 1st Respondent who has been found not qualified to contest the questioned election can never be right.
From all that has been said above, I resolve Issue for determination of the appeal as formulated by the Appellant in his favour. Consequently, the judgment of the Tribunal delivered on 13/9/2007 dismissing the petition of the Appellant – Dr. Emmanuel Onwe is hereby set aside.
I have earlier set out in this judgment the relief which the Appellant seeks from this Court.
It would now appear to be settled law that it is political parties that actually contest elections. It is upon that proposition of law as enunciated in the case of Amaechi v. INEC (supra) that the Appellant has apparently premised reliefs (i) – (iii) that he seeks from this Court. The 1st and 4th Respondents respectively have argued to the effect that the said proposition of law can only be invoked by the regular courts and not a Tribunal established for the resolution of election disputes only. I do not see anything in the case of Amaechi V. INEC that restricts the application of the proposition of law in question to the regular court only. Most principles of law that have evolved from the regular courts have been routinely invoked by the Tribunal and this Court in election matters in appropriate circumstances.
Indeed in the case of ONYEKWELI V. INEC (2008) 14 NWLR (pt. 1107) 317 at 373 this Court in applying the case of Amaechi v. INEC (supra) said per Ogunwumiju, JCA thus: –
“In Amaechi v. INEC (supra), the Supreme Court held that there is no room for a person who did not contest in primaries to emerge as party candidate and emphasized the need to enthrone intra-party democracy. The apex court also held that the candidate of a party at an election is deemed to be the person validly nominated by the party and is also deemed to remain so and must be treated as the person who won the election de jure and de facto inspite of whatever INEC may declare. In this instance all the materials needed to declare that the petitioner won the election on the platform of the PDP are before us.
We do so declare. XXXXXXXXXXXXXXXXX”
The Court followed the same trend in the case of OJO V. INEC (2008) Vol. 9 SCLR 107.
The situation in the instant appeal is also such that all materials needed to declare the Appellant who must be treated de jure and de facto as having won the election of 21/4/2007 are before this Court. This being the case, the first three main reliefs which the Appellant seeks in the appeal will be and are hereby granted. Accordingly: –
1. This appeal is allowed.
2. The result, election and return of the 1st Respondent – Senator Julius Ali Ucha for the Ebonyi Central Senatorial election conducted on 21st April, 2007 are hereby nullified.
3. The Appellant – Dr. Emmanuel Onwe is hereby declared as the winner of the Ebonyi Central Senatorial election.
In the light of the above reliefs granted the Appellant particularly as the Certificate of Return issued the 1st Respondent stands nullified the 3rd Respondent is hereby ordered to forthwith issue the Appellant – Dr. Emmanuel Onwe a Certificate of Return as the winner of the Ebonyi Central Senatorial District election.
Appeal succeeds. I make no order as to costs.

AMIRU SANUSI, J.C.A.: I Agree.

OLUKAYODE ARIWOOLA, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, Lokulo-Sodipe, JCA. His Lordship dealt with the salient issues that arose in the appeal meticulously. As a result, I am in agreement with the reasoning and the conclusion of the said judgment. I too consider the appeal meritorious and it is allowed by me. I abide by the consequential orders and also make no order on costs.

 

Appearances

Prince Lateef Fagbemi SAN and Olisa Agbkoba SAN, with C.O.P. Emeka and R. IsamotuFor Appellant

 

AND

Dr. J.O. Ibik SAN with O. Onyekwuluje, O.J. Ibik, and V.O. Amilo
Matthew Ugwuocha
G.O. Okafor SAN with K.O.K. AgbowoFor Respondent

 

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