DR. MICHAEL CHUKWUDUBEM EWII & ANOR. V. PEOPLE DEMOCRACTIC PARTY (PDP) & ORS. (2010)

DR. MICHAEL CHUKWUDUBEM EWII & ANOR. V. PEOPLE DEMOCRACTIC PARTY (PDP) & ORS.

(2010)LCN/4225(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of September, 2010

CA/E/EPT/07/2009

RATIO

STATUTORY PROVISIONS: PROVISION OF ORDER 6 RULE 2 OF THE COURT OF APPEAL RULES 2007 AS REGARDS CONTENTS AND FILING NOTICE AND GROUNDS OF APPEAL

The filing of the Notice and Grounds of Appeal is governed by the provisions of Order 6 Rule 2 of the Court of Appeal Rules 2007 which provides thus:- “All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of Appeal”) to be filed at the registry of the court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of (in the later case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all the parties directly affected by the appeal, and shall be accompanied by sufficient number of copies for service on such parties; and it shall also have endorsed on it an address for service.” PER ABUBAKAR JEGA ABDULKADIR, J.C.A

NOTICE OF APPEAL: ESSENCE OF A VALID NOTICE OF APPEAL

A valid notice of appeal is what animates and sustains an appeal and thus a condition precedent to the Court of Appeal’s exercise of jurisdiction. Put in another way, the notice of Appeal touches on the jurisdiction of the Court of Appeal and for an appeal to be properly commenced, a proper notice of Appeal has to be filed. And the Court of Appeal will decline to adjudicate on an appeal, which is not properly before it. PER ABUBAKAR JEGA ABDULKADIR, J.C.A

NOTICE OF APPEAL : EFFECT OF A DEFECTIVE NOTICE OF APPEAL

The law is settled that Notice of appeal constitutes the foundation and such foundation must be firm and strong enough to hold the appeal. Once the foundation is defective, the appeal will collapse when effectively challenged. A Notice of Appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the Appeal Court lacked the required jurisdiction to entertain it. In Adis Ababa & Anor vs Adeyemi (1976) 12 SC (Reprint) which is on all fours with the present appeal where the Notice of Appeal was headed “In the High Court of Lagos State: In the Ikeja Judicial Division”. The Supreme Court held that the Notice of Appeal is a most disorderly document; it is defective in many respects and incurably so. The Supreme Court went further and states thus:- “In the circumstances, it is quite plain that an appeal can only be initiated by filing of appropriate Notice of Appeal as prescribed under Order VII Rule 2 of the Rules of this court, and since in the present appeal, there has been filed in the court below by the appellants no proper Notice of Appeal in terms of Order VII Rule 2, we hold, to continue the architectural metaphor already employed elsewhere by us in this ruling, that this appeal like a wooden structure has not got off the ground at all. It has defied all attempts to have it erected. There is therefore no peg upon which to hang Order IX Rule 28 because before consideration can be given to the application of that Rule, there must be an appeal properly so called pending before the court. At present there is no appeal properly before this court. The defects as to the Notice of Appeal are so fundamentally incurable that the only reasonable conclusion that can be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out with costs to the respondent assessed and fixed at =N=182.000.” PER ABUBAKAR JEGA ABDULKADIR, J.C.A

ELECTION PETITION: NATURE OF AN ELECTION PETITION PROCEEDING

This appeal arose from an Election Petition and appeals arising therefrom are special in nature. They are neither civil nor criminal proceedings. They are regarded as sui generis – see Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) while non compliance with the relevant rules in civil proceedings can be cured by amendment and may be overlooked, the slightest non compliance with the rules in election petition is fatal to the proceedings. In this regard, this Court in Kallamu vs. Gurin (2003) 16 NWLR (Pt.549) 493 held thus:- “The jurisdiction of an Election Tribunal to deal with election petitions is of very special nature and different from that in an ordinary civil case, the proceedings are special and special provisions are made for them under the constitution such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences. This is why an election petition neither seen as a civil proceedings in the ordinary sense nor as a criminal proceedings. It can be regarded as a proceedings sui generis (Buhari vs Yusuf (2003) 14 NWLR (Pt.541) 446; Onitiri vs. Benson (1960) SCNLR 314; Onyekan vs. Akinjide (1965) NMLR 381; Obih vs. Mbakwe (1984) 1 SCNLR 192 referred to.)” PER ABUBAKAR JEGA ABDULKADIR, J.C.A

PRELIMINARY OBJECTION: EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION

Where a preliminary objection succeeds there would be no need to go further to consider the arguments in support of the issue or issues for determination – see Adelekan vs. ECU-Line MV. (2006) 12 NWLR (Pt.993) 33; NEPA vs. Ango (2001) 15 NWLR (Pt.737) 627; ANPP vs. The Returning Officer, Abia State Senatorial District (2005) 6 NWLR (Pt.920) 140. PER ABUBAKAR JEGA ABDULKADIR, J.C.A

ELECTION PETITION: WHETHER THE DECLARATION OF ELECTION RESULT AND ISSUANCE OF CERTIFICATE OF RETURN ARE DIFFERENT

By law declaration of result and issuance of certificate of Return are different, the declaration of result precedes the certificate of Return and both are governed by different sections of the Electoral Act 2006. Therefore, the issuance of certificate of Return cannot and does not constitute declaration of Result for the purpose of computation of time for the presentation of petition under section 141 of the Electoral Act, 2006. PER ABUBAKAR JEGA ABDULKADIR, J.C.A

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. DR. MICHAEL CHUKWUDUBEM EWII
2. ACTION CONGRESS (AC) Appellant(s)

AND

1. PEOPLE DEMOCRACTIC PARTY (PDP)
2. DR.OKEY UDEH
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 78 ORS. Respondent(s)

ABUBAKAR JEGA ABDULKADIR, J.C.A (Delivering the Leading Judgement): This appeal is against the Ruling of the National Assembly Election Petition Tribunal sitting at Awka; Anambra State delivered on 09/07/2009 in respect of election into the House of Representatives for the Orumba North/South Federal Constituency held on 28/04/2007.
The 1st Appellant (1st Petitioner at the Tribunal below) was the candidate of the 2nd Appellant (2nd Petitioner at the Tribunal below) at the said election, the 2nd Respondent emerged the winner at the primaries conducted by the Peoples Democratic Party (1st Respondent) to select the candidate to be nominated and sponsored to contest the election in the aforesaid Constituency. The name of the 2nd Respondent was therefore forwarded to the Independent National Electoral Commission (INEC, the 3rd Respondent herein) and published at the Local Government level. The publication led to many petitions and litigations challenging the eligibility of the 2nd Respondent to contest the election. In the midst of these imbroglios, the 1st Respondent substituted the name of the 2nd Respondent for one Barrister Handel Okoli on the premise that the name of the 2nd Respondent was submitted to INEC without enough information. The 2nd Respondent challenged his substitution before the competent courts of law.
In the course of protracted litigation before the court of competent jurisdiction, the 3rd Respondent (INEC) on 28th April, 2007 conducted election into the House of Representatives for the Orumba North/South Federal constituency wherein the 1st Respondent (PDP) was declared as the winner of the said election on the 28th April, 2007 vide the INEC Declaration of Result of Election (Form EC8 EII) into the aforesaid seat and constituency.
The Petitioners/Appellants challenged the return of the 1st Respondent (PDP) before the Tribunal, in Anambra State hereinafter referred as “The 1st Tribunal”. The Appellants’ initial petition before the 1st Tribunal was struck out on 26th November, 2007 on ground of its incompetence and lack of jurisdiction of the 1st Tribunal to entertain same. There was no appeal filed by any of the parties against the decision of the 1st Tribunal.
Meanwhile, the dispute regarding the rightful candidate of the 1st Respondent in the said election was finally resolved by the Supreme Court on 06/03/2009 in Ude vs. Okoli (2009) 7 NWLR (Pt.1141) 571 wherein the apex court declared the 2nd Respondent in this appeal the valid candidate of the 1st Respondent (PDP) for the election into the Federal House of Representatives for Orumba North/South Federal Constituency conducted on 28/04/2007. Sequel to this, the 2nd Respondent was issued with a certificate of Return by the Chairman of INEC (3rd Respondent herein) on 06/03/2009.
Following the issuance of the certificate of Return to the 2nd Respondent, the Appellants filed this petition at the Tribunal below. After hearing arguments from parties on an application by the Respondents challenging the competence of the petition and the jurisdiction of the Tribunal to entertain the petition the Honourable Tribunal, in a considered ruling declined jurisdiction to hear the petition on the ground that it is statute barred. This appeal is against that decision.
The appeal was heard on the 23rd June 2010 and in line with the Rules and Practice of this Court, the parties’ duly filed their respective briefs of Argument. Counsel to the 1st Respondent Mr. I. Maledo informed the Court that the 1st Respondent’s brief of argument is dated 28th August 2009 and filed same date; learned counsel adopts the brief of argument and urged the Court to dismiss the appeal. Counsel to the 2nd Respondent Mr. G.O. Okafor, SAN informed the Court that the 2nd Respondent’s brief of argument is dated and filed on 18/9/09 and that they also filed a notice of preliminary objection dated 27/10/09 and filed on 28/10/09 that the preliminary objection is argued on pages 5-7 of the brief of argument and urged the Court to strike out the appeal if the preliminary objection succeeds and dismiss the appeal on the merit. Counsel to the 3rd to 81st Respondents Alhaji S.O. Ibrahim informed the Court that their brief of argument is dated 17/8/09 and filed same date counsel to the 3rd to 81st Respondents adopts the brief of argument and urged the Court to dismiss the appeal.
The Appellants’ brief of argument is dated 8/8/09 and filed on 10/8/09 the Appellant also filed a Reply brief dated 19/8/09 to the 3rd to 81st Respondents’ brief dated 19/8/09 and filed same date, despite service of the hearing notice on the Appellant, the Appellant was not in court to argue his appeal; accordingly by the provisions of Order 12 Rule 9(4) the Appellant is deemed to have argued his appeal.
From the 7 grounds of appeal the Appellant formulated four issues for determination. The issues are stated thus:-
i. “Whether the Tribunal was right in holding as it did that the result of the election into the Orumba North/South Federal Constituency was declared on 28/4/07 when the 1st Tribunal that entertained the case had determined that no such result had been declared for the same Federal Constituency on 28/4/07 which determination or decision has not been set aside or even a subject of an appeal at all.
ii. Whether an election petition filed under the Electoral Act, 2006 on 6/04/09 is statute barred considering a declaration/return made on 6/03/09.
iii. Whether the return made by the Chairman of INEC on 6/3/09 does not constitute a declaration/return in respect of the disputed election since a winner in the election had not emerged before that date.
iv. Whether a petitioner who did not find a Tribunal Secretariat at which to file their election petition could be said to be out of time in filing of an election petition when they filed it on the day a Tribunal Secretariat was opened for business.”
The 1st Respondent submitted two issues for determination. The issues are:-
(a) “Whether the issuance of a certificate of return to a candidate amounts to the declaration of the result of an election for the purpose of presenting an election petition.
(b) Whether the Tribunal was right to hold that this Petition is statute barred.”
The 2nd Respondent adopted the issues for determination formulated by the Appellants.
The 3rd to 81st Respondents formulated three issues for determination. The issues are stated thus:-
(1) “Whether the Honourable Tribunal was not right in refusing to assume jurisdiction to entertain the Appellant’s petition having found that the petition was filed outside the statutory period and coupled with the finding that there was no appeal filed 1st against the decision of the Ist Tribunal. (2) Whether an election petition filed under the Electoral Act 2006 on 6/4/09 is statute barred considering a declaration/return made on 6/3/09.
(3) Whether the certificates of return issued by the Chairman of INEC on 6/3/09 constitute a declaration or return as regard the disputed election.”
The issues submitted by the parties are almost similar but coined in different words. It is my firm view that from the circumstances of this appeal two issues can effectively dispose of the appeal and the issues are stated thus:-
1. “Whether the Honourable Tribunal was not right in refusing to assume jurisdiction to entertain the Appellants’ petition having found that the petition was filed outside the statutory period and coupled with the finding that there was no appeal filed against the decision of the 1st Tribunal.
2. Whether the certificate of return issued by the Chairman of INEC on 6/3/09 constitutes a declaration or return as regards the disputed election.”
In the instant appeal learned counsel to the 2nd Respondent G. Ofodile-Okafor, ESQ, OON, SAN filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007. The Notice of Preliminary Objection is dated 27th October, 2009 and filed on 28th October, 2009. The Notice of Preliminary Objection is also incorporated in the 2nd Respondent’s brief of argument at page 5 of the said brief. Submissions in respect of the Notice of Preliminary Objection are contained in pages 5-7 of the said brief of argument.
The Notice of Preliminary Objection as filed and contained in the brief of argument read thus:-
“NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER 10 RULE 1 COURT OF APPEAL RULES 2007.
TAKE NOTICE that at the hearing of this appeal, the 2nd Respondent shall by preliminary objection urge the court to strike out the appeal for being incompetent.
The grounds of the objection are:-
(i) The Notice of Appeal is incurably defective having been headed “In the National Assembly” “Election Petition Tribunal” “Holden at Awka”.
(ii) Particulars of Ground of Appeal No. 1 are not related to the complaint in the ground,
(iii) Ground of Appeal No. 1 was not argued in the brief and therefore deemed as abandoned.”
In moving the Notice of Preliminary Objection, learned senior counsel for the 2nd Respondent submits that the Notice and Grounds of Appeal is at pages 129 to 137 of the record of proceedings. It is headed “In the National Assembly Election Petition/Tribunal Holden at Awka”. Order 6 Rule 2 of the Court of Appeal Rules 2007 provides that:-
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the Notice of appeal) to be filed at the Registry of the Court below”
The Notice and Grounds of Appeal shall be in Civil Form 3 of the 1st Schedule to the Court of Appeal Rules. The Civil Form 3 is headed “In the Court of Appeal” reference made to B340 of the Court of Appeal Rules, 2007.
Learned senior counsel for the 2nd Respondent submits that what is contained at page 129 of the record is headed at “In the National Assembly Election Petition Tribunal, Holden at Awka” and not before the Court of Appeal Enugu Judicial Holden at Enugu. Further the Notice does not show who is the appellant, though 81 Respondents were listed. There is nothing on the notice to indicate who the petitioners at the lower Tribunal were. At pages 136 of the record, the Petitioners/Appellants are not indicated except their counsel one Steve Unachukwu Esq. On the legal effect of these defects, learned senior counsel for the 2nd Respondent argues that Notice and Grounds of Appeal constitute the foundation of any appeal and such foundation must be firm and strong enough to hold the appeal. That once the foundation is defective, the appeal will collapse when effectively challenged. Reference made to Abiola vs. Olanoye (2006) 13 NWLR (Pt.996)1 at 18 para E – that a Notice of appeal is the foundation and substratum of every appeal and any defect thereto or therein will render the whole appeal incompetent and the Appeal Court lack the required jurisdiction to entertain it. Reference made to Uwazurike vs. A-G Federation (2007) 8 NWLR (Pt.1035) 1 at 17 para B; Adelekan vs. ECU-Line MV (2006) 12 NWLR (Pt.993) 35 at 47-48 paras HA; N.N.B. Plc vs. Denclag Ltd (2005) 4 NWLR (Pt.916) 549. That in the case of Adis Ababa & Anor vs. Adeyemi (1976) 12 SC (reprint) 34 at 39-40 the Supreme Court held that the defects as to Notice of Appeal are so fundamentally incurable and the appeal incompetent. But the Supreme Court in the case of Ekpewibe vs. The State (1982) 6 SC 1 at 2 despite the defect in the heading, the Supreme Court dealing with a case of capital punishment ordered the case be remitted to the Court of Appeal for hearing on the merit. Learned senior counsel for the 2nd Respondent submits that Election petitions and appeals arising therefrom are special in nature. They are neither civil nor criminal proceedings. They are regarded as sui generi – reference made to Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 that while non compliance with the relevant rules in civil proceedings can be cured by amendment and may be overlooked, the slightest non-compliance with the rules in election matter is fatal to the proceedings. Reference made to Kallamu vs. Gurin (2003) 16 NWLR (Pt.847) 493.
It is submitted for the 2nd Respondent that since the Notice of Appeal is incurably defective, this Honourable Court has no jurisdiction to entertain same and the court has no alternative than to strike out the appeal. Further, where a preliminary objection succeeds, there would be no need to go further to consider the arguments in support of the issue or issues for determination. Reference made to ANPP vs. The Returning Officer, Abia State Senatorial District (2005) 6 NWLR (Pt.920) 140; Adelekan vs. ECU Line MV (supra) 58 para F.
The second objection is based on the fact that ground of Appeal No.1 at pages 131 to 133 of the record is deemed abandoned. Firstly, the particulars of error are not related to the complaint in the appeal. The complaint relates to two issues i.e. whether the petition was indeed filed on 6/3/09 and whether the period 28/4/07 to 06/04/09 is indeed one year, ten months and eight days or 673 days. The insertion of 6/3/09 is no doubt an accidental slip which was immediately corrected in the preceding sentence, that there is no dispute that the petition was filed on 6/4/2009. Further, it is contended for the 2nd Respondent that the law is that an issue for determination must be based on the complaint in the ground and not on the particulars as the particulars cannot be argued as separate ground of appeal. Reference made to Stirling Civil Engineering Nig. Ltd. Vs Yahaya (2005) 4 SC, 124 at 136 paras 5-6.
That the arguments in paragraph 3.02 to 3.20 at pages 6 to 13 of the Appellants’ brief does not relate to the core issue raised i.e. whether the petition filed on 6/4/09 was statute barred. That the arguments in issue one does not relate to the ground of appeal. It is therefore deemed as abandoned and liable to be struck out.
The Appellants through their learned counsel did not file any reply to the submissions of the learned counsel to the 2nd Respondent on the Notice of Preliminary Objection dated 27th October 2009 and filed on 28th October, 2009.
The first ground of objection is that the Notice of Appeal is incurably defective, having been headed –
“In the National Assembly”
“Election Petition Tribunal”
“Holden at Awka.”
The Notice and Grounds of Appeal is at pages 129 to 137 of the record of proceedings and certainly it is headed –
In the National Assembly Election Petition Tribunal
Holden at Awka.
The filing of the Notice and Grounds of Appeal is governed by the provisions of Order 6 Rule 2 of the Court of Appeal Rules 2007 which provides thus:-
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of Appeal”) to be filed at the registry of the court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of (in the later case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all the parties directly affected by the appeal, and shall be accompanied by sufficient number of copies for service on such parties; and it shall also have endorsed on it an address for service.”
The Civil Form 3 is headed “in the Court of Appeal” this can clearly be seen at page B340 of the Court of Appeal Rules 2007. A person desiring to appeal to the Court of Appeal gives notice of appeal. The appropriate Form for notice of Appeal is the Civil Form 3. A valid notice of appeal is what animates and sustains an appeal and thus a condition precedent to the Court of Appeal’s exercise of jurisdiction. Put in another way, the notice of Appeal touches on the jurisdiction of the Court of Appeal and for an appeal to be properly commenced, a proper notice of Appeal has to be filed. And the Court of Appeal will decline to adjudicate on an appeal, which is not properly before it.
What is contained at page 129 of the record is headed at “In the National Assembly Election Tribunal, Holden at Awka” and not before the Court of Appeal, Enugu Judicial Division, Holden at Enugu. Who were the Appellants? The Notice does not show who the Appellants were as required by the provisions of Order 6 Rule 2 of the Court of Appeal Rules 2007 and the mandatoiy contents of Civil Form 3 of the Court of Appeal Rules, 2007. At page 136 of the record, the Petitioners/Appellants are not indicated except their counsel one Steve Unachukwu ESQ. The above mentioned defects are clear and apparent on the Notice of Appeal filed to maintain the instant appeal. The next logical question is what is the legal effect of these defects? The law is settled that Notice of appeal constitutes the foundation and such foundation must be firm and strong enough to hold the appeal. Once the foundation is defective, the appeal will collapse when effectively challenged. A Notice of Appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the Appeal Court lacked the required jurisdiction to entertain it. In Adis Ababa & Anor vs Adeyemi (1976) 12 SC (Reprint) which is on all fours with the present appeal where the Notice of Appeal was headed “In the High Court of Lagos State: In the Ikeja Judicial Division”. The Supreme Court held that the Notice of Appeal is a most disorderly document; it is defective in many respects and incurably so. The Supreme Court went further and states thus:-
“In the circumstances, it is quite plain that an appeal can only be initiated by filing of appropriate Notice of Appeal as prescribed under Order VII Rule 2 of the Rules of this court, and since in the present appeal, there has been filed in the court below by the appellants no proper Notice of Appeal in terms of Order VII Rule 2, we hold, to continue the architectural metaphor already employed elsewhere by us in this ruling, that this appeal like a wooden structure has not got off the ground at all. It has defied all attempts to have it erected. There is therefore no peg upon which to hang Order IX Rule 28 because before consideration can be given to the application of that Rule, there must be an appeal properly so called pending before the court. At present there is no appeal properly before this court. The defects as to the Notice of Appeal are so fundamentally incurable that the only reasonable conclusion that can be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out with costs to the respondent assessed and fixed at =N=182.000.”
In the instant appeal, it is beyond dispute that the Notice of Appeal filed does not conform with the provisions of Order 6 Rule 7 of the Court of Appeal Rules and the contents of the Civil Form 3 of the 1st Schedule to the Court of Appeal Rules 2007. This appeal arose from an Election Petition and appeals arising therefrom are special in nature. They are neither civil nor criminal proceedings. They are regarded as sui generis – see Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) while non compliance with the relevant rules in civil proceedings can be cured by amendment and may be overlooked, the slightest non compliance with the rules in election petition is fatal to the proceedings. In this regard, this Court in Kallamu vs. Gurin (2003) 16 NWLR (Pt.549) 493 held thus:-
“The jurisdiction of an Election Tribunal to deal with election petitions is of very special nature and different from that in an ordinary civil case, the proceedings are special and special provisions are made for them under the constitution such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences. This is why an election petition neither seen as a civil proceedings in the ordinary sense nor as a criminal proceedings. It can be regarded as a proceedings sui generis (Buhari vs Yusuf (2003) 14 NWLR (Pt.541) 446; Onitiri vs. Benson (1960) SCNLR 314; Onyekan vs. Akinjide (1965) NMLR 381; Obih vs. Mbakwe (1984) 1 SCNLR 192 referred to.)”
As stated earlier on in this judgment, the Notice of Appeal filed was not done in strict compliance with the provisions of Order 6 Rule 2 of the Court of Appeal Rules 2007 and Civil Form 3 of the 1st Schedule to the Court of Appeal Rules in that it was not headed “In the Court of Appeal” but was rather headed “In the National Assembly Election Petition Tribunal, Holden at Awka,” and the names of the Appellants who were the Petitioners before the lower Tribunal was not stated, this non compliance makes the Notice of Appeal incurably defective and deprive this Court of jurisdiction to entertain same. The Notice of Preliminary Objection therefore succeeds and it is hereby sustained. Where a preliminary objection succeeds there would be no need to go further to consider the arguments in support of the issue or issues for determination – see Adelekan vs. ECU-Line MV. (2006) 12 NWLR (Pt.993) 33; NEPA vs. Ango (2001) 15 NWLR (Pt.737) 627; ANPP vs. The Returning Officer, Abia State Senatorial District (2005) 6 NWLR (Pt.920) 140.
The proper order to make in this regard is to strike out the appeal. Accordingly, the appeal is struck out for being incompetent.
In any event even though I have ruled that this appeal is incompetent on the basis that it was predicated on a Notice of Appeal which is incurably defective, I still consider the merit of the appeal summarily for whatever it is worth.
The main contention of the Appellant is that the Certificate of Return issued by the Chairman of INEC on 6/3/09 constitutes a declaration or return as regard the disputed election.
In spite of the facts of this case, the law is very clear on what constitute declaration of result of an election which will enable a prospective-petitioner to present a petition before an appropriate Tribunal.
Section 70 of the Electoral Act, 2006 gives an insight into formal made of declaring the result of an election. It states:-
Section 70: – In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each Candidate and subject to the provision of sections 133, 134 and 179 of the Constitution, the Candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.
Also under section 28 of the Electoral Act, 2006, election result for a Federal Constituency such as the case at hand shall be declared by the Returning Officer Section 28(2)(e) states:-
Results of all the elections shall be announced by the Returning Officer at the Federal Constituency collation centre.
This Court in IYIRHIARO V. USOH (1999) 4 NWLR (pt. 592) 41, held that the announcement of an election result in the prescribed mode is the common denominator for the purpose of computing the time limit for filing a petition.
In the instant matter it is beyond any dispute that the result of the election was declared on the 28/04/2007 by the Constituency Returning Officer Mr. Celestine Ogben as clearly attested by Declaration of result form EC8E(ii). Therefore, in law the declaration of result issued by the Returning Officer for Orumba North and South Federal Constituency is conclusive proof of the winner at that election.
The supreme Court of Nigeria on the 6/03/09 declared the 2nd Respondent as the authentic Candidate for the PDP at the election held on the 28/4/2007 and the INEC Chairman on the same date issued a Certificate of Return to the 2nd Respondent who was subsequently sworn in as a member of the Federal House of Representative representing Orumba North and South Federal Constituency.
By law declaration of result and issuance of certificate of Return are different, the declaration of result precedes the certificate of Return and both are governed by different sections of the Electoral Act 2006. Therefore, the issuance of certificate of Return cannot and does not constitute declaration of Result for the purpose of computation of time for the presentation of petition under section 141 of the Electoral Act, 2006.
As stated earlier, it is beyond dispute that the result of the election was declared on 28/04/2007 and the petition the subject matter of this appeal was presented on 6/4/2009 by far more than 30 days as stipulated by section 141 of the Electoral Act, 2006, the petition is therefore statute barred.
On the other hand even if it is assumed that the result of the Orumba North/South Federal Constituency was declared by the issuance of the certificate of return on 6/3/2009, which anyway is not what the law provides, time starts to run on that date for the filing of the election petition filed on 6/4/2009, which is clearly outside the 30 days required under section 141 of the Election and the petition is still statute barred.
On the merit of this purported Appeal, I find wholly that it is lacking in merit and it is accordingly dismissed.
Taking into cognizance the circumstances of this matter I make no order as to costs.
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HELEN MORONKEJI OGUNWUMIJU,Â Â J.C.AÂ Â : I have read the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR JCA and I agree with the conclusions reached therein and the order as to costs.

MOJEED ADEKUNLE OWOADE,Â Â JCAÂ Â :Â Â I read in advance the judgment just delivered by my learned brother, Jega Abdul-Kadir, JCA. I agree with his conclusion that in the final analysis the appeal should be dismissed.
This is an appeal against the Ruling of the National Assembly Election Petition Tribunal sitting at Awka, Anambra State delivered on 09/07/09 in respect of election into the House of Representatives for the Orumba North/South Federal Constituency held on 28/04/07.
The 1st appellant) 1st petitioner at the tribunal below) was the candidate of the 2nd appellant (2nd petitioner at the tribunal below) at the said election.
Prior to the election, there was a dispute between the 2nd respondent and one Barrister Handel Okoli as to who was the rightful and/or validly nominated candidate of the 1st respondent (PDP) for the election. The election was conducted on 28/04/07 and at the conclusion of the exercise, apparently because of the pending case on who between the 2nd respondent and Barrister Handel Okoli was the rightful candidate for 1st respondent (PDP) the 1st respondent (PDP) and not a particular candidate was declared the winner of the election by the 81st respondent in the Declaration of Result Form EC8E (II) on 28/04/07.
Following the declaration of result, the appellants filed petition No. EPT/AN/HR/35/2007 challenging the result of the election in compliance with the provisions of section 141 of the Electoral Act, 2006. Upon hearing arguments from parties on an application by the respondents in that petition, the Honourable Tribunal struck out the appellants’ petition on the ground inter alia “that no person has been declared as the winner of the election and therefore no cause of action has arisen in this petition”.
Meanwhile, the dispute regarding the rightful candidate of the 1st respondent in the said election was finally resolved by the Supreme Court on 06/03/09 in Udeh vs. OkoH (2009) 7 NWLR (Pt. 1141) 571, wherein the apex court declared the 2nd respondent in this appeal the rightful candidate of the 1st respondent (PDP) for the election into the Federal House of Representatives for the Orumba North/South Federal Constituency conducted on 28/04/07. Sequel to this, the 2nd respondent was issued with a Certificate of Return by the Chairman of INEC (3rd respondent herein) on 06/03/09.
Following the issuance of the certificate of return to the 2nd respondent, the appellants filed this petition at the tribunal below. After hearing arguments from parties on an application by the respondents challenging the competence of the petition and the jurisdiction of the tribunal to entertain the petition, the Honourable Tribunal, in a considered Ruling, declined jurisdiction to hear the petition and struck out the petition on the ground that it is statute barred. This appeal is against that decision. Appellants’ Notice of Appeal containing 7 (seven) grounds of appeal dated 23/7/09 was filed on the same day.
The following briefs of arguments are relevant for the determination of this appeal.
1. Appellants’ Brief of Argument dated 8/8/04 – settled by Steve Unachukwu, Esq.
2. 1st Respondent’s Brief of Argument dated 28/8/09 and filed on the same day – settled by Ikechukwu Maledo, Esq.
3. 2nd Respondent’s Brief of Argument incorporating Notice of Preliminary Objection dated 18/9/09 and filed on the same day – settled by G. Ofodile Okafor, (SAN).
4. 3rd – 81st Respondents’ Brief of Argument dated 17/8/09 and filed on the same day – settled by S. O. Ibrahim, Esq.
5. Appellants’ Reply on points of Law to the 3rd – 81st Respondents’ Brief of Argument dated 19/8/09 and filed on the same day – settled by Steve Unachukwu, Esq.
The appellants’ nominated the following issues for determination:
“1. Whether the Tribunal was right in holding as it did that the result of the election into the Orumba North/South Federal Constituency was declared on 28/4/07 when the 1st Tribunal that had entertained the case had determined that no such result had been declared for the same Federal Constituency on 28/4/07 which determination or decision has not been set aside or even a subject of an appeal at all – Ground 1.
2. Whether an election petition filed under the Electoral Act, 2006 on 6/04/09 is statute barred considering a declaration/return made on 6/03/09 – Grounds III, V and VI.
3. Whether the return made by the Chairman of INEC on 6/3/09 does not constitute a declaration/return in respect of the disputed election since a winner in the election had not emerged before that date – Ground II.
4. Whether a petitioner who did not find a Tribunal Secretariat at which to file their election petition could be said to be out of time in filing of an election petition when they filed it on the day a tribunal secretariat was opened for business – Ground IV.”
The 1st respondent nominated the following issues for determination:
“1. Whether the issuance of a certificate of return to a candidate amounts to the declaration of the result of an election for the purpose of presenting an election petition. (Grounds 2 and 7).
2. Whether the tribunal was right to hold that this petition is statute barred. (Grounds 1, 3, 4, 5, 6 and 7).”
The 2nd respondent raised a preliminary objection and in addition nominated the following issues for determination:
“1. Whether the lower tribunal was wrong in holding that the result of election into Orumba North and South Federal Constituency was declared on the 28/4/07, despite an earlier Ruling by the Ist Tribunal that no result was declared on the 28/4/07 – Ground 1.
2. Whether the Certificate of Return issued to the 2nd respondent by Chairman of INEC on the 6/3/09 constitutes a declaration of result and if the answer is in the negative, whether a petition filed on the 6/4/09 is not statute barred. Grounds II, III, V and VI.
3. Whether the lower tribunal had the jurisdiction to hear election petition presented on the 6/4/09. Grounds IV and VII.”
The 3rd – 81st respondents commend the following issues for determination:
“1. Whether the Honourable Tribunal was not right in refusing to assume jurisdiction to entertain the appellants’ petition having found that the petition was filed outside the statutory period and coupled with the finding that there was no appeal filed against the decision of the 1st Tribunal. Grounds 1 and 4. :
2. Whether an election petition filed under the Electoral Act, 2006 on 6/4/09 is statute barred considering a declaration/return made on 6/3/09. Grounds 3, 5 and 6.
3. Whether the Certificate of Return issued by the Chairman of INEC on 6/3/09 constitutes a declaration of return as regards the disputed election.”
The 2nd respondent, by way of preliminary objection has urged this court to strike out the appeal for incompetence.
The grounds of the objection are:
“(i) The Notice of Appeal is incurably defective, having been headed “In the National Assembly” “Election Petition ‘ Tribunal” Holden at Awka”.
(ii) Particulars of Ground of Appeal – No. 1 are not related to the complaint on the ground.
(iii) Ground of Appeal No. 1 was not argued in the brief and therefore deemed as abandoned and liable to be struck out.”
On the first ground of objection, learned senior counsel for the 2nd respondent submitted that what is contained at page 129 of the record is “In the National Assembly Election Petition Tribunal, Holden at Awka” and not before the Court of Appeal Enugu Judicial Division Holden at Enugu”. Also, that at page 136 of the record the names of the petitioners/appellants are not indicated but only the name and address of counsel to the appellants is shown in that column.
Learned senior counsel for the 2nd respondent submitted that the legal effects of these defects in the Notice of Appeal is that the foundation of the appeal is defective and the appeal must collapse. He relied on the cases of Abiola vs. Olawoye (2006) 13 NWLR (Pt. 996) 1 at 18, Uwazurike vs. A-G. Federation (2007) 8 NWLR (Pt. 1035) 1 at 17, Adelekan vs. Ecu-line MV (2006) 12 NWLR (Pt. 993) 33 at 47 – 48 and NNB Plc vs. Denclay Ltd. (2005) 4 NWLR (Pt. 916) 549. Counsel submitted that since the Notice of Appeal is incurably defective this court has no jurisdiction to entertain the same and has to strike out the appeal.
The second ground of objection said counsel to the 2nd respondent is based on the fact that ground of appeal No. 1 at pages 131 to 133 of the record is deemed abandoned. First, because, the particulars of error are not related to the complaint in the appeal. Also, the complaint relates to two issues that is, whether the petition was indeed filed on 6/3/09 {sic) 6/4/09 and whether the period 28/4/07 to 6/4/09 is indeed one year, ten months and eight days or 673 days. Counsel relied on the case of Stirling Civil Engineering Nig. Ltd. vs. Yahaya (2005) 4 SC 124 at 136 and submitted that the law is that an issue for determination must be based on the complaint in the ground and not on the particulars as the particulars cannot be argued as separate ground of appeal.
Learned senior counsel for the 2nd respondent submitted further that the arguments in paragraphs 3.02 to 3.20 at pages 6 to 13 of the Appellants’ Brief does not relate to the core issue raised which is whether the petition filed on 6/4/09 was statute barred. That, the arguments in issue one does not relate to the ground of appeal, it is therefore deemed as abandoned and liable to be struck out. The observations of the learned senior counsel for the 2nd respondent in relation to the two grounds of preliminary objection are valid.
However, from the facts and circumstances of the case, none of the observations is sufficiently substantial as to prejudice the case of the appellants to be seriously countenanced as affecting the substance of this appeal. In particular, in the case of the second ground of objection, the appellants’ ground No. 1 of the Notice of Appeal can stand on its own even without the ‘particulars’ stated thereunder. Also, the three sets of respondents in this appeal have themselves found it convenient to formulate issues based on appellants’ ground No. 1 of the Notice of Appeal.
In the circumstances, the lapses by the learned counsel for the appellants in relation to the Notice of Appeal could be treated as mere irregularities. In the case of Clev Josh Ltd. & 2 Ors. vs. Elder Qlaniran Ifeoluwa Tokimi & 3 Ors. (2008) 13 NWLR (Pt. 1104) 422 at 440 – 441, Gumel, JCA, who delivered the lead judgment of the Court of Appeal (Benin Division) followed the decision of the Supreme Court in the case of Surakatu vs. Nigeria Housing Development Society Ltd. & Anor. (1981) 4 SC 26, to hold that a wrongly headed notice of appeal may be allowed in order to do substantive justice by hearing the appeal on the merits.
Also, in Nwani vs. Buhari (2005) All FWLR (Pt. 281) 1803, a notice of appeal that did not fully comply with Order 3 Rule 2(1) of the Court of Appeal Rules, 2002, in that the names of all the parties directly affected by the appeal and their addresses were not contained in the notice of appeal, as only the names and addresses of the respondents were contained therein and address of the appellants were not included was held to be a mere irregularity that can be condoned.
In relation to the 2nd ground of objection the judgment of the Court of Appeal (Port Harcourt Division) in Joel Anode vs. Samuel Mmeka (2008) 10 NWLR (Pt. 1094) 1 at 14 is instructive. In that case, Saulawa, JCA, who delivered the lead judgment had this to say:
“However, even though it is necessary and desirable for an appellant to relate the issues formulated for determination in the brief to the relevant grounds of appeal, failure to comply with that requirement or principle may not always result in such issues being struck out for incompetence. An exception to the general rule is where in the opinion of the court, such issues can validly and conveniently be distilled from the grounds of appeal. This is with a view to do substantial justice which is the preoccupation of the courts.”
The above quotation by Saulawa, JCA, in the case of Anode vs. Mmeka (supra) which emphasizes the greater need for our courts to do substantial justice indeed derived from the judgment of the Supreme Court per Onnoghen, JSC, in the case of Alimi Akanbi Dada vs. Chief Jonathan Dosunmu (2006) 18 NWLR (Pt. 1010) 134 at 156, where Onnoghen, JSC, further expressed his feelings thus:
“In such a situation the court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties which is the preoccupation of the court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution of the nation. I am a firm believer in the principles of substantial justice at the expense of justice according to technicalities or formality. In certain appropriate cases, the courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by learned counsel for the appellant are found to be either inadequate or grossly or fundamentally defective.”
In the light of the above, the two grounds of objection contained in the Notice of Preliminary Objection of the 2nd respondent are accordingly overruled.
This appeal will be decided on the issues formulated by the learned counsel for the appellants. In so doing, the case of the appellants shall be placed on one side of the scale and the case of the three sets of respondents that is 1st respondent, 2nd respondent and the 3rd – 81st respondents shall be placed on the other side of the scale as “the respondents” case. This is because of the shared common interest in the case of the respondents and also for reasons of convenience.
On Issue No. 1, learned counsel for the appellants submitted that in the earlier Election Petition before the 1st Tribunal i.e. Petition No. EPT/AN/HR/35/2007, the respondents who had in that petition contended successfully that as at 16/11/07 when they filed the objection, that the INEC had not declared any result for the Orumba North/South Federal Constituency, were the same persons who in the petition subject of the present appeal i.e. EPT/AN/NAE/HR/01/09 made a complete “volte face” to raise an objection again and said this time that the result in the same disputed election of Orumba North/South Federal Constituency had been declared since 28/4/07,Â Â thus “speaking from both sides of their mouth as it were”.
Counsel submitted that the petitioners/appellants had in their counsel’s argument contained at page 113 of the record, reminded the learned trial tribunal that the 1st Tribunal had in EPT/AN/HR/35/2007 (supra) found that no candidate had been declared or returned as winner of the election to the House of Representatives for Orujnba North/South Federal Constituency, Anambra State and consequently that the petition in that matter was incompetent and premature having been filed at a time when no result had been declared. But that in spite of all these, the learned trial tribunal still went on to hold that:
“This petition was filed on the 06/04/09. The earlier one filed in May 2007 was struck out by the 1st Tribunal on 26/11/07. There is no appeal filed against the decision of the 1st Tribunal. As we found else where in this Ruling, the result of the election into the Orumba North/South Federal Constituency was declared on the 28/04/07,.from 28/04/07 – 06/04/09 is a period of one year, ten months and eight days or approximately six hundred and seventy-three days (673) days. In our view therefore, this petition was filed outside the thirty (30) days period prescribed by section 141 of the Act, and we so hold.”
The question then, according to appellants’ counsel is, the learned tribunal having found that the 1st Tribunal’s judgment was not appealed against, does that not count in favour of the petitioners/appellants? Since the decision of that 1st Tribunal was to the effect that no result of the election had yet been declared as at 28/4/07 and even up to 26/11/07 when the Ruling of the 1st Tribunal was delivered.
Appellants’ counsel relied on the cases of Okonkwo vs. INEC (2004) 1 NWLR (Pt. 854) 242, Ibrahim vs. Emein (1996) 2 NWLR (Pt. 430) 322 at 324 and submitted that the decision of the 1st Tribunal having not been set aside through the process of appeal remains valid, extant and binding on the parties and so long as it exists the decision must be obeyed.
Indeed, said counsel, not even the trial tribunal below could set aside the above decision of the 1st Tribunal since both tribunals are to all intents and purposes courts of co-ordinate jurisdiction or the same court or tribunal. It is only the Court of Appeal that can set aside any of the tribunal’s decision
Learned counsel for the appellants then relied on the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006 and section 144(1) and (2) of the Act to strengthen the position that cause of action in an election petition cannot arise until a candidate is declared a winner of the election and returned as such. Counsel submitted that from the combined reading of the above provisions, it is clear that a candidate or person sponsored by a political party is different from the political party itself for the purpose of presenting a valid election petition. That, without a candidate or a human person being returned as a winner of an election, a cause of action cannot arise for a valid election to be presented.
Counsel submitted that the implication of the above provisions is that joinder of parties for a valid election petition is a statutory matter. It is not an issue of common law which is governed by procedural law. Appellants’ counsel cited the cases of Buhari vs Yusuf (2003) 14 NWLR (Pt. 841) 446, Wike vs. Icheowo (1999) 4 NWLR (Pt. 600) 618 and relied specifically on the case of Kalu vs. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1 at 14, where it was held that PDP did not contest the election and certainly was not petitioned against as the person duly elected.
in response to Appellants’ Issue No. 1, the respondents submitted that when the appellants filed Petition No. EPT/AN/HR/35/2007 within the time limited by section 141 of the Electoral Act, 2006, and in compliance with other provisions of the Electoral Act, 2006, on the form, mode and manner of presenting an election petition, they had tacitly admitted that there was in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to succeed. Consequently, time for presenting the petition began to run on that date.
Given this backdrop, said the respondents, it becomes increasingly futile for the appellants to maintain that the result of the election was not declared on 28/04/09. The poser for the appellants, said the respondents is if the result had not been declared, how did they know that they had lost the election in order to challenge the result of the election?
Counsel for the respondents differs from the appellants’ position that they (the respondents) could have appealed against the Ruling of the 1st Tribunal. Respondents contend that the appellants are the ones who would suffer if the findings of the 1st Tribunal remain unchallenged.
Counsel for the respondents further contends that it has always been the law, that where there is a dispute arising from oral and written document, the written document must be used as the hanger on which the truth lies. That, the Declaration of Result issued by the returning officer of INEC on 28/4/2007 leaves no doubt as to when the result was declared. The certificate of Return issued by INEC Chairman on 6/3/2009 confirmed the validity and conclusiveness of the election held on 28/4/2007 – Ukpo vs. Nwoke (2009) 1 NWLR (Pt. 1121) 90 at 142.
Respondents’ counsel referred to the cases of Amaechi vs INEC (2008) 5 NWLR (Pt 1080) 227 at 317 – 318 and Odedo vs. INEC. (2008) 17 NWLR (Pt. 1117) 554 at 647 and submitted that it is settled law that a political party rather than individual candidates is the owner of votes cast at an election. On this, respondents counsel quoted with emphasis from the judgment of the apex court in Odedo vs INEC (supra) at 647, where it was held that:
“Candidates in an election are sponsored by political parties it is the political party that participated in the conduct of an election that is the winner or the loser and not the candidates sponsored by the political parties. Sometimes the goodwill of a candidate being sponsored in an election may contribute to the victory of the political party in an election. Section 221 of the Constitution of the Federal Republic of Nigeria does not recognize an independent candidate contesting in elections.”
Counsel for the respondents referred to the provisions of Section 144(1) of the Electoral Act 2006 which provides that:
“An election petition may be presented by one or more of the following persons:
(a) A candidate in an election.
(b) A political party which participated in the election.”
And submitted that conversely and by necessary implication, an election petition may be presented against a candidate in an election or a political party which participated in the election.
This interpretation, said respondents’ counsel commends itself when Section 141(1) of the Electoral Act, 2006 is read in conjunction with the decision of the Supreme Court in Amaechi vs. INEC (supra) and other cases decided along the same line to the effect that it is a political party, and not a candidate, that wins or loses an election. The appellants said, respondents’ counsel had the option of proceeding solely against the PDP, 1st respondent herein.
Learned counsel for the respondents submitted that what it means when the lower tribunal held that the result of the election was declared on 28/4/2007 is that, in the eyes of the law, based on decided authorities, the fact that the dispute over the validly nominated candidate for PDP was still unresolved at the time of the declaration of the result of the election is immaterial to the presentation of a petition challenging the election. And, that a petitioner who wishes to challenge the result of the election can proceed against the political party declared the winner.
There are one or two misconceptions by the appellants in relation to their Issue No. 1. The first is the belief of the appellants that the Ruling of the 1st tribunal necessarily binds the trial Tribunal. The second, perhaps related to the first is the belief of the appellants that the respondents and not themselves were the ‘aggrieved’ party who should have appealed in respect of the Ruling of the 1st Tribunal. The decisive point in Issue No. 1 which the learned counsel for the appellants deliberately avoided is that courts of concurrent jurisdiction are not bound to follow the decision of each other. See Omage, JCA, in Anieke vs. Okolie (2009) 9 NWLR (Pt. 1147) 630 at 642. The remedy of the appellants in the instant case would indeed have been to appeal the decision of the 1st Tribunal which held against them. See e.g. Olutola vs. University of Ilorin (2004) 11 – 12 SC 214 at 228.
Regarding the judgment of the 1st Tribunal, the lower tribunal starting from page 123 of the record has this to say:
“The petitioners have argued that there was no candidate who was declared as winner of the April 28th election. This was perhaps the basis inter alia on which Petition No. EPT/AN/NAE/HR/35/2007 was struck out on 26/11/07. It is however agreed by both the petitioners and the respondents that there is no appeal against the ruling of the 1st Tribunal of 26/11/07. It should be noted also that by the certified true copies of Form EC8E (II) attached to the 2nd and 3rd – 81st respondents’ motion papers, PDP was declared winner of that election having polled the highest number of votes (78,646) as against the petitioners, 6,187 votes.”
And after quoting the provisions of section 221 of the 1999 Constitution and from the judgment of Oguntade, JSC, in the case of Amaechi vs. INEC (supra) the lower tribunal further held at pages 125 – 126 as follows:
“From the foregoing, it is clear that votes cast at an election are more for political parties than for candidates.
By the results declared on 28/4/07 PDP was declared the winner of the elections into the Orumba North/South Federal Constituency. PDP is a legal entity that can sue and be sued in its corporate name. As at the time the elections were conducted on 28/4/07 there were two (2) candidates who were battling as who between them is the rightful or validly nominated candidate of the PDP. The petitioners have every right to join both the PDP and the contending candidates as respondents or proceed against the PDP only because their cause of action arose on 28/4/07……………….
And continued on the same page 126 of the record:
“The petitioners have contended that this petition is predicated on the Certificate of Return issued to the 2nd respondent by INEC on 6/3/09. It was on this date (i.e. 6/3/09) that the Supreme Court declared the 2nd respondent as the validly nominated candidate of the PDP for the Orumba North/South Federal Constituency. The Certificate of Return, in our view is only a confirmation of the conclusiveness of the election. The certificate by itself do not qualify as a declaration of result within the meaning of sections 28(2) (e) and 70 of the Act. The reasons are obvious. The declaration of result can only be made by the Returning Officer for that election; who in this case is one Celestine Ogben. He alone (and not even INEC Chairman) can collate all the results and declare them.
On the other hand, the Certificate of Return is issued by and under the hand of INEC Chairman and no other person. In any event we dare ask: Why was Petition No. EPT/AN/NAE/HR/35/2007 (filed in May 2007) was presented to the 1st Tribunal if there was no declaration of result on 28/4/07 since section 141 of the Act only comes into play after election results have been declared?”
The reasoning of the lower tribunal as enscapulated in the above passages cannot be faulted. The tribunal was right not only in making the necessary valid distinction between declaration of result which indeed took place on 28/4/07 and the issuance of the Certificate of Return on 6/3/09 which was a confirmation of the conclusiveness of the election which result was declared on 28/4/07. The lower tribunal was also right by relying on the provision of section 221 and the dictum of Oguntade, JSC, in the case of Amaechi vs. INEC (supra) to the effect that the provision of section 221 of the 1999 Constitution:
“Effectually removes the possibility of independent candidacy in our elections and places emphasis and responsibilities in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in section 221 above, it is only a political party that canvasses for votes. It follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party winning, but at the end of the day, it is the party that wins or losses an election. I think that the failure of the respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mandate or colloquial terms, we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the Constitution, it is his party that has won the election.”
From the foregoing, the lower tribunal came to the conclusion which also cannot be faulted that votes cast at an election are more for the political parties than for candidates. That the petitioners (appellants) have every right to join both the PDP and the contending candidates as respondents or proceed against the PDP only because, truly their cause of action arose on 28/4/07. And, that the petitioners’ (appellants’) failure to pursue Petition No. EPT/AN/NAE/HR/35/2007 to its logical conclusion is fatal to their present case.
In the instant case, there is no better way and perhaps no better words to convey to the appellants that their tardiness in not filing an appeal against the earlier Ruling of the 1st Tribunal in Petition No. EPT/AN/NAE/HR/35/2007 led to the present quagmire. This is because, the 1st Tribunal was clearly in error to have struck out the petition of the appellants on the ground inter alia that “no person has been declared the winner of the election” when in fact the Returning Officer had declared the PDP has the winner of the majority votes in that election on 28/4/07. Clearly, the lower tribunal was not wrong for refusing to follow an erroneous view of a court of coordinate jurisdiction. Issue No. 1 is resolved against the appellants.
On issue No 2, learned counsel for the appellants submitted that an election petition filed on 6/4/2009 cannot be said to be statute barred considering a declaration/return made on 6/3/2009. Appellants’ counsel relied on the provision of Order 23 of the Federal High Court (Civil Procedure) Rules, 2000 and the English case of Stewart vs. Chapman (1951) 2 QB 792 and submitted that since Section 141 of the Electoral Act, 2006 does not provide for the computation of what shall constitute “within 30 days from the date the result of the election is declared” recourse should as a matter of law by virtue of Paragraph 50 of the 1- Schedule to the Electoral Act, 2006 be had to Order 23 of the Federal High Court (Civil Procedure) Rules, 2000. That, if 6/3/09 is excluded in line with Order 23 of the Federal High Court Rules, 2000 and the age long position of the law as stated above, time will begin to run from the 7/3/09.
In that event, according to appellants’ counsel, 30 days will end on 5/4/09 which is Sunday and therefore, the process filed on 6/4/09 being Monday following 5/4/09 was filed within time.
In response to Appellants’ Issue No. 1, learned counsel for the respondents submitted that the decision of the lower tribunal which held in favour of the respondents that even if it is assumed that the result of the Orumba North/South Federal Constituency was declared by the issuance of the Certificate of Return on 6/3/2009 time for filing of the petition shall begin to run on that same 6/3/2009. Thirty (30) days from 6/3/2009 will, end on the 4/4/2009 which is a Saturday” is unassailable. This, according to the respondents as because the provision of Section 141 of Electoral Act is clear and unambiguous and there’s no need for voyage of discovery to the Federal High Court (Civil Procedure) Rules, 2000.
Respondents’ counsel relied on the cases ofÂ Â Adoja vs. INEC (2007) 12 NWLR (Pt. 1047) 119 at 157 and the recent case of Alh. Abubakar Habu Hashidu vs Alh. Moh.d. Daniuma Goie (unreported) Appeal No. CA/J/EP/GOV/317/2009 for the view that time for filing election petition begins to run on the date when the result of the election was declared. Strictly speaking, Appellants’ Issue No. 2 is now academic having regard to my answer to Issue No. 1.
However, for what is worth, it seems now to be settled that under Section 141 of the Electoral Act, 2006, the petitioner has 30 days to file an election petition and time begins to run on the very date the election result was declared. See, Alataha vs. Asin (1999) 5 NWLR (Pt. 601) 32 at 44. In Ogbebor vs. Daniuma (2003) 15 NWLR (Pt.843) 403, the Court of Appeal held that:
“The 30 days allowed for presentation of the petition starts running from the date the result was declared. The most recent decision on this issue are Barr. Moh.d. Kumalia vs. Ali Sheriff CA/J/EP/GOV./244/2007 (unreported) (now reported (2009) 9 NWLR (Pt. 1146) 420 and Action Congress & Anor. vs. Jana & Ors. (2009) 4 NWLR (Pt. 1133) 475. In both cases, the full panel of the Court of Appeal, held that time for presenting an election petition under Section 141 of the Act starts running from the very date the result of that election was declared. And in computing the time Saturday for purpose of filing a petition is not a public holiday.”
Before then, in Akume vs. Lim (2008) 16 NWLR (Pt. 1114) 490 at 506 – 507, it was held that:
“Section 141 of the Electoral Act, 2006 stipulated 30 days within which to present an election petition and this is a condition precedent which foists jurisdiction on the Tribunal.
For the purpose of the Section, time begins to run when there is in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the petitioner to succeed. In the instant case, the elections complained of were conducted on 21st April 2007. After the elections, the results were declared on 22nd April 2007. Thus time began to run from 22nd April 2007, the day the result of the Benue North-West Senatorial District was declared. The time to sue was up on that day because from that day the respondents could present their petitions against the appellants for the avoidance of doubt, time begins to run from the day a winner is declared and returned.”
See also Ugbane vs. Hussan (2009) 4 NWLR (Pt. 1135) 530, Balogun vs. Odumosu (1999) 2 NWLR (Pt. 592) 590, Kaubrama vs. NEC (1993) 3 NWLR (Pt. 284) 681, Att.-Gen., Ekiti State vs. Att. Gen., Ondo State (2001) 17 NWLR (Pt. 743).
In the instant case, even if it assumed that the result for the Orumba North/South Federal Constituency was declared by the issuance of the Certificate of Return on 6/3/2009, time starts to run on that date for the filing of election petition and a petition filed on 6/4/2009 is outside the 30 days required under section 141 of the Electoral Act, 2006. Issue No. 2 is resolved as against the Appellants.
On issue No. 3, learned counsel for the appellants submitted that the result in the election of 28/4/07 has not been declared nor any candidate returned as held by the 1st Tribunal. That even the purported declaration of result Form ECS II of 28/4/07 does not bear the name of the 2nd respondent as the candidate or person that won the election, in the contrary, it was the name of the PDP that was contained thereon.
Appellants’ counsel queried rhetorically: If the return of 6/3/09 cannot be equated with a declaration/return in respect of the disputed election, then the question is upon what declaration did the 2nd respondent got into the National Assembly because other than the return of 6/3/2009, no other return was made in his favour.
Appellants’ counsel relied on the cases of Agbakoba vs. Hon. Lynda Ikpeazu & 5 Ors. (2005) All FWR (Pt. 259) 2048 and Lawrence 1, Alaki vs. Michael (1991) 3 NWLR (Pt. 545) 387 and concluded that the process of election of the representative for the Orumba North/South Federal Constituency, Anambra State had ended only when a candidate in the election i.e. the 2nd respondent had been declared winner as such on 6/3/2009 by the Supreme Court.
Learned counsel for the respondents submitted in respect of Appellants’ Issue No 3 that the tribunal below has held that emphasis is placed on the phrase “appropriate returning officer” used in section 70 of the Electoral Act. That any doubt regarding the person empowered to declare the result of a constituency election and the venue for the declaration of the result has been removed by section 28(2) (e) of the Electoral Act, 2006 which provides that the result of the constituency elections shall be announced by the Returning Officer at the Federal Constituency Collation Centre.
Respondents submitted further, that given the provisions of section 28(2) of the Act, it would be absurd to argue that the issuance of a certificate of return under section 76(1) can be equated with the declaration of result under section 70 of the Act. The issuance of a certificate of return is always sequel to the return of a candidate at the close of the voting.
Counsel submitted that the Chairman of the 3rd respondent, INEC, is therefore not the appropriate returning officer for Orumba North/South Federal Constituency and is therefore not statutorily empowered to announce the result of the election for the constituency.
In deciding Issue No. 3, let us again see how the lower Tribunal handled the question of whether the return by the Chairman of INEC was a declaration of result.
At page 126 the lower Tribunal held thus:
“The petitioners have contended that this petition is predicted on the Certificate of Return issued to the 2nd respondent by INEC on 6/3/2009. It was on this date (i.e. 6/3/2009) that the Supreme Court declared the 2nd respondent as the validly nominated candidate of the PDP for the Orumba North/South Federal Constituency. The certificate of return, in our view is only a confirmation of the conclusiveness of the election. The certificate by itself do not qualify as a declaration of result within the meaning of Section 28(2) (e) and 70 of the Act.
The reasons are obvious. The declaration of result can only be made by the Returning Officer for that election, who in this case is one Celestine Ogben. He alone (and not even INEC Chairman) can collate all the results and declare them……”
As was said earlier on in this judgment, the distinction made between a declaration of result properly so called and a certificate of return as a confirmation of the conclusiveness of the election made by the lower tribunal is unassailable.
Clearly, the Certificate of Return do not qualify as a declaration of result within the meaning of Section 28(2) (e) and 70 of the Act.
Section 28(2) (e) of the Act provides:
“Results of all the elections shall be announced by the Returning Officer at the Federal Constituency Collection Centre.”
Section 70 of the Electoral Act provides:
“In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of Sections 133, 134 and 179 of the Constriction,Â Â Â Â
“……..Since the respondent declared PDP as the winner of the said election, the appellant Charles Udogwu Onyekweli is deemed in law to be the candidate of PDP that won the said election.”
Finally, the scores of candidates in an election are declared only at the time the result of the election is announced by the appropriate returning officer under section 28 of Electoral Act, 2006. No announcement is made at the time of issuance of a certificate of return, neither is the result declared at that point. Indeed, a certificate of return is issued only after a winner has been declared and the scores of the candidates known. Issue No. 3 is resolved against the Appellants.
Appellants’ Issue No. 4 is derived from Ground 4 of the Notice and Grounds of Appeal. The Issue and the Ground are as follows:
“Issue No. IV
Whether a petitioner who did not find a Tribunal Secretariat at which to file their election petition could be said to be out of time in filing of an Election Petition when they filed it on the day a tribunal secretariat was opened for business.”
Ground 4 of the Appellants’ Notice and Grounds of Appeal on which Issue No. 4 was predicated together with its particulars read as follows:
“Ground Four
MISDIRECTION
The Tribunal below misdirected itself and came to a wrong conclusion which occasioned a miscarriage of justice when it relied on case law on the issue of computation of time that is applicable to normal circumstances where tribunals are constituted with secretariat before or shortly after declaration of results of election to approach the present petition which came alone after election petition tribunal have wound up sittings and departed. Where the petitioners obtained the constitution of a tribunal long after their petitions were ready for filing, where the secretariat of the tribunal did not open until 06/04/09 when the respondents contended the petitioners were already out of time.”
Particulars of Error
1. Section 141 of the Electoral Act, 2006 on basis of which the Tribunal below based its decision contemplates existence of Election Tribunal and Registry as at the date of declaration of result. When read in conjunction with preceding Section 140(3) of Electoral Act (supra).
2. Contrary when the “result” of Orumba North/South Federal Constituency was concluded with a “winner” candidate emerging on 6/3/09, there was no Tribunal or its Registry in place, and thus it is absurd to hold as the Tribunal did hold “time for filing petition starts running on that very date…..”
Ground No. 4 and Issue No. 4 of the Appellants are problematic in two important respects. First, Issue No. 4 does not derive from Ground 4 of the Notice and Grounds of Appeal. Second, Ground 4 of the Notice and Grounds of Appeal did not arise from the decision of the Tribunal. Appellants’ Ground 4 of the Notice and Grounds of Appeal was not predicated on any decision or issue that was determined by the tribunal.
The law is trite that issues for determination must be distilled from the Grounds of Appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against. See, Honika Sawmill (Nig.) Ltd. vs. Hoff (1994) 2 NWLR (Pt. 326) 252, Briggs vs. Chief Lands Officer. Rivers State of Nigeria (2005) All FWLR (Pt. 268) 1626 at 1645.
The question of the tribunal not being in existence at the time the result was declared or not having a registry in place raised in Appellants’ Ground 4 of the Notice and Grounds of Appeal was not submitted to the Tribunal for adjudication and expectedly, no decision was reached on the issue. Appellants’ Ground 4 therefore raises a new issue and the appellants having not obtained leave before raising the same, the issue is incompetent.
Appellants’ Ground 4 and Issue No. 4 distilled therefrom are incompetent and are accordingly struck out.
Having struck out Appellants’ Ground 4 of the Notice and Grounds of Appeal and having decided Issues 1, 2, and 3 in this appeal as against the appellants, this appeal lacks merit. It is accordingly dismissed. I also make no order as to costs.