HON. CHUKWUMA UMEOJI & ANOR v. HON. EUCHARIA AZODO & ORS
(2011)LCN/4797(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of September, 2011
CA/E/EPT/16/2011
RATIO
DECISION OF COURT: WHETHER A COURT CAN ACT OR HINGE ITS DECISION ON SPECULATION
it is settled that a court cannot act or hinge it’s decision on speculation. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
ALLEGATION OF FRAUD: HOW AN ALLEGATION OF FRAUD MUST BE PLEADED
The law is that allegations of fraud must be pleaded with utmost particularity and distinctively proved. See USENFO-WOKAN VS IDEWU BROS & ANOR (1969) 1 NWLR (sic) 7. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
RAISING OF ISSUES SUO MOTU : DUTY OF COURT TO AFFORD PARTIES OPPORTUNITY TO ADDRESS IT ON THE ISSUES IT RAISE SUO MOTU BEFORE PROCEEDING TO RESOLVE IT
Cases are decided on the issues brought before the court by the parties and not on what is raised by the court Suo motu. Thus where a court raises an issue suo motu, it has a duty to afford the parties the opportunity to be heard thereon. It will be improper for a court after raising an issue suo motu to base it’s decision on it without hearing the parties. See OMOKHODION vs FEDERAL REPUBLIC OF NIGERIA (2006) ALL FWLR (PT 292) 1; HABIB (NIG) BANK LTD VS NASHTEX INTERNATIONAL (NIG) LTD (2006) ALL FWLR (PT 326) 311. In KATTO VS CENTRAL BANK OF NIGERIA (1999) 5 SCNJ 1 at 20. “It was held by the Supreme court that on no account should a court of law raise a point suo motu, no matter how clear it may appear to be and proceed to resolve the case between the parties thereon, without inviting them or counsel on their behalf to address the court on the point. If it does so, it will be a breach of a party’s fundamental right to fair hearing”. See also EGWUNEWU VS EJEAGWU (2006) ALL FWLR (PT 324) 1893. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
POWER OF COURT: WHETHER THE COURT HAS POWER TO GRANT AN ORDER NOT PRAYED FOR
it is the law that a court has no power to grant an order not prayed for and which the adverse party had no opportunity to react to or resist. See BADMUS VS ABEGUNDE (1999) 71 LRCN 2912; OBAJIMI VS A.G. WESTERN NIGERIA (1967) 1 ALL NLR 31 and ANSA VS CROSS LINES LTD (2006) ALL FWLR (PT 321) 1271. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. HON. CHUKWUMA UMEOJI
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) – Appellant(s)
AND
1. HON. EUCHARIA AZODO
2. CHIEF NOBIS ELENDU
3. HON. CHIKE ANYAONU
4. PEOPLES DEMOCRATICE PARTY (PDP)
5. INDEPENDENT ELECTORAL COMMISSION (INEC) – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State Houses of Assembly Election Tribunal sitting in Awka, Anambra State, (coram U.B. Bwala J. Chairman; T.I. Cocodia J. member and M.A. Adeigbe J. member) delivered on the 19th July 2011 wherein the appellants petition was struck out.
The 1st appellant in this appeal had on the platform of the 2nd Appellant, All Progressives Grand Alliance. (APGA) contested in the election into the House of Representatives for the Aguata Federal Constituency held on the 9th April 2011 and 5th May 2011.
Upon the Result of the Election being declared, the 1st Respondent in this appeal who contested under the umbrella of the 4th Respondent (Peoples Democratic Party (PDP) was returned by the 5th Respondent as the winner of the election.
Being dissatisfied with the result as declared, the two appellants then filed a petition at the National and State Houses of Assembly Election Tribunal Awka, Anambra State on 27/5/11 where in paragraph 30 they prayed for the following reliefs:-
1″(a) An order canceling the results of the election declared by the 5th Respondent in Uga Ward I, Uga Ward II, Umuchu Ward II, Isuofia, Ekwulobia Ward I, Aguluezechukwu and Amesi Wards.
(b) A declaration that based on the results 5155 votes obtained by the 1st petitioner, the 13 wards in the federal Constituency namely, Achina I, Achina II, Akpo, Ekwulobia II, Ezinifite I, Ezinifite II, Igboukwu I, Igboukwu II, Ikenga, Nkpologwu, Oraeri, Umuchu I, Umuona ward, the petitioner won the election into the House of Representatives for the Aguata Federal Constituency he, having obtained a majority of the votes cast in the election.
IN THE ALTERNATIVE
2. Declaration that the 4th Respondent did not have any candidate in the election.
OR IN THE ALTERNATIVE
3. That the 1st Respondent, Eucharia Azodo was not duly elected by lawful votes and that the election into the Federal Constituency, Anambra State, held on 9th April 2011 and 6th May 2011 is void and be nullified for reasons of:-
(a) Corrupt practices
(b) Substantial non-compliance with the provisions of the Electoral Act 2006 and
4. That Fresh elections be conducted by the 5th Respondent.”
All the Respondent reacted by filing replies to the appellants petition.
Subsequently, the 1st Respondent filed a motion on notice dated 20/6/11 and filed on 25/6/11 wherein he sought for the following orders:-
(a) An order striking out this petition No. EPT/AN/NAE/HR/66/2011 Between ALL PROGRESSIVE
GRAND ALLIANCE & ANOR AND EUCHARIA AZODO & ORS dated 26th day of May, 2011 and filed on 27th day of May 2011 on the grand of incompetence.
The grounds for the application were listed as:-
(i) Some paragraphs of the petition raised intra party matters over which the Honourable Tribunal has no jurisdiction to entertain.
(ii) The petitioners lack the requisite locus standi to raise questions on the validity or otherwise of the 1st Respondents nomination.
(iii) The petitioner (sic) ground 5(b) in the petition is not a ground permitted under the Electoral Act 2010 (as amended under which an election petition can be founded.
(iv) The petitioners who are of different political leaning cannot lawfully raise questions on the validity of the nomination of the 1st Respondent.
(v) It is not permissible under section 285(1) of the 1999 Constitution to seek relief against a person who was not returned or declared as a winner of the election and as such no competent relief can be sought against the 2nd, 3rd and 4th Respondents in an election petition.
(vi) The non-joinder of the electoral officers as required by law divest the tribunal of the necessary jurisdiction to entertain the petition.”
The motion is supported by a 5 paragraph affidavit. There is also a written address in support. (See pages 76 to 98 of the Record of appeal).
The appellants in opposing the motion filed a 7 paragraph counter affidavit and supported it with a written address. (See pages 99 to 107 of the Record).
The 1st Respondent’s reply on points of law is also found at pages 109 to 113 of the Record.
The 2nd Respondent was not left out as he also filed a motion on notice dated 7 /7/2011 and filed on the same date. The prayer sought therein was for:-
(a) An order of the tribunal striking out the above petition dated the 26th day of May 2011 and filed on 27th May 2011 same being wholly incompetent and for absence of jurisdiction.”
The grounds raised for the application are similar to those raised by the 1st Respondent as earlier reproduced. The motion is supported by a 7 paragraph affidavit and a written address. (See pages 114 to 124 of the Record).
The appellants did not file any counter affidavit or written address in opposition to the 2nd Respondents motion. In its Ruling delivered on 19/7/2011 the trial tribunal granted the 1st Respondents prayer and ordered that the petition be struck out in its entirety.
Aggrieved with the said Ruling, the appellants filed a Notice of appeal dated 4/8/2011 and filed on 8/8/2011. the said Notice of appeal contained six grounds of appeal.
Shorn of their particulars, the six grounds reads as follows:-
GROUND 1
The Election Tribunal erred in law when it struck out the petition filed by the petitioners/appellants on the ground that the Supervisory Presiding Officers were not joined as respondents in the said petition and this occasioned a grave miscarriage of justice.
GROUND 2
The Election tribunal erred in law when it held that the provision of paragraph 51(1) of the first schedule to the Electoral Act 2010 make it mandatory to join INEC officials against whom allegation of misconduct are made as necessary parties in an election petition even when INEC has already been joined as a party to the petition.
GROUND 3
The Election Tribunal erred in law when it struck out the petition on the ground that criminal allegations were made in the petition against persons who were not joined as respondents to the petition contrary to section 36 (1) of the 1999 constitution which requires that persons alleged to have committed criminal offences must be joined as respondents to a petition so that they be given fair hearing are this occasioned miscarriage of justice.
GROUND 4
The trial tribunal erred in law when it struck out paragraphs 21, 22, 23, 24 and 25 of the petition on the ground that particulars of the officials of the 5th Respondent (INEC) who allegedly falsified the result of the election in those wards in favour of the 4th respondent, were not given.
GROUND 5
The Election Tribunal was wrong in holding that the candidature of the 1st, 2nd and 3rd Respondents cannot be questioned in an election tribunal notwithstanding that the 1st, 2nd and 3rd Respondents actually took part in the elections as candidates of the 4th Respondent.
GROUND 6
The Election Tribunal was wrong and this occasioned miscarriage of justice to the appellants when it struck out the names of the 2nd and 3rd Respondents from the petition.
Briefs of arguments were subsequently filed and exchanged and at the hearing of the appeal on 12/9/2011, parties duly adopted and relied on their respective briefs of argument.
The appellants’ brief of argument filed on 23/8/2011 was settled by Peter N. Eze. The 1st Respondent’s brief dated 28/8/2011 and filed on 29/8/2011 was settled by B.O. Okpemandu.
That of the 2nd Respondent filed on 1/9/2011 was settled by Ozonnia Nobis Elendu.
The 3rd Respondent’s brief of argument dated 28/8/11 and filed on 29/8/11 was settled by Ejike Efobi (Esq). That of the 4th Respondent dated 25/8/11 and filed on 26/8/11 was settled by Clems Ezika Esq, while the 5th Respondent’s brief dated 28/8/11 and filed on 29/8/11 was settled by H.N.C. Moghalu Esq.
In the appellant’s brief of argument, three issues were distilled for determination by this court. To wit:-
(a) Was the Election tribunal right in striking out the petition on the ground of non joinder of staff (agents) of INEC as parties to the petition when INEC was joined as respondent in the petition? (GROUNDS 1, 2 & 3)
(b) Was the Election tribunal right in striking out paragraphs 1 8, 21, 22, 23, 24 and 25 of the petition on the ground that particulars of the officials of the 5th Respondent who allegedly falsified the results were not pleaded when there was no application for further and better particulars and when there was no prayer in the motion for striking out of these paragraphs.
(GROUND 4)
(c) Was the Election tribunal right in holding that the candidature of the 1st, 2nd and 3rd Respondents
cannot be questioned in an election petition notwithstanding the fact that the 1st, 2nd and 3rd Respondents actually took part in the election as candidates of the 4th Respondent and allegations of wrong doings (including criminal offences) were made against them in the petition?
(GROUNDS 5 & 6)
For the 1st Respondent three issues were also formulated for determination in his brief of argument as follows:-
(i) Whether the tribunal was right in striking out the offending paragraphs of the petition where allegation of crime were made against INEC officials who were not made parties to the petition.
(ii) Whether the Tribunal was right in striking out paragraphs 18, 21, 22, 23, 24 and 25 of the petition.
(iii) Whether the tribunal was right in striking out Ground 5 (b) paragraph 27 (a) – (i) and relief 30(2) of the Petition for bordering on issues of nomination, sponsorship and candidature thereby holding that they cannot form the basis of petition before it.
The 2nd Respondent raised the following two issues for determination in his brief of argument.
“(a) Whether the lower tribunal was right in holding that the issues of nomination, sponsorship and candidature are pre-election matters which are cognizable only before the regular courts.
(b) Whether the lower tribunal rightly struck out the petition for non joinder of necessary parties against whom criminal allegations were made”.
The 3rd Respondent in his own brief of argument conceded to the issues Nos. 1 & 2 as formulated in the appellants’ brief in view of the judgment of this court in Appeal No. CA/E/EPT/02/2011 DR. OKECHUKWU UDEH & ANOR VS BEN NWANKWO & ORS delivered on 19/8/2011. He then raised one sole issue for determination as follows:-
“Whether the Election tribunal sitting in Awka was right in striking out the name of the 3rd Respondent from the petition particularly when the presence of the 3rd Respondent in the petition is to lure the tribunal into determining questions of the validity of the nomination of any of the 1st, 2nd and 3rd Respondents by a political party?” .
The 4th Respondent in her brief of argument also proposed one issue for determination as follows:-
“‘Was the Election tribunal right in holding that the candidature of the 1st, 2nd and 3rd Respondents cannot be questioned in an election petition notwithstanding the fact that the 1st, 2nd and 3rd Respondents actually took part in the election as candidates of the (sic) Respondent and allegations of wrong (including criminal offences) were made against them in the petition?”.
In the 5th Respondent’s brief of argument two issues were formulated for determination as follows:-
“(i) Whether the tribunal was right in striking out the names of the 2nd and 3rd Respondents and all the paragraphs of the petition pertaining to the 2nd and 3rd Respondents who were not declared the winners of the questioned election by the 5th Respondent.
(ii) Whether the tribunal in view of the non joinder of officials of the 5th Respondent, police, SSS, soldiers and persons mentioned in the paragraphs of the petition, such as Uba brothers and the criminal allegation leveled against them was right in striking out the paragraphs of the petition on the ground of breach or likelihood of breach of the right to fair hearing of the officials and individuals by their non-joinder?”.
From a careful perusal of the grounds of appeal and the briefs of argument with particular reference to the issues raised therein, I am inclined to adopt the three issues raised in the appellants’ brief of argument for a conclusive determination of this appeal.
On issue No. 1, Peter Eze of counsel for the appellant referred to Sections 137 (3) and paragraph 51 (1) (a) and (b) of the First schedule to the Electoral Act 2010 to submit that the provisions are complementary and must be read together for the intention of the lawmakers to be appreciated because they are not in conflict but in harmony with each other.
He cited the case of CPC VS INEC & 42 ORS (Unreported Ruling delivered on 14th July 2011 in Petition No. CA/A/EPT/PRE/1/2011 where the Court of Appeal per Salami PCA gave a kind interpretation of the provisions of Section 137(3) and Paragraph 51(1) (a) and (b) of the Electoral Act 2010. He also referred to the unreported judgment of this court delivered on 18/8/2011 in DR. OKECHUKWU UDEH & ANOR VS BEN NWANKWO & 3 ORS (APPEAL NO. CA/E/EPT/02/2011).
Learned counsel further contended that the lower tribunal reached it’s decision per incuriam being not aware of the subsequent amendment introduced by the Electoral Act 2010 as it affects Section 137(3) and paragraph 51 of the First Schedule to the Electoral Act which has reversed the position by making the joinder of INEC staff unnecessary.
It was also the submission of learned counsel for the appellant that it was wrong for the lower tribunal to hold that paragraphs 18, 21,22, 23,24 and 25 of the petition is replete with criminal allegations against parties not covered by the provisions of Section 137(3) of the Electoral Act 2010 as it amounts to speculation. He added that the same conduct might constitute both a crime and a civil wrong and the Election tribunal is not vested with criminal jurisdiction to try any person for a criminal offence. He referred to Section 138(1) of the Act which provides for grounds for an election petition and this includes corrupt practices.
On the issue of violation of section 36(1) of the 1999 constitution as a result of non joinder of persons against whom criminal allegations were purportedly made, learned counsel submitted that the civil rights and obligations of the electoral officers who took part in the conduct of the election were not in issue in the petition. He relied on the following cases:-
BABA VS NCATC (1991) 5 NWLR (PT 192) 388; ADENIYI VS GOVERNING COUNCIL, YABATECH (1993) NWLR (PT 300) 426; FAKUADE VS OAUTHMB (1993) 5 NWLR…47.
Learned counsel further argued that by virtue of Section 46 (1) of the 1999 constitution. It is a person who alleges that his fundamental rights are violated or are threatened to be violated that can apply for the enforcement of his rights. A stranger or busybody or meddlesome interloper like the 1st Respondent has no locus standi to do so on behalf of INEC Electoral officials. He relied on the following authorities:- OYEGBEMI VS A.G. FEDERATION (1982) 3 NCLR 895; ALFIAJI SHUGABA DARMAN VS MIN. OF INTERNAL AFFAIRS (1981) 2 NCLR 459; UNIVERSITY OF ILORIN VS OLUWADARE (2003) 3 NWLR (PT 806) 557; and GOVERNOR OF EBONYI STATE VS ISUAMA (2003) 8 WRN 123.
On the authorities relied upon by the lower tribunal in reaching their decision, it was contended by learned counsel that they were based on the provisions of the Electoral Act 2006 which are markedly different from the relevant provisions of the Electoral Act 2010 as amended. The later having cured the mischief in the former.
For the 1st Respondent, B.O. Okpemandu of counsel submitted that requirement of fair hearing in any adjudication cannot be compromised. He referred to Section 36 (1) of the 1999 constitution which guarantees right to fair hearing and added that any legislation that is in conflict with it is void to the extent of such inconsistency by virtue of Section 1 of the said constitution.
Learned counsel further argued that there is need for those that were accused of committing criminal or electoral offences to be made parties so that the allegations could be proved one way or the other. He relied on UGHAMADU VS NDIBE (2010) WRN 55 at 84 – 86. Per ARIWOOLA JCA, to add that it is only those INEC officials that are in the position to defend themselves vis-a-vis the roles they played on the day of the election.
He also cited the following cases:- EKPEYONG VS DUKE (2008) 2 LRECN 643 at 671; and EGOLUM VS OBASANIJO (1999) 7 NWLR (PT 611) 397.
Learned counsel further contended that in considering the provision of section 144 (2) of the Electoral Act 2006. Appellate courts have consistently deferred to Section 36 of the 1999 constitution by holding that parties against whom criminal allegations are made ought to be made parties in order to defend those allegations.
For learned counsel, the constitution remains supreme and absolutely superior to the Electoral Act, so Section 137 (3) of the Electoral Act 2010 (as amended) cannot lawfully be construed to have amended Section 36 of the 1999 constitution.
Furthermore, with reference to section 144 (2) of the Electoral Act 2006, learned counsel listed a number of cases decided pursuant thereto as follows:-
BALONWU VS EMORDI (2010) 1 NWLR (PT 1174) 79 at 95 – 96; YAMMEDI VS ZAREWA (2010) 11 NWLR (PT 1204) 58 at 87 – 88; DINA VS DANIIEL (2009) ALL FWLR (PT 480) 632 at 648 -651; UCHECHUKWU VS OKPALAKE (Appeal No. CA/E/EPT/50/2008. Unreported judgment of this court delivered on 21/7/2010, and INEC & ORS VS EJEZIE & ORS (2011) 7 WRN 33.
Learned counsel added that reliance was being wrongly placed on Section 137 (3) of the Electoral Act 2010 which resultant effect will be to offend the constitution on the aspect of fair hearing and this will create absurdity as was demonstrated in the case of OCHU VS FEDERAL REPUBLIC OF NIGERIA (2011) ALL FWLR (PT 563) 2008.
The 2nd Respondent in reaction to this issue in his issue No. 2 made submissions which are similar to that of the 1st Respondent and also relied strongly on Section 36 of the 1999 constitution as well as the following cases:- BALONWU VS EMORDI (2010) NWLR (PT 1174) 79 at 95 – 96; INEC VS EJEZIE 2011 7 WRN 33 at 97 – 101; EKPEYONG VS DUKE (2009) ALL FWLR (PT 470) 755.
On the other hand, the 3rd Respondent in her brief of argument conceded the issue under consideration to the appellant.
On the same footing, the 4th Respondent in her brief of argument did not respond to the said appellants’ issue No. 1.
For the 5th Respondent, H.N.C. Moghalu of counsel submitted inter alia that the tribunal was right in striking out the paragraphs of the petition in view of the non joinder of officials of the 5th respondent and the individuals mentioned on the ground of breach or likelihood of breach of their right to fair hearing.
Learned counsel added that the issue is beyond Section 137 (3) and paragraph 51 of the First Schedule of the Electoral Act 2010 but hinges on fair hearing. He cited EGOLUM VS OBASANJO (1999) 7 NWLR (PT 611) 355 at 404 to 405 as well as the following authorities:-
UKPAI VS OKORO VOL. 14 (1983) NSCC 559; KADIYA VS SAR VOL. 14 (1983) NSCC 591 and UNONGO VS AKU VOL. 14 (1983) NSCC 563.
He concluded that the non joinder of the officials which has the effect of depriving them their right of fair hearing renders proceeding with the case without them a nullity.
Now Section 137 (3) of the Electoral Act 2010 (as amended) provides as follows:
“If the petitioner complains of the conduct of an Electoral officer, Presiding officer or Returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall in this instance be:-
(a) made a respondent; and
(b) deemed to be defending the petition itself and on behalf of it’s officers or such other persons.
Furthermore, paragraph 51(1) (a) & (b) of the First Schedule of the Electoral Act 2010 (as amended) which is headed. “RULES OF PROCEDURE FOR ELECTION PETITIONS” and made pursuant to Sections 140 (a) and 145 (1) thereof provides thus:-
“(a) Where an election petition complains of the conduct of an Electoral officer, a Presiding officer, Returning officer or any other official of the commission the officer or person shall not be joined as a necessary party in the petition notwithstanding the nature of the conduct; and
(b) the commission shall be made a respondent and be deemed to be defending the petition in all cases in sub paragraph itself and on behalf of it’s officers or such other persons who acted on behalf of the commission”.
The above provision is, to my mind meant to complement and also emphasis the provisions of Section 137 (3). Both provisions are very clear and unambigous and ought ordinarily not to generate controversy – bearing in mind the mischief meant to be cured with the introduction of the aforesaid provisions by the legislature in the Electoral Act 2010 (as amended).
Sections 137 (3) and paragraph 51 (1) (a) & (b) of the extant Act are a clear departure from the provisions of Section 144 (2) and paragraphs 47 ( 1) of the Electoral Act 2006 (now repealed). The same applies to the Electoral Act 2002 in Section 133 (2) and paragraph 47 (1) respectively.
The situation under the Electoral Acts 2002 and 2006 was that it was virtually imperative to make Electoral officers, Presiding officers, Returning officers and any other official of the commission a respondent where the petition complains of their conduct. Numerous election petitions were prematurely struck out for non joinder of such officials without much ado notwithstanding the likely merit of such petitions. It also led to the preliminary pages of an election petition to become lengthy, cumbersome and untidy with the long list of such officials of the commission at various levels occupying many pages. Authorities also abound on the necessity for such joinder under the aforesaid but now repealed Acts.
The legislature should indeed be commended for this proactive and dynamic effort at improving the statutes that govern our nascent democratic process by being sensitive to and uprooting whatever outcrop or impediment that might constitute a likely clog in the wheel of democratic progress.
The bottom line now is that under Section 137 (3) of the Electoral Act 2010 (as amended) and paragraph 51 (1) (a) & (b) of the first schedule thereof, where a petitioner complains of the conduct of a Presiding officer, Electoral officer, Returning officer on any other official of the commission, the officer or person shall not be joined as a necessary party in the petition notwithstanding the nature of the conduct complained of but the commission shall be a respondent and be deemed to be defending the petition for itself and on behalf of such officers or persons.
This is the present status of the law until it is changed or amended. I indeed find support from the recent unreported ruling of the Abuja Division this court in CPC VS INEC & 42 ORS. Petition No. CA/A/EPT/PRES/1/2011. Ruling delivered on 14th July 2011 where this court per Salami PCA stated thus inter alia:-
“‘We have looked at the Provisions of Section 137 (3) of the Electoral Act, 2010 and we are of the candid view that the wordings are simple and straight forward and without straining any nerves or resorting to any techniques of interpretation, ought to be given it’s simple grammatical interpretation…
As highlighted earlier, the purport of that subsection is to render unnecessary the joinder of the 2nd, 6th – 42nd Respondents in the petition if there are allegations against them by the petitioner. In other words, where the Electoral commission as in the instant case, is proceeded against in an Election petition, it shall not be necessary to join Electoral officers, Presiding officers or Returning officers who partook in the conduct of an election if allegations are made against them.
The current provisions of Section 137 (3) of the 2010 Electoral Act (as amended) is to obviate a situation where whole hordes of Electoral officers, Presiding officers, Returning officers, and all sorts of parties are included as respondents thereby making the petition unnecessarily unwieldy with several witnesses coming to state the same facts”.
(underline mine for emphasis)
This court had equally held the same view in it’s judgment delivered on the 18th August 2011 in DR. OKECHUKWU UDEH & ANOR VS BEN NWANKWO & 3 ORS. (APPEAL NO. CA/E/EPT/02/2011. I will reproduce in extenso the stance of this court per Amina Adamu Augie JCA at page 18 to 19 therein. It reads:-
“In this case, some paragraphs of the petition in question contain allegations of criminal conduct against some ward collation officers, supervisory Presiding officers and local Government Area collation officers who were not joined as Respondents in the petition. It is on that ground that the 1st Respondent hinged his application to have the said paragraphs of the petition, and the entire petition struck out/dismissed. It must be noted that at that stage of the proceedings, the petition had not been heard; it had not even entered the pre-hearing stage, and it is settled that a court cannot act or hinge it’s decision on speculation. But what else can it be but speculation for the tribunal to merely look at paragraphs of a petition and immediately decide that failure to join the said INEC officials “would result in denial of their right to fair hearing”.
At that state, all that the tribunal was required to do was look at what the law says on the issue that was tabled before it, and decide on it. If the tribunal had done that without being carried away by the hue and cry over fair hearing, it’s decision would have been different because INEC was the 2nd Respondent which is enough to sustain the petition. The relevant provisions of the 2010 Act are very clear. If the Petitioner complains of the conduct of INEC staff – it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint. See Section 137 (3) of the Act itself…
Paragraph 5 1 (1) of the 1st schedule to the Act is even more specific – where an election petition complains of their conduct “the officer or person shall NOT be joined as a necessary party in the petition notwithstanding the nature of the conduct”. But the tribunal did not address it’s mind to this before jumping to it’s conclusion. In addition. The tribunal also held that the officers mentioned in the said paragraphs of the petition “are not included in the list of officers mentioned in Section 137 (3) of the Electoral Act 2010″. I have to wonder what sense that makes. Is the tribunal saying that INEC can defend some officials and leave other staff who were on the field during the election to their fate when an election petition is filed against them? That cannot be the intention of the law makers when they came up with the 2010 version of the Electoral Act”. I agree entirely with the above analysis and finding and I adopt it as my view, being on all fours with this case in which INEC is the 5th Respondent.
In addition, I am of the firm stance that the bringing in the issue of fair hearing at this as was raised by the 1st Respondent is a non sequitur. In the first place, it is not for him to cry more than the bereaved by raising the issue of fair hearing on behalf of an entirely different party. While he has every right to so do in the event of his own right being breached or likely to be breached, it will amount to stretching the provisions of the constitution beyond it’s normal contemplation to permit the 1st Respondent raise issues that does not infringe on his own rights. The electoral Act made specific provisions for the INEC (5th Respondent) to defend any complaint against it’s officials so the proper party to have raised the issue of fair hearing on behalf of the officials concerned is the INEC, so the act of the 1st Respondent in raising the issue of fairing hearing as it pertains to INEC officials to my mind amounts to embarking on a blind expedition into an occupied territory.
Secondly, the foundation of his objection is that allegations of criminal conduct were made against INEC officials in the petition. My reaction to that is that the jurisdiction of the election tribunals are circumscribed by statute and limited to hearing of election petitions. They have no jurisdiction to try electoral offences and what is more, the officials concerned are not being charged for any criminal offence where the necessity for their appearing to defend themselves is imperative in order to ensure fair hearing. Election matters are quasi civil in nature and it behoves any party affected to appear in person or by his legal practitioner and in this case the INEC is not in anyway hindered from inviting those officials concerned as her witnesses in defence of the petition wherein they have every opportunity to state their side of the story if need be. In the circumstance, I hold that there is no breach of the right to fair hearing by the non joinder of INEC officials in the petition. The tribunal therefore erred in striking out the petition on that ground. Issue No 1 is therefore resolved in favour of the Appellants.
ISSUE NO.2
Learned counsel for the appellant submitted that the election tribunal was wrong in holding that since the petitioners failed to plead the particulars of the officials of the 5th Respondent who allegedly falsified the result of the election in those wards in favour of the 4ft Respondent paragraphs 18, 21, 22, 23, 24 and 25 of the petition should be struck out.
He referred to paragraph 17 of the first schedule of the Electoral Act 2010 to contend that the Respondents ought to have applied for further and better particulars or other directions of the tribunal but did not do so. Learned counsel added that the tribunal was also wrong in striking out paragraphs 5 (b) and 27 (a) and (b) of the petition because it cannot do so unless there is a specific prayer to that effect in the motion paper as filed by the 1st Respondent. See IGE VS OLUNLOYO (1984) 1 SCNLR 158. The learned counsel for the 1st Respondent in reaction to the above submissions in his issues No (ii) submitted that the lower tribunal was right in striking out the aforementioned paragraphs 18, 21, 22, 23, 24 and 25 in the petition. Firstly on the ground that particulars of INEC officials whose conduct were criminally impugned were not pleaded because allegations of crime must be pleaded with particularity and proved beyond reasonable doubt. He added that due to the urgency associated with election matters, the tribunal do not have the luxury of time to call upon parties to address or on settled issues of law as it relates to pleadings.
Now the lower tribunal in it’s ruling held at page 173 of the Record of appeal as follows:-
“We observe that the petition is replete with criminal allegations against parties not covered by the provisions of Section 137 (3) of the Electoral Act. See paragraphs 18, 21, 22, 23 and 24”.
At page 173 of the said record it further held thus:-
“We observe that the pleadings did not state the particulars of the officials of the 5th Respondent who allegedly falsified the result of the election in the said wards in favour of the 4th Respondent.
The law is that allegations of fraud must be pleaded with utmost particularity and distinctively proved. See USENFO-WOKAN VS IDEWU BROS & ANOR (1969) 1 NWLR (sic) 7 Since the petitioner failed to plead the particulars of the officials of the 5th Respondent who allegedly falsified the result of the election in those wards in favour of the 4th Respondent, we will strike out the paragraphs in reference. Accordingly paragraphs 21, 22, 23, 24 and 25 are hereby struck out”.
Firstly I note that paragraph 18 was not among those specifically struck out by the lower tribunal as shown in page 174 of the record. The court and the parties are bound by the content of the record of proceedings.
I therefore stand on the facts as shown therein that paragraphs 21, 22, 23, 24 and 25 were struck out by the lower tribunal for failure of the petitioner to plead the particulars of the officials of the 5th Respondent who allegedly falsified the result of the election in those wards in favour of the 4th Respondent.
Now the said paragraphs 21, 22, 23, 24 and 25 of the petition which is at pages 7 to 8 of the Record reads thus:-
21. After the election, on 10th April, 2011 the returning officer for the constituency cancelled the results in 9 wards in the constituency, namely, Uga Ward 1, Uga Ward II, Umuchu Ward II, Isuofia, Ekwuluobia Ward I, Aguluezechukwu, Umuchu I, Igbo Ukwu I and Amesi. Surprisingly, on 6 May 2011, the 5th Respondent purported to repeat the election in only two wards in the constituency, namely Umuchu I and Igbo Ukwu I.
22. Without any justification the Electoral Officer for Aguata Local Government Area replaced the Local Government Collation Officer appointed by the 5th Respondent and started performing the function by himself. The Petitioners will at the trial contend that the purpose of this last minute redeployment/replacement was to enable the 1st – 4th Respondents have their way and win the election without regard to the votes lawfully cast at the election. The Petitioners will at the trial rely on the sworn affidavit of the said collation officer.
23. The Petitioners will at the trial contend that the total number of unlawful votes from Uga Ward I, Uga Ward II, Umuchu Ward II, Isuofia, Ekwuluobia Ward I,/aguluezechukwu and Amesi wards credited to the Petitioners and the PDP is as follows:
(a) 1st Petitioner 3127
(b) PDP (1st Respondent) 10492
24. If these figures are deducted from the figure of 8282 credited to the 1st Petitioner and 14590 credited to the PDP (1st Respondent) by the 5th Respondent, the parties are left with the following figures:
(a) 1st petitioner 8282-3127 = 5155
(b) PDP (1st Respondent) 14590 -10492 = 4098
25. The Petitioners contend that on the basis of the above, the 1st Petitioner will therefore have obtained the highest number of lawful votes amongst all the candidates at the election and ought to have been declared winner or the election by the 5th Respondent.
I have repeatedly read through the above reproduced paragraphs and failed to see my way through to the finding of the lower tribunal that they did not state the particulars of the officials of the 5th Respondent who allegedly falsified the result of the election in those wards in favour of the 4th Respondent. For instance in paragraph 21 the petitioner specifically mentioned the returning officer for the constituency. In paragraph 22 specific reference was made to the Electoral officer for Aguata local Government Area. These are incidentally officer specifically mentioned in Section 137 (3) of the Electoral Act 2010 and paragraph 51 of the first schedule made thereto as persons whose conduct at the election if challenged shall be defended by the 5th Respondent. I therefore fail to see what other particulars of the said officials that the petitioner is expected to provide to the satisfaction of the lower tribunal. It must be borne in mind that they are officials of the 5th Respondent and as such whatever action taken by them on the Election Day was in their official capacity and designation. The situation may be different if they are charged and being tried for electoral offences in which case their personal identity such as their names and addresses may become imperative.
Besides it is my view that the lower tribunal acted hastily and prematurely in striking out the aforesaid paragraphs on grounds of insufficient particulars in the light of paragraph 5 of the first schedule of the Electoral Act 2010 which requires that a tribunal may order such further particulars as may be necessary to prevent surprises and unnecessary expense and the ensure fair and proper hearing in the same way as in a civil action in the Federal High Court and on such terms as to costs or otherwise as may be ordered by the tribunal. This is in addition to the opportunity granted to any of the parties in an election petition to apply for further particulars under paragraph 17.
Now on the aspect of the lower tribunal raising the issue of the competence of the aforesaid paragraphs suo motu and striking them out when there was no such prayer by the 1st Respondent in his motion paper. I have carefully gone through the said motion at pages 76 to 77 of the Record as well as the parties affidavit, counter affidavit, and written addresses and I find that the competence of the aforesaid paragraph was not a ground for the motion, neither was the issue canvassed in any of the written addresses. It follows to all intent and purposes that the tribunal raised the issue Suo motu in it’s ruling and also resolved same without recourse to the parties to have a say on it.
Cases are decided on the issues brought before the court by the parties and not on what is raised by the court Suo motu. Thus where a court raises an issue suo motu, it has a duty to afford the parties the opportunity to be heard thereon. It will be improper for a court after raising an issue suo motu to base it’s decision on it without hearing the parties. See OMOKHODION vs FEDERAL REPUBLIC OF NIGERIA (2006) ALL FWLR (PT 292) 1; HABIB (NIG) BANK LTD VS NASHTEX INTERNATIONAL (NIG) LTD (2006) ALL FWLR (PT 326) 311. In KATTO VS CENTRAL BANK OF NIGERIA (1999) 5 SCNJ 1 at 20. “It was held by the Supreme court that on no account should a court of law raise a point suo motu, no matter how clear it may appear to be and proceed to resolve the case between the parties thereon, without inviting them or counsel on their behalf to address the court on the point. If it does so, it will be a breach of a party’s fundamental right to fair hearing”.
See also EGWUNEWU VS EJEAGWU (2006) ALL FWLR (PT 324) 1893.
In the instant case the lower tribunal having raised the issue of the competence of paragraphs 21, 22, 23, 24 and 25 of the petition suo motu and proceeded to strike them out and eventually the whole petition without giving the appellant the opportunity to be heard on it is a breach of fair hearing and in this case there is a clear miscarriage of justice.
What is more, it is the law that a court has no power to grant an order not prayed for and which the adverse party had no opportunity to react to or resist. See BADMUS VS ABEGUNDE (1999) 71 LRCN 2912; OBAJIMI VS A.G. WESTERN NIGERIA (1967) 1 ALL NLR 31 and ANSA VS CROSS LINES LTD (2006) ALL FWLR (PT 321) 1271.In the instant case, the lower tribunal did not only raise the issue of the competence of the aforesaid paragraphs, suo motu, it proceeded to strike them out without first hearing the parties on it and when such relief was not claimed in the 1st Respondent’s motion for striking out. In the circumstance, issue No. 2 is also resolved in favour of the appellant.
ISSUE NO.3
On this the learned counsel for the appellant submitted inter alia that the appellants pleaded that the 1st to 3rd Respondents are not qualified to contest the election on the ground that they are not products of democratic primaries and having actually contested the election, the question of their qualification to contest the election is a competent ground for challenging the validity of the election or return.
He added that the petition is peculiar in the sense that three candidates purported to have contested the election in the name of the 4th respondent as shown in paragraph 5 of the petition and this gave rise to triple mobilization and triple deployment of resources, including party agents in the name of the 4th Respondent. This according to him led to confusion in the polling booths and thus detrimental and prejudicial to the petitioners who went about the election according to the Rules.
Learned counsel further submitted that the decision in ZARANDA VS TILDE (2008) 10 NWLR (Pt.1094) 164 is not relevant to the instant case because the facts are not similar. While in that case there was only one candidate, in the instant case there were three candidates who took part in the election on the Platform of one political party (the 4th Respondent).
Secondly, the decision was based on a different Electoral Act which does not have provisions similar to Section 87 of the Electoral Act 2010 (as amended) which requires candidates for election to emerge through democratic primaries. Learned counsel added that the case of UCHA VS ONWE (Supra) is equally distinguishable.
He further submitted that if the issue of the proper candidate of the 4th Respondent is not resolved in this petition; it will be impossible for the petitioner to bring a petition against either the 2nd or 3rd Respondents if eventually either of them is declared to be the validly nominated candidate of the 4th Respondent because the time limit for bringing a petition against them has lapsed.
Responding on this issue, learned senior counsel for the 1st Respondent submitted that the lower tribunal was right in striking out paragraphs 5 (b) 27 (a) to (i) and relief 30 (2) of the petition because they border on issues of nomination, sponsorship and candidature and as such are pre-election and intra party matters which the tribunal has no jurisdiction to entertain. He cited AMECHI VS INEC (2008) 5 NWLR (PT 1080) 227 and UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386.
He added that the appellant did not appeal against the finding of the lower tribunal that “the petitioner being of a different political leaning from the 1st Respondent cannot lawfully raise questions on validity of the nomination of the 1st Respondent.
For the 2nd Respondent, it was submitted by Nobis Elendu of learned counsel that matters bordering on the domestic affairs of a political party are outside the adjudicative competence of an election tribunal whose jurisdiction have been clearly defined under the provisions of Section 285 (1) of the 1999 constitution. He added that for an election petition to be competent, it must challenge the validity of the election in issue and not the validity of the nomination of a candidate that contested the election. Learned 2nd Respondent drew a distinction between the validity of nomination of a candidate for an election and validity of election and/or return of a candidate at an election. He referred to Sections 285 (1) of the 1999 constitution which according to him envisages a situation where an election has been conducted and a winner emerged and or returned as a consequence of which the person who lost challenges the said election, grounding his claim strictly on matters that relate to the election proper. On the other hand he argued, Section 87 of the Electoral Act 2010 as amended, deals with the procedure for the nomination of a candidate by a political party, wherein after the conduct of a party primary any person who seeks to challenge the emergence of a candidate from the said primary can only do so in the state or Federal High Court.
Learned 2nd Respondent further contended that Section 66 (1) of the 1999 constitution made special provision for a person’s qualification or non qualification to contest for election to the Senate or House of Representatives and it is only on the grounds listed therein that a person’s election pursuant to Section 285 (1) of the 1999 constitution and Section 138 of the Electoral Act 2010 can be questioned. He referred to the case of UCHA VS ONWE (2011) NWLR (PT 1237) 386 at 423.
For the 3rd Respondent, it was contended that by the wordings of Section 285 (1) (a) of the 1999 constitution. It is clear that the exercise of the jurisdiction of the tribunal must have as it’s purpose, the determination of the validity or otherwise of the election of any person as a member of the National Assembly, but the 3rd Respondent was not returned as elected in the election into the National Assembly, Aguata Constituency held as aforesaid.
Learned counsel further submitted that the circumstance of the selection or nomination of the candidate of a political party for an election allegedly giving rise to non compliance with the Electoral Act or a political party’s guideline cannot give rise to grounds for the questioning of an election. He cited a number of authorities in support.
He added that it is ultra vires the jurisdiction of the trial tribunal to allow itself to be mired in the controversy of resolving any issue of determining the properly nominated candidate of the 4th Respondent as such is outside the grounds for questioning an election and outside the contemplation of Section 138 (1) of the Electoral Act 2010.
For the 4th Respondent it was submitted by Clems Ezika of counsel that the 4th Respondent has settle the issue of candidature before the election and for the tribunal to question the candidature of the 4th Respondent will amount to going into the arena of the statutory function of the 4th Respondent. Therefore, he added, the tribunal was right in striking out the petition on that ground as it is in tandem with the position of the law.
Now the ruling of the trial tribunal which form the basis of the issue in contention and as found in pages 171 to 172 of the record of appeal reads as follows:-
“On the first issue which deals with the question as to whether the petitioners can raise a ground in the petition, the question of qualification of the 1st Respondent arising from the sponsorship by the 4th Respondent. Going by the provisions of Section 285 (1) of the 1999 constitution which establishes the National and State Assembly Election Petition Tribunals, the tribunals lack the jurisdiction to determine the issue of candidature on whether one was nominated to contest an election by a political party.
The petitioner’s being of a different political leaning from the 1st Respondent cannot lawfully raise questions on the validity of the nomination of the 1st Respondent. See ZARANDA VS TILDE (2008) 10 NWLR (PT 1094) 184. See also UCHA vs ONWE (2011) 4 NWLR (PT 1237) 386 at 427 where the Supreme court held:-
“A person’s disqualification on non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the election tribunal has no jurisdiction”.
From the cases referred to, it is clear that the issues of nomination, sponsorship and candidature are pre-election matters which are cognizable only before the regular courts. Since ground 5 (b) of the petition deals with these issues of nomination and candidacy which cannot form the basis of a petition before this tribunal, we hereby strike it out. Also ordered to be struck out is paragraphs 27 (a) to 27 (i) of the petition as well as relief 30 (2) of same as these are all predicated on ground 5 (b) of the petition”.
I also deem it necessary to reproduce the said ground 5 (b) and paragraphs 27 (a) to (i) and 30 (2) of the petition struck out by the trial tribunal. They read:-
5. The grounds for the petition are as follows:-
(a) …
IN THE ALTERNATIVE
(b) That the 1st, 2nd and 3rd Respondents were at the time of the election not qualified to contest the election”.
27. The petitioners will at the trial contend that:-
(a) The 4th Respondent had three different factions in Anambra State, Each claiming to have the right to produce the candidate of the party for the election. Each faction conducted separate primaries at which the 1st, 2nd and 3rd Respondents respectively emerged as the candidates for such factions.
(b) The 1st Respondent belonged to the Benji Udeozor faction of the Party.
(b) The Benji Udeozor faction of the party organized its own primaries at which the 1st Respondent allegedly emerged as the candidate of the 4th Respondent for the said election.
(c) The National Executive of the 4th Respondent also organized it own primaries conducted by Senator J. Waku at which the 3rd Respondent alleges he emerged as the candidate of the 4th Respondent.
(d) The State Executive of the Party headed by Chief Benji Udeozor forwarded the name of the 1st Respondent and other persons as the candidates of the 46 Respondent in Anambra State to the 5th Respondent. The National Executive of the 4th Respondent forwarded the name of the 3rd Respondent and other persons as the candidate of the 4th respondent in Anambra State to the 5th respondent.
(e) The 2nd Respondent claims to have emerged the winner of the primaries conducted by the Benji Udeozor faction of the Anambra State chapter of the 4th Respondent and alleges that he and not the 1st Respondent was entitled to have contested the election.
(f) At the trial the Petitioners will show that the 1st Respondent who the 5th Respondent purported to recognize as the candidate of the 4th Respondent was not validly nominated to contest the election in that her name was not submitted to the 5th Respondent in accordance with the constitution and guidelines for the conduct of the 2011 election of the 4th Respondent.
(g) The petitioners will contend in the premises, that the 4th Respondent did not have a candidate at the election.
(h) As a result of the multiple candidates that claimed to have contested the election on the platform of the 4th Respondent, the 4th Respondent had at least 6 polling agents in all the polling units during the elections which led to confusion in some areas.
30 (2) “Declaration that the 4th Respondent did not have any candidate in the election”.
A careful perusal of the paragraphs of the petition above reproduced leaves me with no doubt that the trial tribunal was correct in it’s ruling also as earlier reproduced. The content of paragraph 27 (a) to (i) as pleaded in the petition clearly exposed the nakedness of the fact that the petitioners were challenging the primaries conducted by the members of the 4th Respondent sequel to the nomination of a candidate for the April 2011 election into the House of Representatives in Aguata Federal Constituency.
The Appellants had argued that their case was that the 1st to 3rd Respondents are not qualified to contest the election on the ground that they are not products of democratic primaries and having actually contested the election, the question of their qualification to contest the election is a competent ground for challenging the validity of the election or return. They placed reliance on Section 285 (1) of the 1999 constitution and Section 138 (1) of the Electoral Act 2010 as amended.
I am however in full tandem with the brilliant submission of the 2nd Respondent wherein he drew a clear and educative distinction between the provisions of Section 285 (1) of the 1999 constitution and Section 87 of the electoral Act 2010 as amended. Indeed, Section 285 (1) of the 1999 constitution envisages a situation where an election has been conducted and a winner emerged or returned as a consequence of which the person who lost challenges the said election by filing a petition in an election tribunal. In other words, Section 285 (1) deals with post election matters.
Conversely, Section 87 of the electoral Act 2010 as amended, deals with the procedure for the nomination of a candidate by a political party.
After the conclusion of primaries by a political party an aggrieved aspirant who seeks to challenge the emergence of a candidate from the said primary may apply to the Federal High Court, or the High Court of a state or FCT for redress. See Section 87 (9). It follows from the above that issues relating to party primaries, nomination, and sponsorship of candidates are pre election matters which falls outside the jurisdiction of election tribunals.
The cases of ZARANDA VS TILDE supra, UCHA VS ONWE supra relied on by the trial tribunal are very apt on the issue. See also the following recent decisions of this court on the same issue. DR. AJOGWU (SAN) & ANOR VS SENATOR AYOGU EZE APPEAL NO. CA/E/EPT/05/2011. (Unreported judgment delivered on 5/9/2011); HON. CHIKE ANYAONU VS HON. EUCHARIA AZODO & ORS. APPEAL No. CA/E/EPT/07/2011. (Unreported judgment delivered on 6/9/2011.) and LADU MARGER OKADIGBO VS PRINCE JOHN OKECHUKWU EMEKA (APPEAL NO CA/E/EPT/03/2011 (unreported judgment delivered on 19/8/2011).
In the circumstance, I hold that the candidature of the 1st to 3rd Respondents cannot be questioned in an election petition and the trial tribunal was right in striking out ground 5 (b) and paragraphs 27 (a) to (i) and 30 (2) of the petition. Issue No. 3 is therefore resolved against the Appellants.
The appellants had also wittingly or unwittingly smuggled in issue No 4 in their brief of argument in contrast to the issues a, b and c, earlier distilled for determination. However, for what it is worth. I will give it due consideration . It reads:-
“‘Was the Election tribunal right in striking out the names of the 2nd and 3rd Respondents from the petition when allegations of wrong doings (including crimes) in the course of the elections were made against them”.
(GROUND 6).
It was their submission that aside from the issue of participation of the 2nd & 3rd Respondents as candidates at the election, the petitioners made allegations of wrong doings (including Criminal allegations) in the course of the elections against them. Having perused the Ruling of the trial tribunal and the appellants grounds of appeal, I cannot but whole heartedly agree with the submission of the 1st Respondent’s counsel to the effect that the above issue No 4 and ground 6 of the grounds of appeal did not arise from the ruling of the trial tribunal appealed against. There is nowhere in the ruling where the trial tribunal made any specific order striking out the names of the 2nd and 3rd Respondents from the petition. I also agree with the authority of EGBE VS ALHAJI (1990) 1 NWLR (PT 128) 546 at 590 cited by the 1st Respondent’s counsel in support of the contention that a complaint of an appellant in the Notice and grounds of appeal must not only relate to the decision of the trial court being appealed against but should also be a challenge to the validity of the ratio of the decision.
Issue No 4 is therefore discountenanced for not being a product of the ruling of the trial tribunal.
Sequel to the above considerations and analysis of the relevant statutory provisions and authorities. I hold that this appeal succeeds in part as I have earlier resolved issues one and two which are the threshold of the three issues considered in this appeal in favour of the appellants.
Consequently, I make the following orders:-
1. The Ruling of the National and State Houses of Assembly Election tribunal sitting in Awka, Anambra State in Petition No.EPT/AN/NAE/HR/66/2011 delivered on 19th July 2011 is hereby set aside to the extent of the issues resolved in favour of the appellants.
2. The Petition No. EPT/AN/NAE/HR/66/2011 is hereby ordered to be sent back for relisting and further adjudication by the aforementioned tribunal.
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
Dr. O.N. Ogbu with Tochukwu Odo (holds brief of Peter N. Eze)For Appellant
AND
Arthur Obi Okafor with C.I. Okafor for 1st Respondent.
N.C. Nobis Elendu appears in person.
Clem Ezike for the 4th Respondent (holds brief of Ejike Efobi for 3rd Respondent.
H.N.C. Moghalu with P.E. Ikedigwe (Miss) for 5th Respondent.For Respondent
