HON. EMMANUEL BASSEY OBOT v. ELDER BASSEY ETIM & ORS. (2007)

HON. EMMANUEL BASSEY OBOT v. ELDER BASSEY ETIM & ORS.

(2007)LCN/2556(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of December, 2007

CA/C/145/2007

RATIO

JURISDICTION – LOCUS STANDI : THE NECESSARY QUESTION TO ASK IN DETERMINING WHETHER A PARTY HAS LOCUS STANDI

“locus standi is the capacity to institute proceedings in a court of law. Where a party’s standing to sue is in issue, the question is whether the person is a proper party to request an adjudication of a particular issue in the matter. See Oloriode v. Oyebi (1984) 5 SC 1; (1984) 1 SCNLR 390; Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261; Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315 and Ntia v. Jones (2007) 2 WRN 183” PER JEAN OMOKRI J.C.A.

JUDGMENT AND ORDER – ENFORCEMENT OF JUDGMENT : WHETHER THE COURTS ARE DUTY BOUND TO ENFORCE THE JUDGMENT OF OTHER COURT UNLESS IT HAS BE DECLARED A NULLITY OR SET ASIDE

“section 287(3) of the 1999 Constitution provides: “The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.” The judgment of the Federal High Court was duly presented before the Tribunal by the appellant and was made manifest by the attachment of both the enrolled order and the full text of the judgment to the petition before the Tribunal. The tribunal was well aware of the judgment and indeed it noted at page 323 of the record as follows: “As can be deduced from other paragraphs of the petition, the petitioner based his candidature on the alleged presentation of his name by his party, the PDP, and the decision of the Federal High Court, Abuja on 17th May, 2007 which he said declared his substitution by another candidate null and void…” Having seen the judgment of the Federal High Court, the Tribunal was bound by the mandatory provisions of section 287(3) of the 1999 Constitution to enforce the judgment and to give effect to it. The Tribunal had no option as it was under a constitutional duty and obligation to give effect to the judgment of the Federal High Court which was properly placed before it. In Osakwe v. INEC (supra), this court in Enugu division held thus: “A judgment of a court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction. Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382. The National Assembly/Governorship and Legislative Houses Election Tribunal cannot set aside the judgment of the Federal High Court, being a court of co-ordinate jurisdiction…” In Nnaji v. Aneke (supra), this court held that, the Court of Appeal and indeed any other court cannot ignore any order properly made by a court of competent jurisdiction. It was not open to the tribunal to ignore the judgment of the Federal High Court which is still valid and subsisting. There is no doubt that the decision of the tribunal was contrary to the said judgment of the Federal High Court. By concluding that the appellant was not a candidate in the election, it inadvertently overruled the judgment and orders of the Federal High Court which is still valid and subsisting. The tribunal being a court of co-ordinate jurisdiction with the Federal High Court had no power to sit on appeal over the judgment of the Federal High Court.” PER JEAN OMOKRI J.C.A.

ELECTION PETITIONS – LOCUS STANDI : WHETHER A CANDIDATE WHO WAS DULY NOMINATED BUT UNLAWFULLY EXCLUDED FROM AN ELECTION CAN BRING A PETITION

“Secondly, the question as to whether a candidate who was duly nominated but unlawfully excluded from the election can petition under section 145(1) (d) of the Act has been satisfactorily resolved in Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt. 854) page 406 at 428 where Omage, JCA, held inter alia that: “… the Electoral Act does not define the ambit of the term “candidate”. But section 134(1)(d) gives a petitioner or its candidate validly nominated but unlawfully excluded from the election a right to file a petition, Therefore, a party who intended to contest an election but was disallowed may claim a right to file a petition at the Election Tribunal. In the instant case, the objection of the 1st respondent to the appellant’s petition on the ground of absence of locus standi cannot stand as section 134(1)(d) of the Electoral Act can properly admit the appellant’s petition. It gives the appellant a locus standi to file the petition. Abakaliki Local Government Council v. Abakaliki Rice Mills Owners Enterprises of Nigeria (1990) 6 NWLR (Pt.155) 182 pp. 427 – 428.” I entirely agree with the above decision and I see no good reason to depart from it.” PER JEAN OMOKRI J.C.A.

JURISDICTION – LOCUS STANDI : WHETHER LOCUS STANDI IS A LEGAL RIGHT OR A FAVOUR AT THE WHIMS OF THE TRIBUNAL

“Locus standi is a legal right and not a favour to be given to litigants at the whims and caprices of the tribunal. See section 6(1) (3) and (6) and 36 of the 1999 Constitution. In Ugwu v.Ararume (supra), Muhammad, JSC, had this to say at page 511: “Except where it is meant to say that a member of a political party has no right at all, in election matters, I cannot see why a political party shall be permitted, once it has given its commitment or mandate to a candidate whom it had already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justifiable cause. Politics is not anarchy; it is not disorderliness. It must be punctuated by justice, fairness and orderliness.” PER JEAN OMOKRI J.C.A.

JUSTICES

VICTOR AIMEPOMO O. OMAGE Justice of The Court of Appeal of Nigeria

JEAN OMOKRI Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

HON. EMMANUEL BASSEY OBOT Appellant(s)

AND

1. ELDER BASSEY ETIM
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER, AKWA IBOM STATE
4. THE RETURNING OFFICER, NSIT ATAI LOCAL GOVERNMENT
5. THE RETURNING OFFICER, UYO LOCAL GOVERNMENT
6. RETURNING OFFICER, IBESIKPO ASUTAN LOCAL GOVT.
7. THE RETURNING OFFICER, URUAN LOCAL GOVERNMENT OF AKWA IBOM STATE Respondent(s)

OMOKRI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the ruling of the Election Petition Tribunal sitting in Uyo, Akwa lbom State delivered on the 26/7/07 as a final decision.
The tribunal struck out the petition of the appellant on the grounds that the appellant was not a candidate at the election held on the 28/04/07 and so lacked the locus standi to present the petition.
The brief facts of the case are that the appellant in December, 2006 won the primaries election of the Peoples Democratic Party (PDP) to contest the election into the House of Representatives in the Uyo Federal Constituency of Akwa Ibom State. His name was accordingly submitted to the Independent National Electoral Commission (hereinafter called INEC), the 2nd respondent in this appeal, vide a letter dated 21/12/06. In February, 2007, 1st respondent was substituted for the appellant as the candidate at the election. The appellant challenged the substitution pursuant to section 34(2) of the Electoral Act, 2006 in suit No. FHC/ABJ/CS/286/2007 in the Federal High Court, Abuja. On the 17/05/07, in the said court delivered its judgment and declared the substitution of the appellant null and void and further declared that for the purpose of the said election, the appellant was the candidate. While the case was still pending before the Federal High Court the election was held on the 28/04/07 and the 1st respondent was declared the winner. Armed with the judgment of the Federal High Court, the appellant together with the PDP filed an election petition at the tribunal as 1st and 2nd petitioners respectively mainly to give effect to the judgment of the Federal High Court compelling the 2nd respondent to return the appellant as the winner of the election and give him the fruits of the victory. Before the Tribunal, the 1st respondent filed a preliminary objection on the 28/06/07 pursuant to section 147(3) of the Electoral Act, 2006, and paragraphs 9(5) and 49(5) of the 1st Schedule to the Act. The grounds of the petition were:
“(1) Jurisdiction of this Honourable Tribunal to entertain this application has been impaired.
(2) The 2nd petitioner lacks the locus standi to file or present an election petition before this honourable tribunal.”
Subsequently, the PDP on 10/7/07 applied to be struck out of the petition jointly filed with the present appellant. The tribunal heard the application and on 18/7/07, it struck out the name of PDP leaving the appellant as the petitioner. On that same date, the tribunal heard the preliminary objection of the 1st respondent. On the 26/7/07, the tribunal on upholding the preliminary objection held as follows at page 325:
“We are, therefore, convinced from the petition, the affidavit of the 1st respondent and all the document attached thereto that the petitioner was not a candidate in the election that took place on the 28th April, 2007 in respect of which the petition was filed. Not having been a candidate he has no locus standi to bring this petition.”
and at page 326 it held that:
“We are therefore of the opinion that the lack of presence of the party that allegedly sponsored the petitioner, to lay the complaint of unlawful exclusion of the candidate has knocked the bottom off this petition.
On the whole, therefore, we hold that the preliminary objection succeeds and that the petitioner not having being imbued by statute to file this petition has no locus standi to do so and this petition is hereby struck out.”
Dissatisfied with the ruling of the Tribunal, the appellant appealed to this court on four grounds. From the four grounds of appeal, the appellant formulated three issues for determination in the appellant’s brief of argument dated 17/8/07 and filed the same day. The three issues are as follows:
“1. Whether in determining the locus standi of the petitioner, the Honourable Tribunal was not bound to confine itself to the petition without recourse to the extraneous facts contained in the copious affidavit and exhibits of the 1st respondent in support of the preliminary objection.
2. Whether the Honourable Tribunal was right in holding that the appellant was not a candidate at the election which decision amounted to overruling the valid and subsisting decision of the Federal High Court, Abuja which had already decided that the appellant was the candidate of the PDP at that election.
3. Whether the Honourable Tribunal was right in using an event which occurred in future and in the middle of the proceedings to determine an issue which, as at the time it was raised, was invalid or at best anticipatory and without calling on the parties to address the tribunal on the new state of affairs.”
On being served with the appellant’s brief, the 1st respondent in his brief dated 24/8/07 and filed the same day formulated only one issue for determination as follows:
“Whether the Election Petition Tribunal was justified in law and the facts before it to strike out the petition in the circumstances.”
The 2nd – 7th respondents in their brief of argument dated 24/8/07 and filed on 24/8/07 adopted the issues for determination formulated by the appellant. The appellant also filed a reply brief dated and filed on 31/8/07 in response to the 1st respondent’s brief of argument but no new issue was raised in the reply.
After a careful perusal of the record, particularly the ruling of the Tribunal, I find that the crux of the matter in this appeal is whether or not the present appellant, who was the petitioner at the Tribunal, had the locus standi to present his election petition. All other issues raised are mere window dressings that will not help to determine the real issue in controversy one way or the other. I will therefore confine myself to the issue of locus standi.
Chief Assam Assam, SAN, learned counsel for the appellant submitted that in view of the judgment of the Federal High Court and the enrolled order which was attached to the petition, it was wrong for the Tribunal to ignore it and make its own pronouncement contrary to the said judgment. He relied on Effiong Bob v. Chief Ime Albert Akpan & Ors. suit No. CA/A/97/M/2007 (unreported) delivered on 3/7/2007; reported in (2008) 7 NWLR (Pt. 1087) 449; and Amaechi v. I.N.E.C. & Ors. SC/74/2007 (unreported) delivered on 11/5/2007; reported in No.1 (2007) 18 NWLR (Pt. 1065) 42.
He submitted that the appellant was the candidate of the PDP at the election of 28/4/07 by virtue of the judgment of the Federal High Court which remains valid until set aside and courts cannot ignore the judgment. He relied on Nnaji v. Aneke (1996) 2 NWLR (Pt. 430) 269 at 273 and Osakwe v. INEC. & Ors. (2005) 13 NWLR (Pt. 942) 442. He urged the court to follow the decision of the Supreme Court in Ugwu v. Ararume & Ors. SC/63/2007 delivered on 8/6/2007; (2007) 12 NWLR (Pt. 1048) 367 and hold that it overruled the decisions in Tosho v. Yahaya (1999) 4 NWLR (Pt.600) 657 and Okonkwo v. I.N.E.C. & Ors. (2006) 2 EPR 94; reported as Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119.
The learned SAN also submitted that the judgment of the Federal High Court which nullified the purported substitution of the appellant had the full effect of reversing everything that was done pursuant to that substitution. He relied on Adefulu & Ors. v. Okulaja & Ors. (1996) 9 NWLR (Pt. 475) 668; Abana v. Obi (2005) 6 NWLR (Pt. 920) 183 at 205 and Saleh v. Monguno (2003) 1 NWLR (Pt.801) 221.
Learned counsel for the 1st respondent submitted that the Tribunal had no business with the Federal High Court judgment in suit No.FHC/ABJ/CS/286/07 which dealt with pre-election issue of nomination. He referred to Okon v. Bob & Ors. (2003) 51 WRN G 69; (2004) 1 NWLR (Pt. 854) 378 and Buhari v. Obasanjo (2003) 113 LRCN 2472; (2003) 17 NWLR (Pt. 850) 587. He then pointed out that, it is only a person or political party that lost an election that can present a petition before the Election Tribunal and that the appellant was never a candidate at the election therefore he had no locus standi to present the election petition. He relied on Tosho v. Yahaya (supra); Okon v. Bob & Ors. (supra) and Egolum v. Obasanjo (2004) 1WRN 84; (1993) 7 NWLR (Pt. 611) 355.
Though, the 2nd – 7th respondents filed their brief of argument, they merely adopted the issues for determination formulated by the appellant. They proffered no arguments or submissions in their brief.
All they said was that since the appellant and the 1st respondent belonged to the same party, the matter was an intra-party affair which they would not want to be enmeshed in. That being the case, I am left with only the briefs of argument of the appellant and that of the 1st respondent to contend with in this appeal.
To begin with, locus standi is the capacity to institute proceedings in a court of law. Where a party’s standing to sue is in issue, the question is whether the person is a proper party to request an adjudication of a particular issue in the matter. See Oloriode v. Oyebi (1984) 5 SC 1; (1984) 1 SCNLR 390; Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261; Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315 and Ntia v. Jones (2007) 2 WRN 183.

Under the Electoral Act, 2006, persons who can present an election petition are stated under section 144(1). It provides as follows:
“S.144(1) 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.”

The question that naturally comes to mind is whether the appellant was a candidate in the election who can present an election petition as provided under section 144(1) of the Electoral Act. In the instant appeal, the appellant claims that he was a candidate in the election held on 28/4/07, in view of the judgment of the Federal High Court in suit No.FHC/ABJ/CS/286/07 delivered on 17/5/07. That judgment nullified the purported substitution of the appellant with the 1″ respondent by the PDP. That judgment is valid and subsisting and remains so until it is set aside. The fact that the 1st respondent alleged that there is an appeal against that judgment pending does not diminish the potency of the said judgment which is still valid and subsisting. It is also unaffected by the fact that the 1st respondent has applied for a stay of execution which application is pending.
In order to bring the issues in contention into proper perspective, it is necessary and expedient that I state the reliefs claimed by the appellant, as plaintiff before the Federal High Court. The claims are as follows:
“1. A declaration that the purported letter of substitution of the plaintiff with the 3rd defendant dated 5/02/07 does not contain cogent and verifiable reason for the said substitution as contemplated by the provision of section 34(1) & (2) of the Electoral Act, 2006.
2. A declaration that the exclusion of the name of the plaintiff for the April 2007 general election as the candidate representing Uyo Federal Constituency is wrongful, null and void.
3. A declaration that for the purpose of the Election to the House of Representatives the plaintiff is the candidate of the 2nd defendant validly nominated and not substituted.
4. An order setting aside the substitution of the plaintiff for not being in conformity with the provisions of section 34(2) of the Act, 2006.
5. A order directing the 1st defendant to forthwith place the name of the plaintiff on the ballot as the candidate of the 2nd defendant representing Uyo Federal Constituency in April General Election to the National Assembly.
6. An order of perpetual injunction restraining the 1st and 2nd defendants from recognizing or continuing to recognize the 3rd defendant as the candidate of the 2nd defendant for the House of Representatives election scheduled for April, 2007.”
At the conclusion of the suit, the Federal High court in its judgment at pages 29 – 30 of the record made the following orders:
“1. That the purported letter of substitution of the plaintiff with the 3rd defendant dated 5/02/07 does not contain cogent and verifiable reason for the said substitution as contemplated by the provision of section 34(1) & (2) of the Electoral Act, 2006.
2. That the exclusion of the name of the plaintiff for the April 2007 general election as the candidate representing Uyo Federal Constituency is wrongful, null and void.
3. That the plaintiff is the candidate of the 2nd defendant validly nominated and not substituted for the purpose of the election to the House of Representatives.
4. That the substitution of the plaintiff for not being in conformity with the provisions of section 34(2) of the Electoral Act, 2006 is set aside.
5. That reliefs 5 and 6 of the reliefs are completed act and cannot lie.”

Understandably, the Federal High Court correctly refused to grant the 5th and 6th reliefs sought by the appellant because they are already completed acts and so cannot lie. But reliefs 1 – 4 speak for themselves. They are clear orders given by the Federal High Court in its judgment and drawn up orders which are valid and subsisting and have not been set aside.
Now, section 287(3) of the 1999 Constitution provides:
“The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.”
The judgment of the Federal High Court was duly presented before the Tribunal by the appellant and was made manifest by the attachment of both the enrolled order and the full of the judgment to the petition before the Tribunal. The tribunal was well aware of the judgment and indeed it noted at page 323 of the record as follows:
“As can be deduced from other paragraphs of the petition, the petitioner based his candidature on the alleged presentation of his name by his party, the PDP, and the decision of the Federal High Court, Abuja on 17th May, 2007 which he said declared his substitution by another candidate null and void…”
Having seen the judgment of the Federal High Court, the Tribunal was bound by the mandatory provisions of section 287(3) of the 1999 Constitution to enforce the judgment and to give effect to it. The Tribunal had no option as it was under a constitutional duty and obligation to give effect to the judgment of the Federal High Court which was properly placed before it.
In Osakwe v. INEC (supra), this court in Enugu division held thus:
“A judgment of a court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction. Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382.
The National Assembly/Governorship and Legislative Houses Election Tribunal cannot set aside the judgment of the Federal High Court, being a court of co-ordinate jurisdiction…”
In Nnaji v. Aneke (supra), this court held that, the Court of Appeal and indeed any other court cannot ignore any order properly made by a court of competent jurisdiction. It was not open to the tribunal to ignore the judgment of the Federal High Court which is still valid and subsisting. There is no doubt that the decision of the tribunal was contrary to the said judgment of the Federal High Court. By concluding that the appellant was not a candidate in the election, it inadvertently overruled the judgment and orders of the Federal High Court which is still valid and subsisting. The tribunal being a court of co-ordinate jurisdiction with the Federal High Court had no power to sit on appeal over the judgment of the Federal High Court.

Moreover, the issue of candidature of a person as between himself and his political party is a pre-election issue or matter which is a matter within the jurisdiction of the Federal High Court. See Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) pg. 367. Therefore, the Tribunal had no jurisdiction to hear, entertain or decide any matter on nomination, substitution and candidature. Any question about nomination of a candidate is not a matter for the Election Tribunals. They have no jurisdiction to entertain disputes over primary elections within the political party for selection or nomination of candidates to contest election on the platfonn of a political party. See Effiong Bob v. Chief lme Albert Akpan & Ors. (supra) and Amaechi v. INEC & Ors. (supra). The fallout from the above decision is that the Tribunal had no business dealing with the issue of the nomination, substitution and candidature. These are the pre-election rights which fall squarely within the jurisdiction of the courts. Only post election matters fall within the jurisdiction of the Election Tribunals.Section 285(1) & (2) of the 1999 Constitution which created the Election Tribunals specifically and expressly restricted them to hear and determine among other things whether a person has been “validly elected”. This does not include issues of nomination, substitution or candidature. See Doukpolagha v. George (1992) 4 NWLR (Pt. 236) 444 and N.E.C. v. N.R.C. (1993) 1 NWLR (Pt.267) 120, where this court held that disputes arising from pre-election matters are totally outside the jurisdiction of Election Tribunals.
The appellant instituted the proceedings to challenge his substitution before the Federal High Court pursuant to the provisions of section 34(2) of the Electoral Act. The Federal High Court, in its judgment, having declared the substitution of the appellant with the 1st respondent null and void, the effect of this is that his nomination is valid. The effect of the nullification of the purported substitution by the Federal High Court is that all things done pursuant thereto cease to be in existence and in fact were never in existence. As was submitted by the appellant, the legal effect is that wherever the name of the 1st respondent appeared pursuant to that error, the name of the petitioner by the force of the judgment and operation of law automatically replaces. This was amply illustrated in the case of Adefulu & Ors. v. Okulaja & Ors. (supra), the Supreme Court held that the appointment of a chief which was declared null and void was never made and the vacancy that was purportedly filled by that act was still vacant.
Also in Saleh v. Monguno (supra), it was held thus:
“A nullity is in law a void act; an act which has no legal consequence. In that regard a proceedings which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal title whatsoever, it does not also inure obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage.”
See also Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.2000) 659 the court held inter alia that:
“A nullity is in law a void act which has no legal consequences. The act is not only bad and as was stated by Denning L. J. in U.A.C. v. Mcfoy (1961) 3 All ER 1169. It is incurably bad.”
In the recent case of Amaechi v. INEC & Ors. (unreported) suit No. SC/252/2007 delivered on 25/10/07; (2007) 18 NWLR (Pt.1065) 105, the Supreme Court held that the appellant, who was in a similar position with present appellant, was not substituted in accordance with the law and therefore remained the PDP’s nominated candidate for the Rivers State Governorship election held on 14/4/07.

The above case is in pari materia with the instant appeal. The effect of the judgment of the Federal High Court is that anything done pursuant to the nullified substitution never existed at all because they were declared null and void. Therefore the name of the appellant must be reflected wherever the 1st respondent appeared. If the Tribunal had given due consideration and effect to the judgment of the Federal High Court, it would have reached the conclusion that the appellant was a candidate at the election and that he had the locus standi to file his petition under section 144(1)(d) of the Electoral Act, 2006. Until the judgment of the Federal High Court is reversed or set aside, the locus standi of the appellant is no longer an issue. See Ugwu v. Ararume (supra) and Amaechi v. I.N.E.C. & Ors. (supra).

Learned counsel for the 1st respondent relied on the cases of Okon v. Bob (supra); Onuoha v. Okafor (1983) 14 NSCC 494; (1983) 2 SCNLR 244; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Tosho v. Yahaya (supra) and Okonkwo v. I.N.E.C. & Ors. (supra), and submitted that in so far as the appellant did not contest the election the judgment of the Federal High court will be of no use to the Tribunal because the jurisdiction of the Tribunal begins and ends with participation in a held election.
With the greatest respect to learned counsel for the 1st respondent I cannot agree with his submission.
Firstly, the above cited cases, though well decided are not applicable to the Electoral Act, 2006, regard being had to the fact that they were decided on different Electoral Acts, namely; the Electoral Act, 1982 and Electoral Act, 2002, which do not have provisions similar to section 34(2) of the Electoral Act, 2006.
At this juncture, let me quickly examine the provisions of section 34 of the Electoral Act, 2006, which provides:
“(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.
(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.
(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.”
I agree with the learned SAN for the appellant that by section 34(2) of the Electoral Act, 2006, the court now have jurisdiction to hear and determine matters of candidature. The political party ceases to be master of the situation after submitting the name of a candidate. The court comes in at that point because the presented candidate automatically becomes a statutory candidate protected by the Electoral Act. See Ararume v. INEC (supra) and Amaechi v. I.N.E.C. & Ors. (supra). A political party intending to substitute its candidate must do so within 60 days to the election and it shall give cogent and verifiable reasons. See section 34(I) and (2) of the Electoral Act, 2006.
Prior to the introduction of section 34(2) of the Act, the 1st respondent would have been in the same position as Senator Okon in Okon v. Bob (supra) or Chief Onuoha in Onuoha v. Okafor (supra) or Dalhatu in Dalhatu v. Turaki (supra). However, the introduction of section 34(2) has brought a radical departure in the position of the law to allow for certainty in the electoral process. The procedure followed by the political parties in the substitution of their candidates can now be challenged in the court under section 34(2) of the Act. The main object of the subsection is to solve the issue of the reckless and unlawful substitution of candidates by political parties.
Furthermore, the appellant in the instant appeal is armed with a valid and subsisting judgment of the Federal High Court which nullified his substitution. None of the appellants in cases cited by counsel for the respondent were in the position of the present appellant.
I have also considered the second reason proffered by the Tribunal for striking out the appellant’s petition. The Tribunal was of the view that the absence of the political party (PDP) who nominated him and sponsored him, to lay the complaint of unlawful exclusion knocked the bottom off the petition. That is an obvious reference to the provisions of section 145(1) (d) of the Electoral Act, 2006. It is important to note that while the provisions of section 144(1) of the Electoral Act, 2006, deals with persons entitled to present an election petition, section 145(1) relates to the grounds of petition. In view of the judgment of the Federal High Court, the appellant was a candidate in the election and he was entitled to present an election petition on the ground that he was validly nominated but was unlawfully excluded from the election.
Secondly, the question as to whether a candidate who was duly nominated but unlawfully excluded from the election can petition under section 145(1) (d) of the Act has been satisfactorily resolved in Adebusuyi v. Oduyoye(2004) 1 NWLR (Pt. 854) page 406 at 428 where Omage, JCA, held inter alia that:
“… the Electoral Act does not define the ambit of the term “candidate”. But section 134(1)(d) gives a petitioner or its candidate validly nominated but unlawfully excluded from the election a right to file a petition, Therefore, a party who intended to contest an election but was disallowed may claim a right to file a petition at the Election Tribunal. In the instant case, the objection of the 1st respondent to the appellant’s petition on the ground of absence of locus standi cannot stand as section 134(1)(d) of the Electoral Act can properly admit the appellant’s petition. It gives the appellant a locus standi to file the petition. Abakaliki Local Government Council v. Abakaliki Rice Mills Owners Enterprises of Nigeria (1990) 6 NWLR (Pt.155) 182 pp. 427 – 428.”
I entirely agree with the above decision and I see no good reason to depart from it. I shall therefore follow it. The position of the appellant is more solid because he is also armed with a valid and subsisting judgment of the Federal High Court which declared him as a candidate at the election. The question of the appellant being validly nominated but unlawfully excluded readily brings to mind the maxim “ubi jus ibi remedium”, which means, “Where there is a ‘wrong’ (sic) there is a remedy”. If the Electoral Act gives a right against unlawful exclusion from election, then there must be a remedy for the breach of that right.
In the instant appeal, the appellant won the primaries of the PDP and was duly nominated and his name was sent to INEC. Subsequently, the PDP substituted his name with that of the 1st respondent in this appeal. The Federal High Court nullified the purported substitution. Now, how is the appellant expected to seek redress, particularly so when his interest is at variance with that of PDP. Is the Tribunal saying that the appellant has no remedy? The maxim “ubi jus ibi remedium” makes it imperative that the rights bestowed on a person are protected. The protection of the rights of a person must include an avenue to remedy the wrong done to him to prevent his losing his rights. See P.D.P. v. I.N.E.C.(I 999) 7 SCNJ 297; (1999) 11 NWLR (Pt. 626) 200. It is fundamental that a person be given unhindered access to court and it is unjust to drive a person from the judgment seat and deny him access to justice on the ground that he has no locus standi. In the instant appeal, the judgment of the Federal High Court, endowed the appellant with the right to contest the said election. Therefore, he has the locus standi to present and to prosecute his petition before the tribunal. Why then must he be denied access to justice? Why must he be driven from the judgment seat?
When the Tribunal held that the appellant has no locus standi to present his election petition, is it saying that the appellant has no sufficient interest in the petition? I think not. The appellant undoubtedly has sufficient interest in the petition having been duly nominated but was unlawfully excluded from the election. The tribunal cannot rely on locus standi to deny the appellant access to justice. Locus standi is a legal right and not a favour to be given to litigants at the whims and caprices of the tribunal. See section 6(1) (3) and (6) and 36 of the 1999 Constitution.
In Ugwu v.Ararume (supra), Muhammad, JSC, had this to say at page 511:
“Except where it is meant to say that a member of a political party has no right at all, in election matters, I cannot see why a political party shall be permitted, once it has given its commitment or mandate to a candidate whom it had already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justifiable cause. Politics is not anarchy; it is not disorderliness. It must be punctuated by justice, fairness and orderliness.”
It is my considered view that the appellant was a candidate at the election and therefore he has locus standi to present the election petition under sections 144(1) and 145(1)(d) of the Electoral Act, 2006. I agree with the appellant that the Tribunal erred in law when it held that appellant had no locus standi. The appeal is meritorious and I hereby allow it.
The appellant in his notice and grounds of appeal has under the reliefs sought stated as follows:
“(1) An order setting aside the decision of the Tribunal.
(2) To invoke its powers under section 16 of the Court of Appeal Act to determine the petition since the whole issue to be determined is to give effect to the judgment of the Federal High Court in suit No. FHC/ABJ/CS/286/07.
Alternatively:
(3) To set aside the decision of the tribunal and revert the case to be reheard by any other panel.”

It is important to bear in mind that this appeal is on whether or not the appellant has locus standi. It is therefore unnecessary for this court to invoke its powers under section 16 of the Court of Appeal Act (now section 15 of the Court of Appeal Act, 2004) to determine the petition. We are not presently concerned with the merits of the petition. That is a matter for the Election Petition Tribunal to decide. I have held that the appellant has locus standi and therefore can present the petition. The justice of this appeal demands therefore that I set aside the ruling of the Tribunal and order that the petition be heard on its merit by any other panel.
Accordingly, the ruling of the Election Petition Tribunal, Akwa Ibom State, Uyo in EPT/AKS/1O/07 delivered on 26/07/07 be and is hereby set aside. I order that the petition be heard on its merit by any other Panel.
Appeal allowed.

OMAGE, J.C.A.: In this appeal the appellant is dissatisfied with the ruling and decision of the Election Petition Tribunal sitting in Uyo-Akwa lbom State as contained in the judgment of the Tribunal delivered on 26th July, 2007.
The appeal arose from the preliminary objection made by the 1st respondent to the petition filed by the appellant in this court. In the appeal, the appellant seeks an order of this Court to set aside the ruling of the Tribunal which struck out the petition of the appellant on 26/7/2007. The appellant formulated three issues:
“1. Whether in determining the locus standi of the petition the Honourable Tribunal was not bound to confine itself to the petition without recourse to the extraneous facts contained in the copious affidavit and exhibit of the 1st respondent in support of the preliminary objection.
2. Whether the Honourable Tribunal was right in holding that the appellant was not a candidate at the election which decision amounted to overruling the valid and subsisting decision of the Federal High Court, Abuja which had already held that the appellant was the candidate of the PDP at that election.
3. Whether the Honourable Tribunal was right in using an event which occurred in future and in the middle of the proceedings to determine an issue which at the time it was raised was invalid or at best anticipatory and without calling on the parties to address the tribunal on the new state of affairs.”
The 1st respondent who is one of seven respondents, formulated his issues on page 5 of his brief, thus, “it is whether the Election Petition Tribunal was justified in law and the facts before it to strike out the petition in the circumstances.”
In the brief of the 2nd- 7th respondents, they adopt issue 3 for determination formulated by the appellant, which in simple term is whether the Tribunal was right to use an event which occurred in public or in the middle of the proceedings to determine an issue before it and conclude that the task of the Court of Appeal in the circumstances serves the end of justice. The 2nd – 7th respondents submit that the facts before the tribunal show that the dispute between the 2nd appellant and the 1st respondent is an intra party matter before the Tribunal and the 2nd – 7th respondents would not wish to be enmeshed in it and left the matter to the discretion of the Tribunal. In response to the contents of the brief of the 1st respondent the appellant filed a reply brief the contents of which will be considered when necessary in this judgment. My lords, it is helpful in this matter to observe that the 2nd respondent in this appeal is the Independent National Electoral Commission (INEC). It is also desirable to bear in mind as the basis of the proceedings in the Tribunal the provisions of section 144(1) of the Electoral Act, 2006. It reads:
“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. Section 164 of the Electoral Act is the interpretation section which defines election as, “any election held under the Act and includes a referendum.”
The appellant and the 1st respondent are not in agreement on the facts of the case, but upon reading the records, My Lords, these are the facts which transpired. They are as stated in the brief of the 1st respondent and the brief of the 2nd – 7th respondents, that is the appellant and the Peoples Democratic Party (PDP) initially filed an election petition against all the respondents on record. In February, 2007, the appellant was substituted by the PDP – his party with the 1st respondent. From that time, the 1st respondent was placed on the list of INEC.
On 24/4/2007, the appellant still before filing this appeal, filed a suit in the Federal High Court in FHC/ABJ/CS/286/07. In the suit, the appellant sought the following:
“1. A declaration that the purported letter of substitution of the plaintiff dated 5/02/07 does not contain cogent and verified reason for the said substitution as contemplated by the provision of section 34(1) & (2) of the Electoral Act 2006.
2. A declaration that the exclusion of the name of the plaintiff for the April 2007 General Election as the candidate representing Uyo Federal Constituency is wrongful, null and void.
3. A declaration for the purpose of the Election to the house of Representatives that the plaintiff is the candidate of the 2nd defendant and validly nominated.
4. An order setting aside the substitution of the plaintiff not being in conformity with the provisions of section 34(2) of the Electoral Act, 2006.
The trial court granted reliefs 1, 2, 3 and 4 and refused prayers 5 and 6 as completed acts. That is the Federal High Court refused to issue an order to place the name of the plaintiff on the ballot as the candidate for Uyo Federal Constituency in the April general election to the National Assembly and the court did not issue an injunction to restrain the 1st and 2nd defendants from recognizing or continuing to recognize the 3rd defendant as the candidate of the 2nd defendant for the House of Representatives election scheduled for April 2007. See pages 205 – 207 of the record.
For the sake of clarity, the 3rd defendant in the High Court is the 1st respondent. Bassey Etim. Meanwhile, the April election took place on 28/4/2007. The 1st respondent as the candidate for the 2nd respondent PDP, in the election scored the highest votes and was returned as the elected candidate 20 days after the election was concluded ,the ruling of the Federal High Court was delivered on 17/5/2007. The 1st respondent filed in the Federal High Court a stay of execution, still pending in that court. Subsequently, at the Tribunal, the 1st respondent filed a preliminary objection to the petition of the appellant. Driving the pendency of the petition of the 1st Respondent and before it was heard the PDP sought by motion an order to be struck out of the proceedings – petition of the appellant. Consequently, the counsel who filed the joint petition for the PDP and the appellant had to withdraw from the proceedings which order was granted.
The Election Petition Tribunal, Akwa Ibom State holden at Uyo, Akwo Ibom State ruled on the preliminary objection to the petition of the appellant as follows:
(1) That in view of the provisions of section 141(1) of the Electoral Act, 2006, it is incumbent that a petitioner that seeks to challenge the result of an election must first establish his right to do so either as a candidate in the election or as a political party that participated at the election. See Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 410. The tribunal held that as it is clearly shown that the 1st respondent was the candidate in the election, not the petitioner, the petitioner has no locus to sustain or defend the petition.

(2) A person who claims to have been excluded at an election cannot hold himself out at the same time as a candidate. Besides, the tribunal ruled that a party cannot complain that he was excluded; it is the political party which sponsored him who can so complain. Since therefore there was no political party which sponsored the petitioner/respondent, his petition before the tribunal cannot be entertained it was therefore struck out.

My Lords, it is against the above decision that the appellant has appealed to this court on the issues formulated by him and the 1st respondent and recited above in this judgment. The main issue for determination is whether or not the Election Tribunal was not justified in striking out the petition in the circumstance. The substance of the issue is contained in issue No.2 of the appellant which also the 1st respondent has responded on. Before I hear issue 3, ‘and’ one suggest that the Election Tribunal Uyo did not wait for the appellant to seek amendment of the parties on the record after the PDP asked to be struck out from the proceedings. It is clear that the party who should sponsor the appellant has left the scene of combat and withdraws the sponsorship of the appellant why should the Tribunal wait further. It would be obtuse for the election Tribunal, Uyo not to proceed to ruling. It is in any case a matter of fact within the discretion of the Tribunal, the discretion does not necessarily have to be exercised the way the appellate Judges would have done. See Nigerian Ports Authority v. Construzioni G. F Cogefar SPA (1974) 12 SC 81 at 91; Ceekay Traders Co. Ltd. v. General Motors Co. Ltd (1992) 2 NWLR (Pt.222) 132. The amputation of this in issues 103 are refused. The refusal of the Election Tribunal to delay its ruling does not impair the decision of the Uyo Election Tribunal.
On issue 2, I want to start by referring to the issue of the judgment of the Federal High Court. The ruling of the Federal High Court relates to the primaries in the election; not candidacy at the election of 28/4/2007. The learned trial Judge of the Federal High Court refused to make an order on the candidacy of the appellant at that election, when the court refused the appellant’s prayer to place the name of the plaintiff (applicant) on the ballots as the candidate of the 2nd defendant representing Uyo Federal Constituency in the April General Election to the National Assembly and further refused F to order an injunction against the 2nd defendant (PDP). In effect, there is nothing to restrain the Election Tribunal from making a determination on the eligibility of the appellant as a candidate in the election. Considering that what needed to be determined on the preliminary objection of the 1st respondent is whether or not the appellant was eligible to file a petition in the election of 28/4/2007.
The Tribunal in my view determined the issue correctly. My Lords, it is perhaps desirable to refer to the insistence of the appellant in his brief that the Election Tribunal has no jurisdiction to overrule the decision of the Federal High Court, the two being courts of coordinate jurisdiction.
The truth of the matter is that the Election Tribunal did not overrule the decision of the Federal High Court. In my view, the Election Tribunal carefully considered the prayer granted by the Federal High Court, and those refused by the said Court. The elections tribunal found that the issue on which the Federal High Court made an order in favour of the appellant have no relevance to the prayers of the 1st respondent to strike out the petition of the petitioner, because the petitioner did not participate in the election of 28/4/2007 and has no locus standi to present and sustain a petition as a person who participated in the election. See Egolum v. Obasanjo (2004) WRN 87; (1999) 7 NWLR (Pt. 611) 355; Senator Anietie Okon v. Effiong Bob & 6 Ors. (2003) WRN 69; (2004) 1 NWLR (Pt. 854) 378; Tosho v. Yahaya (1999) 4 NWLR (Pt.600) 657 at 671. Section 144(1) of the Electoral Act 2006, has not only hinted the categories of people who can file a petition not at primaries but on candidacy at election.
While section 145 states the issues or grounds on which the election may be questioned. See Okonkwo v. INEC & 5 Ors. (2006) 2 EPR 94; reported as Okonkwo v. Ngige (2006) 8 NWLR (Pt. 981) 119. The appellant’s complaint against the election is only on item (d) of section 145 of the Electoral Act it reads, “That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. Item (d) 145 of the Electoral Act, 2006 refers not to a person but to a political party when it uses the phrase the petitioner or its candidate. See section 65(2)(b) of the 1999 Constitution. The appellant was not validly nominated by the political party who had initially placed his name on the list, but the name was withdrawn and was ordered by the Federal High Court to be placed on the list when there no longer exist a list to place the appellant’s name. The reality of the matter is that an election took place on 25/4/1007 the name on the available list is not that of the appellant, it is that of the 1st respondent, and the name has gone on the ballot. What is more there is no political party to sponsor the appellant, the enforcement of the order of the Federal High Court has become impossible because a new situation non exist. As the appellant was not a candidate in the election, was therefore entitled to present a petition to complain about the election as excluded candidate the plausible answer is section 65(2)(b) of the 1999 Constitution of Nigeria requires “that a person shall be qualified for election if he is a member of a political party and he is sponsored by that party”.
It is not shown in the proceedings which political party sponsored the appellant, and at the time when the tribunal had to consider the issue of the withdrawal of sponsorship for the appellant, the appellant’s counsel raised no issue of intention to join another party; the counsel asked for a stand down of the proceedings and failed to return to the election tribunal.
The tribunal has no obligation to conduct the petition/appellant’s brief for him. It was justified in striking out the petition. Having considered the appellant’s issues 1 and 3, and issue 2, in particular, I agree that as formulated by the 1st respondent that the sole issue to be determined on appeal is whether in the circumstance, the Election Tribunal was right to strike out the petition. I rule that it was. However, since the decision of the Supreme Court in the case of Amaechi v. INEC, currently in the news, this court is bound by that decision, and must follow it irrespective of the provision of the previous law. In the event, I agree with the decision of Omokri, JCA in the lead judgment. That the election be heard on the merit. The appeal succeeds.

OWOADE, J.C.A.: I read in advance the judgment just delivered by my learned brother, Omokri, J.C.A. I agree with the reasoning and the conclusions and I also abide with the consequential orders.
The appellant in this case contested his candidature for the election, which before now would have been regarded as an intra-party issue before the Federal High Court, Abuja by virtue of section 34(2) of the Electoral Act, 2006.
The provision of section 34(2) of the Electoral Act, 2006, which was not contained in the Electoral Act, 2002 could be read in the con of section 34 of the Electoral Act, 2006 as follows:
34(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.
(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.
(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.
In interpreting the provision of section 34(2) of the Electoral Act, 2006, The Federal High Court, Abuja held in favour of the petitioner/appellant that he was the candidate of the PDP for the 2007 Elections into the House of representatives in the Uyo Federal Constituency of Akwa Ibom State having been validly nominated and not substituted by the party. The Federal High Court declared the purported substitution pursuant to section 34(2) of the Electoral Act, 2006 of the appellant as null and void. While the appellant’s case was pending before the Federal High Court, Abuja, the election had held on 28/04/2007 and on the strength of the purported substitution the 1st respondent’s name was on record as a candidate and he was declared the winner of that election. Armed with the subsisting judgment of the Federal High Court, Abuja, the appellant, together with the Peoples Democratic Party (PDP) filed the petition which led to this appeal at the Electoral Petition Tribunal sitting in Uyo, Akwa Ibom State. The 1st respondent filed a preliminary objection on the 28/06/07 at a time the PDP was the 1st petitioner on record and the appellant the 2nd petitioner. Following an application filed by the PDP on the 10/7/2007, the PDP was struck out on the 18/7/2007 leaving the appellant as the sole petitioner from that date. On the same date, the Tribunal heard the preliminary objection of the 1st respondent and on the 26/7/2007 struck out the petitioner’s appellant’s petition. Hence this appeal.
In striking out the appellant’s petition, the lower tribunal accepted the argument of the learned counsel to the 1st respondent that it is incumbent under the provision of section 144(1) of the Electoral Act, 2006, that a petitioner that seeks to challenge the result of an election must first establish his right to do so either as a candidate in the election or as a political party that participated at the elections. And that “the lack of presence of the party that allegedly sponsored the petitioner, to lay the complaint of unlawful exclusion of its candidate has knocked the bottom off this petition”.
Before this court, the learned counsel for the appellant submitted inter alia that there are two distinct categories of rights in election matters. These are the pre-election rights and the post-election rights. And that all pre-election matters fall squarely within the jurisdiction of the regular courts. Only post-election matters fall within the jurisdiction of the Election Tribunals by virtue of section 285(1) of the 1999 Constitution which create Election Tribunals to hear and determine petitions.
Learned counsel for the appellants further submitted that the judgment of the Federal High Court, Abuja which nullified the purported substitution of the appellant had the full effect of reversing everything that was done pursuant to that substitution. Relying on the cases of Adefulu & Ors. v. Okulaja & Ors. (1996) 9 NWLR (Pt.475) 668; Abana v. Obi (2005) 6 NWLR (Pt. 920) 183 and Saleh v. Monguno (2003) 1 NWLR (Pt.801) 221, counsel sated, the potency of the judgment of the Federal High Court is that anything done pursuant to the nullified substitution never happened at all because they were declared null and void.
The questions that arise in this appeal from the perspective of the learned counsel for the appellants are, having seen the judgment before it, could the Tribunal validly ignore the judgment to make its own pronouncement contrary to the said judgment. Did the issue of candidature already decided by the Federal High Court fall to be decided again by the Tribunal? Can an Election petition Tribunal validly overrule the judgment of a Federal High Court or take a decision that will directly or indirectly undermine the valid and subsisting decision of a Federal High Court?
In answering the above questions in the affirmative, learned counsel for the appellants submitted that the issue of person vis-a-vis his political party is a pre-election matter within the powers and jurisdiction of the regular courts. And that the Election Petition Tribunal has no jurisdiction to entertain any issue on nomination of party candidature.
Learned counsel for the appellant continued, by section 34(2) of the Electoral Act, 2006 the courts now have jurisdiction to hear and determine matters of candidature. The political party ceases to be master of the situation after submitting the name of a candidate.
The court comes in at that point because the present candidate automatically becomes a statutory candidate protected by the Act. This is to protect the electoral process. He added, the pleadings of the petitioner reflect the state of affairs before the judgment of the Federal High Court. The effect of nullification of the purported substitution by the court is that all things done pursuant thereto cease to be in existence and infact were never in existence. The legal effect is that whenever the name of the 1st respondent appeared pursuant to that error, the name of petitioner by the force of the judgment and operation of law automatically replaces. And concluded, relying on the case of Amaechi v. I.N.E.C. & Ors. (SC/74/2007) delivered on 11/5/2007; (2007) 18 NWLR (Pt. 1065) 42; that it was wrong for the Tribunal to appraise the issue suo motu and rule on it against the petitioner without inviting addresses on it. Especially, as an event that occurs in future can not take life out of a case which had been in existence before the event.
In relation to the all important issue of locus standi in this case, the respondents through the 1st respondent joined the lower tribunal to say that if the petitioner/appellant has been substituted and excluded from the election as he pleaded, he obviously was not a candidate at the election and consequently does not have the benefit of the statutory locus standi as envisaged in section 144 of the Electoral Act, 2006.
The respondents submitted further relying on the cases of Okafor & Ors. v. A.-G., Anambra State & Ors. (1992) LRCN p.407; (1992) 2 NWLR (Pt. 224) 396; and Mohammed v. Olawunmi (1993) 4 NWLR (Pt.287) p. 254 that there was evidence before the tribunal of a pending appeal against the judgment of the Federal High Court, Abuja in suit No. FHC/ABJ/CS/286/07 as well as a pending motion for stay of execution which was yet to be determined and therefore the tribunal in law had no business in the circumstances with the judgment of the Federal High Court in favour of the petitioner/appellant.
I have no doubt in my mind that this appeal turns out on the innovation introduced by the provision of section 34(2) of the Electoral Act. The Federal High Court having declared that the petitioner/appellant was the proper candidate for the election has endowed the appellant in the minimum with a locus standi which parallels the expression “candidate at election” under section 144 of the Electoral Act, 2006. The effect of this, is that the locus standi of the petitioner/appellant to present an election petition is no longer to be subjected to the varying and conflicting interpretation of decided cases as to the proper meaning of “candidate at election” in section 144 of the Electoral Act, 2006.
Indeed, and as rightly pointed out by the learned counsel for the appellant, prior to the introduction of section 34(2), the petitioner/appellant would have been in the same position as Senator Okon in Okon v. Bob (2002) 5 WRN 69; (2004) 1 NWLR (Pt. 854) 378 or Chief Onuoha in Onuoha v. Okafor (1983) 14 NSCC 494; (1983) 2 SCNLR 244 or Dalhatu in Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310. But the introduction of section 34(2) has introduce a radical departure in the position of the law for certainty in the electoral process.
Also, it is the introduction of section 34(2) of the Electoral Act, 2006 that led the Supreme Court to those far reaching decisions in the cases of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; and Hon. Rotimi Chubuike Amaechi v. INEC & Ors. (supra).
The simple issue decided by the Supreme Court in the Ugwu v. Ararume case and applied to its very logical conclusion in the Amaechi’s case is that a political party wishing to substitute a candidate for another within 60 days to the election must give cogent and verifiable reasons to INEC for the substitution sought.
In other words, the pre-election matter determined under that section is not cosmetic but justiciable and establishes a right at the election.
Applying the ratio in the aforementioned cases to the instant appeal, the learned counsel for the respondents cannot be heard to say that the petitioner/appellant was not a candidate at the election.
It is for these reasons and the fuller reasons contained in the lead judgment of my learned brother, Omokri, J.C.A. that I too allow the appeal.
Appeal allowed.