HON. OFFOR CHUKWUEGBO v. MR OJI CHIME AGU & ORS
(2015)LCN/7976(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of July, 2015
CA/EPT/E/02/2015
RATIO
APPEAL: GROUNDS FOR AN APPEAL; WHETHER THE GROUNDS FOR AN APPEAL DETERMINE THE ISSUES ARISING FROM THE APPEAL
It is settled by a long line of judicial decisions that the grounds for an appeal determine the issues arising from the appeal. So all issues raised in the briefs of arguments in the appeal must derive from a ground of the appeal. Any issue raised for determination that is not covered by any of the grounds for the appeal is incompetent and must be struck out. See MOTHERCAT V NGILARI, THE REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V JAMES & ANOR (1987) 7 SCNJ 167, MODUPE V STATE (1988) 9 SCNJ 1, AYINDE & ORS V ADIGUN (1993) 11 SCNJ 1 MAGIT V UNIVERSITY OF MAKURDI & ORS (2005) 19 NWLR, MOMODU & ORS V MOMOH & ANOR (1991) 2 SCL, UGO V OBIKWE & ORS (1989) 1 NWLR (PART 99) 566 AT 580. per. EMMANUEL AKOMAYE AGIM, J.C.A.
APPEAL; THE EFFECT OF THE FAILURE TO APPEAL A DECISION, HOLDING OR FINDING OR CHALLENGING IT BY SOME LEGAL PROCESS
It is settled law that by not appealing against a decision, holding or finding or challenging it by some legal process, the parties to the case in which the decision, holding or finding is made have accepted it as correct and binding upon them. See BIARIKO V EDEH – OGIWUILE & ORS (2001) 4 SC (PT. 11) 96, ADEJOBI & ANOR V THE STATE (2011) LPELR 97 (SC) AND SYLVESTER V OHIAUKWU (2014) 5 NWLR (PT. 1401) 462 (CA). per. EMMANUEL AKOMAYE AGIM, J.C.A.
COURT: JURISDICTION; WHETHER THE LACK OF COMPETENCE TO SUE OR CLAIM AND THE NON JUSTICIABILITY OF THE SUBJECT MATTER IS A FEATURE IN THE CASE THAT ROBS THE COURT OF JURISDICTION TO ENTERTAIN THE CASE
Where the subject matter of a case is within the subject matter jurisdiction of a court, but it is non justiciable and or that the claimant has no legal capacity or competence or locus standi to claim or sue then the court will have no jurisdiction to entertain the case. The lack of competence to sue or claim becomes a feature in the case that robs the court of the jurisdiction to entertain the case. Where a claimant has no right of action, a court would not have the jurisdiction to entertain the action brought by him. See SENATOR ADESANYA V THE PRESIDENT & ANOR (1981) 5 SC 112, OLORIODE & ORS v OYEBI & ORS (1984) 5 SC 1, THOMAS V OLUFOSOYE (1986) 1 NWLR 669 AT 684 AND RTEAN V NURTW (1992) 2 NWLR 381 AT 391. Equally the non justiciability of the subject matter of a suit is a feature that robs the court or tribunal of its jurisdiction to hear the case. See UGWU V. PDP (2015) 7 NWLR (PT 1459) 437 An appeal on grounds and issues that even if successful cannot affect or change the judgment appealed against is not worthy of a court’s consideration. It ought to be preliminarily dismissed as being frivolous. The issues it seeks to determine may be intellectually satisfying, but have no utilitarian value. The judicial power of a court cannot be invoked to determine questions that do not affect the civil rights and obligations of the parties to a case, or the course of justice in the case. Courts do not entertain academic questions, and therefore would not entertain an appeal that is clearly an academic exercise. See IMEGWU V OKOLOCHA & ORS (2013) 9 NWLR (PT 1359) 347 (SC); UGWU V PDP (2015) 7 NWLR (PT 1459) 437 and ABE V UNIVERSITY OF ILORIN & ANOR (2013) 16 NWLR (PT 1379) 183 at 203. In ABE V UNIVERSITY OF ILORIN (supra) The Supreme Court held that “no court wastes its precious time on causes the determination of which bear no consequence on the dispute between the parties. Acting in vain never forms part of this court’s function and practice does not certainly facilitate that …” per. EMMANUEL AKOMAYE AGIM, J.C.A.
ELECTION PETITION; GROUNDS UPON WHICH AN ELECTION MAY BE QUESTIONED
S.138(1) of the Electoral Act 2010, as amended, prescribes the grounds upon which an election may be questioned as follows –
“An election may be questioned on any of the following grounds, that is to say:
(a) That the person whose election is questioned was, at the time of the election not qualified to contest the election,
(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. per. EMMANUEL AKOMAYE AGIM, J.C.A.
COURT: JURISDICTION; THE JURISDICTION OF THE TRIBUNAL TO DEAL WITH ISSUE OF QUALIFICATION OF A CANDIDATE TO CONTEST A PARTICULAR ELECTION
The Supreme Court in PDP V SARROR & ORS (SC/381/2011 and SC/383/2011 on 28/11/2011) held that the Tribunal can deal with the issue of qualification of a candidate to contest a particular election whether the issue arises by virtue of the Constitution or otherwise.
It is now beyond argument that the issue of a person’s qualification for election is both a pre-election and post-election issue. This point is settled by a long line of Supreme Court decisions including DANGANA V USMAN (2013) 6 NWLR (PT. 1349) 50 at 89 – 90, SALIM v CPC (2013) 6 NWLR (PT. 1351) 500, WAMBAI V DONATUS (2014) 14 NWLR (PT.1427) 223, IKECHUKWU V NWOYE (2015) 3 NWLR (PT. 1446) 367. per. EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES:
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
HON.OFFOR CHUKWUEGBO – Appellant(s)
AND
1. MR OJI CHIME AGU
2. RETURNING OFFICER, ENUGU NORTH/ENUGU SOUTH FEDERAL CONSTITUENCY (INEC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 18-4-2015, the appellant herein as petitioner filed an election petition commencing petition No. EPT/ENU/NASS/HR/09/2015 in the National and State Houses of Assembly Election Petition Tribunal of Enugu State at Enugu against the respondents herein, claiming for the following reliefs.
(A) A declaration of the tribunal that the 1st respondent who did not win majority of the votes cast in the primary election of the 4th respondent which primary had been held to produce the candidate of the same of the 4th respondent in the Election held on 28/3/2015 for Enugu North/Enugu South Federal Constituency Enugu State, was in the circumstances not qualified to contest in the election and that the return made in his favour as having won the election by the 3rd Respondent was invalid and a nullity.
(B) A declaration of the tribunal that having not won or secured majority of the votes cast in the said primary election of the 4th respondent, that the said 1st respondent was not its candidate in the election and cannot be regarded as having been sponsored in the election as the 4th respondent’s candidate.
(C) A declaration of the tribunal that the 1st respondent in putting himself forward as a “candidate” of the said 4th respondent and the 3rd respondent in proceeding to publish his name and have him contest the election to the Federal House of Representatives to represent the Enugu North/Enugu South Federal Constituency in National Assembly, had committed a serious breach of the principles and provisions of the Electoral Act 2010 supra and which in turn acted to render his return as the winner of the election invalid and a nullity.
(D) A declaration of the court that having failed to win majority of the votes cast in the primary election of the 4th respondent held to elect its candidate in the election held on 28/3/2015 to the Federal House of the Representatives for Enugu North/Enugu South Federal Constituency, that the 1st respondent in the eyes of the election did not participate in the election of the 28/3/2015 and could not be said to have participated in all stages of the election, thus rendering his return as the winner of the election invalid and a nullity.
(E) An order of the Honourable Tribunal that a fresh election be conducted by the 3rd respondent within 30 days from the judgment of the tribunal or such other time as the tribunal may deem fit for purposes of electing the member to represent the Enugu North/Enugu South Federal Constituency in the National Assembly and in which the 1st and 4threspondents or any other person “sponsored” by the said 4th respondent be excluded or restrained from participating.”
The petition was accompanied by a witness statement on oath, list of documents to be relied on by the petitioner, and list of witnesses to be relied on by the petitioner.
The 4th respondent on 27-4-2015 filed a memorandum of conditional appearance to the petition. The 2nd and 3rd respondents filed their reply, accompanied by a witness statement on oath and list of witnesses. The 4th respondent subsequently filed a reply to the petition accompanied by list of documents to be relied on, a document to be relied on at the trial, list of witnesses, and a witness statement on oath of 4th respondent.
On 14-5-2015, the 1st respondent filed his reply accompanied by his statement on oath, list of witnesses to be called by him, list of copies of documents, and copies of documents. The petitioner on 18-5-2015 filed a reply to the 1st respondent’s reply accompanied by an additional witness statement on oath, additional list of witnesses, additional list of documents, and additional documents. On the same day he also filed a reply to the 4th respondent’s reply accompanied by an additional witness statement on oath. The 1st respondent by a motion filed on 10-6-2015 prayed the trial Tribunal to strike out/dismiss the petition for being Incompetent on the grounds that-
a. The petitioner has no competence, capacity or authority to complain or institute an action on the outcome of the election on the basis of the conduct of primaries by a party he is not a member of.
b. Primary election is the exclusive preserve of a political party.
c. The issue complained against by the petitioner is a pre-election matter.
d. The nature of the pre-election matter canvassed is not within the competence of election tribunals.
The motion was supported by an affidavit of 18 paragraphs and copies of two documents and a written address. The petitioner on 12-6-2015 filed a counter affidavit of 8 paragraphs and a written address in opposition to the motion. The 2nd and 3rd respondents supported the application of the 1st respondent to strike out/dismiss the petition. On 23-6-2015, the trial court rendered its ruling, upheld the preliminary objection, and dismissed the petition.
Dissatisfied with the ruling of the trial Tribunal, on 24-6-2015, the petitioner commenced this appeal no. CA/EPT/E/02/2015 by filing a notice of appeal containing four grounds for the appeal.
All parties to this appeal, except the 4th respondent, filed their respective briefs of arguments as follows- appellant’s brief of argument, 1st respondent’s brief of argument, 2nd and 3rd respondent’s brief of argument, appellant’s reply to the 1st respondent’s brief and appellant’s reply to 2nd and 3rd respondents’ brief of argument.
The bailiff’s affidavit and the acknowledgement of the receipt of the appellant’s brief by the 4th respondent in the record of this Court, show that the 4th respondent was served the appellant’s brief on 03-7-2015. Paragraph 12 of the Election Tribunal and Court Practice Directions, 2011 applicable also in the Court of Appeal when hearing an appeal from an election Tribunal provides that the respondent shall file in the Court his own Brief of Argument within 5 days of service of the Appellant’s brief. On 15-7-2015 when this appeal was heard, over 10 days had elapsed after the 4th respondent received the appellant’s Brief of Argument and failed to file its Brief of Argument. Since time is of essence in election matters, this court had to proceed with the hearing of the appeal on the briefs of argument filed by the respective parties in keeping with the letters and spirit of the Election Tribunal and Court Practice Directions, 2011.
The appellant’s Brief of Argument raised the following issues for determination:
(i) “Whether the learned Tribunal was right in finding as it did that it lacks jurisdiction to hear the petition for raising pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest in the election” (Grounds 1 and 3).
(ii) “Whether the learned Trial Tribunal was right in going into the merits of the case at the interlocutory stage of proceedings after already finding that it lacks jurisdiction to hear the petition, and in dismissing the petition” (Grounds 2 and 4).
The 1st respondent’s Brief of Argument raised one issue for determination as follows: whether the learned trial Tribunal was right in finding as it did that the petitioner lacks the competence to institute the petition and it lacks the jurisdiction for raising pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest in the election.
The 2nd and 3rd respondents’ brief of argument raised the following issues for determination:
(i) “Whether the learned Tribunal was right in finding as it did that it lacks jurisdiction to hear the petition for raising pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest in the election” (Ground 1 and 3).
(ii) “Whether the learned Trial Tribunal was right in going into the merits of the case at the interlocutory stage of proceedings after already finding that it lacks jurisdiction to hear the petition, and in dismissing the petition” (Grounds 2 and 4).
The part of the 1st respondent’s issue for determination, namely “whether the learned Trial Tribunal was right in finding as it did that the petitioner lacks the competence to institute the petition” is not competent because it is not derived from any of the grounds for this appeal. There is no ground of this appeal challenging the finding or holding of the Trial Tribunal that the petitioner lacked the competence or locus standi to institute this petition. The first and third grounds of this appeal complain that the Tribunal erred in law in holding that it lacked jurisdiction to hear the petition because it raises pre-election issues of qualification and candidature, which can only be entertained by regular Courts, and not an Election Tribunal by virtue of S.87(9) of the Electoral Act. The second ground complains that the Tribunal determined the merit of the petition by holding that “the 1st respondent was the aspirant with the highest number of votes as evinced by exhibit B and his name forwarded to the 4th respondent”. The fourth ground (Second ground 3) complains that the Tribunal after finding that it lacked jurisdiction to hear the petition dismissed the petition instead of striking it out. Paragraph 6 of the Election Tribunal and Court Practice Directions 2011 require grounds for an appeal. It states that “The appellant shall file in the Registry of the tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.” So the grounds for the appeal is the basis of the appeal. Paragraph 11(a) of the said Practice Direction prescribes what the brief of argument shall contain. It states that “The brief, which may be settled by counsel, shall contain what are, in the Appellant’s view, the issues arising in the appeal.”
It is settled by a long line of judicial decisions that the grounds for an appeal determine the issues arising from the appeal. So all issues raised in the briefs of arguments in the appeal must derive from a ground of the appeal. Any issue raised for determination that is not covered by any of the grounds for the appeal is incompetent and must be struck out. See MOTHERCAT V NGILARI, THE REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V JAMES & ANOR (1987) 7 SCNJ 167, MODUPE V STATE (1988) 9 SCNJ 1, AYINDE & ORS V ADIGUN (1993) 11 SCNJ 1 MAGIT V UNIVERSITY OF MAKURDI & ORS (2005) 19 NWLR, MOMODU & ORS V MOMOH & ANOR (1991) 2 SCL, UGO V OBIKWE & ORS (1989) 1 NWLR (PART 99) 566 AT 580. For the above reasons, I hold that the issue that the trial tribunal erred in law for holding that the petitioner has no competence or locus standi to institute the petition raised by the respondent is incompetent. Accordingly, it is hereby struck out.
The first issue for determination in the appellant’s brief, the valid part of the 1st respondent’s sole issue for determination and the 2nd and 3rd respondents’ issues for determination are the same. Therefore I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief of argument.
I will start with issue No. 1 which asks “whether the learned Tribunal was right in finding as it did that it lacks jurisdiction to hear the petition for raising pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest in the election”.
Before I go into the merits of the arguments of all parties in respect of this issue, I must point out that some parts of the arguments of the appellant under issue No.1, some parts of the arguments of the 1st respondent and some parts of the arguments of the 2nd and 3rd respondents extensively deal with the issue of the locus standi or competence of the petitioner to institute the election petition which is not covered by any of the grounds for this appeal.
These arguments are incompetent because there is no ground of this appeal complaining against the finding or holding of the trial Tribunal that the petitioner had no locus standi or competence to institute the petition.
It is settled law that just as the issues for determination in an appeal must derive from a ground of appeal, arguments in the appeal must be within the confines of the complain in or relate to a ground of the appeal. Arguments that are not related to any of the grounds of appeal are incompetent and not valid for consideration in the appeal. See MOMODU & ORS V. MOMOH & ANOR (1991) 2 SC 1 and ADEJUMO V. AYAUTEGBE (1990) 7 NWR (PT.161) 130 at 157. Therefore, the arguments are accordingly struck out.
The part of the judgement of the Tribunal that decided that the petitioner had no competence or locus standi to present the petition is reproduced hereunder for ease of reference. It states thus-
“it is obvious now that all these boil down to the fact that NO MEMBER of a political has the LOCUS STANDI to question the “party” prerogative right on the issue of the choice of its candidiate for elective offices, not even in the face of breaching of rules and regulations. See the case of PDF V SYLVA (2012) ALL FWLR (PT. 639) 606 at 651. It is now settled law that only a member of a political party that has the vires to question the
outcome of primaries. A non member cannot. Let it be clearly stated that the petitioner is no longer a member of PDP and still wants to regulate how the internal affairs of the party is conducted while retaining his membership of his new party. It is patently clear that the petitioner was sponsored by APGA for the election putting issue beyond contention. It is our view that by abandoning the PDP and joining and contesting election under APGA, the petitioner is deemed to and indeed to have waived his right to complain hence denying this tribunal of jurisdiction.”
“We must state without equivocation that even the suit of the High Court must be instituted by a member of the party who complains of an undue election. An aspirant can only be a member of the party and which is not the case here. The petitioner is no more a member of PDP but that of APGA. This disentitles him of any right to complain and be heard.
The Trial Tribunal relied on the Supreme Court decision in ADEGBUYI V APC (2014) ALL FWLR (PT. 761) 1486 at 1501 for this decision.
Since there is no ground of this appeal against the above part of the judgement of the trial Tribunal, it remains unchallenged and as correct, subsisting and binding on all the parties to the petition.
It is settled law that by not appealing against a decision, holding or finding or challenging it by some legal process, the parties to the case in which the decision, holding or finding is made have accepted it as correct and binding upon them. See BIARIKO V EDEH – OGIWUILE & ORS (2001) 4 SC (PT. 11) 96, ADEJOBI & ANOR V THE STATE (2011) LPELR 97 (SC) AND SYLVESTER V OHIAUKWU (2014) 5 NWLR (PT. 1401) 462 (CA).
The appellant’s arguments against the decision that the petitioner has no competence to present the petition is incompetent for the additional reason that a party cannot argue against or contrary to a decision he has accepted as correct and binding upon him. It is settled law that in an appeal, a party cannot validly argue against any finding, holding or decision not complained against in any ground of the appeal. See YALAJU-AMAYE V A.R.E.C. LTD & ORS (1990) 6 SCNJ 149.
Another holding of the tribunal which is not challenged by any ground of this appeal is that matters related to the nomination of the candidate of a political party for an election are its domestic affairs and are therefore non justiciable. For ease of reference, I reproduced the said holding here as follows –
“As regards issue 1 above, it is no more in doubt that matters relating to nomination of the candidate of a political party are regarded as domestic affairs and generally treated as not justiceable. See ONUOHA V OKAFOR (1983) 8 SC 52; EHINLAHO v OKE (2008) 16 NWLR (Pt. 1113) 357. This presupposes that it is the political party that has exclusive power to conduct primary election and so a court should not dabble into political question which remains the exclusive preserve of the political parties. Such powers cannot be interfered with by the court. See the cases ONUOHA v OKAFOR (1983) 8 SC 52; EHINLAHO v OKE (2008) 16 NWLR (Pt. 1113) 357. Also in recent case of ADEGBUYI V APC (2014) ALL FWLR (Pt. 761) 1486 at 1501. This principle was reiterated where the plaintiff wrote a letter of withdrawal of candidature to his political party and later attempted to claim the same result. The Supreme Court per Fabiyi, JSC held thus –
“It is basic that the Appellant who withdrew from the contest cannot validly complain about the conduct of the primary election. He has no competence and authority to complain or institute an action. He cannot be allowed to blow hot and cold at the same time. He has no capacity to approach the court to enforce any right from the same primary.” See also the case of BUHARI V INEC (2008) ALL FWLR (Pt 437) P.42.
The Supreme Court also in APGA V ANYANWU (2014) ALL FWLR (PT. 735) 243 at 265 per Kekere-Ekun JSC stated thus –
“In LADO V CPC this court observed that with the introduction of S.34 of the Electoral Act the absolute powers of political parties had been curtailed slightly but I emphasized the fact that the provision did not in any way, alter or modify the principle that the question as to who is a candidate of a political party for any election is a political question within the domestic jurisdiction of political parties and consequently not justiceable.”
By not appealing against this part of the Judgment of the tribunal, the parties to this appeal have accepted it as correct and binding upon them.
The unavoidable implication of the appellant’s acceptance of the above Tribunal decision that he had no competence or locus standi to present the petition and the decision that the subject matter of the petition is non justiceable is that the grounds for this appeal, the issues for determination and the arguments hereunder are rendered sterile, idle and academic like the theoretical formulations and expositions of Demosthenes, the legendary Greek orator, who reputedly addressed the sea when he had no human audience. This is because even if it is resolved in this appeal that the trial tribunal has the jurisdiction to entertain and hear pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest in the election, the Tribunal will still lack the jurisdiction to entertain the petition because of the subsisting Tribunal decisions that the subject matter of the petition is non justiciable and that the petitioner who presented the petition lacked competence or locus standi to do so. Where the subject matter of a case is within the subject matter jurisdiction of a court, but it is non justiciable and or that the claimant has no legal capacity or competence or locus standi to claim or sue then the court will have no jurisdiction to entertain the case. The lack of competence to sue or claim becomes a feature in the case that robs the court of the jurisdiction to entertain the case. Where a claimant has no right of action, a court would not have the jurisdiction to entertain the action brought by him. See SENATOR ADESANYA V THE PRESIDENT & ANOR (1981) 5 SC 112, OLORIODE & ORS v OYEBI & ORS (1984) 5 SC 1, THOMAS V OLUFOSOYE (1986) 1 NWLR 669 AT 684 AND RTEAN V NURTW (1992) 2 NWLR 381 AT 391. Equally the non justiciability of the subject matter of a suit is a feature that robs the court or tribunal of its jurisdiction to hear the case. See UGWU V. PDP (2015) 7 NWLR (PT 1459) 437
An appeal on grounds and issues that even if successful cannot affect or change the judgment appealed against is not worthy of a court’s consideration. It ought to be preliminarily dismissed as being frivolous. The issues it seeks to determine may be intellectually satisfying, but have no utilitarian value. The judicial power of a court cannot be invoked to determine questions that do not affect the civil rights and obligations of the parties to a case, or the course of justice in the case. Courts do not entertain academic questions, and therefore would not entertain an appeal that is clearly an academic exercise. See IMEGWU V OKOLOCHA & ORS (2013) 9 NWLR (PT 1359) 347 (SC); UGWU V PDP (2015) 7 NWLR (PT 1459) 437 and ABE V UNIVERSITY OF ILORIN & ANOR (2013) 16 NWLR (PT 1379) 183 at 203. In ABE V UNIVERSITY OF ILORIN (supra) The Supreme Court held that “no court wastes its precious time on causes the determination of which bear no consequence on the dispute between the parties. Acting in vain never forms part of this court’s function and practice does not certainly facilitate that …”
In any case, it is settled by a long line of judicial decisions that where the issues for determination in an appeal if resolved in favour of the appellant, would not affect or change the decision appealed against, the appeal has failed. See UGWU V PDP (supra).
Let me now consider the merits of the arguments of both sides in respect of the issue of the jurisdiction of the trial Tribunal to entertain, hear and determine the pre-election issues of candidature, sponsorship and qualification of the 1st respondent to contest the election, in keeping with the sound principle that a penultimate court should consider all the issues raised before it so that the Supreme Court can be in a position to determine the said issues, in case of a further appeal to it.
The admitted and established facts of this case are as follows; the appellant and 1st respondent were members of the 4th respondent. Both aspired to be nominated and selected as its candidate for the general elections to the seat of member of House of Representatives representing Enugu North/Enugu South Federal Constituency. Following the 4th respondent’s primaries to select its said candidate, the 4th respondent submitted the name of 1st respondent to the 3rd respondent as its candidate for said election. Following his vain protestations against the 4th respondent’s submission of the name of the 1st respondent as its candidate, the appellant left the 4th respondent and enlisted as a member of another registered political party, the All Progressives Grand Alliance (APGA). His name was submitted by the APGA to the 3rd respondent as its candidate for the same election to the seat of Member House of Representatives for Enugu North/Enugu South Federal Constituency. The 3rd respondent published the list of candidates of each political party for the said election. The name of the appellant was published as the APGA candidate, while that of the 1st respondent was published as candidate of the 4th respondent. Each of them campaigned for the election as the candidate for their respective parties. The said general election held on 28-3-2015. The 1st respondent secured an overwhelming majority of the lawful votes cast in the election and was declared winner of the election and returned elected by the 2nd respondent (the Returning Officer for the election).
The appellant on 18-4-2015 presented a petition at the trial Tribunal, challenging the said election of the 1st respondent. He stated the platform from which he launched the petition in paragraph 2 of the petition thus – “Your petitioner states that his right to present this petition issues from the fact that he was the candidate of the All Progressive Grand Alliance who campaigned and participated in all stages of the election including to contest in the election held on 28/3/2015 to elect the member to represent the Enugu North/Enugu South Federal Constituency at the National Assembly, as earlier on set out above, while the 1st respondent had been declared winner of the election with a total of 31, 443 votes, the petitioner had secured a total of 14111 votes in the election.”
He stated the grounds for the petition in paragraph 3 of his petition, thus-
(i) The 1st respondent’s election was an undue election or that his return was undue, the said election or return was undue because:-
(ii) The 1st respondent was not qualified to contest in the election.
(iii) He did not also participate in all stages of the election and
(iv) The election was invalid as a result on non compliance with the provisions of the Electoral Act 2010 (as amended).”
He stated the particulars of the facts of his complaint in paragraphs 4 – 9 of his petition, thus –
4. The 1st respondent did not win majority of the votes cast in the primary election of the 4th respondent to elect its candidate to fly its flag in the election to elect the member of the House of Representatives to represent Enugu North/Enugu South in the National Assembly of the Federal Republic of Nigeria, rather the person who won majority of the votes cast in the said 4th respondent’s primaries was the petitioner, at the trial the result shall be founded upon, also to be founded upon is the judgment of the Federal High Court Abuja in suit No. FHC/ABJ/CS/25/2015.
5. The 1st respondent has tried to thwart the result of the said primary election when he sought to appropriate the petitioner’s victory onto himself, the petitioner had resisted the attempt stoutly in the end,
even the NATIONAL ASSEMBLY PRIMARIES APPEAL PANEL of the 4th Respondent for Enugu State had found for the petitioner that he won the primary election, at the trial, a copy of the finding of the said appeal panel shall be founded upon.
6. That despite the aforesaid finding of the Appeal Panel, the 3rd Respondent had contrary to the provisions and principles of the Electoral Act 2010 (as amended), proceeded to receive and publish the name of the 1st respondent to contest the election from the 4th respondent as its candidate in the election, on its own part, the aforesaid 4th respondent has failed to forward the name of your petitioner who had polled majority of the votes cast in the party primaries as she was required to do by law, to the 3rd Respondent, Counsel C. Chuma Oguejiofor Esq. informs me and I verily believe same.
7. The Electoral Act, 2010 supra provides in Section 87(4) that it is the aspirant in the primary election of the party who had secured majority of the votes in the said primary election that is in the eyes of the law the candidate of the party in the election, the 1st respondent never secured majority of the votes cast in the said primary election, he was therefore not qualified to contest in the same, to put it in other words, the 4th respondent would only validly sponsor the person that polled majority of the votes cast in her primary election as its candidate in the general election and not the 1st respondent who did not win the same.
Counsel C. Chuma Oguejiofor Esq. informs me and I verily believe same.
8. The 3rd respondent in the proceeding to publish and regard the 1st respondent that never secured majority of the votes cast in the primary election of the 4th respondent as its candidate in the election held on 28/3/2015 had clearly failed to comply with the clear and unambiguous provision in Section 87(4)(c)(ii) of the Electoral Act 2010 (as amended). Counsel C. Chuma Oguejiofor Esq. informs me and I verily believe same.
9. At the same time the 1st Respondent could not be said to have participated in an election in which he was not qualified to contest having failed to win or secure majority of the votes cast in the primary election of the 4th Respondent, in the eyes of the law, he did not therefore participate in the election of 28/3/2015.”
It is on the basis of these facts that he claimed for the reliefs in paragraph 12 of the petition which are reproduced in pages 2 and 3 of this judgement. The 1st respondent in paragraphs 3 to 21 of his reply denied all the above averments in paragraphs 4 to 9 of the petition concerning the 4th respondent’s primaries that selected the 1st respondent as 4th respondent’s candidate for the election. He pleaded the result of the primaries showing that he secured all the 96 votes cast in the primary election, while all other aspirants including the appellant scored zero and one other stepped down. The 4th respondent in paragraphs 2 to 8 denied the averments in the petition concerning its said primaries, supported the narratives in paragraphs 3 to 21 of the 1st respondent’s reply, stating that it was the 1st respondent that scored the majority of the lawful votes cast in the said primary election.
It is clear from the factual basis for the petition contained in paragraphs 4 to 9 therein, the contentions of the petitioner in paragraph 10 of the petition and the reliefs claimed for in paragraph 12 of the petition that there is only one ground for the petition, and that ground is that the 1st respondent was not qualified to contest in the election. He predicated this assertion on his contentions in paragraph 10 of his petition that the 1st respondent not having won majority of the votes cast in the 4th respondent’s said primary election –
1. Was not qualified to have his name submitted by the 4th respondent to the 3rd respondent as 4th respondents candidate for the election and cannot be regarded as having been sponsored in the election as the 4th respondent’s candidate.
2. Was not entitled to have his name published by the 3rd respondent.
3. Was disqualified from participating in the election of 28-3-2015.
4. Did not in the eyes of the law participate in all the stages of the election being not qualified to contest in the said election of the National Assembly.
S.138(1) of the Electoral Act 2010, as amended, prescribes the grounds upon which an election may be questioned as follows –
“An election may be questioned on any of the following grounds, that is to say:
(a) That the person whose election is questioned was, at the time of the election not qualified to contest the election,
(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
Learned Counsel for the appellant relied on S.138(1) (a) of the Electoral Act reproduced above and S.62(2)(b) of the Constitution of the Federal Republic of Nigeria (The Constitution) as the platforms on which he presented this petition. Learned Counsel for the petitioner clearly stated that the issue of the qualification raised in the petition is constitutional in that he contends that the 1st respondent did not satisfy the requirement of qualification for election prescribed in S.65(2)(b) of the Constitution as follows – “a person shall be qualified for election under this section if he is a member of a political party and is sponsored by that party”.
The Supreme Court in PDP V SARROR & ORS (SC/381/2011 and SC/383/2011 on 28/11/2011) held that the Tribunal can deal with the issue of qualification of a candidate to contest a particular election whether the issue arises by virtue of the Constitution or otherwise.
It is now beyond argument that the issue of a person’s qualification for election is both a pre-election and post-election issue. This point is settled by a long line of Supreme Court decisions including DANGANA V USMAN (2013) 6 NWLR (PT. 1349) 50 at 89 – 90, SALIM v CPC (2013) 6 NWLR (PT. 1351) 500, WAMBAI V DONATUS (2014) 14 NWLR (PT.1427) 223, IKECHUKWU V NWOYE (2015) 3 NWLR (PT. 1446) 367.
The characterization of a dispute over a person’s qualification for election for any reason as a pre-election or post election is determined by whether the dispute was presented for judicial determination before or after the general election. If it is brought before the general election, it is a pre-election matter. If it is brought after the general election and after the person whose qualification is disputed has been elected, it is a post election matter. As a pre-election matter, it can be presented only in a High Court by Virtue of S.31(5) and (6) and S.87(9) of the Electoral Act 2010 as amended. As a post-election challenge of an elected person’s qualification for election, it can be presented only as an election petition in an election Tribunal. See SALIM V CPC (Supra) in which the Supreme Court held that –“it is my considered opinion therefore that the issues of qualification, disqualification or non-qualification of a candidate to contest an election (in this case governorship election) is a matter which the High Courts and the Election Petition Tribunal that those grievances can be presented after election has taken place. …..In conclusion it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and are therefore pre-election matter. The instant situation where the appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election and can only go before the election tribunal to try his luck since the status of the matter was post-election clearly outside the ambit of either the Federal High Court State High Court or High Court of FCT”.
In DANGANA V USMAN (Supra) the Supreme Court had held that – “Section 138(1)(a) of the Electoral Act, 2010 (as amended) provides inter alia that an election may be questioned on the ground that a person whose election is questioned was at the time of the election not qualified to contest the election. With the above provision in view it will be very unsafe to agree with the submission of Learned Senior Counsel for the Appellant that the issue involved in this case was strictly a pre-election matter in which an election tribunal has no jurisdiction to hear and determine and that only the High Court has jurisdiction to deal with the matter. I do not agree that the matter envisaged in Section 138(1)(a) of the Electoral Act 2010 (as amended) is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that qualification/disqualification to contest an election is both a pre-election and post election matter.
However, in the instant case, Section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an Election Tribunal expressly making the issue of qualification of a candidate to contest an election a ground in an election petition challenging or questioning the return of the winner of the said election. I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act 2010 (as amended) is both a pre-election and an election matter which both the High Court and the relevant Election Tribunals have jurisdiction to hear and determine”. See also WAMBAI V DONATUS (Supra) and IKECHUKWU V NWOYE (Supra) where the apex court restated its earlier positions in the above cases.
The Supreme Court in UCHA V ONWE (2011) ALL FWLR (PT. 580) 1227 a case whose facts are exactly the same with our present case, had modified its position on the matter by holding that- “The issue is whether having regard to the cause of action being and arising from the result of the 4th respondent’s nomination exercise, the National Assembly Election Tribunal established under Section 285 (1) of the Constitution of the Federal Republic of Nigeria, 1999 had the jurisdiction to hear and determine the petition filed by the petitioner/respondent. The contention of the PDP’s intra-party nomination exercise which was completed by it decision of 20 February, 2007 (some two months before the election of 21 April, 2007) it is a pre-election matter and over which and that only the Federal High Court or High Court of a state that has the jurisdiction to entertain a claim based thereon. The position of the petitioner/respondent on the other hand is that he was the person held on 2 December, 2006 and that he won by an overwhelming and undisputed majority. And that, by reason thereof that appellant as 1st respondent at the tribunal was on 21 April, 2007 not qualified to contest the election. That by virtue of the appellant’s non-qualification, his purported election could and was rightly questioned at the tribunal in the petition. In support of their submissions, both sides relied on Sections 285(1) of the Constitution of Federal Republic of Nigeria 1999, and Section 144(1) and 145 (1) of the Electoral Act, 2006 and a number of Supreme Court and Court of Appeal authorities by which I should be guided …
Learned Counsel for the 1st respondent further made reference to the provisions of Section 246(1) (b) (i) of the Constitution of the Federal Republic of Nigeria, 1999, on appeals to the Court of Appeal as of right from decisions of the National Assembly Election Tribunals on any question as to whether any person has been validly elected as a member of the National Assembly and submitted that the validity of the person’s election includes his qualification; that the appellant not being the person that was nominated for Ebonyi Central Senatorial District in the nomination exercise of the 4th respondent, was not qualified to contest the election. It was submitted therefore that by reason of the appellant’s non-qualification arising from the nomination exercise of the 4th respondent the validity of his election was rightly questioned in the election petition.
That argument is with respect untenable. Section 66 (1) of the Constitution of the Federal Republic of Nigeria 1999, makes specific provisions for a person’s disqualification or non-qualification for election to the senate or House of Representatives. These include the person’s voluntary acquisition of the citizenship of a country other than Nigeria, his having been adjudged a lunatic or an undischarged bankrupt, his having been sentenced to death or to imprisonment for an offence involving dishonesty, that he is a member of a secret society, his having been indicted for embezzlement or fraud, his presentation of a forged certificate to the Independent national Electoral Commission. Any of these disabilities spelt out in Section 66(1) of the Constitution of the Federal Republic of Nigeria 1999, can properly constitute a ground upon which a person’s election can be questioned in an election petition. A person’s disqualification or 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.
In view of the foregoing considerations, and particularly having regard to the specific pronouncements of this court on the issue of proper venue for pre-election and post-election matter in the cases which I have reviewed above and which I am bound to follow, I hold that the election tribunal had no jurisdiction to hear and determine the petition. The matter of the petitioner/1st respondent’s nomination and/or substitution is a pre-election matter of the PDP for which determination jurisdiction is vested in the Federal High Court or High Court of a State.”
This holding clearly lays down the law that –
1. The alleged nomination or selection and sponsorship of a person as a candidate for an election contrary to the result of the party’s primary election does not qualify as a ground for challenging his election and return on the ground of his qualification for election in an election petition.
2. That his nomination and selection as the party’s candidate in its primary election is the kind of pre-election matter that the tribunal will lack the jurisdiction to entertain not being one of the personal disabilities or disqualifying features listed in S. 66(1) of the 1999 Constitution of Nigeria.
The Supreme Court decisions that followed UCHA V ONWE (Supra) seem to conflict with it. These include IKECHUKWU V NWOYE, WAMBAI V DONATUS, DANGANA V USMAN and SALIM V CPC. In WAMBAI V DONATUS, the Supreme Court held per Onnoghen JSC that “By virtue of Section 138(1)(a) and (d) of the Electoral Act, 2010 (As amended), an election may be questioned on any of the following grounds, that is to say:
(e) That the person whose election is questioned was, at the time of the election not qualified to contest the election,
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. In the instant case, the case of the 1st Respondent which challenged his substitution came within the provision of Section 138 (1) (a) of the Electoral Act 2010 because it challenged the qualification of the appellant to contest the election in issue, particularly as he was alleged not to be the duly nominated candidate of the political party in question. A person cannot be qualified to be a candidate of a political party for an election except and unless he is nominated and sponsored by a political party for which he is a member it follows therefore, that after the conduct of an election if a person wishes to challenge the result of the election on ground of nomination/pre-election matter he can legally do so before an election tribunal under Section 138 (1) (a) of the Electoral Act 2010 (As amended) and it is wrong to hold that an election tribunal does not have jurisdiction to hear and determine such a matter.”
In the same case, it held per Rhodes-Vivour JSC that “if a proceedings-election matter is filed after the election has taken place complaining about the conduct of his party primaries as regards his nomination or substitution, such an action can only be heard by an election tribunal”.
It is now settled law that when this court is faced with two or more conflicting decisions of the Supreme Court on any point, it is bound to follow the latest decision of the Supreme Court, See UGWU V PDP (Supra), OPENE V NJC & ORS (2011) LPELR 4795 (CA), OLUFUNSHO & ORS V GLOBAL SOAP AND DETERGENT INDUSTRIES LTD (2012) LPELR 9822 (CA).
Therefore, I will follow the later decisions of the Supreme Court in WAMBAI DONATUS, DANGANA V USMAN and SALIM V CPC. In line with the said decisions, I hold that the trial tribunal has the jurisdiction to entertain and hear the petition challenging the qualification of the 1st respondent for election on the ground of alleged improper or unlawful nomination or selection and sponsorship of the 1st respondent by the 3rd respondent as its candidate for the 28-3- 2015 election to the seat of member of House of Representatives for Enugu North/Enugu South Federal Constituency. Issue No 1 in the appellant’s brief of argument is hereby resolved in favour of the appellant.
I will now consider issue No 2 in the appellant’s brief of argument which asks – “whether the learned Trial Tribunal was right in going into the merits of the case at the interlocutory stage of proceedings after already finding that it lacks jurisdiction to hear the petition, and in dismissing the petition”.
Learned Counsel for the Appellant reproduced the portion of the judgment of the tribunal complained against under this issue in his argument. The said part of the judgment reads thus –
“it is crystal clear that the 1st respondent was the aspirant with the highest number of votes as evinced by Exhibit B attached and his name forwarded to the 4th respondent. “Learned Counsel for the appellant argued that the Tribunal had by that holding at the interlocutory stage of the proceedings determined the substantive issue, that it had gone into determining the merit of the case after it had already found that it lacked the jurisdiction to entertain the case, that it is trite law that courts should not delve into or decide the main issue in the case at the interlocutory stage, that the trial court having held that it lacked the jurisdiction to entertain the petition, should have struck it out and not dismiss it and that it is trite law that when a court lacks the jurisdiction to hear a case, it strikes out and not dismiss the case. For the above submissions he relied on the Supreme Court decisions in JAMES V INEC & ORS (SC/478/2013), A G V GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (pt. 618) 187, UWAIFO V A-G BENDEL STATE (1982) 7 SC 124, ADEYEMI V OPEYORI (1976) 6 – 10 SC 31, AMAECHI V INEC (NO, 2) (2007) 18 NWLR (Pt. 1068) 98, OKOLO V UBN LTD (2004) 3 NWLR (PT. 859) 87 and OKOYE V NCFC (1991) 6 NWLR 13 (Pt. 1999) 501.
Learned Counsel for the 1st respondent did not in the 1st respondent’s brief of argument respond to the above argument of Learned Counsel for the appellant.
Learned Counsel for the 2nd and 3rdrespondents argued in reply to the above arguments of the Learned Counsel for the appellant that the said holding of the tribunal was the result of its consideration of the depositions in paragraphs 13 and 14 of the 1st respondents affidavit and the Exhibits attached thereto, that the appellant did not attach any document to show that he won the highest votes cast in the primaries and that the 1st respondent attached to his reply the result of the 4th respondent’s election primary showing he scored an overwhelming majority of the votes cast in the said primary.
I will now determine the merits of the above arguments of both sides.
It is obvious that the entire petition is based on the appellant’s contention that he secured the highest number of votes cast in the 4th respondent’s primaries to nominate or select its candidate for the 28-3-2015 election, that his name as the winner of the primary ought to have been submitted by the 4th respondent to the 3rd respondent as its candidate for the election and not that of the 1st respondent, that the 4th respondent ought to have sponsored him as its candidate for the election as winner of its primaries, that the selection of the 1st respondent by the 4th respondent as its candidate for the election, the submission of his name to the 3rd respondent by the 4th respondent and the 4th respondents sponsorship of the 1st respondent as its candidate for the election is wrongful and unlawful. This is the heart of the case in the petition. It is glaring that the above reproduced pronouncement of the trial Tribunal, while determining the preliminary objection, determined the merit of the central issue in controversy in the petition without hearing both sides on the merits of the substantive suit. Such a decision violates the appellant’s right to fair hearing as enshrined in S.36(1) of the 1999 Constitution and renders the impartiality of the court or tribunal suspect.
It is settled by a long line of judicial decisions that courts should not while deciding an interlocutory issue in a case, decide the merit of the heart of the matter in the main case. See JAMES V INEC & ORS (Supra) cited by Learned Counsel for the appellant. The said pronouncement of the tribunal that the 1st respondent scored the highest votes and his name was forwarded to the 4th respondent cannot be allowed to stand. It is hereby set aside.
I agree with the submission of Learned Counsel for the appellant that the proper order a court should make upon finding that it lacks jurisdiction to entertain a case is to strike out the case and not dismiss it. See DANGANA V USMAN (SUPRA) and UGWU V PDP (Supra).
The order of dismissal of the petition is hereby set aside.
The petition is rather hereby struck out in view of the subsisting decisions of the Tribunal that the subject matter of the petition is non justiciable and that the appellant lacks the competence or locus standi to present the petition which robs the tribunal of jurisdiction to entertain the petition. Issue No 2 is resolved in favour of the appellant.
Although all the issues for determination in the appellant’s brief of argument have been resolved in favour of the appellant but the appeal still fails as it has not affected or changed the decision that the trial tribunal lacks the jurisdiction to entertain the petition. As held by the Supreme Court in OLUBODE AND OTHERS VS SALAMI (1985) 2 NWLR (PART 7) 282 AT p.288, the function of an Appeal Court is to determine whether error had been committed by the Trial Court. If error had been committed, it must then decide whether such an error is of such a gravity and magnitude to necessitate the reversal of the judgment of the Trial Court. It is not very error that would lead to a reversal by an Appeal Court. Such error must have substantially affected the result of the decision. See also UGWU V PDP (Supra).
Accordingly, the appeal is dismissed. The appellant shall pay costs of N100,000.00 to the 1st, 2nd and 3rd respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I was opportuned to read in draft, the lead judgment just delivered by learned brother, Hon. Justice Emmanuel Akomaye Agim, JCA, I have dutifully gone through the reasoning which led to the conclusion that the appeal should be dismissed. I am in tandem with my noble Lord, that the appeal lacks merit. In this vein, I also dismiss the appeal. I abide by the order made in the said lead judgment inclusive of the one on costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my brother EMMANUEL AKOMAYE AGIM JCA.
I agree with his opinion and conclusion, moreso his reasoning.
I have nothing to add.
The Appeal is dismissed by me.
I abide by the consequential order made as to costs.
Appearances
Chuma Oguejiofor Esq.with F. C. Okeke Esq., Mrs N. F. Anyaegbunam, B. O. Nwanjoku, Esq., A. C. Nnam Esq., N. Ezema Esq., N. W. Ebobuike (Miss), G. N. Onovo Esq., Miss U. U. Ewenighi, A. T. Nwaka Esq. and Miss G. A. Obeneme For Appellant
AND
Prof. Agu Gab Agu with Obinna Onuigbo Esq., Eze Agu Esq. for the 1st respondent
D. B. Arikpo, Esq., Emmanuel E. Ogbodu, Esq. for the 2nd and 3rd Respondents For Respondent
