JENKINS GIANE DUVIE GWEDE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2013)

JENKINS GIANE DUVIE GWEDE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2013)LCN/6217(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of May, 2013

CA/B/237/2012

RATIO

JURISDICTION: COMPETENCY OF COURT

It is settled law that jurisdiction is fundamental to adjudication and it is usually conferred on the court by the constitution or statute. It is the foundation on which the court exercises its judicial powers. A proceeding however well conducted is a nullity if the court lacks jurisdiction to hear and determine the matter.At the trial of this matter, the 1st and 2nd Respondents had filed processes by way of motion of preliminary objection to the hearing of the suit on the grounds that the Federal High Court lacked jurisdiction and that the proper venue of the trial had to be the Election Petition Tribunals. I agree with the learned Appellant’s counsel that the learned trial judge did not say precisely the reasons why he found that the trial court lacked jurisdiction. From Pg. 14-18 of the judgment which is on Pg. 1077-1081 of the records, the learned trial judge merely quoted profusely from the cases of Olofu v. Itodo and Hassan v. Aliyu supra.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

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

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

JENKINS GIANE DUVIE GWEDE Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. EDOJA RUFUS AKPODIETE
3. JULIUS OGHENEVWEGBA BOBI
4. DEMOCRATIC PEOPLES PARTY (DPP) Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Asaba delivered on the 27th of June, 2012 in Suit No. FHC/ASB/CS/110/2011. Notice of appeal was dated and filed on 13/7/2012. The facts that led to this appeal are as follows:
The Appellant and the 4th Respondent herein were the plaintiffs at the trial court. The present 1st and 2nd Respondents to this appeal were the two Defendants at the trial court. The present 3rd Respondent was initially not a party having not been sued by the Plaintiffs at the trial court.
However, he brought a motion to join the suit as an interested party claiming to be the one with the legitimate highest number of votes at the primary election and ought to have been the candidate of the party. He was joined as the 3rd Defendant. For clarity, let me set out the circumstances and the claims of the Plaintiffs at the trial court. The 1st Respondent conducted election of membership of Delta State House of Assembly including Ughelli North Constituency II on the 26th day of April 2011. The 4th Respondent was returned the winner of the election and the 2nd Respondent was accordingly issued with a Certificate of Return. The Appellant dissatisfied with the return of the 2nd Respondent filed an originating summons at the Federal High Court on the 29th day of April, 2011 raising three questions and seeking three reliefs which are hereunder reproduced for ease of reference.

1. WHETHER the 1st Plaintiff who having been duly nominated as the candidate of the 2nd Plaintiff for the election into the Delta State House of Assembly to represent Ughelli North Constituency II in the Delta State House of Assembly and the 2nd plaintiff having won the election whether the 1st plaintiff is not entitled to be issued with a Certificate of Return in respect of the said election.

2. WHETHER the 2nd Defendant who personally signed a letter withdrawing from the election and was validly substituted by the 1st Plaintiff as its candidate can validly contend that he is still the candidate of the 1st plaintiff in respect of the material election.

3. WHETHER the 1st Defendant can pick and chose candidate for the 2nd Plaintiff a political party.

The reliefs sought are –

4. A DECLARATION that the 1st plaintiff being the validly nominated candidate of the 2nd plaintiff is the person entitled to be issued with a certificate of Return in respect of the House of Assembly election in Ughelli North Constituency II of Delta State.

5. AN ORDER of this Honourable court directing the 1st Defendant to issue the 1st plaintiff with a certificate of Return in respect of the House of Assembly for Ughelli North Constituency II of Delta State.

6. AN ORDER restraining the 1st Defendant from recognizing the 2nd Defendant as the candidate of the 2nd plaintiff and also from issuing any certificate of Return in the name of the 2nd Defendant.

All the Defendants challenged the jurisdiction of the Federal High Court to hear the suit and also filed their respective counter affidavits and written addresses in opposition to the suit. The gravamen of the complaint of the 1st Plaintiff now Appellant as stated in the affidavit in support of the originating summons as well as the attached Exhibits is that the 2nd Defendant/Respondent was substituted with him vide the Exhibits attached to the originating summons based on which he became the candidate of the 2nd Plaintiff/4th Respondent in the Delta state House of Assembly election for Ughelli North Constituency II held on 26th April, 2011. The Federal High Court heard the originating summons along with the preliminary objections to the competence of the suit and judgment was delivered on 27th June, 2012. (pages 1051-1084). The preliminary objections were upheld and on the merit of the case, the trial court found that the 2nd Respondent did not withdraw The originating summons was accordingly dismissed. Being dissatisfied with the judgment, the Appellant appealed to this Honourable Court.
The Appellant’s brief was filed on 22/8/12. In reaction to the various briefs filed by the different Respondents, the Appellant filed a composite reply brief dated 25/1/2013. It was deemed filed on 18/2/2013. The 2nd Respondent also filed a notice of preliminary objection to the suit accompanied by arguments on 14/2/13. The appellant replied to the notice of preliminary objection and filed same on 18/2/2013. The 1st Respondent’s brief was dated 24/12/12 filed on 3/1/2013. It was deemed filed on 18/2/2013. The 2nd Respondent’s brief dated 18/1/2013 was filed on 22/1/2013 and deemed filed on 18/2/2013. The 3rd Respondent’s brief dated 3/12/2012 was filed on 25/1/2013 and deemed filed on 18/2/2013.
The 4th Respondent filed brief on 10/9/2012 dated 29/8/2012. Therein the Appellant’s appeal was conceded in its entirety by the 4th Respondent. The Appellant identified two issues for determination in the Appellant’s brief settled by Ikhide Ehighelua Esq. The issues identified by each respective Respondent are similar to the issues identified by the Appellant but phrased differently. I will adopt the issues as phrased by the Appellant as they are to the point. They are set out below:

(1) WHETHER THE LOWER COURT WAS RIGHT IN DECLINING JURISDICTION OVER THE SUIT BEFORE IT. (GROUND 1)

(2) WHETHER THE LOWER COURT WAS RIGHT WHEN IT CONCLUDED THAT THE 2ND RESPONDENT DID NOT WITHDRAW FROM CONTESTING THE MATERIAL ELECTION AND WAS NOT SUBSTITUTED BY THE POLITICAL PARTY. (GROUNDS 2, 3, 4, 5, 6 AND 7)

As I mentioned earlier, the 2nd Respondent filed a notice of preliminary objection to this appeal I will deal with that first. The grounds of objection are set out below:-

1. That the 4th Respondent’s brief dated the 29th day of August, 2012, but filed on 10/9/2012 be struck out in that the said 4th Respondent’s brief was filed in violation of the provisions of ORDER 18 RULE 4 (2) of the court of Appeal Rules, 2011.

2. That the present appeal amounts to abuse of the process of this Honourable court, in that the Appellant’s counsel, IKHIDE EHIGHELUA, ESQ., purportedly filed this appeal against the 4th Respondent that the said Appellant’s counsel represented in the court below as a counsel. This appeal should therefore be struck out.

3. That the purported record of appeal in this appeal and all other processes founded on the purported record of appeal be struck out in that same was allegedly compiled in violation of the provisions of ORDER 8 RULES 1, 2, 7, 10(1) 11(a) and 18 of the court of Appeal Rules, 2011.

In ground 1 of the objection, learned 2nd Respondent’s counsel argued that the 4th Respondent’s brief offends Order 18 Rule 4(2) of the Court of Appeal Rules 2011. He submitted that a Respondent who did not cross appeal cannot urge an appellate court to allow an appeal or attack the judgment of the trial court. He urged the court to strike out the 4th Respondent’s brief. He cited Kwara Investment Co. Ltd. V. Garuba (2000) 10 NWLR (Pt. 674) 25 at 39, paras. G-H; Nwazie v. Ama Uwa (1991) 8 NWLR (Pt. 207) 58 at 86; Ighu v. Ibezue (1999) 2 NWLR (pt. 591) 437 at 444.
Counsel also argued on ground 2 that a counsel who represented a party at the court below cannot file an appeal and brief of argument against the same party he represented during the trial. He urged this court to strike out the notice of appeal and all processes founded on the said notice of appeal.
In respect of ground 3, learned 2nd Respondent’s counsel argued that the record of appeal compiled and transmitted by the Appellant himself was compiled and transmitted in gross and crass violation of Order 8 Rules 1, 2, 7, 10(1), 11(a) and 18 of the Court of Appeal Rules, 2011 and without the Appellant being granted leave to depart from the Rules and/or this court granting the appellant waiver under ORDER 20 RULES 2 and 3(1),(2) and (3) of the Court of Appeal Rules, 2011.
Counsel argued that the Appellant compiled and transmitted the records before the sixty days provided by Order 8 Rule 1 for the Registrar to transmit records without leave of court to depart from the rules. He submitted that the process of compilation of record in an appeal is as dictated by the rules of court. He argued that the Appellant refused to fulfill the conditions of appeal imposed by the Registrar of the court below and also did not transmit complete records to this court contrary to the rules of court. He cited Dingiyadi v. INEC (No. 1) 2010 18 NWLR pt. 1224 Pg. 1 at Pg. 143-144; Nwankwo & Ors. V. Kano & Ors. (2010) 6 NWLR pt. 1189 Pg. 62 at 91; IDAM v. Mene (2007) 17 NWLR Pt. 1169 Pg. 74 at 90-91; ASOL Nig. Ltd. V. Access Bank (Nig) Plc (2009) 10 NWLR pt. 1149 pg. 283 at 296-297; Audu v. INEC (No. 1) (2010) 13 NWLR pt. 1212 pg. 431 at 446; AULT & WIBORG (Nig) Ltd. v. NIBEL Industries Ltd. (2010) 11 NWLR PT. 1220 Pg. 486 at 496; Ukiri v. Geco-Prakla Nig. Ltd. (2010) 16 NWLR pt. 1220 Pg.544 at 562.
Learned Appellant’s counsel in the reply to the notice of preliminary objection submitted that Order 10 rule 1 of the Court of Appeal Rules 2011 mandates that a preliminary must be served at least three clear days before the hearing of the appeal, but the 2nd Respondent failed to comply with the rules. He cited Kaydee Ventures v. Hon. Minister, FCT (2010) ALL FWLR Pt. 579 SC 1079. It was also argued that since the 2nd Respondent had filed the Respondent’s brief prior to the filing of the preliminary objection, then the 2nd Respondent had waived any procedural defect in the processes filed by the Appellant. Appellant’s counsel cited the following cases Odua Investment Co. Ltd. v. Talabi (1997) 10 NWLR pt. 523 Pg. 1, (1997) 7 SCNJ 600; Ojo v. INEC (2008) 13 NWLR pt. 1105 pg. 577; Nwadioni v. Uboh (2010) 12 NWLR pt. 1209 pg. 591.
Counsel submitted that Order 10 Rule 1 of the Court of Appeal Rules only allows a Respondent to object to the appeal and processes filed by the Appellant and does not create any room for a respondent to object to processes filed by a co-respondent. Counsel argued that the 2nd Respondent having withdrawn an earlier motion of preliminary objection and same having been withdrawn and struck out is estopped from bringing another similar motion. He cited Makun v. F.U.T. Minna (2011) ALL FWLR Pt. 594 Pg. 1.

In respect of ground 1 of the objection, learned Appellant’s counsel urged the view that there is nothing wrong with a Respondent conceding to the totality of an appeal where the judgment of the trial court is manifestly unsupportable. He cited ANPP v. GONI (2012) 7 NWLR pt. 1298 pg.147.
On ground 2, appellant’s counsel argued that nothing precludes one of several Plaintiffs from appealing and where a co-plaintiff does not appeal he becomes a mere nominal respondent to the appeal.
On ground 3, learned counsel reminded the court that this issue was raised in the motion of 21/9/2012 to which the Appellant filed a counter affidavit which was filed before this Honourable Court and stated categorically that the Registry of the lower court demanded between N850,000.00 – N1,000,000.00 for the records to be prepared and the Registrar of the lower court also gave an option for the records to be transmitted by the Appellant personally which was accepted by the Appellant and the records were then transmitted by the Appellant. He cited (1) A.G. Rivers State v. Ojua (2011) All FWLR (pt. 594) 151; (2) Soleye v. Sonibare (2012) All FWLR (Pt. 95) 221; (3) A.G., Federation v. Bicourtney Ltd. (2012) 14 NWLR (Pt. 1321) 467.
I must first of all say that a preliminary objection can be raised at any time before an appeal is taken so long as it is served at least three (3) clear days before the appeal is actually taken. The argument by the Appellant that the 2nd Respondent had waived any right to raise a preliminary objection by filing his brief is in my view misconceived. I am aware of Order 20 Rule 5(1) of the court of Appeal Rules 2011 which provides as follows:
“An application to strike out or set aside for noncompliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
The present position as practiced vigorously by this court is that a preliminary objection can be filed separately or in the Respondent’s brief of argument to the appeal. The Respondent filing a brief incorporating the preliminary objections and arguments in favour of same is not deemed to have waived his rights to raise the objections by filing his brief. A respondent can also raise an objection to the appeal after briefs have been filed so long as the objection is filed and served on the Appellant three days before actual hearing of the appeal. It is for the swift dispensation of justice that this procedure has been evolved over time. See Magit v. University of Agric Makurdi (2005) 19 NWLR pt. 959 pg. 211. I am of the view that the preliminary objection can be so raised by the 2nd Respondent at this time.
Now, let us consider the merits of each ground of objection. On ground 1, even though technically order 10 Rule 1 talks of “objection to the hearing of the appeal” and giving the appellant time to respond to the objection, nothing stops a Respondent from objecting to processes filed by the appellant or any other co-respondents where such processes are against his/her interests. However, nothing stops a Respondent from conceding to an appeal. What the court’s have frowned at is the situation where a “Respondent” who had not cross appealed would file a brief of argument to oppose the judgment of the court. In Cameroon Airlines v. Otutuizu (2011) 4 NWLR Pt. 1238 Pg. 512, the Supreme Court stated emphatically that the role of the Respondent in an appeal is to defend the judgment of the trial court. The only exception is where it is not comfortable with a finding (not the entire judgment) and he wants the finding or legal conclusion reversed, he can only do so by cross appeal. Where as in the circumstances of this case, the Respondents entirely concedes to an appeal, he is not entitled to file a brief to attack the judgment of the trial court as the 4th Respondent has done in this case. All the 4th Respondent need do is to appear by counsel to concede the appeal on the date of the hearing of the appeal. For clarity, let me state that even though there is nothing wrong with a Respondent conceding totally to an appeal, the said Respondent cannot file a brief attacking the judgment of the trial court. The above is the interpretation given by the courts to Order 18 Rule 4(2) of Court of Appeal Rules 2011. Thus, the posture of the 4th Respondent is inconsistent with the traditional role of a respondent. See also Imoniyame Holdings Ltd. And Anor. V. Soneb Enterprises Ltd. & Ors. (2010) 4 NWLR Pt. 1185 Pg. 561. In essence I sustain the first leg of the preliminary objection and strike out the 4th Respondent’s brief.

In respect of the 2nd leg of objection, I have to say that the right of appeal is a constitutional one duly exercised by the Appellant in this case. Nothing precludes him from joining as a nominal respondent to the appeal a former co-party at the trial court who declined to appeal. This is essential so that the party who declined to appeal but whose interest was affected by the outcome of the judgment can be bound by the outcome of the appeal. The second ground of objection lacks substance and is hereby overruled.
The 3rd ground of objection is that the records were transmitted in violation of the rules of court in that the Appellant did not wait for the 60 days within which the Registry should transmit records before transmitting an incomplete record to this court. I must say that at the hearing of the motion filed by the 2nd Respondent on 21/9/2012, after considering the application and the counter affidavit of the Appellant, the 2nd Respondent was told by this court that the Appellant was entitled to transmit the records and if any Respondents had problems with the incompleteness of the record, such Respondent was at liberty to also transmit additional records. The 2nd Respondent then withdrew the motion and it was struck out. I cannot buy the argument that because the record came too early the appeal should be dismissed. It would be a ridiculous interpretation of the rules and a sad day indeed, if records duly authenticated by the trial court registry cannot be properly taken as duly transmitted to this court because it came in early. I do not see any merit in this ground of objection and it is hereby overruled. In the circumstances, the grounds of objection are overruled save the fact that the 4th Respondent’s brief struck out as being incompetent.

ISSUE ONE
Whether the lower court was right in declining jurisdiction over the suit before it.
In the Appellant’s brief settled by Ikhide Ehighelua, learned Appellant’s counsel argued that the trial court never explained why and how it reached the conclusion that the reliefs sought in the originating summons is outside the purview of the Federal High Court. He submitted that the court is bound to give reasons for his conclusions. He cited Doma v. INEC (2012) All FWLR Pt. 628 Pg.815 at 836; Agbanelo v. Union Bank of Nig. Ltd. (2000) FWLR Pt. 13 2197; Bi-Odu v. Duke (No.2) (2005) All FWLR Pt. 250, 171 (2005) 10 NWLR Pt. 932,105; Oyeneye v. Odugbesan (1972) 4 SC 244; Bhojwani v. Bhojwani (1996) 6 NWLR pt. 457, 661.
He submitted that the judge had in the opening paragraph of the judgment held that it was a pre-election matter, but he later turned around to conclude the negative. Counsel submitted that it is the Federal High Court which has jurisdiction over pre-election matters. He cited the plethora of judicial authorities on this point. See Amaechi v. INEC (2008) 5 NWLR Pt. 1080, 227; Ugwu v. Ararume (2007) 12 NWLR pt. 1048, 367; Agbakoba v. Ikpeazu (2008) 18 NWLR Pt. 1119, 489; Odedo v. INEC (2007) 17 NWLR Pt. 1117, 554; Ojo v. INEC (2008) 13 NWLR pt. 1105, 577; Onyekweli v. INEC (2003) 14 NWLR Pt. 1107, 317; Ucha v. Onwe (2011) 4 NWLR Pt. 1237, 386; PDP v. Onwe (2011) 4 NWLR pt. 1236, 166; Zaranda v. Tilde (2008) 10 NWLR Pt. 1094, 184; Adeogun v. Fasogbon (2008) 17 NWLR Pt. 1115, 149; Ehinlanwo v. Oke (2008) 16 NWLR Pt. 1113, 357; Ibrahim v. Umar (2012) 7 NWLR pt. 1300, 507.

Learned Appellant’s counsel argued that a party can only approach the courts when he has a crystallized cause of action and not before the whole facts which will entitle him to a relief has occurred. An illegality cannot be converted to legality by virtue of simple timing of the sequence of events. If the breach of a man’s right becomes apparent after the occurrence of a certain event the occurrence of that event cannot prevent or preclude him from pursuing his rights. He can only approach the courts when and only when he has a cause of action which inures to his favour.
Counsel contended that his cause of action was not complete until the certificate of return was issued to the 2nd Respondent by the 1st Respondent. He cited Petroleum Training Institute v. Matthew (2012) All FWLR Pt. 623 Pg. 1949 at Pg. 1969. He argued that time does not run against a pre-election matter over which the High Court has jurisdiction which cannot be ousted. He cited Ukwazuruike v. Nwachukwu (2013) 3 NWLR Pt. 1342 Pt.503 at 533; ATAGO v. Nwuche (2013) NWLR pt. 1341 Pg. 337 at 355; Humbe v. Attorney General, Benue State (2003) 3 NWLR Pt. 649, 419; Alao v. NIDB (1999) 4 NWLR Pt. 617, 103; LUTH & MB v. Adewole (1985) 5 NWLR pt. 550, 406.
Learned Appellant’s counsel also submitted that once the reliefs were grantable in another court, they could have been granted as consequential orders by the trial court. Counsel cited Fayemi v. Awe (2009) 13 NWLR Pt. 1164 Pg. 315 at 341-342; Amaechi v. INEC supra, Saulawa v. Kabir (2011) 2 NWLR pt. 1232 pg. 417 at 443.
Learned counsel for the 1st Respondent in the brief settled by Alhassan Umar Esq. conceded and agreed that the learned trial judge found that the claim of the Appellant was based on a pre-election matter. He argued that the reliefs sought by the plaintiffs in their originating summons and the supporting affidavit at pages 1-22 of the record, seek in the main declarations that the 1st Respondent wrongfully denied the 2nd plaintiff/4th Respondent herein the right to nominate, sponsor and substitute candidate of its choice. He submitted that it is trite law that the claim of a party before the court determines the jurisdiction of the court. Elelu-Habeeb v. AGF (2012) 49 NSCQR pt. 3 pg. 1528 particularly at 1579-1580.
1st Respondent’s counsel’s submission is that pre-election matters must of necessity be filed or initiated before the holding of the election and if filed subsequent to the holding of the election the court will be deprived of jurisdiction. He argued that it is not at all in dispute that the House of Assembly Election for the member to represent Ughelli North State Constituency II of Delta State in which the appellant claimed he was duly substituted with the 2nd Respondent took place on the 26th day of April, 2011. It is also not in dispute as can be gleaned from the originating summons at pages 1-4 of the records that the suit was filed on the 29th day of April, 2011, about three days after the said election. Counsel cited Hassan v. Aliyu (2011) 195 LRCN pg. 109 at 155-156.
Counsel also submitted that once an election has been held and a winner declared and presented with the certificate of return in respect of that election other than the candidate who claimed to have been duly nominated for the election, then that becomes an “Undue Return” as against the duly nominated candidate, and in that regard, the only court with jurisdiction to entertain any complaints emanating therefrom is the appropriate Election Tribunal established for that purpose and not the regular High Court. He cited Olofu v. Itodo (2011) All FWLR Pt. 572 pg. 1637 at 1658. Counsel argued that this a case of undue return as defined by the Supreme Court in Olofu v. Itodo and in such a case only the Election Tribunal has the jurisdiction to entertain same. Counsel insisted that the case of Petroleum Training Institute is not relevant to the facts of this appeal. He argued that the Appellant was well aware of the fact that the 1st Respondent did not effect the substitution that was sought by the 4th Respondent. Exhibit DPP7 made on the 5th April 2011 at page 73 of the record attest to this. On or before that date the Appellant had a cause of action but waited till 29th day of April, 2011 to see the outcome of the election of 26th April, 2011 before approaching the court.
He argued that the Appellant could not take up the issue of nomination at the time he did when he neglected to do so before the election because the High Court had ceased to have jurisdiction. He cited Obiefuna v. Okoye (1961) 2 NWLR pt. 174 pg. 379 at 389; Amata v. Omofuma (1997) 2 NWLR Pt. 485 Pg. 93 at 113; DPP v. Okorocha (2012) All FWLR Pt. 626 Pg. 449 at 487. Counsel urged this court not to be misled by the Appellant’s argument that the trial court did not give reasons for arriving at its conclusion because the trial judge did so copiously before concluding that it had no jurisdiction.
In the 2nd Respondent’s brief settled by Chief P.O. Wanogho, learned counsel also argued that the court was justified in law when it held that the trial court lacked jurisdiction to adjudicate over and/or entertain a pre-election matter commenced by the Appellant and the 4th Respondent jointly, as co-plaintiffs, on the 29th dry of April, 2011, after the holding and declaration of results in respect of the main election conducted and held by the 1st Respondent on the 26th day of April, 2011, after the 1st Respondent had declared the 2nd Respondent as the winner of the election. He submitted that pre-election matters are filed in court before the main election and not after the election. He also cited Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 547 at 604 and Amaechi v. INEC supra.
Learned 2nd Respondent counsel argued that it is only the candidate who emerged as the winner of the party primaries that can lay claim to having won a general election. He argued that there was no challenging the fact that the 2nd Respondent won the party primaries. He cited Eyiboh v. Abia (2012) 15 NWLR Pt. 1325 Pg. 51 at 90. He submitted that the right of action guaranteed by section 87 (1) and (9) of the Electoral Act, CAP E6, laws of the Federation of Nigeria, 2004 (2010) is a right an aspirant in a primary election has if the aspirant complains about the conduct of the primary election. Thus Appellant’s originating summons did not fall within the purview of section 87 (9) of the Electoral Act, 2010.
Counsel urged the view that S. 87(1) and (9) of the Electoral Act 2010 contemplates that the person who has locus to institute an action must be an “aspirant” who had taken part in an authentic and valid primary election of the political party. He cited Emenike v. PDP (2012) 12 NWLR Pt. 1315 Pg. 556 at 600.
On this issue, in the 3rd Respondent’s brief settled by Onome Egbon Esq., learned counsel argued that the Appellant having waited till the conduct of the election and indeed after the declaration of the result, the Appellant’s case is no longer a pre-election matter but rather a post election matter as his complaint is that he was denied a certificate of return after being substituted for the 2nd Respondent. He further argued that the proper venue for the Appellant’s action is no other place than the tribunal where the 1st Respondent would have been required to show why the candidate of 4th Respondent was not issued with a certificate of return and the 2nd Respondent unduly returned.
He argued whichever way this case is considered, it is a case for the Election Tribunal having complained of undue return of the 2nd Respondent and indeed his alleged exclusion from the election by virtue of the refusal of the 1st Respondent to acknowledge the purported nomination of the 2nd Respondent by 4th Respondent. He argued that having waited for the election to be conducted and the 2nd Respondent returned as the winner of the election, the only court competent to entertain any fresh action at that stage is the Election Tribunal duly set up by the Constitution for that purpose. He could go there to challenge the undue return of the 2nd Respondent or to challenge his exclusion by the 1st Respondent. He also cited Olofu v. Itodo supra and Hassan v. Aliyu, the former he claimed settled this issue once and for all.
In the Appellant’s reply brief, Appellant’s counsel vehemently asserted that the Appellant at the trial court had called upon the court to determine who as between the appellant and 2nd respondent was the rightful candidate of the 4th Respondent during the April 2011 election. He argued that both DPP v. Okorocha supra and Olofu v. Itodo, Hassan v. Aliyu were irrelevant to the facts of this case since the Appellant never challenged undue return but the act of INEC wrongfully imposing the 2nd Respondent on the party. He cited Peretu & Ors v. Garga & Ors (2012) suit No. SC.127/2012 delivered on 14/12/12.
It is settled law that jurisdiction is fundamental to adjudication and it is usually conferred on the court by the constitution or statute. It is the foundation on which the court exercises its judicial powers. A proceeding however well conducted is a nullity if the court lacks jurisdiction to hear and determine the matter.At the trial of this matter, the 1st and 2nd Respondents had filed processes by way of motion of preliminary objection to the hearing of the suit on the grounds that the Federal High Court lacked jurisdiction and that the proper venue of the trial had to be the Election Petition Tribunals. I agree with the learned Appellant’s counsel that the learned trial judge did not say precisely the reasons why he found that the trial court lacked jurisdiction. From Pg. 14-18 of the judgment which is on Pg. 1077-1081 of the records, the learned trial judge merely quoted profusely from the cases of Olofu v. Itodo and Hassan v. Aliyu supra. His Lordship did not say how in particular the facts of this case were applicable to the authorities profusely quoted by him. His Lordship’s own words from Pg. 14-18 of the judgment are as follows:
“Let me quickly say the court read all the process as stated elsewhere in this judgment. Learned counsel to the 1st and 2nd defendants raised objection to the jurisdiction of this court in view of the nature of the reliefs sought.
This court has no doubt whatsoever that the law today is no court or other than a tribunal can arrogate to itself or expand its jurisdiction rather expound it to grab election matter and pretend to be an election petition tribunal.
This court shall be guided not only by the provisions of the Constitution that shared jurisdiction, amongst court but also by decided cases, both persuasive and binding…
Therefore, this court has no doubt that the reliefs in the instant originating summons is outside the purview of what the Federal High Court can determine. See also the decision of this court in the case of Julius O. Bobi vs. Edoja R. Akpodiete (unreported judgment) delivered this morning 17/6/12 and the case of Donbraye v. Preyor (unreported) also delivered this morning 27/6/12 on the need to go to the proper court for the proper relief.
The court shall not go into other academic issues, suffice it to say that the court agrees with the submissions of Chief Wanogho and Umar on their preliminary objection. The case of the plaintiff is intertwined or solely predicated on substitution.”
Be that as it may, let us examine the authorities. In Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 547, the party, 2nd Respondent had substituted the 1st Respondent for the Appellant as at 5/2/2007 and the 1st Respondent was the one who contested the election. The Appellant did not institute the action to challenge the substitution until 8/11/2007 more than nine months after the election, and the swearing in of the 1st Respondent. The Supreme Court per Onnoghen, JSC held at pg. 599 of the NWLR Pt. 1223 as follows:
“It is settled law that in an election or election related matter, time is of the essence, I will add that the same applies to pre-election matters. Election matters are sui generis, very much unlike ordinary civil or criminal proceedings. Appellant ought to have instituted the action soon after the substitution to keep his interest in the political contest alive but he did not. If he had, but the election went on and the 1st respondent sworn in as the governor, by the authority of the decision in Amaechi v. INEC supra, section 308 of the 1999 Constitution would have been rendered a toothless bull dog.
I hold the view that at the time appellant decided to go to court in the circumstances of this case, the question of nomination by way of substitution which is a pre-election matter had ceased to exist leaving only the election proper to be questioned and the proper place to do so is the election tribunal. If the situation in this case is encouraged, it will breed uncertainty in the polity when a person may wake up a year or more after an election and swearing-in of a president or governor to challenge his nomination by way of substitution for the election that brought him to power. Or he may even do so after the tenure of office of the official concerned, which attitude ought not to be encouraged by the law. It should be noted that appellant has the right to waive his right to the nomination by way of substitution which by his inordinate delay, he appears to have projected. Everyone must be watchful of his legal rights and be vigilant.”
In his Lordship’s contribution, Muntaka-Coomassie, JSC, took the matter a step further and stated as follows:
“However, it is my view that the case of Amaechi v. INEC (supra) is not an authority to the effect that in all cases, where there is a wrongful substitution of a candidate in an election, such substitution would automatically be set aside. With due respect, the candidate who was substituted at the election must act timeously to enforce his rights. Substitution and nomination being pre-election matters, the candidate must approach the competent court to seek for the enforcement of his rights before the real election takes place. This was the position in Amaechi v. INEC (supra). Immediately the candidate was substituted Amaechi did not wait for election to hold before he sought for redress, hence, if the election thereafter took place after the filing of the action having become subjudice, it remains pre-election matter, even if the matter is fought to this court.
On the other hand, where the candidate who was substituted did not take any step to seek redress, before the election took place, and a candidate declared as the winner, and thereafter seeks to be declared as the winner of the election, it is my view that the matter is no longer pre-election matter. That is, his right to pursue a pre-election matter ceases after the holding of the election except only, if the action is instituted before the holding of the election.”
The rule of stare decisis holds that the opinion of Muntaka-Coomassie actually pushing the issue further to say that the candidate who did not challenge the issue of his nomination and did seek redress before the election took place cannot go to the ordinary court to seek redress as if the matter were a pre-election matter is mere obiter. Ordinarily I would hold myself bound by the obiter of the Supreme Court if the facts that led to the Supreme Court decision were similar to the facts of this case. The Supreme Court in that case considered the following question:
“Whether the court has jurisdiction to entertain and determine the action of the appellant having regards to the provision of S.2 (a) of Public Officers Protection Act and S. 308 of the 1999 Constitution.”
The Supreme Court decided that in view of the fact that since one of the Respondents (INEC) was a public officer, the suit should have been instituted within 3 months. The court also held that S.308 which provides for immunity from any form of civil action enures for the benefit of the 1st Respondent who had taken oath of office as Governor. The rationale for the later holding is as set out above and to the effect that the Appellant had slept on his rights for nine months before instituting the action and it would be a dangerous precedent to allow such an action to be prosecuted given the peculiar circumstances of that case.
Surely the facts of Hassan v. Aliyu must be distinguished from the facts of this case. At Pg. 14 of the records, INEC published a list of candidates in which the name of the Appellant appeared as a candidate. Later on the same INEC published another list of candidates and removed the Appellant and put the name of the 2nd Respondent. Before the election, the Appellant was aware that his name had been removed as the candidate of the party by INEC however, there were still frantic letters by the party to INEC to effect the substitution. In this case, the suit was filed three days after the election and the 2nd Respondent does not enjoy immunity from legal actions while in office. I have read the lead judgment of Onnoghen, JSC and all the other contributions of my Lord Justices of the Supreme Court. Apart from my Lord, Muntaka-Coomassie JSC none of the other Justices made the point that a pre-election matter on nomination and substitution becomes a post election matter for the Election Tribunal when action is not instituted before the conduct of the election. I am aware that my Lord, Muntaka-Coomassie JSC has consistently maintained that minority view. See Odedo v. INEC (2008) 17 NWLR Pt. 1117 Pg. 554 at Pg. 635.
The point made by Onnoghen JSC who wrote the lead judgment is that the Appellant who did not institute action until 9 months after the election had slept on his rights and his inordinate delay in prosecuting his action could not be encouraged in an election matters. I do not think the present position of the decision law is that all cases of nomination and substitution which are clearly pre-election matters cannot be instituted at the regular court even after election had taken place but must be instituted at the Election Petition Tribunal. It depends on the facts of each case.
All the Respondents’ counsel also cited the case of Olofu v. Itodo (2010) 18 NWLR Pt. 1225 Pg.545. In that case, the Plaintiff/1st Respondent sought at the High Court of Kogi State the determination of the question whether he, having contested and won the election into the office of Councilor representing Ogugu Ward II in Olamaboro Local Government of Kogi State, he could be substituted by the electoral body who withheld his certificate of return. Onnoghen JSC was of the opinion that since there was no dispute as to nomination and substitution before the election, and the 1st Respondent won the election by the result declared by the appropriate body, it was a post election matter and not a pre-election matter. At pg. 577-578 of Pt. 1225 of the NWLR, Onnoghen, JSC put the matter thus:
By constitutional arrangements election matters are the exclusive concern of election tribunals and not the regular courts. However, where the matter involves issues of pre-election, the regular High Courts have jurisdiction to handle them.
In the instant case, there is no dispute that the 1st respondent was duly nominated and submitted to the electoral body as the candidate of the Peoples Democratic Party for the election in question; that he was duly screened and cleared by the electoral body to contest the said election which he did and claimed to have won; that after the election the chairman of Kogi State Independent Electoral Commission refused to release the certificate of return of the 1st respondent on the ground that the party (PDP) intended to substitute the 1st respondent with another candidate (the 3rd appellant).
From the above facts it is very clear that this is a post election matter as there was an election duly conducted by the appropriate authority on the 20th day of July, 2008 and which by exhibit 2 the certified true copy of the result of the election; the 1st respondent won. At that stage it is too late to be talking of nomination of a candidate for the election in question, which is purely a pre-election matter. It should be noted that nomination is either by the original act of the party or by way of substitution. From the record, particularly exhibit 2, election had been concluded and the name of the candidate who won same is the 1st respondent. It follows therefore that appropriate venue for the trial of the issues arising from that concluded election is the appropriate election tribunal, not the regular High Courts. It is at the tribunal that the electoral body concerned is to tell Nigerians why the respondent who contested and won the election in issue is refused a certificate of return which certificate it rather issued to total stranger, 3rd appellant. This clearly is a case of undue return of the 3rd appellant who was not even a candidate at the election, by the case of the 1st respondent, not wrongful substitution. If there was any such substitution in accordance with the provisions of section 23 of the law, the name of the 1st respondent would not have been reflected in exhibit 2.
Adekeye JSC put the matter very lucidly at Pg. 587 of the NWLR as follows:
The issue before the court is apparently not that of substitution as there is no concrete evidence on record to support this. The above mentioned cases confirm that substitution is a pre-election matter to be heard before the regular court. In the instant case, the claimant before the trial court and 1st respondent in this appeal Michael Adejoh Itodo contested an election for the post of a Councillor of Ogugu Ward II in Olamaboro Local Government Council of Kogi State and won the election. No other PDP candidate contested the election with him. He was duly returned at the election. Exhibit 2 a certified true copy of the result of the election confirms the foregoing. The complaint before this court is not about what transpired prior to the election but that of substitution of a candidate after an election was held, and the candidate substituted was not nominated, let alone contest the election. Whereas the party, the Chairman of the Olamaboro Local Government Council and State Independent Electoral Commission assumed the power to deprive a successful candidate of Certificate of Return of Election under the Local Government Law.”
From above, it is quite clear that the facts of Olofu v. Itodo are distinguishable from the facts of this case. In this case, under review there was a pre-election tussle about who was the validly nominated candidate of the party between the Appellant and the 2nd Respondent before the election. The Appellant being backed by the party and the 2nd Respondent being backed by the 1st Respondent. With the greatest respect to the learned counsel for the 1st, 2nd and 3rd Respondents, I cannot agree that the prayers of the Appellant in this case under review border on undue return.
The issue in controversy between the parties is who among them was validly nominated by the party and thus the lawful candidate at the election won by DPP and ultimately entitled to a certificate of return for the House of Assembly seat. The first declaration sought by the Appellant at the trial court makes it clear that the cause of action is the issue of nomination and substitution. This is a pre-election matter which in my humble view was instituted at the proper venue which is the Federal High Court. This point in my humble view had been hitherto settled by the Supreme Court in Amaechi’s case and the case of Odedo v. INEC (2008) 17 NWLR pt. 1117 Pg. 554. The opinion of learned Justices of the Supreme Court must be cited within the con of the facts that led to their opinion. Facts are the fountain head of law. My firm but humble view on this issue is that if a litigant is not guilty of inordinate delay as happened in Hassan v. Aliyu, he may file the action against his unlawful nomination or substitution within a reasonable time even after the election. However where there is proof that the litigant had knowingly slept on his rights for a considerable amount of time that can be labeled “inordinate” he should not have recourse to any relief in any court of law since time is of essence in election matters. The facts and issues raised in this case are different from the facts and issues raised in Hassan v. Aliyu and Olofu v. Itodo the ratio of which were in my humble view wrongfully but enthusiastically embraced by the learned trial judge. In the circumstances, I resolve the first issue in favour of the Appellant.

ISSUE TWO
Whether the lower court was right when it concluded that the 1st Respondent did not withdraw from contesting the material election and was not substituted by the political party.
Learned Appellant’s counsel on this issue urged this court to rely and resolve same predominantly on statutory provisions and documentary evidence. Learned Appellant’s counsel argued that this court must rely on S.33 and S.35 of the Electoral Act 2010 and that based on the said provision, the only relevant documents for determining whether there has been a withdrawal and a substitution of a candidate are:
(a) Letter of withdrawal by the candidate signed by him addressed to and delivered to the political party.
(b) The political party conveying the said letter to the commission with the name of substitute used in replacing the withdrawn candidate, 45 days to the holding of the election.
He submitted that once the steps enumerated above are taken 45 days before the date of the election, the substitution is complete and neither INEC nor the court can impose a candidate on the party.
He further argued that Exhibit P1 was tendered and admitted in evidence without objection and that the document Exhibit P1 speaks for itself. Exhibit P1 was admitted in evidence during the oral hearing on 15/6/2012, that same document was annexed to the further affidavit in support of the originating summons filed on 18/5/2012. He drew our attention to the fact that Exhibit P1 was certified page by page by INEC (1st Respondent) through its Director of Legal Service Ibrahim K. Bawa Esq. The issue before the lower court being whether or not there was a substitution, Exhibit P1 duly certified by INEC and produced from INEC’s custody clearly confirmed the fact that a substitution was done.
I will come back to the details of Exhibit P1 anon. To prove his case at the trial court, the substitution documents exhibit Pt were annexed to a further affidavit and duly exhibited. That further affidavit was filed on 31/5/2012. The 1st respondent filed a counter affidavit to that further affidavit and stated concerning the documents in paragraph 4(a) of the said counter affidavit as follows:
“4(a) I know as a fact that the 1st defendant received the documents collectively annexed as exhibit ‘A’ from the 2nd plaintiff which were aimed at substituting the 2nd defendant with the 1st Plaintiff.’
It is the contention of the appellant that by that deposition, INEC (1st respondent), has admitted receiving the substitution documents.
He drew attention to the date on which the 1st Respondent received Exhibit P1 which is clearly shown on the face of Exhibit P1 to be 9/2/2011, which was clearly more than 45 days before the election which held on 26/4/2011.
Counsel submitted that the process of substitution as provided for in Sections 33 and 35 of the Electoral Act 2010 was duly consummated and completed vide Exhibit P1 which INEC admitted it received, and that was all that the law required to make the substitution complete and absolute.
He submitted that the law is clearly settled that it is the political party that has the final say on candidature whether through nomination or substitution. He cited the following cases.
(1) Olofu v. Itodo (2010) 18 NWLR pt. 1225 Pg. 545 at 577-578;
(2) Justice Party v. INEC (2006) All FWLR Pt. 339 Pg. 907 at 916;
(3) UBA v. Enemuo (2006) ALL FWLR Pt. 311 Pg. 1951 at 1953;
(4) Davies v. Mendes (2007) All FWLR Pt. 348 Pg. 883 at 909;
(5) Fashogbon v. Adeogun (No.2) 2007) All FWLR Pt. 396 Pg. 661 at 681-682;
(6) Uzodinma v. Izunaso (No.2) (2011) 17 NWLR Pt. 1275 Pg. 30.

Learned appellant’s counsel argued further that no extrinsic evidence can be admitted or allowed to alter its contents as provided by S.128 of the Evidence Act 2011. He cited Union Bank v. Ozigi (1994) 3 NWLR Pt. 333 pg. 385. Learned Appellant’s counsel submitted that the issue before the lower court being basically the issue of substitution and in respect of which the relevant evidence is documentary this Honourable Court is in a very good position to draw the inference which the lower court failed to draw from the documents. He cited Agbakoba v. INEC (2009) All FWLR pt. 462 pg. 1037 at 1088 and Oduwole v. Aina (2001) 17 NWLR Pt. 741, 1 at 47; F.A.T.B. v. Partnership Inv. Co. Ltd. (2003) 18 NWLR pt. 851, 35 at 65-66.
Counsel insisted that the trial court was obliged to lend credence and give probative value to Exhibit P1 since the 1st Respondent had not denied receiving them. Learned Appellant’s counsel argued that the learned trial judge having found no problem with the substitution exercise, his Lordship was bound to accede to the claims of the Plaintiff/Appellant. He argued that there was no basis for the lower court calling Exhibit P1 a “cooked up” “concocted document” or “doctored document” since it contained the passport and signature of the 2nd Respondent who had communicated his intention to withdraw his candidacy. He asserted that the trial court did state precisely how it came to the conclusion that Exhibit P1 was concocted which made such finding perverse. He cited Hamza v. Kure (2010) 10 NWLR Pt. 1203 Pg. 630. He urged this court to invoke its powers under S.15 of the Court of Appeal Act, 2004 and to grant the reliefs claimed and to order the swearing in of the Appellant into the Delta State House of Assembly as the rightful candidate of the Democratic People’s Party.
Learned 1st Respondent’s counsel argued that reference to political party is the National Headquarters of the political party and that 2nd Respondent having not given his notice of withdrawal to the National level of the party, the foundation for valid withdrawal was not met. Alhaji Dingyadi & Anor. V. Aliyu M. Wamako & ors. (2008) 17 NWLR pt. 1116 pg. 447-448; Lado v. CPC (2011) 48 NSCQR 501. He argued that the testimony of PW1 weakened the Appellant’s case and that all the documents attached which make up Exhibit P1 are part of Exhibit P1. They had to sink or swim together. He cited Seismograph Services Nig. Ltd. V. Chief K.O. Eyuafe (1979) 9 and 10 SC Pg. 153; University of Ilorin v. Oyakua (1989) 2 NWLR Pt. 104, 444; Seatrade v. Fiogret Ltd. (1989) 3 NSCC 452; Eholor v. Idahosa (1992) 2 NWLR Pt. 223, 323; Fuade v. Atedze (1998) 13 NWLR pt. 581, 205. He submitted that this Honourable Court should not interfere with the findings of fact made by the trial court which are supported by oral evidence since the trial judge heard oral testimony of witnesses. He cited Woluchem v. Gudi (1981) 5 SC Pg. 291 at 295; Ezekwu v. Ukachukwu (2004) All FWLR Pt. 224 Pg. 2135 at 2158 para. D-E; Wali v. Bafarawa (2004) 16 NWLR Pt. 898, Pg. 1; Okonkwo v. INEC (2003) 33 WRN Pg. 93; Haruna v. Modibbo Pt. 900 Pg. 487; Ogundulu & Ors. V. Phillips & Ors. (1973) 3 NMLR 276; Olodo v. Josiah (2011) 47 NSCQR 133 at 137-138.
Counsel argued that the refusal of the 1st Respondent to accede to the request for substitution was in order. 1st Respondent as the organ responsible to effect the substitution (and who is empowered to ‘allow’ or not to allow any substitution) must be convinced of the reason adduced before effecting same. He cited Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg.355. Counsel said that the Appellant was never screened by INEC to contest since his substitution was not allowed. Counsel insisted that the Personal Particulars (CF 00L) of the Appellant at pages 867-874 of the record as the trial court noted at page 1084 of the record requires some explanation because it is very apparent on its face that it was issued to the Appellant on or before 31/1/2011 several days ahead of the purported withdrawal of the 2nd Respondent. The CF 001 clearly constitutes an affront to the truthfulness of Exhibit P1.
Learned counsel for the 2nd Respondent on his part submitted that all the complaints of the Appellant relate to the ascription of probative value to both the oral and documentary evidence placed before the lower court in three compartments; viz, (1) WITHDRAWAL OF CANDIDATE, (2) SUBSTITUTION OF THE 2ND RESPONDENT WITH THE APPELLANT and (3) DUE NOMINATION OF THE APPELLANT OR THE 2ND RESPONDENT FOR THE ELECTION, the subject matter of this appeal. He insisted that the complaint that the findings of the trial judge are perverse has not been established in this case as the learned trial court made its findings of facts based on both oral and documentary evidence which could not be faulted. He cited Momoh v. Umoru (2011) 15 NWLR Pt. 1270 Pg. 217; Ayuya v. Yourin (2011) 10 NWLR Pt. 1254 Pg. 135 at Pg. 162.
Learned 2nd Respondent’s counsel submitted that the onus to prove withdrawal of the 2nd Respondent was on the Appellant who failed to discharge that burden of proof.
On the issue of nomination, counsel reminded us of the finding of the trial court that the list of purported nominees for the Appellant are people who testified that they never nominated him but rather nominated the 2nd Respondent. This then meant that the Appellant was never nominated by anyone to contest the election and he never participated in all the stages of the election in accordance with S.141 of the Electoral Act 2010 as amended.
Learned counsel for the 3rd Respondent argued that the entire charade of alleged substitution of the 2nd Respondent went into thin air on a cursory perusal of Exhibit P1 which is a document manufactured and packaged by the Appellant. A court has the power to consider affidavit deposition which is in conflict with the exhibit annexed thereto and can reject the deposition/evidence. He cited Onyemechukwe v. WACC (1995) 4 NWLR Pt. 387, 44 at 47. He urged the court to consider Exhibit P1 as a whole and not parts of it to determine the truth of the said Exhibit and that the case of the Appellant crumbled in the face of the oral testimony of DW2 and DW3. The trial court was right not to accept hook line and sinker Exhibit P1 and to disregard the processes therein.
I have to agree with learned counsel for the 2nd Respondent that this issue relates to the complaints in the grounds of appeal made against the findings of fact of the trial court. The findings made were in relation to three issues.
(1) Whether the 2nd Respondent actually withdrew his candidacy.
(2) If the answer to question one is in the affirmative, whether there was proper substitution of the 2nd Respondent with the appellant.
(3) Whether the appellant was duly nominated as provided by law for the election.
On the three questions posed above, it is pertinent to set out here the reasoning of the learned trial judge on Pg. 1081-1084 of the record.
“The court watched the desperation of the plaintiffs in trying to substitute the 2nd defendant. By dint of S.35 of the Electoral Act 2010 a candidate may withdraw his candidature 45 days before the election. Can it then be said from the evidence before the court that the 2nd defendant withdrew? Learned counsel to the plaintiff labored to submit and argue and indeed inviting the court to compare the signatures of the 2nd defendant and what is on other affidavit without adverting his mind to the damaging evidence by the witness called by the plaintiff. The court watched Dan Azumi Mohammed testify as Acting National Secretary of the 2nd plaintiff against the 1st plaintiff. Indeed the witness could not account for the apparent inexplicable situation in Exhibit P1. How do you draw a line between Dan Azumi Mohammed and the 2nd plaintiff AS Acting National Secretary, he is not only an important organ of the 2nd plaintiff, it is like the plaintiff taking knife and stabbing itself. How did the 1st plaintiff get his affidavit in Exhibit P1 at Abuja High Court by 31/1/2011 even before 9/2/2011?
I think in the process of cooking up the documents in Exhibit P1, lot of loose ends were left untied and they boomeranged at the end of the day. Indeed there is evidence before the court that the list of purported nominees for the 1st plaintiff is all nominees for the 2nd defendant. If one is looking for evidence of cooked up documents, there is no better starting place than Exhibit P1 rather than other affidavits.
One principle of law that stands very tall in our system of administration of justice is, that a party will not be allowed to call his witness and at the same time discredit him without 1st declaring him hostile. Dan Azumi Mohammed who to all intent and for all purpose is part and parcel of the 2nd plaintiff called by the 1st plaintiff was not declared hostile by the 2nd plaintiff.
Equally tall and if not taller, in our system is a party cannot be allowed to tender a document in evidence in support of his case and then at the same time try to run away from the document. The law is that he must sail or sink with the document. Indeed, the plaintiffs must sail with exhibit P1 or sink with Exhibit P1. Exhibit P1 is a doctored document, which the cross examination of Chief Wanogho learned counsel brought out, the saying is that lies are like bats, once in the dark they swiftly elude everyone but when exposed to ray of light, they hand stupidly as one of the most ugly creatures for anyone to pick.
Indeed, the plaintiffs are not witnesses of truth on the issue of this substitution, the documents tendered by them can be used as a hanger to evaluate their evidence within the principles in the case of Kimdey v. Government of Gongola State (1988) 2 NWLR Pt.77, 445.
I have no doubt that Exhibit P1 is not only a hanger but it has also hanged the case of the plaintiff, if I may use that expression. No amount of advocacy can take the place of fact. The court admires the advocacy of learned counsel to the plaintiff and his ingenuity. However, the search for justice transcend ingenuity. See the views of Eso JSC in the case of Beatrice Dosumu v. Zoto (1987) All NLR 497 at 510 (1987) 4 NWLR Pt. 54.
In sum, this court shall not belabor itself; on the issues, aside from the preliminary objection succeeding even on the merits of the case, this court is of the considered opinion that the 2nd defendant did not withdraw and the 1st plaintiff was never a nominated candidate.
The plaintiffs case be and is hereby dismissed.”
I must agree with learned Appellant’s counsel that there was paucity of evaluation of evidence by the learned trial judge. We are made to guess at the court’s reasoning for coming to the conclusions it did. It is true that the Appellant at the trial court had the onus to prove that the 2nd Respondent withdrew, having tendered page 2 of exhibit P1, he had discharged the first burden of proof and it was left to the 2nd Respondent to refute that evidence. There is no proof at all in the judgment that the learned trial court weighed the evidence of both parties before making his findings of fact. After all, the court called the defence to come and give evidence to clarify the facts in issue.
It is true that the case at the trial court was fought mainly on documentary evidence, however, the learned trial judge rightly on that point had to call oral evidence to clear irreconcilable affidavit evidence, we are bound as an appellate court to consider both the documentary and oral evidence in order to determine whether or not the conclusion of the trial judge was perverse.
It is important to set out the contents of Exhibit p1 which was annexed to the Appellants further affidavit in support of the originating summons and were also tendered by PW1.
Exhibit P1 consists of the following:

(a) INEC form: Notice of change of candidate pursuant to section 33 and 35 of the Electoral Act, 2010, it has the passport photograph of the Appellant and that of the 2nd Respondent duly signed by them and the National Chairman and Secretary of the party (page 1)
(b) Letter of withdrawal as a candidate to contest the position of the Delta state House of Assembly duly signed by the 2nd respondent with his name written under his signature (page 2).
(c) Letter by Democratic People’s Party (DPP) submitted and addressed to INEC titled “submission of Name for substitute” (page 3).
(d) INEC Form CF0001A submission of name of candidate by which the name of the Appellant was sent to and received by INEC (page 4)
(e) INEC Form EC4B (i) and INEC Form CF001 for the Appellant. It includes nomination form and affidavit in support of personal particulars (pages 5-26)
(f) Letter of Democratic People’s Party stating that the 2nd Respondent withdrew the mandatory deposit of N2m deposited with the party on the ground that he had been substituted as a candidate for the election. (g) It is signed by the Delta State Chairman of the part (page 27) Deposit slip by which the appellant paid N2m mandatory deposit after he had become candidate of the political party.
Sections 33 and 35 of the Electoral Act 2010 provides as follows:

33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act except in the case of death or withdrawal in writing by the candidate (emphasis supplied)

35. A candidate may withdraw his candidature, by notice in writing signed by him and delivered by him to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.
(Emphasis supplied)

There is no doubt that he would alleges must prove. The onus of proof was on the Appellant to prove that the 2nd Respondent had withdrawn from the election. The documents which form part of Exhibit P1 include the letter of withdrawal purportedly written by the 2nd Respondent. It is on Pg. 44 of the record.
I have read the evidence of DW1 who is the 2nd Respondent in this appeal. It is on Pg. 1044-1047. In his evidence on Pg. 1044 of the record the 2nd Respondent admitted that –
“I was made to put up a letter whether I am capable of contesting the election. In the course of putting down this write up, there was also the rumour that my candidature had been substituted.”
2nd Respondent in his evidence then went on to deny vehemently that he ever at any time wrote to withdraw his candidature. He however admitted on Pg. 1047 that he had collected his refundable deposit paid to contest as a candidate of DPP from the party. Under cross examination at Pg. 1047 of the record, 2nd Respondent admitted that he resigned from his employment the day he authored Exhibit P1. He admitted that issues were raised as to his eligibility to contest the election due to the fact of his then current service with DESOPADEC.
The only reason why the trial judge discountenanced Exhibit P1 can be summarized down to the fact that Dan Azumi Mohammed (Ag. National Secretary of the 4th Respondent) could not explain how the Appellant got Exhibit P1 to Abuja by 31/1/2011 even before 9/2/2011. I have to agree with the learned counsel for the Appellant that the affidavit of personal Particulars Form CF001 is not a document prescribed by S.33 and S.35 for the purposes of withdrawal and substitution of a candidate. The fact that the nomination papers of the Appellant got to Abuja before the date the 2nd Respondent withdrew his candidature in writing is in my humble view of no moment. What is important to establish and what was established during the cross examination of the 2nd Respondent was that he at a point wrote a letter to withdraw his candidature and also took back his nomination deposit from the party. From that day he was no longer a candidate of the party. From the exhibits is it clear he had a rethink and decided not to withdraw but the party was having none of that. The Acting National Secretary of the party – Dan Azumi Mohammed in his testimony was able to explain the two letters the learned trial judge wanted explained. I agree that the learned trial judge shut its eyes to the first four pages of Exhibit P1 which show that the 2nd Respondent withdrew from the election and was substituted by the political party.
I have to agree also that the learned trial judge did not explain how Exhibit P1 was cooked up, doctored or concocted as his Lordship suggested. This is bearing in mind the fact that exhibit P1 contained several documents. There is no doubt that as far as sponsorship, nomination and substitution of candidates for an election are concerned, the position of the political party is of paramount importance and it is the right of the party to nominate, sponsor and/or substitute a candidate and as long as the political party complied with the legal procedure for the exercise, neither INEC nor the courts can tamper with or question the rights or duty of the political party to do so.
At paragraph 5.10 of the 1st Respondent’s brief, the 1st respondent’s counsel agreed that all the documents in exhibit P1 were received by INEC but that the 1st Respondent INEC never acted upon them because of the petitions received from the 2nd Respondent that he never voluntarily withdrew his candidacy. The whole confusion in this case has been caused by the stand of the 1st Respondent that they are empowered to “allow” or “not allow” any substitution. It was the duty of the 2nd Respondent to act upon the request of the 4th respondent made to them within the time provided by law since the 2nd Respondent had withdrawn. See Uzodinma v. Izanuso (No. 2) (2011) 17 NWLR Pt. 1275 pg. 30. In that case the Supreme Court per Rhodes-Vivour JSC held:
“The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The court do not have jurisdiction to decide who should be sponsored by any political party as its candidate in an election.”
At page 65 his Lordship concluded thus:
“Before concluding, I must observe that in an action to determine who a party nominated as its candidate, the input of the party is of paramount importance. INEC on the other hand is merely a nominal party with little or no stake in the matter. INEC should be neutral in the matter. After all INEC cannot be seen to sympathize more than bereaved.”
The answer to the issue of substitution is clear. Page 3 of Exhibit P1 submitted and addressed to INEC shows that 4th Respondent de facto substituted the appellant for the 2nd Respondent whether there was a de jure substitution recognizable in law is another matter which I will explain anon. I have to arrive at the conclusion that in this case the learned trial judge with the greatest respect shut his eyes to the obvious on the issue of withdrawal and de facto substitution of the Appellant.
The other issue here is whether or not the Appellant was properly nominated by the party. The appellant paid the party the deposit but no member of the party actually nominated him. The persons whose nomination forms were attached to his party’s nomination forms swore on oath that they never nominated him. It was the forms used to nominate the 2nd Respondent that were attached by the party to the papers submitted for the Appellant. The purported substitution of the Appellant cannot thus be recognised in law since it was not properly done. The party recognised the need for compliance with S.32 (1) of the Electoral Acts 2010 hence the attempt to use the nomination papers of the 2nd Respondents in favour of the Appellant. It is thus not possible to activate S.15 of the Court of Appeal Act by granting the reliefs sought in the originating summons. This court has to be able to make those orders the trial court would have made if it had arrived at the same conclusion. I have to agree with the learned counsel for the 2nd Respondent that a person not nominated as a candidate for an election cannot claim to be returned in respect of an election in which he was not at first instance nominated by some party members in accordance with S.32(1) of the Electoral Act 2010. Any decision by this court to the contrary would be in violation of S.32 (1) and (2) of the Electoral Act 2010 as amended. It is of no use to argue that the nomination by DW2 and DW3 lapsed after 2nd Respondent withdrew his candidacy when the said DW2 and DW3 never nominated the Appellant. In substituting the Appellant for the 2nd Respondent, it was the duty of party members to nominate him again and for the party to agree to the nomination and then forward same to INEC to effect the substitution. Rather in this case the party used party members who had nominated the candidate who had withdrawn. I have to say that even though the 2nd Respondent had withdrawn his candidacy and the party had tried to substitute the Appellant, the Appellant’s nomination being irregular made his substitution also irregular.
In the circumstances, this appeal succeeds in part. The first issue of jurisdiction being resolved in favour of the Appellant and the second issue of withdrawal and substitution being also resolved partly in favour of the Appellant. As stated earlier I am unable to grant any of the reliefs sought by the Appellant. The reliefs in the said originating summons are hereby dismissed. Parties to bear their costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt extensively and incisively too, with the issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I only have nothing to add, but also adopt the judgment as mine.
Accordingly, I too, resolve the issues in the appeal in the same manner they have been resolved in the lead Judgment and decline to grant the reliefs sought in the appeal by the Appellant.

TOM SHAIBU YAKUBU, J.C.A: The 1st respondent (INEC) who was the 1st defendant at the trial Federal High Court, Asaba, had on 26th April, 2011 conducted the election to the office of the member representing the Ugheli North Constituency II of the Delta State House of Assembly. The 4th Respondent (DPP) who was the 2nd plaintiff at the trial, was declared the winner of the said election. The 2nd Respondent herein who was the 2nd Defendant at the trial, was issued with the Certificate of Return by the 1st Respondent.
The appellant, who was the 1st plaintiff at the trial, was not satisfied with the issuance of the Certificate of Return to the 2nd Respondent. The appellant therefore filed an originating summons at the Federal High Court, Asaba on 29th April, 2011 and posed three questions and sought three reliefs, namely:

“1. WHETHER the 1st Plaintiff who having been duly nominated as the candidate of the 2nd Plaintiff for the election into the Delta State House of Assembly to represent Ugheli North Constituency II in the Delta State House of Assembly and the 2nd Plaintiff having won the election whether the 1st plaintiff is not entitled to be issued with a Certificate of Return in respect of the said election.

3. WHETHER the 1st Defendant can pick and chose candidate for the 2nd Plaintiff a political party.
The reliefs sought are –

4. A DECLARATION that the 1st Plaintiff being the validly nominated candidate of the 2nd Plaintiff is the person entitled to be issued with a Certificate of Return in respect of the House of Assembly election in Ugheli North Constituency II of Delta State.

5. AN ORDER of this Honourable Court directing the 1st Defendant to issue the 1st Plaintiff with a Certificate of Return in respect of the House of Assembly for Ugheli North Constituency II of Delta State.
6. AN ORDER restraining the 1st Defendant from recognizing the 2nd Defendant as the candidate of the 2nd Plaintiff and also from issuing any Certificate of Return in the name of the 2nd Defendant.”

The grouch of the appellant as indicated in the affidavit evidence in support of the originating summons is that the 2nd respondent who was initially the candidate of the 4th respondent with respect to the then anticipated election of the member representing the Ugheli North constituency of the Delta State House of Assembly, had withdrawn his candidature from the race and so he the appellant, was substituted for the 2nd respondent. The appellant copiously attached several exhibits to the affidavit in support of his originating summons.
Each set of the defendants at the trial, challenged the jurisdiction of the Federal High court to hear and determine the action, mainly on the ground that the appellant’s action which bordered on a pre-election matter of nomination and substitution, was no longer available for determination, having filed the said action, after the conduct and declaration of the result of the election of the member, representing the Ugheli North Constituency of the Delta State House of Assembly. Each set of the defendants, also filed their respective counter-affidavits and written addresses in opposition to the appellant’s suit.
The court below, considered the preliminary objections to the competence of the suit and also the merits of the originating summons. The learned trial judge upheld the preliminary objections to his jurisdiction to entertain and determine the suit. And with respect to the merits of the originating summons, he found that the 2nd respondent did not withdraw his candidature for the election, in question. That the appellant was not substituted for the 2nd respondent, so the originating summons was dismissed. See pages 1051- 1084 of the record of appeal.
This appeal is against the said judgment of the court below, delivered on 27th June, 2012. The appeal was erected on seven grounds, which shorn of their particulars, say:-

GROUND 1
The learned trial Judge erred in law when it held:
“Therefore, this court has no doubt that the relief in the instant originating summons is outside the purview of what the Federal High Court can determine.”

GROUND 2
The learned trial Judge erred in law when it held:-
“The court watched the desperation of the plaintiffs in trying to substitute the 2nd Defendant by dint of Section 35 of the Electoral Act, 2010; a candidate may withdraw his candidature 45 days before the election. Can it be said from the evidence before the court that the 2nd Defendant withdrew…? This court is of the considered opinion that the 2nd Defendant did not withdraw and the 1st Plaintiff was never nominated candidate.”

GROUND 3
The learned trial Judge erred in law when it held:-
“The learned counsel to the plaintiff laboured to submit and argue and indeed inviting the court to compare signatures of 2nd Defendant and what is on other affidavit without adverting his mind to the damaging evidence by the witness called by the plaintiff. Indeed the witness could not account for the apparent inexplicable situation on Exhibit P1. How do you draw a line between Dan Azumi Mohammed and the 2nd plaintiff as acting National Secretary, he is not only an important organ of the 2nd Plaintiff, it is like the Plaintiff taking knife and stabbing itself. How did the 1st plaintiff get his affidavit in Exhibit P1 at Abuja High Court on 31/1/11 even before 9/2/11?”

GROUND 4
The learned trial Judge erred in law when it held:-
“In the process of cooking up their documents in Exhibit P1, a lot of loose ends were left untied and they boomeranged at the end of the day. Indeed there is evidence before the court that the list of purported nominees of the 1st Plaintiff over all nominees for the 2nd Defendant. If one is looking for evidence of cooked up documents, there is no better starting place that Exhibit P1 rather than other affidavit.”

GROUND 5
The learned trial Judge erred in law when it held:-
“One principle of law that stands very tall in our system of administration of justice is that a party will not be allowed to call his witness and at the same time discredit him without 1st declaring him hostile. Dan Azumi Mohammed who to all intents and for all purposes is part and parcel of the 2nd plaintiff called by the 1st Plaintiff was not declared hostile by the 2nd Plaintiff.”

GROUND 6
The learned trial Judge erred in law when it held that Exhibit P1 was a doctored document.

GROUND 7
The judgment of the lower court is totally against the weight of evidence.”

The appellant first filed his brief of argument on 22nd August, 2012. He also filed a composite reply brief of argument dated 25th January, 2013 in response to the respective briefs filed by each set of the respondents. The said reply brief was deemed filed by this court on 18th February, 2013.
The 1st respondent’s brief dated 24th December, 2012 was filed on 3rd January, 2013, but deemed filed on 18th February, 2013. The 2nd respondent’s brief dated 18th January, 2013 was filed on 22nd January, 2013 but deemed filed on 18th February, 2013. The 3rd respondent’s brief dated 3rd December, 2012 was filed on 25th January, 2013 but deemed filed on 18th February, 2013. The 4th respondent’s brief dated 10th September, 2012 was deemed filed on 29th August, 2012.
It is noteworthy that the 2nd respondent also filed a notice of preliminary objection to the appeal, which he accompanied with arguments which he filed on 14/2/13. The appellant also offered his reply to the said preliminary objection and the said reply was filed on 15/2/13.
In the appellant’s brief, settled by Ikhide Ehighelua, Esq., two issues were distilled from the grounds of appeal for determination, to wit;

“(1) WHETHER THE LOWER COURT WAS RIGHT IN DECLINING JURISDICTION OVER THE SUIT BEFORE IT. (GROUND 1),
(2) WHETHER THE LOWER COURT WAS RIGHT WHEN IT CONCLUDED THAT THE 2ND RESPONDENT DID NOT WITHDRAW FROM CONTESTING THE MATERIAL ELECTION AND WAS NOT SUBSTITUTED BY THE POLITICAL PARTY. (GROUNDS 2, 3, 4, 5, 6 AND 7).

The 1st respondent’s brief was settled by Alhassan Umar, Esq. wherein, the following issues were formulated for determination, namely:
“i. Whether the Learned Trial Judge was right to have upheld the preliminary objections that the Court has no jurisdiction to grant the reliefs sought in the Originating Summons (Distilled from ground 1 of the grounds of appeal).

ii. Whether the Learned Trial Judge was right to have held that the 2nd Respondent did not validly withdraw his candidature as the candidate of the 4th Respondent from the House of Assembly election for Ugheli North II Constituency of Delta State. (Distilled from grounds 2, 3, 4, 5, 6 and 7).

For the 2nd respondent, his brief was settled by Barrister (Chief) P.O. Wanogho, of learned counsel who identified these issues for determination, inter alia:
“1. Whether or not the trial court has Jurisdiction to entertain a pre-election matter, filed after the main election, which was held on the 26th day of April, 2011, on the 29th day of April, 2011, the date the originating summons in this suit was filed in the court below and/or whether the plaintiffs (Appellant and the 4th Defendant) have a subsisting cause of action or locus standi as at the time the said suit was instituted on the 29th day of April, 2011? (GROUND 1).
2. Whether or not the trial court properly evaluated both documentary and oral evidence placed before it and ascribed probative value to the evidence in arriving at its decision and/or whether the trial court in its judgment made perverse findings? (GROUND 2, 3, 4, 5, 6 & 7).

Onome Egbon, Esq., settled the brief for the 3rd respondent and he formulated the following issues for determination, namely:-
“1. WHETHER THE HONORABLE COURT WAS NOT RIGHT IN HOLDING THAT IT HAD NO JURISDICTION TO ENTERTAIN THE SUIT?

2. WHETHER THE HONOURABLE COURT WAS NOT RIGHT IN HOLDING THAT THE APPELLANT FAILED TO PROVE BY CREDIBLE EVIDENCE THE ALLEGED WITHDRAWAL OF THE 2ND RESPONDENT AND THE ALLEGED SUBSTITUTION BY THE 4TH RESPONDENT? (Grounds 2, 3, 4, 5, 6 and 7).

On the part of the 4th respondent, the brief of argument was settled by Sulaiman Usman, Esq., who formulated his own issues as being, to wit:-
(1) WHETHER THE LOWER COURT WAS RIGHT IN DECLINING JURISDICTION OVER THE SUIT BEFORE IT. (GROUND 1).

(2) WHETHER THE LOWER COURT WAS RIGHT WHEN IT CONCLUDED THAT THE 2ND RESPONDENT DID NOT WITHDRAW FROM CONSTESTING THE MATERIAL ELECTION AND WAS NOT SUBSTITUTED BY THE POLITICAL PARTY. (GROUNDS 2, 3, 4, 5, 6 AND 7).”

Upon my perusal of all the issues for determination as formulated by each counsel in this appeal, I am satisfied that the two issues formulated by the appellant are encompassing and cover the respective issues identified by each set of the respondents. I therefore, adopt the issues formulated by the appellant, in my consideration and determination of this appeal.
However, before proceeding to the real meat in the appeal, it is expedient to consider and dispose off the 2nd respondent’s preliminary objection, first.
The grounds upon which the objection is anchored are:

“1. That the 4th Respondent’s brief dated the 29th day of August, 2012, but filed on 10/9/2012 be struck out in that the said 4th Respondent’s brief was filed in violation of the provisions of ORDER 18 RULE 4 (2) of the Court of Appeal Rules, 2011.

2. That the present appeal amounts to abuse of the process of this Honourable Court, in that the Appellant’s counsel, IKHIDE EHIGHELUA, ESQ., purportedly filed this appeal against the 4th Respondent that the said Appellant’s counsel represented in the court below as a counsel. This appeal should therefore be struck out.
3. That the purported record of appeal in this appeal and all other processes founded on the purported record of appeal be struck out in that same was allegedly compiled in violation of the provisions of ORDER 8 RULES 1, 2, 7, 10(1), 11(a) and 18 of the Court of Appeal Rules, 2011.

I had the privilege of reading the draft of the judgment, delivered by my Lord HELEN M. OGUNWUMIJU, JCA and I am satisfied with the resolution of the issues in the preliminary objection of the 2nd respondent. I only wish to chip in a word with respect to the second ground of the preliminary objection, to the effect that since appellant’s counsel – Ikhide Ehighelua, Esq., represented the 4th respondent at the court below, he ought not to have filed this appeal against the same 4th respondent, hence this appeal should be struck out for being an abuse of the process of this court.
Now, is it the business of this court or any other court for that matter, to choose and appoint a counsel for a party, except in criminal trials where an accused person standing trial in a capital offence, cannot afford the services of a counsel to defend him? I was anticipating that learned counsel to the 2nd respondent, would predicate his novel submission on a decided authority of the apex court or of this court. The argument, to my mind and with respect, as fanciful as it appears, has no legal foundation/pedestal.
It is instructive, that this court in Nur V. NRC (1996) 9 NWLR (pt. 473) 490 at 500 per his Lordship, Musdapher, JCA (as he then was) had opined, that:
“Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the court has no business into inquiring whether the counsel was regularly or properly briefed. The court must allow the counsel to represent the party without any restriction or any procedural requirement.”
In effect, just as a party has the undoubted right to engage a counsel of his choice to conduct his case for him in court whether at the trial or in the appellate courts, so also the counsel has the corresponding right to accept any brief and conduct a matter for any party in court, with deference to his conscience and making sure that he does not run foul of any professional ethics as a legal practitioner.
The appellant, undoubtedly, had the right to file his appeal against any party in the action. He was evidently aggrieved by the decision of the court below against him, regarding his alleged substitution for the 2nd respondent. The decision of the court below adversely affected the appellant who thinks that the counsel who had fought or conducted the 4th respondent’s case at the court below, would be a more dependable ally/counsel to assist him to undo what was done against at the trial. So be it! It is apparent that the appellant and the 4th respondent are on the same page in this appeal.
In any event, the appellant has an unfettered right of appeal against any party in the action at the trial such as the 4th respondent – a nominal party and that right of appeal cannot be stultified. I am not aware of any law which is to the contrary. Indeed the Supreme Court in Akinbiyi V. Adelabu (1956) 1 NSCC 40 at 40 – 41, on an aggrieved person’s right of appeal, succinctly stated, inter alia;
“The only person entitled to appeal is a person aggrieved. In Ex Parte Sidebotham, 14 Ch. D. 465, James L.J. said:-
“a person aggrieved” must be a man who has suffered a legal grievance.” As Lord Esther in his judgment in Ex Parte Official Receiver in re: Reed, Bowen & Co., 19 Q.B.D. 174, observed, referring to the passage cited in the judgment of James, L.J., “he does not say a pecuniary grievance, a grievance to his property or to his person; he says “a legal grievance”, it means a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something which he had a right to demand.”
I, therefore in agreement with my Lord Ogunwumiju, JCA, dismiss the 2nd respondent’s preliminary objection on grounds 2 and 3 whilst it is sustained on ground 1.
With respect to the issues in the appeal proper, I take the liberty of adopting the submissions of the respective counsel on them as adumbrated in the lead judgment, hence I need not rehash them again. The first issue deals with the jurisdiction of the court below over the appellant’s suit which it declined.
The criticality of the question or challenge to the jurisdiction of an adjudicating tribunal such as the court below or any other court, is that jurisdiction is the bedrock upon which a trial or proceeding is anchored. That is why such a challenge must be first settled by the court, before taking any further step in the proceedings. The authorities on this principle of the law are a basket full. Just see: Okoye & Ors. V. Nigerian Construction & Furniture Co. Ltd. (1991) 7 SCNJ (pt. II) 365 at 381; Attorney General, Lagos State V. Dosunmu (1989) 6 SCNJ 134 or (1989) 3 NWLR (pt. II) 552 at 566; Attorney General, Anambra State & Ors. V. Attorney General of Federation & ors. (1993) 7 SCNJ (pt. II) 245 at 291; Ajayi V. Adebiyi (2012) 11 NWLR (pt. 1310) I37 at 182 (SC).
There was a pre-election dispute with respect to the validly nominated candidate of the 4th respondent (DPP) for the election of the member representing the Ugheli North Constituency II in the Delta State House of Assembly. The tussle was between the 2nd respondent and the appellant. The 2nd respondent purchased the nomination form and participated in the primary elections. His name was forwarded to the 1st respondent INEC. Later on, the 2nd respondent was said not to have resigned from his employment as a civil servant before he participated in the primary elections. So, he allegedly withdrew his candidacy for the election. The 4th respondent communicated to the 1st respondent that the 2nd respondent had been substituted with the appellant.
Thereafter, the 1st respondent, at page 14 of the record, published the list of the candidates for the election proper and the name of the appellant appeared thereon as the 4th respondent’s candidate for the election in question. However, later on, the same 1st respondent (INEC) again published another list of the candidates for the said election. The name of the appellant was not there. Instead it was the name of the 2nd respondent which surfaced on the new list of candidates for the election.
Both contestants and players in the chess game of replacements and substitution that is the 2nd respondent and the appellant were aware of these developments. The 2nd respondent clearly had the upper hand because his name remained on the extant list of the candidates for the election which was held on 26th April, 2011. He was victorious and was consequently issued with a Certificate of Return as the member representing Ugheli North Constituency II in the Delta State House of Assembly. The appellant, three days after the election of 26th April, 2011, filed his action on 29th April, 2011; claiming that he was the validly nominated candidate who ought to have been issued with a Certificate of Return for the election of 26th April, 2011 and not the 2nd respondent.
Indisputably, the dispute between the appellant and the 2nd respondent on who was the validly nominated candidate of the 4th respondent was a pre-election matter and not a post-election matter. It is settled that suits bordering on pre-election matters of nomination and substitution of candidates are within the province and jurisdiction of either the Federal or State High Courts to hear and determine whilst post-election matters are the exclusive preserve of election tribunals, established for the purpose of settling election petitions which arise from elections conducted in respect of political offices. See Charles Chiwendu Odedo V. Independence National Electoral Commission (INEC) & Ors. (2008) 7 SCNJ 1; Hon. Gabriel Yunisa Oloju & Ors. V. Mr. Michael Adejo Hodo & Ors. (2010) 12 SCNJ 349; Senator Julius Ucha V. Dr. Emmanuel Onwe & Ors. (2011) 1 SCNJ 223.
I have perused the authorities of the apex court in Rotimi Amaechi V. INEC & Ors. (2008) 5 NWLR (pt. 1080) 227 or (2008) 1 SCNJ 1; Hon. Gozie Agbakoba V. INEC & Ors. (2008) 12 SCNJ 619; Charles Chiwendu V. INEC & Ors. (2007) 7 SCNJ 1 or (2008) 17 NWLR (pt. 1117) 554; and it is crystal clear to me that once an action had been filed by a plaintiff with respect to a pre-election matter of nomination or substitution of a candidate in an anticipated or upcoming election, that is where the action predates the conduct of an election, the proper venue and court for the determination of the action is either the Federal or the State High Courts.
In Amaechi’s case (supra), the suit was filed at the Federal High Court before the conduct of the election into the office of the Governor of Rivers State and when inspite of the pending suit, the electoral body INEC, went ahead to conduct the election and thereafter declared the substituted candidate Omehia as the Governor, the Supreme Court, in the exercise of its coercive jurisdiction had this to say:
“It is common ground that the 2nd respondent was declared as Governor of Rivers State notwithstanding the pending of law suits relative to who should occupy that position. The lawful occupation of the office of Governor of the Rivers State is the subject of this appeal. The right to the subject matter was already in court for adjudication before the 1st respondent went ahead to conduct the election of 14th April, 2007 and eventually swore the 2nd respondent as the Governor of the State. The doctrine of lis pendens found expression in the assertions that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the court during the pendency in court of an action and even after. By that doctrine the law does not allow to litigants parties or give to them during the currency of the litigation involving them, the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interests in any subject another. The well-known maxim is “pendent lite nitul innovator”, meaning during litigation, nothing new should be introduced. See Dan Jumbo v. Dan Jumbo (1999) 11 NWLR (Pt. 627) 445. Going by the fact of this case as set out above, it is my humble view that the doctrine applies.”
Furthermore, in Agbakoba V. INEC (supra), the action bordering on the substitution of an already nominated candidate for a forthcoming election was filed on 29th March, 2007 at the Federal High Court for determination but while it was still pending, the electoral body went ahead and conducted the said election on 21st April, 2007. Again the Supreme Court reiterated her position in Amaechi’s case. In his lead judgment, that is, in Agbakoba (supra), my Lord, Chukwuma-Ene, JSC at page 651 of the report held that:
“Pre-election disputes encompass the stage of conducting party primaries to holding of actual elections; on the other hand, that post-election disputes contemplate actual election which is challengeable on the ground of undue election or undue return albeit on a specific ground(s) as prescribed by Section 145(1) (a) to (d) of the Electoral Act 2006. Post-election disputes come under the exclusive jurisdiction of the Electoral Tribunals as per Section 140(1) and (2) of the Electoral Act 2006 for adjudication. And I so hold that the foregoing represents the true position of the law in this regard.
The kernel of the appellant’s case here is that fundamentally the reliefs claimed in the Originating Summons relates to a pre-election dispute (and not a post-election dispute) which is within the jurisdiction of the regular courts. And so the holding of the election on 21st of April, 2007 has not affected or foreclosed the appellant’s cause of action; as a pre-election dispute, in this case it has out-lived the said election and so has not been reduced to a mere academic exercise: See: national Electoral Commission (INEC) v. NRC (1993) 1 N.W.L.R. (pt. 267) 120 at 131.”
So also in Odedo V. INEC (supra), the position of the Supreme Court did not shift as far as pre-election suits with respect to nomination and substitution of candidate are concerned, to the effect that the later conduct of an election does not affect a pending action in court.
However, with respect to the authorities of Hassan V. Aliyu (supra) and Oloju V. Itodo (supra) both of which I have also perused, the actions of the plaintiffs in both cases post-dated the respective elections, hence the apex court’s decision on each of them that time is of essence for a candidate in an upcoming election, who smells a rat of his being short-changed by his substitution with another candidate, not to wait until after the conduct of the real election, before filing his action at the Federal or State High Court and challenge the alleged substitution. It is axiomatic that a stitch in time, saves nine. Hence, equity aids the vigilant and not the indolent. And if I may add, nor aid the ignorant!
It is my considered view that if the appellant, from the very moment that he became aware that the 1st respondent removed his name from the list of the candidates and replaced it with that of the 2nd respondent, had then filed his action at the court below, predating the conduct of the election on 25th April, 2011; his action would have survived that election and the court below should have assumed jurisdiction over it.
However, he waited and filed his action after the conduct of the election. Therefore, as at the time he filed his action on 29th April, 2011 – three days after the said election, the question of nomination or substitution which are pre-election matters were no longer available for determination at the regular courts such as the court below, further see Danladi Baido V. INEC & Ors, (2012) 31 WRN 27.
I am of the firm and considered opinion that the learned trial judge was not in error when he declined jurisdiction to hear and determine the appellant’s action which was filed after the conduct of the election to the office of the member representing the Ugheli North Constituency II, in the Delta State House of Assembly, held on 26th April, 2011.
I, therefore resolve issue 1 in favour of the respondents and against the appellant.
I must say that, that is as much as I could part ways with my Lord Ogunwumiju, JCA, in this appeal.
I am in agreement with his Lordship in the resolution of issue 2, to the effect that the learned trial judge was clearly in error when he held that the 2nd respondent did not withdraw from contesting the election. He did and took back his money which he had paid as deposit in order to contest the election. See page 1047 of the record of appeal. And with respect to the issue of nomination of the appellant and in consequence, allegedly substituted for the 2nd respondent, there is no evidence that the appellant was properly nominated by any member of his party. There was indeed, a mix-up or call it a faux paus, when the forms used for the nomination of the 2nd respondent who had withdrawn from the contest, were the same forms that were attached by the 4th respondent to the documentation papers of the appellant.
Unarguably, nomination precedes substitution. Therefore, since the appellant was not nominated, it follows that he was not substituted, for the 2nd respondent.
In the end, I agree with his Lordship in the lead judgment that,
“I am unable to grant any of the reliefs sought by the appellant.”