MR. PETER OKOCHA & ANOR V. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2010)

MR. PETER OKOCHA & ANOR V. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2010)LCN/3579(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of February, 2010

CA/B/EPT/321/09

RATIO

APPEAL: WHETHER THE APPEAL COURT HAS THE POWER TO REFORMULATE ISSUES FOR THE PURPOSE OF ATTAINING ACCURACY IN THE PROPER DETERMINATION OF THE APPEAL

Certainly, this Court has the power to reformulate issues for the purpose of attaining accuracy in the proper determination of the appeal. See: Unity Bank Plc v. Bottari (2008) 2 KLR (Pt. 249) 909; Duwin Pharms Ltd. v. Beneks Pharms Ltd (2008) 2 KLR (Pt. 249) 771. PER M.B. DONGBAN MENSEM, J.C.A

ELECTION MATTERS: KINDS OF DISPUTE USUALLY WOVEN AROUND THE ISSUE OF NOMINATION OF CANDIDATES

it is important to note that under the Electoral Act 2006, there are two kinds of disputes usually woven around the issue of nomination of candidates. They are:

(a) disputes relating to substitution of names of nominated candidates, that is, disputes that centre on the improper substitution by political parties of earlier nominated candidates. Here, the crux of the complaint is usually the alleged invalidity of the substitution of a duly nominated candidate with another candidate; and

The first kind of dispute is a matter within the domestic jurisdiction of political parties, see: Onuoha v. Okafor (1983) 2 SCNLR 244, Dalhatu v. Turaki (2003) 42 WRN 15, Ugwu v. Ararume (2007) 31 WRN 1; (2007) 12 NWLR (Pt. 1048) 367 etc since the nomination and sponsorship of candidates by a political party is within its exclusive prerogative. See: Ehinlanwo v. Oke (2008) 6 KLR (pt. 256) 2493. Such disputes, which are usually between an aggrieved candidate and his political party, involve the challenge of his party preference of another member of the party to himself. As such, they centre on the invalidity of nomination, sponsorship and substitution of one candidate for another. They are characterized as pre-election disputes. By section 251(1) (r) of the Constitution, the Federal High Court has exclusive jurisdiction to hear and determine them, See: Agbakoba v. INEC (2009) 24 WRN 1,24; Ehilanwo v. Oke (supra); Dalhatu v. Turaki (2003) 42 WRN 15, (2003) 15 NWLR (Pt. 843), (2003) 7 SCNJ 1; Adebusuye v. Oduyoye (2004) 1 NWLR (Pt. 854) 406; Ararume v. INEC (2007) 9 NWLR (Pt. 1038) 127; Ugwu v. Ararume (2007) 31 WRN 1, (2007) 12 NWLR (Pt. 1048) 367.

In strict fidelity to the doctrine of stare decisis, this Court has consistently followed the above decisions, See: Suleiman A. Ogunbiyi v. I. Ogundipe & 3 Ors (1992) 9 NWLR (Pt. 293) 244; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 @ 549; Kurfi v. Muhammed (1993) 2 NWLR (Pt. 277) 602. On the other hand, the second kind of dispute, invariably, a ground of presentation of an election petition under Section 145(1) (d) of the Electoral Act, 2006 is only cognizable by the Election Petition Tribunals, See: Abubakar v. Yar Adua (2008) 12 KLR (Pt. 259) 3161; Kolawole v. Folusho (2009) 8 NWLR (Pt. 1143) 338. Disputes that fall under this category are referred to as post-election disputes. In contrast to pre-election disputes, post-election, disputes arise from the holding of elections or the return of elected candidates, They cover such grounds as unlawful exclusion of candidates among others. See: Agbakoba v. INEC (2008) 12 KLR (Pt.259) 3333. PER M.B. DONGBAN MENSEM, J.C.A

EVIDENCE: ON WHOM LIES THE ONUS OF PROOF OF VALID NOMINATION AND UNLAWFUL EXCLUSION

Now, to succeed in a petition under the above section, the onus of proof of valid nomination and unlawful exclusion is squarely on the petitioner. See: per Katsina-Alu JSC (as he then was) in Abuhakar v. Yar’Adua (supra) at 179; PAC v. INEC (2009) 42 WRN 88. Above all, by the combined effect of Sections 136 and 137 of the Evidence Act, the burden of first proving the existence or non-existence of facts lies on a party against whom judgment would be given if no evidence were produced, PAC vs. INEC (2009) 42 WRN 88, 140. What is more, as noted in Buhari vs. Obasanjo (supra) the petitioner must rely on the strength of his case and not on the weakness of the respondents’ case.

Happily, the provision of section 145(1) (d) Electoral Act, 2006 has been interpreted several times by the Appellate Courts, notably, Idris vs. ANPP (2008) 8 NWLR (Pt. 1088)1, 123; Abubakar & Ors. vs. Yar Adua & Ors. (2009) All FWLR (Pt. 457) 1, 88; Oluyemi vs. Asaoiu (2009) 28 WRN 50, 54, 4 NWLR (Pt. 600) 587, 596-592; Progressive Action Congress vs. INEC (2009) All FWLR (Pt. 478) 260. PER M.B. DONGBAN MENSEM, J.C.A

COURT: DUTY OF A COURT TO CONSTRUE MUTUALLY RELATED PROVISIONS OF A STATUTE HARMONIOUSLY

We take the view, therefore, that to be able to determine the requirements for valid nomination, a Court is entitled to consider and construe all the provisions of the Electoral Act relating to the subject. The short answer to this question then is that sections 32 and 33 of the Act should be read together and the Tribunal was right in so doing PER M.B. DONGBAN MENSEM, J.C.A

EVIDENCE: WHETHER EVIDENCE PROCURED FROM CROSS-EXAMINATION ON ISSUES JOINED BY PARTIES IN THEIR PLEADINGS CAN BE PUNGENT THAN EVIDENCE IN CHIEF

JUSTICES

MONICA BOLANAAN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

1. MR. PETER OKOCHA
2. ACTION CONGRESS Appellant(s)

AND

1. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE CHIEF ELECTORAL COMMISSIONER DELTA STATE
3. THE RESIDENT ELECTORAL COMMISSIONER DELTA STATE
4. EMMANUEL NDUAGHAN Respondent(s)

M.B. DONGBAN MENSEM, J.C.A (Delivering the Leading Judgment): On the 9th day of July, 2009, the Governorship/Legistative Houses Election Petition Tribunal (hereinafter referred to simply as ‘Tribunal’ delivered a Judgment dismissing the Petition of the Appellants. The Appellants had presented before the Tribunal, a petition challenging the return of the 4th Respondent as the duly elected candidate. The sole ground of the petition was that the 1st Appellant was validly nominated by the 2nd Appellant to contest the election but that he was unlawfully excluded from participating in the election by the 1st – 3rd Respondents.
The 1st Appellant was the candidate of the 2nd Appellant which is a registered Political Party. The 1st set of Respondents namely the 1st, 2nd & 3rd (hereinafter referred to as the 1st – 3rd Respondents) conducted the said election of the 14/04/2007. The 2nd set of the Respondent namely:
The 4th Respondent was one of the 13 candidates who contested the election and was duly returned as elected.
Pursuant to the applicable rules, pleadings were settled and exchanged. The 1st Appellant was the only witness who testified before the Tribunal by adopting his statement. He tendered six (6) exhibits in support of the petition namely:
1. Exhibit P1 – Form CF002B- (submission of names of candidates by a political party);
2. Exhibit P2 – Form EC4B(vi) – (Form for nomination of Governor);
3. Exhibit P3 – Form CF001- (Affidavit in support of personal particulars);
4. Exhibit P4 – (Extract from Vanguard Newspaper of 12-2-2007);
5. Exhibit P5 – (Extract from Vanguard Newspaper of 13-4-2007); and
6. Exhibit P6 – (Written deposition dated and filed on 8th May, 2007).
By consent the Respondents tendered exhibits R1 & R2 during PTC (pre trial conference). Exhibits R3 & R4 were tendered during the cross-examination of PW 1 the sole witness. At the conclusion of the hearing, the petition was dismissed and the Appellants filed this appeal being distraught.
From the eight grounds of appeal filed, the Appellants formulated seven (7) issues. The 1st to the 3rd Respondents formulated four (4) issues while the 4th Respondent formulated three (3) issues for determination in the appeal.
The 1st – 3rd Respondents raised a preliminary objection in their brief of argument which we shall determine first before addressing the Issues formulated for determination in this appeal.
Preliminary Objection
In their Notice of Preliminary Objection, the 1st – 3rd Respondents raised the following grounds that:
“(1) Ground one in the Notice and Grounds of Appeal is incompetent;
(2) Appellant’s issue one was distilled from an admixture of incompetent Ground one and Ground 8 and was so argued;
(3) Case set up and argued by the Appellant in issue 7 at pages 81-104 of the Appellant’s brief are new without leave on the point that:-
(a) the period prescribed for submission of nomination forms was sixty (60) days as opposed to 120 days canvassed before the lower Tribunal;
(b) by asserting on appeal that a challenge to an allegation of valid nomination as a foundational basis for asserting unlawful exclusion purportedly raised a pre-election matter;
(c) by asserting on appeal that there is an alleged conflict between the provisions of the Electoral
Act and the Constitution on the question of the prescribed conditions for valid nomination of a Governorship candidate”
At the hearing of the appeal, the learned Counsel to the 1st – 3rd Respondents adopted and relied on their argument incorporated in their brief of argument under paragraphs 4.01 – 4.06 at pages 6-9 of the brief.
The objection was erected on three principal planks to wit:
(1) That since there was no valid complaint against the hearing and conclusion of the Tribunal in the position of the judgment set out in ground one, the said ground did not show any misdirection in law;
(2) That the particulars of the ground of appeal can neither stand alone nor be argued as separate grounds of appeal;
(3) That the Appellants are making, on appeal, a ease completely different from that made before the Tribunal;
(4) Since issue one in the Appellant’s brief was distilled from grounds one and eight, the said Issue is incompetent. Ground eight is afflicted even though competent because of the admixture with the incompetent ground one and argued together under issue one.
With regards to the 1st ground of the preliminary objection, the 1st – 3rd Respondents contended that there were several disjointed portions of the conclusion of the Tribunal was incorrectly reproduced in the said ground one judgment which were produced as constituents of the grounds. Even the conclusion of the Tribunal was incorrectly reproduced in the said ground one so as to misrepresent the decision of the Tribunal. (Page 841 of the records of appeal).
It was further contended that since the conclusion complained of in the said one is not inconsistent with the Judgment, the said Judgment could not be said to be perverse. Further, the Tribunal’s conclusion was indeed favourable to the Appellants who could not be heard to complain against the said Judgment. Appeals are made only upon grievances.
Expectedly, the Appellants debunked the above argument contending that the said grounds one and eight and the said issue one thereof are competent. In their view the said grounds and issue emanated from the judgment appealed against. Several authorities were cited in support of the preposition that once a ground of appeal is succinctly couched, the Court is reluctant to strike it out on grounds of technicality. Above all, there is even authority to say that all a ground of appeal needs show is the sufficient notice of the precise nature of the Appellant’s complaint. (Refer: Sosanya vs. Onadeko (2005) 8 NWLR (Pt. 926) 185 @ 226 paras C-H). It was further contended that the 1st – 3rd Respondents were not misled (Refer: Obi-odu vs. Duke (2006) 1 NWLR (Pt. 961) 375 at 396 paras F-G, Ikweki & Ors. VS. Ibile (2005) All FWLR (Pt. 257) 1401@ 1432, Saraki vs. Kotoye (1992) 11-12 SCNJ 26 @ 43). The Appellants further submitted that this Court has wide powers to formulate its own issues in the interest of justice. (Refer: Agbareh & Anor vs. Mimra & Ors. (2008) 2 SCM 55 at page 71; Musa Sha (Jnr.) & Anor. vs. Da Rap. Kwan & 4 Ors. (2000) 5 SCNJ. 101; Lebile vs. The registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 1 SCNJ 463 @ 479 (2003) 2 SCM 19,. Emeka Nwana vs. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt. 889) 128@ 142-143, (2004) 7 SCNJ 90@ 99. (2004) 7 SCM 25, Unity Bank Plc & Anor. vs. Bouari (2008) 12 SCM pg 193 @ 210).
Undoubtedly, ground one is clumsily and inelegantly couched. However, we must hasten to add that

Courts no longer place reliance on mere technicalities to shut out an intending appellant. That is the current trend endorsed by the Apex Court in a host of decisions. Thus, it has been held, for example, that not withstanding that the Rules of Court require a ground of appeal to be precise and accurate, that does not mean that any slight non-compliance renders the ground incompetent, (Aderanmu vs. Glowa (2000) 4 NWLR (Pt. 652) 253; Hamhe vs. Hueze (2001) 2 SC 26; (2001) 4 NWLR (pt. 7(3) 372; Arewa Papers Converters vs. NDIC Ltd (2006) 7 NLR (pt. 223) 2741, 2753).
The logic of this liberal approach stems from the premise that what is important in a ground of appeal and the test the court should apply is whether or not the impugned ground(s) show clearly what is complained of as error in law and what is complained of as misdirection or as the case may be, error of fact, see per Ayoola JSC in Aderounmu vs. Olowu (2000) 4 NWLR (Pt. 652) 253 at 265-266; also, Nteogwuija & Ors v. Ikuru & Ors (1988) 10 NWLR (Pt. 569) 267 at 310. The net effect of this attitude is that defects in grounds of appeal may not warrant the striking out of such grounds if it is possible to make sense of them, see per Oguntade JSC in Aighohahi v. Aifuwa (2006) 2LR (pt. 211) 269, 600.
Since the Respondents’ contention is not that they have been misled by the said grounds and we are, indeed, satisfied that its meaning can be reasonably elicited, we do not consider it objectionable, Thor Ltd v. First City Merchant Bank Ltd (1997) 1 NWLR (pt. 479) 35, Aderounmu v. Olowu (supra), Odonigi vs. Oyeleke (2000) 6 NWLR (pt. 708) 12. In the circumstance, the preliminary objection is overruled. Accordingly, we hereby, enter an order dismissing the preliminary objection.
The Appeal
We now proceed to the main Appeal.
The Appellants formulated seven (7) issues the 1st set of Respondent formulated four (4) issues while the 4th Respondent formulated three (3) issues. The issues formulated by the Appellants are hereby reproduced:
(1) Whether having regard to the totality of the evidence on record, the 1st Appellant was not validly nominated for the 14th April; 2007 Governorship Election in Delta State by the 2nd Appellant political party. (Grounds 1 & 8).
(2) Whether the 1 Respondent has any power whatsoever under any law to screen and clear a candidate presented or nominated for an election by a political party. (Ground 2);
(3) Whether the tribunal ought to have dismissed the Appellants’ petition in the circumstances of this case having regard to the fact that the Respondents did not call ‘or adduce evidence at the trial in rebuttal of the allegations against them by the Appellants. (Ground 4);
(4) Whether the tribunal has jurisdiction to inquire into the issue of the validity or otherwise of the 1st Appellant’s nomination for the 14th April, 2007 Governorship Election in Delta State being a pre-election matter. (Ground 5);
(5) Whether the tribunal ought not to have taken judicial notice of the clear and unambiguous provision of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as it relates
to the issue of fair hearing and given effect thereto suo moto. (Ground 6);
(6) Whether Exhibits P4 & P5 suffer from any defects whatsoever as to affect or undermine their evidential/probative value or render same worthless. (Ground 7);
(7) Whether or not Section 32(1) and (2) of the Electoral Act, 2006 admits of its being read together with Section 33(1) of the same Electoral Act, 2006. (Ground 3).
Upon a careful perusal of the grounds of appeal, and the issues formulated by each of the parties in this appeal, we take the view that this appeal can be competently determined under four (4) issues. These are:
Issues (1): Issues 1, 2, 4 & 7 formulated by the Appellants will be taken together because there is a common thread which runs through these four issues. It comes to this; what constitutes valid nomination and unlawful exclusion?;
Issues (2): Whether the Respondents had any legal obligation to adduce further oral evidence having established their defence through the exhibits tendered and by facts elicited from the PW1 under cross-examination;
Issue (3): Whether in view of the pleadings and evidence adduced, the issue of want of fair hearing raised retrospectively in the final address of Counsel to the Appellants is competent;
Issue (4): Whether the Tribunal ascribed the correct probative value to exhibits P4 and P5.
These issues will now be taken seriatim.
The learned Senior Counsel to the Appellants expended valuable time and energy on the issue of the nomination and sponsorship of candidate for an election. The Appellants predicated their appeal on the provision of section 145(1)(d) of the Electoral Act. It was the ardent contention of the learned senior Counsel for the Appellants that the Appellants were unlawfully excluded from the election of 14/04/07 even though their candidate, the It Appellant, was duly nominated. Adopting a rather alien route, the learned senior Counsel argued his proliferated issues seriatim. Arguing issues 1, 2, 4 and 7 all of which point to the valid nomination but unlawful exclusion of the Appellants, the learned Counsel submitted that by Exhibits P1, P2 and P3, the Appellants established that the 1st Appellant was validly nominated but unlawfully excluded by the 1st – 3rd Respondents.
The learned senior Counsel maintains that the learned members of the Tribunal came to a wrong and perverse conclusion because they confused the screening exercise in section 32 with the provision of section 33 of the Electoral Act, 2006, which deals with nomination. He cited the following cases: Onuoha v. Okafor (1983) 2 SCNLR 244; Oluyemi v. Asaolu (2009) 28 WRN 50 @ 54; Ugwu v. Ararume (2007) 31 WRN 1, (2007) 12 NWLR (Pt. 1048) 367; Suleiman A. Ogunbiyi v. I. Ogllndipe & 3 Ors (1992) 9 NWLR (Pt. 293) 244; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 @ 549 and a list of other cases for his submission that the nomination of a candidate is the internal affair of the party. He, also, took the view that the 2nd Appellant complied with the provision of section 32(1) of the Electoral Act having duly nominated the 1st Appellant in accordance with the provision of section 177(c) of the Constitution of the Federal Republic of Nigeria of 1999.
Upon the submission of Exhibits P1, P2 and P3, the 1st – 3rd Respondents received and acknowledged receipt of the said documents and having published the name of the Appellants in Exhibit 4, are functus officio to screen out the Appellants and unlawfully exclude them from participating in the election of 14/04/07. The learned senior Counsel cited Exhibit P5 as evidence of the 1st – 3rd Respondents reversal of themselves by excluding the name of the Appellants from the published list of candidates on the eve of the election. Further, inspite of compliance with all statutory and constitutional requirements, the 1st – 3rd Respondents omitted to or failed to put the logo and names of the Appellants on the ballot paper on the date of the election.

The learned senior Counsel argued, assiduously, that neither the 1st – 3rd Respondents nor the Tribunal had jurisdiction to inquire into the validity of the nomination of the 1st Appellant by the 2nd Appellant. The learned Silk maintains that:
The subsisting nomination of the 1st Appellant having not been nullified by the High Court of a State or the Federal High Court pursuant to Section 32(4)-(6) of the Electoral Act. 2006 before the governorship election of April 14, 2007 remains good and valid and cannot be a subject of retroactive review by an election petition tribunal set up under Section 285(2) of the 1999 Constitution reviewing the action of INEC on Election Day as it affected the Appellants.
On the view by the lower tribunal that the nomination of the 1st Appellant was vitiated by the failure of the Appellants to submit their particulars and nomination form EC4B(vi) to the 1st Respondent 120 days to the election as required by Section 32(1) & (2) and Section 33(1) of the Electoral Act 2006,

we submit that by the clear provisions of Section 32(2) & (6), it is only all the constitutional requirements for the office of Governor that is needed to be met by the Appellants to be validly nominated. By the doctrine of covering the field as propounded by the Supreme Court in the case of A.G Abia State vs. A.G Federation part 763 (2002) 6 NWLR 264-541 at page 369 para C-G. The Constitution having expressly made provision for disqualification and invalidation of nomination for the office of Governor any provision of the Electoral Act 2006 which seeks to enlarge, curtail or alter the constitutional provisions on these subject shall be treated as unconstitutional and therefore null and void. The time for submission of personal particulars and nomination for EC4B(vi) is unknown to the 1999 Constitution as a ground for disqualification of a candidate for the office of Governor of a state by virtue of Section 182(1) thereof and for invalidation of nomination of a gubernatorial candidate by virtue of Section 187(1) of same. Be that as it may, it is only the party list of candidates a party proposes to sponsor or nominate at the election and personal particulars/affidavit in support thereof that is required to be submitted to the 1st Respondent not later than 120 days to the election as required by Section 32(1) & (2) of the Electoral Act, 2006.
The Appellants fully complied by submitting their completed form CF001(Exhibit P3) and CF002 (Exhibit P1) to the 1st Respondent on the 15th December, 2006 as duly acknowledged by the 1st Respondent on the same day that is not later than 120 days to the election. The duly completed nomination form EC4B(vi) was submitted on the 13th of February 2007, that is not later than 60 days to the election as required by the Electoral Act 2006.
Upon the authority of AC v. INEC (2007) 12 NWLR (Pt. 1048) 222 at 275 paras A-F and Section 165(1) of the Electoral Act, 2006, the learned Counsel maintains that the 1st Respondent lacks the competence to go outside the provisions of the Electoral Act to screen, verify or disqualify any candidate presented by a political party for an election under and by virtue of the provisions of the Electoral Act, 2006, section 165(1) having repealed section 21(8) of the Electoral Act, 2002.
Citing the decision of the Tribunal at page 826 to the effect that:
‘…From the above, it is clear that matters which arise before the date of an election are pre-election matters. There is therefore no doubt that the nomination of a candidate to contest an election being a matter that comes before the date of an election is a pre-election matter, and only State and Federal High Courts have the original jurisdiction to by such matters…’
He then berated the learned members of the tribunal for failing to adhere to the above finding and rather venturing into the issue of the validity of candidates an area the learned senior Counsel professes the tribunal lacks jurisdiction or competence to address. Cited in support are the provisions of sections 32-37 of the Electoral Act, 2006 and the following cases: INEC v. NRC (1993) 1 NWLR (Pt. 267) 120 @ 121 paras B-C; Agbakoha v. INEC & Ors. (2008) 12 SCM (pt. 2) 159 @ 191; Odedo v. INEC & Ors. (2008) 11 SCM 85@pg. 137.
The learned senior Counsel urges us to declare the tribunal as lacking in jurisdiction accordingly. The case of KLM Airlines vs. Kumzhi (2004) 8 NWLR (Pt. 875) 321 at pages 251-252 was quoted extensively along with Oluyemi vs. Asaolu (supra) in support of this argument.
Under issue 7, the learned senior Counsel submitted that by the provision of section 182(1) of the 1999 Constitution exhibits R1, R3 and R4 which are respectively the report of the administrative panel which allegedly indicted the 1st Respondent and the decisions of the High Courts Abuja and Benin were rendered impotent until the determination of the 1st Appellant’s appeal. There was therefore no justification to disqualify the Appellants by an organ which in Jaw lacks the jurisdiction to do so.
The learned senior Counsel takes objection to the failure of the two sets of Respondents to lead oral evidence in rebuttal and submit that the tribunal should have held that the Respondents had abandoned their pleadings and hold that they have thereby admitted the allegations of the Petitioners. The following cases inter alia are cited in support: Dingvadi vs. Wamako (supra); Trawling Vessel vs. Ahogun (2007) 1 NWLR (Pt. 1016) pg. 456 at 479 paras C-G; Jolayemi vs. Alaoye (2004) 5 SC (Pt. 11) 112; (2004) 12 NWLR (Pt. 887) 322 at 340, Basheer vs. Same (1992) 4 NWLR (Pt. 236) 491 at 502 paras. F-H, to buttress this point. The provision of Section 75 of the Evidence Act is also cited in support.
It is further the submission of the learned senior Counsel on issue 5 that the tribunal ought to have taken judicial notice of the clear and unambiguous provisions of Section 36(1) of the Constitution and uphold the petition even though the issue of fair hearing was neither pleaded nor established before the Tribunal having been raised for the first time in the address of the learned Counsel Cited in support is Section 74 of the Evidence Act and the cases of Kallamu vs. Gurin (2003) 16 NWLR (Pt. 847) 493 at 517; Alamieyeseigha vs. FRN (2006) 16 NWLR (Pt. 1004) 1 at 58; B.O.N. Ltd vs. Babatunde (2002) 7 NWLR (Pt. 766) 389 at 413.
On issue 6, the learned senior Counsel submits that exhibits P4 and P5 having been made on the letter head of the 1st Respondent are deemed to have emanated from the said 1st Respondent and are therefore authentic and admissible evidence in court. The Tribunal was therefore wrong to have held that the said exhibits did not emanate from the office of the 1st Respondent and to have required oral evidence from the publishers of the newspaper. The following cases were cited to buttress the submission: Arabambi vs. Advance, Beverages Ltd (2005) 19 NWLR (Pt. 959) 1 at 29; Yadis (Nig) Ltd vs. G.N.I.C. (2007) 14 NWLR (Pt. 1055) pg 584 at 607; Idiok v. State (2008) 4 SCM pg. 59 at 76; Amadieme v. Ibok (2006) 6 NWLR (Pt. 975) 158 at 175.
The learned Counsel for the 1st-3rd Respondents compressed the seven issues formulated by the Appellants into four issues.
Arguing issues 1, 3, 5 & 7 together, the learned Counsel submits that the Appellants failed to establish before the Tribunal that the 1st Appellant was validly nominated by the 2nd Appellant but unlawfully excluded from the election. The learned Counsel cited section 145(1)(d) of the Electoral Act which learned Counsel submits the Appellants were well aware of as pleaded in paragraphs 2, 5, 17(a) and 18(a) of the Petition. The Appellants kept referring to the fact of the 1st Appellant being ‘validly nominated’ by the 2nd Appellant to contest the April 14th 2007 election.
Having pleaded the fact of a valid nomination, the Appellants had the burden of proof to establish their assertion of facts. This they failed to do, maintain the learned Counsel for the 1st-3rd Respondents. The learned Counsel cited page 846 of the Judgment of Tribunal which found and held that it was clear that the Petitioners did not come close to establishing the validity of nomination of the 1st Petitioner having failed to submit their particulars to the 1st Respondent within 120 days to the election as required by section 32(1) and (2) and section 33(1) of the Electoral Act, 2006.
The Appellants also failed to establish their compliance with the provision of section 187(1) of the 1999 Constitution and the Tribunal correctly so found, maintains the learned Counsel.
With regard to the second issue, the learned Counsel for the 1st to 3rd Respondents argued that this issue summarises the Appellants’ issues 1,4,6 and 7 all of which relates directly to the question of whether or not the appellants proved that the 1st Appellant was validly nominated but unlawfully excluded. The findings of the tribunal in respect of screening and clearing are supported by the pleadings and are also part of the nomination process. It was therefore not out of place for the tribunal to make a finding on any aspect of the nomination process which is aimed at proving valid nomination.
The learned Counsel for the 1st-3rd Respondents further submitted that the process for a valid nomination is statutorily spelt out by the provisions of sections 32(1) and (2) and 33(1) of the Electoral Act, 2006. The 1st Appellant he said must have been validly nominated as required by section 145(1) (d) of the Electoral Act 2006. In order to determine whether the tribunal had correctly interpreted the aforesaid provisions and correctly applied same to the facts of the case the nitty-gritty elements of the critical provisions of sections 32(1) and (2) and (33) of the Act and also section 187(1) of the 1999 Constitution have to be properly examined and analysed.
In Idris vs. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 23 this Court interpreting the provision of section 145(1) (d) observed per Omokri, JCA that a petition complaining of unlawful exclusion has a duty to prove the following critical factors:
(1) that the petitioner was validly nominated.
(2) that the election was conducted and concluded.
(3) that the winner was declared, and
(4) that the name of the petitioner was not included in the list of contestants.
These factors were affirmed by the Supreme Court in the case of Abubakar & Ors VS. Yar’Adua & 7 Ors (2009) All FWLR (Pt. 457) 1 at 88 paras B-C where Katsina-Alu, JSC (as he then was) observed thus:
‘The law is settled that in order to prove unlawful exclusion after valid nomination by his party, a petitioner must show the following:
(i) that he was validly nominated by his political party;
(ii) that the election was conducted;
(iii) that the winner was declared, and
(iv) that his name was not included in the list of contestants.
The learned Counsel for the 1st to 3rd Respondents submitted that the combined effect of sections 32(1) and (2) and 33 of the Electoral Act and section 187(1) of the Constitution of the Federal Republic of Nigeria 1999 requires that the following four factors be established:
(1) that the 2nd Appellant submitted its list of candidates not later than 120 days before the date appointed for the general election;
(2) that the list must be accompanied by an affidavit sworn to by the 1st Appellant and his running mate, indicating that they have fulfilled the constitutional requirements for election into that office;
(3) that the 1st Appellant was nominated by persons whose names appear on the register of voters in the constituency; and
(4) that the 1st Appellant nominated another candidate as his associate in running for the office of Governor, who is to occupy the office of Deputy Governor.
In this case the 1st-3rd Respondents’ Counsel submitted that the Appellant made reference to two sets of documents by both their pleading and evidence adduced in court, that is (1) the list of nominated candidates and (2) a copy of the 1st Respondent’s form CF002B. It was submitted that the document attached to the petition as exhibit A 1 has not been certified, which the appellants’ Counsel refused for obvious reasons, to tender in evidence despite its relevance. Ultimately no list was eventually tendered as required by section 32(1) of the Act. It is further submitted that exhibits P1, P2 and P3 that were tendered were not submitted 120 days before 14/4/07 on which day the election was held.
It was submitted further that, the Appellants have failed to discharge the burden placed on them to prove that the 1st Appellant was validly nominated but unlawfully excluded.
The learned Counsel for the 1st to 3rd Respondents also submitted that the Appellants instead ended making contradictory submission on exhibit P2 which on the one hand was allegedly tendered on 13/2/07 and, on the other hand, the same exhibit was said to be submitted on the 15/12/06. He urged the Court to discountenance this aspect of the Appellants evidence, which is misleading and an attempt to obfuscate evidence.
The 1st-3rd Respondents’ Counsel also submitted that section 33(1) of the Electoral Act whether read in isolation or as a whole has not prescribed submission of form within 60 days to the election. The Appellants, it was further submitted, were mixing up the time limit for substitution of candidates with that for submission of nomination forms.
It was further submitted that the Appellants erroneously contended that the tribunal was in error to have held that there was no evidence by the appellants to show that the 1st Appellant was screened and cleared by the 1st Respondent which lacks power to screen candidates. This, it was further submitted amounted to direct contradiction of the clear averment in paragraph 9 of the petition which states thus:
The 1st Petitioner was screened and passed by the 1st and 2nd Respondents as a fit and proper person to contest for the office of Governor of Delta State lit the election of 14th April, 2007.
The Appellants’ Counsel argument that the names of Obule and ltorho were submitted as running mates on 15/12/06 exhibits P1 and P2 was neither explained nor reconciled in the petition or even in the front loaded opposition of the 1st Appellant exhibit P6. This evidence goes to no issue in the absence of a pleading to that effect. The 1st to 3rd Respondents’ Counsel argued the Court to resolve that issue against the Appellants.
On the question whether the Respondents were obliged to adduce oral evidence after establishing their defence through cross examination of the Appellants’ sole witness, the learned Counsel for the 1st to 3rd Respondents argued that there is no obligation on a party to call witness as long as such party is able to elicit evidence during cross examination from his advisory to support his case. See, Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241; Bamgboye vs. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 155; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 269-270; Ejiogu v. Irona (2000) 4 NWLR (Pt. 1132) 513 at 563.

On the Appellants’ contention that the Respondents general traverse on some averments in the Appellants’ pleadings did not amount to denial of those averments but rather averments were admitted, the learned Counsel for the 1st to 3rd Respondents submitted that it is not in every case that oral evidence has to be adduced. He added that a respondent may be entitled to rely on the petitioner’s case without adducing evidence if under cross examination he successfully established a valid defence to destroy the petitioner’s case. See Agagu vs. Mimiko (2009) FWLR (P1. 462) 1122 at 1154; Bello vs. Aruwa (1988) 8 NWLR (Pt. 615) 454 at 471-472 paras. G-F.
The Court is urged to resolve this issue against the Appellants and hold that there was no obligation on the Respondents collectively or individually to call further evidence established under cross examination through the Appellants’ sole witness.
The 4th Respondent distilled three issues for determination. Issue one is clearly in response to issues one, two, four, six and seven of the issues formulated by the Appellants. The submissions of the learned senior Counsel for the 4th Respondent are in tandem with those the 1st-3rd Respondents they are at one that, the Appellants have not been able to prove that the 1st Appellant was validly nominated but unlawfully excluded from the election in dispute. It was submitted by the learned senior Counsel for the 4th Respondent that the Appellants needed to prove four elements in establishing that the 1st Appellant was validly nominated but unlawfully excluded. These are:
1. That the 1st Appellant was validly nominated by the 2nd Appellant;
2. That the election in dispute was conducted and concluded;
3. That a winner was declared;
4. That the name of the 1st Appellant was not included in the list of contestants
Among the many cases relied upon on this contention are those of:
1. Idris v. ANPP (2008) 8 NWLR (Pt. 1088) p. 123.
2. Abubakar & Ors v. Yar’Adua & Ors (2009) All FWLR (Pt. 457) p. 1 at p. 88
Accordingly, these four elements must be proved before the provisions of section 145(1) (d) of he Electoral Act, 2006 could be successfully invoked, That in the instant matter, although the appellants pleaded that the 1st Appellant was duly nominated by the 2nd Appellant, they did not adduce credible evidence in proof of the averments in this regard.
Appellants did not come close to establishing the validity of the nomination of the 1st Appellant since the 1st Appellant’s particulars were not submitted to the 1st Respondent by the 2nd appellant within one hundred and twenty days before the day scheduled for the holding of the election as required by the provisions of sections 32(1) and (2), 33(1) of the Electoral Act, and section 187(1) of the 1999 Constitution that this was the proper finding of the Tribunal at page 867 of the record of appeal. For, by the combined reading and effect of the said provisions, they were required but failed to adduce evidence at trial to prove that:
(1) The 2nd Appellant submitted its list of candidates to the 1st Respondent within one hundred and twenty days before the date appointed for the general election;
(2) The list of candidates was accompanied by the sworn affidavits of the 1st Appellant and his running-mate, indicating that they both have fulfilled the constitutional requirements for election into their respective offices;
(3) The 1st Appellant was nominated by persons whose names appear on the register of voters in the constituency; and
(4) The 1st Appellant nominated another candidate as his associate for his running mate, who is to occupy the office of Deputy Governor.
It was contended in favour of the 4th Respondent that, the case of Onuoha v. Okafor (supra) and the others relied upon by Appellants are distinguishable from the instant case. In the former, the contest was between an aggrieved party member who complained about his unlawful substitution with another member and his political party. This is purely an intra party dispute. Where as, in the instant matter, the aggrieved party has asserted that his political party duly nominated him but INEC unlawfully excluded him from participating in an election. Therefore the Onuoha vs. Okafor case (supra) is not apt in the instant circumstance and fails to advance the course of the Appellants.
The 4th Respondent learned senior Counsel argued that there is no conflict but harmoniously rhythm between the provisions of the Electoral Act and the constitution regarding the issue of valid nomination which is adequately provided for by sections 32(1) & (2) and 33(1) of the Electoral Act and 187(1) of the Constitution. Therefore, the argument of the Appellants which is hinged on section 182(1) is misconceived. This is because section 182(1) of the Constitution relates to the issue of disqualification and not that of valid nomination. And the latter is the plank of the case of the Appellants before the Tribunal and consequently this appeal. It was the case of the Appellants at trial and evidence was adduced to the effect that the nomination of the 1st Appellant was forwarded to the 1st Respondent on 13th February, 2007, outside the one hundred and twenty days period prescribed by section 32(1) of the Electoral Act. Hence, neither the 1st Appellant nor his alleged running mate was validly nominated. This was the reason why they were not screened.
Responding to issue three of the Appellants and issue two herein, the learned senior Counsel for the 4th Respondent submitted that there is no legal obligation on a party to call a witness to establish a fact, if such fact has been elicited from his/her adversary during cross-examination to support and sustain his case. On this position, reliance was placed on the cases of:
(1) Daggash v. Bulama (2004) 14 NWLR (Pt. 892) p. 144 at p. 241;
(2) Agagu v. Mimiko (2009) FWLR (Pt. 462) p. 1122 at p. 1154; and
(3) Lawai v. Union Bank (1995) SCNJ p. 132 at p. 147.
What is more, it is an established principle of law that, a simple traverse by a defendant that he/she does not admit an allegation made against him/her is considered to be a sufficient denial of same. Hence, the express and unequivocal denial by the 4th Respondent in his reply to the petition of the Appellants that the 1st Appellant was validly nominated by the 2nd Appellant is sufficient defence. In essence, the defence of the Respondents became established through the evidence of the Appellants’ sole witness and documents tendered by them at trial. On this standpoint, reliance was placed on the cases of:
(1) Buhari v. Obasanjo (2005) 2 NWLR (Pt. 9(1) p. 366; and
(2) Lawai v. Union Bank (1995) SCNJ p. 132 at p. 147.
On the issue relating to the allegation of the Appellants that they were denied fair hearing, it is the contention of the Appellants that the 1st Respondent did not communicate to them the fact of the alleged invalid nomination of the 1st Appellant. The learned senior Counsel for the 4th Respondent argued that this issue not having been raised in the petition of the Appellants, it cannot be raised in this appeal. The issue only sprung up for the first time in the final written address of the Appellants’ Counsel. It was reiterated in favour of the 4th Respondent that, a Court is bound only to decide the case formulated in the pleadings of parties. It is a violation of the principle of law and procedure for a court to enter into any inquiry outside the pleadings or adjudicate upon any matter not put in issue in the pleadings.
On this legal position, reliance was placed on the cases of:
(1) A.D.H. Ltd v. Amalgamated Trustees Ltd (2007) All FWLR (Pt. 392) p. 1781; and
(2) Overseas Construction Ltd v. Creek Ent. Ltd. (1985) 3 NWLR (Pt. 13) p. 407.
Regarding exhibits P4 and P5, the learned senior Counsel for the 4th Respondent argued that the two exhibits are mere newspaper extracts which carried the supposed list of candidates which was interspersed with some other news headlines. Accordingly, it was the contention of counsel that the exhibit origin was in doubt. They could not be linked to the INEC, the 1st Respondent. They did not bear letter-head of INEC as a public institution and were not signed by any official of INEC. Therefore, although the Tribunal admitted them in evidence, it was right in law in the circumstance to decline to attach any probative value to them.
As noted earlier in this judgment, we have taken the liberty to subsume issues one, two, four and seven of the Appellants under one broad issue which branches off into four limbs as follows: Limb A, B, C and D of Issue one.

it is important to note that under the Electoral Act 2006, there are two kinds of disputes usually woven around the issue of nomination of candidates. They are:
(a) disputes relating to substitution of names of nominated candidates, that is, disputes that centre on the improper substitution by political parties of earlier nominated candidates. Here, the crux of the complaint is usually the alleged invalidity of the substitution of a duly nominated candidate with another candidate; and

(b) disputes relating to the alleged unlawful exclusion of candidates who claim to have been validly nominated by their political parties. In this second category, the candidate usually challenges the undue return of a candidate in an election on the ground that the petitioner was validly nominated but unlawfully excluded by INEC.
The first kind of dispute is a matter within the domestic jurisdiction of political parties, see: Onuoha v. Okafor (1983) 2 SCNLR 244, Dalhatu v. Turaki (2003) 42 WRN 15, Ugwu v. Ararume (2007) 31 WRN 1; (2007) 12 NWLR (Pt. 1048) 367 etc since the nomination and sponsorship of candidates by a political party is within its exclusive prerogative. See: Ehinlanwo v. Oke (2008) 6 KLR (pt. 256) 2493. Such disputes, which are usually between an aggrieved candidate and his political party, involve the challenge of his party preference of another member of the party to himself. As such, they centre on the invalidity of nomination, sponsorship and substitution of one candidate for another. They are characterized as pre-election disputes. By section 251(1) (r) of the Constitution, the Federal High Court has exclusive jurisdiction to hear and determine them, See: Agbakoba v. INEC (2009) 24 WRN 1,24; Ehilanwo v. Oke (supra); Dalhatu v. Turaki (2003) 42 WRN 15, (2003) 15 NWLR (Pt. 843), (2003) 7 SCNJ 1; Adebusuye v. Oduyoye (2004) 1 NWLR (Pt. 854) 406; Ararume v. INEC (2007) 9 NWLR (Pt. 1038) 127; Ugwu v. Ararume (2007) 31 WRN 1, (2007) 12 NWLR (Pt. 1048) 367.
In strict fidelity to the doctrine of stare decisis, this Court has consistently followed the above decisions, See: Suleiman A. Ogunbiyi v. I. Ogundipe & 3 Ors (1992) 9 NWLR (Pt. 293) 244; Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 @ 549; Kurfi v. Muhammed (1993) 2 NWLR (Pt. 277) 602. On the other hand, the second kind of dispute, invariably, a ground of presentation of an election petition under Section 145(1) (d) of the Electoral Act, 2006 is only cognizable by the Election Petition Tribunals, See: Abubakar v. Yar Adua (2008) 12 KLR (Pt. 259) 3161; Kolawole v. Folusho (2009) 8 NWLR (Pt. 1143) 338. Disputes that fall under this category are referred to as post-election disputes. In contrast to pre-election disputes, post-election, disputes arise from the holding of elections or the return of elected candidates, They cover such grounds as unlawful exclusion of candidates among others. See: Agbakoba v. INEC (2008) 12 KLR (Pt.259) 3333.

With utmost respect, the learned senior Counsel for the Appellants would appear to have glossed over this fundamental distinction. In effect, although the arguments brilliantly canvassed on pages 23-29 of the Appellants’ brief, accurately capture the correct legal position on the question of the invalidity of nominations and sponsorship, that question did not fall for determination before the tribunal. The Appellants’ case at the tribunal, as can be deduced from their pleadings, was that:
(a) The 1st petitioner was validly nominated as the 2nd petitioner candidate for the April 14, 2007 Governorship election of Delta State, but was unlawfully excluded from the election by the 1st- 3rd Respondents;
(b) The Governorship election of Delta State, which was conducted on the 14th of April, 2007 by the 1st – 2nd and 3rd Respondents is a nullity by reason of the unlawful exclusion of the 1st petitioner;
(c) The return of the 4th Respondent by the 1st-3rd Respondents as winner of the Governorship. Election of Delta State on 14th April, 2007 wherein the 1st petitioner was unlawfully excluded is invalid and illegal;
(d) In view of the decision of the Supreme Court on the 16th of April, 2007 in the case of Atiku Abubakar v. INEC to the effect that INEC has no power to exclude/disqualify any candidate from an election, the exclusion of the 1st petitioner by the 1st- 3rd Respondents is unlawful and renders the Governorship election of Delta State held on 14th April, 2007 and the result thereof null and void.

We entertain no doubt that the said petition was presented pursuant to Section 140 Electoral Act (1) (Ref: Agbakoba v. INEC (supra) at 46). Indeed, it could not have been otherwise, for no return at an election can be questioned in any manner other than by a petition complaining of undue return. (Ref: Ojukwu v. Yar’Adua & 4 Ors. (2008) 4 NWLR (Pt. 1078) p.435 @ 455). The above complaint of the appellants clearly comes within Section 145(1) (d) of the Electoral Act, 2006.
Now, to succeed in a petition under the above section, the onus of proof of valid nomination and unlawful exclusion is squarely on the petitioner. See: per Katsina-Alu JSC (as he then was) in Abuhakar v. Yar’Adua (supra) at 179; PAC v. INEC (2009) 42 WRN 88. Above all, by the combined effect of Sections 136 and 137 of the Evidence Act, the burden of first proving the existence or non-existence of facts lies on a party against whom judgment would be given if no evidence were produced, PAC vs. INEC (2009) 42 WRN 88, 140. What is more, as noted in Buhari vs. Obasanjo (supra) the petitioner must rely on the strength of his case and not on the weakness of the respondents’ case.
Happily, the provision of section 145(1) (d) Electoral Act, 2006 has been interpreted several times by the Appellate Courts, notably, Idris vs. ANPP (2008) 8 NWLR (Pt. 1088)1, 123; Abubakar & Ors. vs. Yar Adua & Ors. (2009) All FWLR (Pt. 457) 1, 88; Oluyemi vs. Asaoiu (2009) 28 WRN 50, 54, 4 NWLR (Pt. 600) 587, 596-592; Progressive Action Congress vs. INEC (2009) All FWLR (Pt. 478) 260.
Since the petition was anchored on valid nomination and unlawful exclusion, the question would be whether the Appellants proved valid nomination as provided by section 145(1)(d) (supra). The findings of the Tribunal on this point can be found on page 859 of the Records where the Tribunal held inter alia:
“To be validly nominated, a candidate must show that he has complied with all statutory provisions relating to
(2) and section 33(1) of the Electoral Act 2006. This therefore robs them of a valid claim to valid nomination and unlawful exclusion. The first issue is therefore hereby resolved in favour of the Respondents”.
The Appellants’ reaction to this finding, unfortunately, was a curious misreading of unrelated provisions of the Act. For instance, on page 92 (paragraphs 10.27-10.64 etc), the Appellants, indiscriminately, conflated the requirements of sections 32(4), 34 and 35 with the requirements of sections 32(1) and 33 of the Act as if their consequences were not completely dissimilar.
However, as we had noted above, under the Act, two categories of disputes are contemplated, namely, the dispute relating to the: validity of the substitution of duly nominated candidates, on the one hand, (here the contest is usually between an aggrieved member and his party), and the other ‘unrelated question of the unlawful exclusion of a candidate who had been duly nominated by his party which is a ground recognized in section 145(1)(d). Instructively the contest here is between the candidate and his party, on the one hand as petitioners and INEC, as respondents, on the other hand.
Surely, the arguments of the appellants which centered on the category of disputes under section 34 are irrelevant here. A petitioner whose petition is anchored on valid nomination but unlawful exclusion has to discharge the duty of proving not only valid nomination by his political party but also unlawful exclusion by INEC.
At the tribunal, the complaint was on unlawful exclusion of a candidate who claimed to have been validly nominated. As shown above, the appellant had the obligation of proving not only valid nomination by his party but also his unlawful exclusion after such valid nomination.
In our humble view, the tribunal cannot be faulted in its conclusion that the appellants did not establish valid nomination by virtue of the fact that they did not comply with the requirements of submission of particulars within one hundred and twenty days before the election.
The Appellants’ contention would have been impregnable if the petition was based on substitution after valid nomination and sponsorship.
Surely, under section 34, Electoral Act, 2006, parties intending to change any of their candidates for any election shall inform INEC of such change in writing not later than 60 days to the election, see; Udeh v. Okoli (2009) 27 WRN 1.
However, as shown above, what was before the tribunal was not substitution but alleged unlawfull exclusion of the first appellant who in their brief of argument (pg 46 of Appellants’ brief), the Appellants lifted a statement from the Judgment which was clearly an obiter dictum. It was argued that the Tribunal fell into a great error and took a clearly erroneous path which affected its final decision when it found as follows:
‘The Petitioner also clearly did not proof that the 1st Petitioner was screened and cleared to contest the election …’
Ironically, it was the Appellants who fell into the great error of impugning a mere obiter dictum from a reading of pages 865-866 of the record, it is clear that the Tribunal offered the reasons for its findings that the statutory requirement ordained in sections 32(1) & 32(2) and 33(1) Electoral Act, 2006 and indeed 187(1) of the 1999 Constitution had not been complied with. These findings and conclusions resolved the main issue canvassed before the Tribunal namely, whether the 1st appellant was validly nominated and unlawfully excluded by the 1st – 3rd Respondents.
We, therefore, take the view that the excerpts of the reasoning of the tribunal quoted above represents the ratio decidendi of the judgment of the Tribunal. In effect, the Appellants were in error in challenging a mere obiter dictum.

Now, the law is that it is not every statement a court makes that constitutes a subject of appeal, particularly, when the said statement does not go to the root of the matter as decided by the Court, see; Larmie vs. Data Processing Maintenance Services DPM Ltd (2005) 10-12 KLR (Pts 204- 207). This is so for it is the ratio decidendi of a judgment that is binding. An obiter dictum has no such binding effect, see; AIC Ltd vs. NNPC (2005) 5 KLR (Pt. 197) 1285; Buhari v. INEC (2008) 12 KLR (Pt. 260) 3461.

The case of AC vs. INEC (2007) 12 NWLR (Pt. 1048) 222 @ 275 paras. A-F (cited on pages 44-50 of the Appellants’ brief are clearly irrelevant. The above authorities settle the position that INEC lacks the power to screen and clear a candidate presented by a political party and do not deal with the issue of valid nomination and unlawful exclusion under section 145(1)(d) of the Electoral Act 2006.
Limb C of Issue one – Issues 4 and 7 of Appellants’ issue
We regret to say that the Appellants unfairly chastised the Tribunal in that they quoted the Tribunal out of the con in which its statement was made.
For instance, on page 846 of the records the Tribunal correctly summed up the law on the forum convenience of election matters. It did not stop there. The Tribunal said:
“From the above, it is clear that matters which arise before the date of an election are pre-election matters. There is therefore no doubt that the nomination of a candidate to contest an election being a matter that comes before the date of an election is a pre-election matters”.
The Tribunal, then, proceeded to situate the law within the con of the actual contest/controversy between the parties namely- the question of valid nomination and unlawful exclusion. As already noted above, the petition was anchored on section 145(1) (d) of the Electoral Act. It is against this background that the position of the Tribunal must be viewed. Listen to this reasoning:
‘… It is clear that, to proof unlawful exclusion the Petitioner must first proof valid nomination. Of course it is before the Election Tribunal that has the power to declare unlawful exclusion that the Petitioner must proof valid nomination’
This position of the Tribunal finds firm anchorage on the case of Idris
v. ANPP (supra) 97-98 paragraphs H-B.
Against this background, we regret to say that the cases cited on pages 62 – 66 of the Appellants’ brief are completely of no value as they neither advance the case of the Appellants nor detract from the validity of the posture of the Tribunal that it was clothed with the jurisdiction to entertain the petition anchored on valid nomination and unlawful exclusion.
Limb D – Issue 7 of Appellants’ brief
Whether or not sections 32(1) & (2) of the Electoral Act, 2006 admit of their being read together with section 33(1) of the same Electoral Act, 2006. It is difficult to understand the grouse of the Appellants on this issue. As we have already noted above, the Tribunal was confronted with the determination of the constitutional and statutory requirements of valid nomination and unlawful exclusion. In particular, the Tribunal had to consider the provisions of sections 32(1) & 32(2) and 33(1) as they relate to the conditions for valid nomination.

It is settled that a Court is under obligation to construe mutually related provisions of a statute harmoniously. This is an elementary principle of the interpretation of statutes that does not require the citation of cases.
We take the view, therefore, that to be able to determine the requirements for valid nomination, a Court is entitled to consider and construe all the provisions of the Electoral Act relating to the subject. The short answer to this question then is that sections 32 and 33 of the Act should be read together and the Tribunal was right in so doin
In all we find no merit in the complaint of the Appellants on issues 1, 2, 4 & 7 which are hereby resolved against the Appellants Issue Two – Appellants’ Issue 3.
Whether having established their defence through cross-examination of the Appellants’ sole witness and the exhibits tendered, there was any obligation on the Respondents to adduce further oral evidence. The Appellants addressed this issue under two headings. In the 1st place it was contended that the Respondents did not lead evidence in support of their pleadings (pg 52 of Appellants’ brief). Several authorities were cited. In the second place the Appellants contend that having regard to section 75 of the Evidence Act, they had no further obligation to prove the averments which had been admitted by the Respondents. While it is correct to say that pleadings which are unsupported by evidence are deemed abandoned, see: Dingvadi v. Wamako (2008) 17 NWLR (Pt. 1116) 395, 431; Ajibade v. Mayowa & Anor. (1978) 9/10 S.C. 1, the Appellants, definitely, took a mistaken view of the purpose of cross-examination and the potency of evidence elicited therefrom.

The rationale of all binding authorities is that evidence procured from cross-examination on issues joined by the parties in their pleadings has the same potency, and could, indeed, be more pungent than, evidence in chief, Bamgboye vs. Olanrewaju (1991) 5 SCNJ 88.
There is, therefore, no merit in this argument. This issue is, also, resolved against the appellants.
Issue Three – Issue 5 of Appellants
Whether the Appellants could competently raise the issue of breach of their right to fair hearing having regard to the position of pleadings and evidence before the Tribunal.
What prompted this issue was the position of the Tribunal on page 853 of the record. There, the Tribunal stated thus:
“…The Petitioners for the first time raised the issue of fair hearing. They alleged that the 1st Respondent did not give the Petitioners fair hearing in considering the nomination of the 1st Petitioner by the 2nd Petitioner not valid leading to their being excluded from the election”.
The Appellants contended that the Tribunal should have taken judicial notice that the 1st Respondent deprived them of their right to fair hearing by not informing them that their nomination papers were submitted outside the prescribed period. At the Tribunal, this was taken up during the final address. The Tribunal at pages 833 to 834 of the record noted that this was not the proper approach.
With respect, the Appellants’ contention is an outlandish proposition that does not find support either in law or in common sense. This is a mistaken view of the legal position.

It is not enough to allege breach of the right to fair hearing without pleading and proving the collateral facts and circumstances that substantiate the said allegations. On the contrary, an allegation that the said right was breached must be based on facts. See: Mogaji vs. Nigerian Army (2008) 3 KLR (Pt. 251) 1249 where it was held that if is the person who alleges any breach of rules of fair hearing that has the burden of proving it. He has to establish how his civil rights and obligations have been adversely affected by the alleged breach, see per Onnoghen JSC in H.C.C. Ltd vs. Imani Ltd (2006) 12 KLR (Pt. 226) 3521 at 3528.
In this case, the Appellants wrongly assumed that they could resort to this right of fair hearing on appeal as if it was a mantra or magic wand which when waved could cure all the defects in their case. However, this is wrong. Indeed, the Supreme Court expressly deprecated this approach in Orugbo and Anor vs. Una & 10 Ors (2002) 9-10 SC 61,85-86; (2002) 9 SCNJ 12 thus:
‘This has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so…the courts must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or the applicability of the principle.
Ogbuagu JSC approvingly restated this position in Magit vs. Univ of Agric (2005) 10-12 KLR (Pts 204-207) 2885, 2907’.
Indeed, it would appear that Tobi JSC had the Appellants herein in mind when in Adebayo vs. A.G Ogun State (2008) 7 NWLR (Pt. 1085) 201, 221-222 thus:
“I have seen in recent times that parties, who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the court, with a view to moving the court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking”.

As the Tribunal observed, the Appellants did not raise this issue in their pleadings. They cannot, therefore, justifiably sustain the argument that the Tribunal should have taken judicial notice of their right to fair hearing. We find no difficulty in resolving this issue against the Appellants.
An efficient administration is expected to put in place the machinery to ensure compliance with the nomination requirements as prescribed by law. In other words, once INEC has received and acknowledged nomination forms from a party and its candidate, it has a duty to inform ‘the political party if its candidate fails to comply with the constitutional and statutory requirements. Failure to do this can raise a legitimate expectation in the political party and its candidate that it would participate in the election.
Regrettably, the Appellants did not utilize these complaints: the essential building blocks in the architecture of their petition of the Tribunal. Afortiori, they could not establish them at the trial. Due to this inadvertence they cannot now pray in aid the inveterate principle of fair hearing: a constitutional principle which if properly canvassed, could perhaps have yielded different consequences. We shall say no more on this.
Issues 4 (6 of Appellants’ 6th Issue)
Whether Exhibits P4 and P5 suffer from any defects whatsoever as to affect or undermine their evidential/probative value or render same worthless.
Exhibits P4 and P5 are photocopies of the Vanguard Newspaper. Issues were joined in the pleadings on these exhibits. Paragraph 2 of the Petition averred that the 1st Respondent published a list of all nominated candidates for the Governorship elections at its national headquarters. The Respondents denied this paragraph. Hence, the Appellants had the onus to prove that the 1st-3rd Respondents published the exhibits as alleged. See Buhari vs. Obasanjo (2005) 7 KLR (Pts 200 and 201) 1851 per Uwais CJN. We most respectfully, implore Mohammed JSC to re-iterate the law in this regard:
‘In our adversarial system of litigation in this country, the law places the burden of proving an existing fact which is claimed by a party who would otherwise fail if no evidence at all were given on either side (Sections 135-137 of the Evidence Act …) The Evidence Act requires further that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person, (Section 139 of the Evidence Act)
See, Veepee Ind Ltd vs. Cocoa Ind Ltd (2008) 4 KLR (Pt. 253) 1871, 1882.

Now, by Section 109 of the Evidence Act, documents emanating from such public authorities like INEC are public documents. Hence, only the original or certified copies of such documents, are admissible, see Onobruchere vs. Esegine (1986) 1 NWLR (Pt. 19) 799 at 808; Daggash vs. Bulama (2004) All FWLR (Pt. 212) 1666; Matori vs. Bauchi (2004) All FWLR (Pt. 197) 1010. In the absence of such original copies, only the certified copies thereof, are admissible, see Araka vs. Egbue (2003) FWLR (Pt. 175) 507, Kwara State Water Corp vs. AIC (Nig) Ltd (2009) All FWLR (Pt. 485) 1738, 1765-1767.
The question is did the Appellants prove the averment that the 1st-3rd Respondents published a list of all nominated candidates for the Governorship elections at its national headquarters? At the trial, they produced copies of Vanguard Newspaper. Instructively, the 1st Appellant provided the Tribunal with the material it used in deciding these exhibits as wanting in probative value. At page 793 of the record, the 1st Appellant PW1 stated thus:
“I have seen exhibits P4 & P5 and confirmed that nobody or any organization signed them as being responsible for their publications and I did not see either the INEC or its official signed the publication of the names in exhibits P4 and P5”.
The Tribunal did not hesitate in dismissing (exhibits P4 and P5) as worthless documents in these words:
“We hold firmly that as to the proof of the veracity of their contents, exhibits P4 and P5 are worthless documents”.
The Appellants in reaction to this finding submitted that once documents have been tendered, they automatically become Part of the evidence before the court. With respect, this submission does not take into account the distinction for the admissibility of evidence and the weight of evidence by way of ascription of probative value. In our view, the Tribunal was right in describing the documents as ‘worthless’.
It has to be noted that what influences the mind of a court in ascribing probative value is the quality of the evidence or document tendered. In achieving this, the court would have regard, among other things, to the following: (a) admissibility of the evidence (b) relevancy of the evidence (c) credibility of the evidence (d) conclusivity of the evidence (e) probability of the evidence in the sense that it is more probable than the evidence of the other party and (1) finally, after having satisfied itself that all the above have been complied with, it would then apply the law to the situation presented in the case before it so as to arrive at a conclusion one way or the other, sec, per Muhammad JSC in Anyegwu vs. Onuche (2009) 37 NSCQR 109, 127.
In this case, quite apart from the concessions the PW1 made relating to the worth of the exhibits under cross-examination, it must be remembered that since, as shown above the parties joined issues on the question of the publication of the said list of all nominated candidates for the Governorship elections at its national headquarters’, an averment which the 1st-3rd Respondents denied, if the Appellants wanted the Tribunal to believe in the existence of such a list from such a public authority like INEC they had the burden of proof of its existence. This they should have done by producing either the original copy, of it, see Onubruchere vs. Esegine (supra) or a certified copy thereof, see Araka vs. Egbue (supra). They failed to do this. Rather, they wanted the Tribunal to rely on the lists published in the Vanguard Newspaper: lists which had no author and whose origin was not ascertainable!
Notwithstanding that the exhibits had earlier been admitted in the proceedings, the tribunal discountenanced them. We see nothing wrong in that approach. According to Tobi ,JSC:
‘It is not the law that every document admitted by a court of law must be assigned probative value. A document could be admitted on the ground of relevancy but the court may not attach any weight on it, in the light of the circumstances of the case. In other words, admissibility which is based on relevancy is distinct from weight to be attached to the document’.
See, Nwabuoku v. Onwordi (2006) 5 KLR (Pt. 218) 1801, 1804.
In the considered view of the distinguished and erudite jurist:
“A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment if he comes to the conclusion that the evidence, documentary or oral, was wrongly admitted. This is because at the stage of writing judgment, the trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier admitted does not carry any probative value by virtue of the Evidence Act in the light of the live issues before the court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision. That is what the learned trial Judge did and I cannot fault him”.
See, Nwabuoku v. Onwordi (2006) 5 KLR (Pt. 218) 1801, pg 1817. Coincidentally, that was what the Tribunal did in the instant appeal. We, too, cannot fault it.
In consequence of all we have said above, we find no merit in this appeal. It is hereby dismissed.
Affirmation of (Judgment on additional grounds etc
The 1st-3rd Respondents filed a Notice of Intention that Judgment be affirmed on additional ground to those relied on by the Tribunal. These are: it was established that twelve of the purported nominators were not registered voters as at the date the 1st Appellant’s Nomination Forms were allegedly submitted contrary to the Electoral Regulations based on his pleadings, evidence and findings made by the tribunal in its judgment as follows:
1. As clearly pointed out by learned Counsel to the 1st-3rd Respondents, there is also the problem of twelve of the nominators of the 1st petitioners being issued with their voters’ cards after the 15th December, 2006 the date the 1st Petitioner claimed his forms were submitted to the 1st Respondent.
2. The required number of registered nominators did not therefore nominate the appellant as a candidate for the election.
3. In the light of the clear documentary evidence that as at 13th February, 2007, the 1st Appellant’s nomination form exhibit P2 was still in the possession of the 2nd Appellant, it could not have been submitted earlier than fifty-nine days to the election date being 14th April, 2007.
4. The 1st Appellant gave conflicting evidence about the date and circumstances of the submission of his Nomination Form to the 3rd Respondent such that the submission date was not established.
5. The Tribunal ought to have further affirmed that the 1st Appellant did not establish that his nomination was valid on the above grounds.
In their brief of argument (paragraphs 10.00-10.08), they marshaled arguments in support of the Notice. In the main, they contended that there are additional grounds were firmly anchored on specific findings of the Tribunal which on their own can sustain the decision of the Tribunal that the Appellants failed to establish valid nomination. Instances of such findings were highlighted in the brief at pages 34-36 of the 1st-3rd Respondents’ brief of argument.
In the first place, reference was made to exhibit P2 which has provisions for fifty (50) registered voters whose duty it was to nominate the 1st Appellant. They contended that it was apparent on the face of the document that ten (10) of the voters got their voters card on different days in 2007, see pages 792 to 793 of record of appeal. It was further pointed out that twelve (12) of the nominators were issued voters’ card in 2007. Attention was then drawn to the findings of the Tribunal on this point where the Tribunal found:
‘As clearly pointed out the learned Counsel of the 1st – 3rd Respondents there is also the problem of twelve of the nominators of the 1st Petitioner being issued with their voters’ card after the 1st December, 2006′.
See page 863 of the record of appeal
This finding indeed has a far reaching effect. The Appellants’ case collapsed on the weight of this contradiction. By their pleadings and oral evidence, the case they made at the Tribunal, the said exhibit was submitted to the 1st Respondent on the 15/12/06, see pages 793 to 799 of the record of appeal. Curiously, there was evidence before the Tribunal that some of those voters were issued their voters’ card when they registered in 2007. It simply means that these voters registered in 2007 were not in a position to nominate him in 2006 on the 15th December, as they are alleging. Viewed against section 33(1) of the Electoral Act, it will be clearly seen that there is considerable force in the submission that the 1st Appellant was not validly nominated on this score that is, non-compliance with section 33(1). Simply put, the prescribed number of nominators did not nominate him.
We take the view that on this ground this judgment can be sustained even though the Tribunal did not predicate its decision on it.
Accordingly, we additionally affirm the Judgment on this ground.

CROSS APPEAL
The Cross-Appeal challenges a portion of the judgment of the Governorship/Legislative Houses Tribunal, Asaba (hereinafter referred to as the Tribunal) delivered on the 9th July, 2009.
The 4th Respondent was also aggrieved with a part of the judgment of the Tribunal. His notice of cross-appeal is dated and filed on 29th July, 2007. It contains two grounds. The said grounds and their particulars are contained on pages 891 to 895 of the record of appeal. The 4th Respondent/Cross-Appellant is seeking vide the said Cross-appeal the order of this court affirming the judgment being appealed on the additional ground that the Appellants did not satisfy the requirement of Section 187(1) of the Constitution. This in his opinion is because the Appellants did not validly nominate another candidate to run as the 1st Appellant’s Deputy.
In the brief of argument of the 4th Respondent/Cross-Appellant dated 12th January, 2010 filed on 14th January, 2010, one issue was formulated from the two grounds of Cross-appeal for determination. The issue reads thus:
‘Whether the Tribunal was right when it held that the Cross-Appellant admitted in his Reply that Charles Ufuoma Obule was duly nominated as Deputy Governorship candidate as required by section 187(1) of the 1999 Constitution of the federal Republic of Nigeria’.
It was submitted in favour of the Cross-Appellant that section 187(1) of the Constitution prescribes that a governorship candidate shall not be deemed to have been validly nominated unless he nominates another candidate as his associate who is to occupy the office of Deputy Governor. However, the procedure for nominating among others, a Governorship and Deputy Governorship candidates is provided for by section 32(1) and (2) of the Electoral Act. The effect of section 32(1) and (2) is that, the political party’s list of candidates must be accompanied by an affidavit sworn to by each of the candidates sponsored, which list must be submitted to INEC not later than one hundred and twenty days before the date appointed for the general election.
The learned senior Counsel referred to paragraph 8 of the 4th Respondent/Cross-Appellant’s Reply to the petition of Appellants. This is contained in page 62 of the record of appeal. It was asserted therein that although Charles Ufuoma Obule was nominated as the 1st Appellant’s running mate, after his withdrawal from the 2nd Appellant party, no substitution was duly made. Exhibit P1 contains C.U. Obule as the 1st Appellant’s running-mate, while exhibit P2 contains Obonofiemro John Itorho as his running-mate. Both exhibits P1 and P2 were submitted the same date. The Tribunal was said to have properly found in this regard, according to the learned senior Counsel. This is because it is not the intendment of the provisions of section 187(1) of the Constitution that there should be nomination of two deputy governorship candidates by a political party in any single ejection. What is more, no evidence was adduced to prove that the nomination of O.I. Horho in place of C.U. Obule was duly done in tune with the provisions of sections 32(1) and (2) of the Electoral Act and 187(1) of the Constitution.
The grouse of the 4th Respondent/Cross-Appellant is with that portion of the judgment which held that the Respondents admitted in their replies that one Charles Ufuoma Obule was duly nominated as the Deputy Governorship candidate of the 1st Appellant/1st Cross-Respondent, as required by section 187(1) of the 1999 Constitution. (Refer: page 860 of the records page 60 of judgments).
The sole ground formulated in the cross-appeal is:
‘Whether the tribunal was right when it held that the cross-appellant admitted in his Reply that Charles Ufuoma Obule was duly nominated as Deputy Governorship candidate as required by section 187(1) of the 1999 Constitution of the Federal Republic of Nigeria.
The learned senior Counsel to the Cross-Appellant cited paragraph 7 of their reply to the Appellants’ petition to buttress the submission that the Cross-Appellant did not admit that Charles Ufuoma Obule was duly nominated as Deputy Governorship candidate as required by section 187(1) of the Constitution. It was rather the avid emphatic averment and contention of the Cross-Appellant that the Appellant/Cross Respondent did not validly nominate another candidate to run as his associate Deputy Governor on the platform of the 2nd Appellant/Cross-Respondent.
In response to the cross-appeal, the learned senior Counsel to the Appellants/Cross-Respondents reproduced paragraph 8 of the 4th Respondent/Cross Appellant’s reply to the petition and submitted that the said reply is a clear admission that the 1st Appellant/Cross-Respondent earlier validly nominate a candidate as his running mate for the Governorship election. For ease of reference, the said paragraph 8 is hereby reproduced:
‘Another category of facts which need not to be proved are facts admitted by the adverse party either directly or by implication such as in a statement of claims or in a petition that are admitted or are not specifically denied by the defendants or respondents as the case may be in their statement of defence or replies to petition’.
(Ref page 62 of the records).
From the clear terms of the above quoted paragraph 8 and the theme of denial which runs through the reply of the 4th Respondent/Cross-Appellant, the interpretation of the learned senior Counsel for the Cross-Respondents is clearly mischievous. By no means can such an admission be built into nor implied from paragraph 8 of the 4th Respondent reply to the petition. The said paragraph 8 shows clearly that the 4th Respondent did not admit that there was a valid nomination of a Deputy Governorship candidate by the Appellants.
The Tribunal was therefore in error to find and hold that the 4th Respondent unequivocally admitted that ‘the 2nd Petitioner sponsored one Charles Ufuoma Obule as its Deputy Governorship candidate in the said election’. (Ref. page 860 of the records).The said finding of the Tribunal is perverse as it is neither borne out by the pleadings nor the evidence before the tribunal. That portion of the judgment of the Tribunal is hereby set aside. The Cross-Appeal succeeds.
I make no order as to cost.

O. ARIWOOLA
I agree.

O.F.OMOLEYE
I agree.

H. MUKHTAR
I agree.

C.C NWEZE
I agree.

Appearances

1. Chief Adeniyi Akintola (SAN)
2. Olatunde Busari, Esq.
3. Alkins Osheye, Esq.
4. Biodun Amole, Esq.
5. F.N. Okeze
6. Akinola Oladeji, Esq.For Appellant

AND

1. Ken Mozia with
2. O.A. Adeyemi
3. K.C. Onianwa and
4. A. Ojo

1. K.T. Turaki (SAN
2. Adenipekun (SAN) with
3. G.M. Gajam, Esq.
4. O.O. Grant, Esq.
5. A. Asala, Esq.
6. E. Ohwovoriolo, Esq.
7. M. Mozia (Mrs.)
8. A. Abdullahi, Esq. and
9. C. Maduka, Esq.For Respondent

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