MUSA SALISU v. ABDUSSAMAD YUSUF A. & ORS
(2011)LCN/4894(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of November, 2011
CA/K/EP/NA/27/11
RATIO
ROLE OF THE RESPONDENT: ROLE OF A RESPONDENT IN AN APPEAL; POSITION OF THE LAW WHERE A RESPONDENT TO AN APPEAL HAS NEITHER FILED A CROSS-APPEAL NOR A RESPONDENT’S NOTICE
It is well settled that the Respondent’s role in an appeal is to support the Judgment appealed against. Any Respondent who wishes to challenge same must file a cross appeal or Respondent’s Notice – see UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR (Pt.965) 447, Imoniyame Holdings Ltd. & Anor. v. Soneb Ent. (2010) LPELR – SC.114/2002, Obi v. INEC (2007) 7 SC 268, wherein the Supreme Court held as follows:- “It is also the law that a Respondent to an appeal who neither files a cross-appeal nor a Respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. Therefore without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an Appellant they have attempted to play in this appeal. The effect of the action of these Respondents in the present appeal is that all the arguments in their Respondents in the present appeal is that all the arguments in their Respondent’s brief in support of the case of the Appellant in this appeal, shall be ignored in its determination. See Oguma Associated Companies Limited v. IBWA Ltd. (1988) 1 NWLR (Pt.73) 658; (1988) 3 SCNJ 113.” PER AMINA ADAMU AUGIE, J.C.A.
GROUNDS OF ELECTION PETITION: WHETHER GROUNDS UPON WHICH AN ELECTION PETITION CAN BE BASED MUST BE CONTEMPORANEOUS” WITH THE CONDUCT OF THE ELECTION; WHETHER AN ELECTION TRIBUNAL HAS JURISDICTION INVESTIGATE MATTERS THAT TOOK PLACE BEFORE THE CONDUCT OF THE ELECTION
The law is settled that the grounds recognized for presenting an election Petition are acts or omission that were “contemporaneous” with the conduct of the election, and that an election Tribunal has no power to investigate matters that took place before the conduct of the election – see ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 at 55 and Ibrahim v. INEC (1999) 8 NWLR (Pt.614) 334. “Contemporaneous” simply means – “occurring during the same period of time” – see Dictionary.com. PER AMINA ADAMU AUGIE, J.C.A.
ELECTION TRIBUNAL: SCOPE OF THE JURISDICTION OF THE ELECTION TRIBUNAL
The Tribunal has its path well cut out for it; it is not an all-purpose Court that can entertain just any claim; it is created for election matters alone – Obi v. INEC (2007) 11 NWLR (Pt.1046) 565. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
MUSA SALISU Appellant(s)
AND
1. ABDUSSAMAD YUSUF A.
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
5. CONGRESS FOR PROGRESSIVE CHANGE (CPC) Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant was returned as the duly elected member representing Kankia/Kusada/Ingawa Federal Constituency of Katsina State in the House of Representatives, and the 1st and 2nd Respondents herein filed a Petition at the Katsina State National and State House of Assembly Election Tribunal, wherein they prayed that it may be determined.
i. That the 1st Respondent (Appellant herein) was not duly elected by majority of lawful votes cast at the election.
ii. That the 1st Petitioner (1st Respondent herein) who scored the majority of lawful votes at the election be declared validly elected and returned the winner of the election.
Or in the Alternative to i and ii above:
iii. That the 1st Respondent was not duly elected or returned.
iv. That the election of the 1st Respondent was null and void and a fresh or bye-election ordered to be conducted by the 2nd Respondent for the Kankia/Kusada/Ingawa Federal Constituency.
The “Grounds on which the Petition is based” are as follows:-
(i) That the 1st Respondent (Appellant herein) was not duly elected by majority of lawful votes cast at the election,
OR IN THE ALTERNATIVE
(ii) That the 1st Respondent was at the time of the election not qualified to contest the Election as he was not sponsored by a political party at the election.
They further averred as follows in paragraph 9B of the said Petition
“FACTS IN SUPPORT OF GROUND TWO – That the 1st Respondent (Appellant herein) was not the time of the Election not qualified to contest the Election as he was not sponsored by a political party at the Election.
i. The (Appellant) was not sponsored by any political party at the Election as required by Section 65(2)(b) of the Constitution.
ii. The 4th Respondent (CPC), which the (Appellant) claimed to be his sponsor, at all material time refused to sponsor (him) for the Election as required by Section 65(2)(b) of the Constitution.
iii. The (Appellant) and some other persons however wrongfully compelled (INEC) and (CPC) to accept (him) as the candidate sponsored by (CPC) for the Election on the force of the Judgment/order of the Federal High Court, Abuja Division of 25th February, 2011 delivered in Suit No. FHC/ABJ/CS/126/2011 – Senator Yakubu Garba Lado & 44 Ors. v. CPC & 5 Ors. commenced for political parties to submit the names of their sponsored candidates for the Election.
iv. The (1st and 2nd Respondents) shall use and rely no the Originating Summons filed by the (Appellant) and others in the said Suit and the Judgment of the Federal High Court in the Suit delivered on the 25th day of February, 2011 at the trial of this Petition.
v. The 2nd Respondent (INEC) published the Final List of Candidates for the Election at the INEC Katsina State Office at Katsina and on its website before the Election wherein it included the (Appellant) as the candidate (CPC) for the Election. The (1st and 2nd Respondents) shall use and rely on the said Final List of Candidates for the Election at the trial of this Petition and the 2nd and 3rd Respondents are hereby given notice to produce it at the trial of this Petition.
vi. However, pursuant to an appeal filed by (CPC) and others against the said Judgment of the Federal High Court, the Court of Appeal, Abuja Division in its Judgment delivered on the 20th day of April, 2011 set aside the Judgment of the Federal High Court and inter alia held and/or declared that the (Appellant) was not the candidate sponsored by the (CPC) for the Election. The (1st and 2nd Respondents) shall use and rely on the said Judgment of the Court of Appeal, Abuja Judicial Division in Appeal No. CA/A/133/2011 – Congress for Progressive Change & Others v. Senator Yakubu Garba Lado & Others.
The Appellant entered a conditional appearance, and raised an objection to the competence of the Petition, in his reply to the Petition, as follows:-
1. The substance of the Petition relates to and involved pre-election matters, in consequence of which –
2. The Tribunal lacks Jurisdiction and power to entertain and grant the reliefs sought.
3. The Petitioner failed to comply with the Provisions of Section 138(1) of the Electoral Act 2010 in that the grounds of the Petition are in the alternative.
4. The Petitioner has no locus standi to challenge the election and return of the 1st Respondent (Appellant herein) and subsequently sought to be declared validly elected and returned on the purported ground that the 1st Respondent was not sponsored by a Political Party.
The 1st Respondent herein filed a Reply to the preliminary objection in the Appellant’s Reply to the Petition wherein he countered as follows:-
1. The substance of the Petition does not relate to or involve pre-election matter as the pre-election on matter that arose between the (Appellant) ad (CPC) and others had been resolved and decided by the Court of Appeal in its Judgment in Appeal No. CA/A/133/2011 – CPC and Others v. Sen. Yakubu Garba Lado and others delivered on 20th April, 2011, in consequence of which the Tribunal has the jurisdiction and power to entertain and grant the reliefs sought by the Petitioners vide section 285 of the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 133, 137(1) and 138 of the Electoral Act, 2010 as amended.
2. Sections 138(1) of the Electoral Act 2010 as amended does not prohibit a Petitioner from stating the grounds of his Petition in the alternative.
3. Section 285 of the Constitution – 1999 as amended read in conjunction with Sections 133, 137(1) and 138 of the Electoral Act, 2010 as amended gives the Petitioners the locus standi to challenge the election and return of the (Appellant) on the prescribed grounds of the Petition.
The 5th Respondent (CPC) also filed a Reply wherein they raised an objection to the competence of the Petition on the grounds that-
1. The Tribunal has no jurisdiction to entertain the petition as the said petition is also incompetent as the two grounds on which the Petition is hinged revolves around the issue of nomination and sponsorship of candidates by the 4th respondent (CPC) to contest the election.
2. The Grounds upon which the election – is challenged are interwoven as the 1st Ground which complains of the (Appellant) not having been elected by majority of lawful votes is hinged on the assumption by the Petitioners that the (Appellant) was not sponsored by the 4th Respondent (CPC).
3. The petitioner did not comply with the provisions of section 138(1) of the Electoral Act 2010 as amended by the anchoring the Grounds of the Petition in the alternative, which renders the entire petition incompetent.
4. The Petitioner has no locus standing to challenge the election and consequentially seeks to be declared validly elected and returned on the ground that the 4th Respondent (CPC) did not sponsor the (Appellant) as the issues involved are the internal affairs of the 4th Respondent (CPC).
The 1st and 2nd Respondent (CPC)’s Reply to the Petition, that-
1. The Tribunal has jurisdiction to entertain the Petition; the Petition is competent and the Grounds on which the Petition is hinged are also competent.
2. The Petition is based on two separate Grounds stated in the alternative. The two grounds are recognized by the Electoral Act and the Petition is not based on any assumption but on facts, which are clearly stated.
3. Section 138(1) of the Electoral Act 2010 as amended does not prohibit stating the grounds of the Petition in the alternative.
4. The Petitioners have the requisite locus standi to challenge to election and return of the 1st Respondent (the Appellant herein) and the 4th Respondent CPC (5th Respondent herein), and to seek the reliefs stated in the Petition.
The 3rd and 4th Respondents as 2nd and 3rd Respondents at the Tribunal filed their Reply to the Petition, without challenging same. The Tribunal opted to make the preliminary objections together with the main Petition.
The 1st and 2nd Respondents called one witness at the trial, while the Appellant testified for himself and did not call any other witnesses. The 3rd and 4th Respondents and 5th Respondent did not call any witness.
In its Judgment delivered on the 28th of September, 2011, the Tribunal considered the preliminary objections first, and held as follows-
“…We agree with the submission that the issues of nomination and sponsorship of Candidates of political parties are the internal affairs of political parties and are pre-election matters which the result that this Tribunal will have no jurisdiction over same. In the instant Petition, the issues of nomination and sponsorship had been settled by the Judgment of the Court of Appeal, therefore, this Petition is not on the issue of nomination and sponsorship but on qualification. In this petition, the alternative ground is hinged on the issue of qualification of the 1st Respondent to contest the election. In accordance with the authorities, it is our firm view that this Tribunal has jurisdiction to entertain the Petition as he issue of qualification is a post-election issue and we so hold. The preliminary objections raised against the Petition therefore fail and they are accordingly dismissed.
As to Petition itself, the Tribunal reasoned and concluded as follows-
“We would like to state that the Petition is not on the facts as related to the election – but it has to do with question of law on the effect of the Federal High Court judgment and the Court of Appeal Judgment on the election and Return of the 1st Respondent as a member – The question to now ask ourselves is whether in view of the Judgment of the Court of Appeal can it be said that the 1st Respondent is sponsored by the 4th Respondent, that is the CPC? From Exhibit B, it could be seen that it was the 4th Respondent with others that filed the Appeal against the Judgment of the Federal High Court which enabled the 1st Respondent to contest the 9th April, 2011 election under its platform and got judgment in its favour. The argument of Counsel to the 1st Respondent that this Tribunal cannot consider the effect of the Court of Appeal’s Judgment on the election is without proper foundation in law. We shall refer to Section 287(2) of the Constitution. It states as follows:
“The decisions of the Court of Appeal shall be enforced in any party of the Federation by all authorities and persons and by Courts with subordinate jurisdictions to that of the Court of Appeal.”
We wish to state clearly that this Tribunal is inferior to the Court of Appeal and it is bound to enforce any order or judgment of that Court – it is our bounden duty to give effect to the Court of Appeal Judgment as no Court gives its decision in vain. The question to now answer is whether in view of Section 65(2)(b), 138(1)(a) and 285(1)(a) of the 1999 Constitution – the 1st Respondent has been validly elected as a Member. Our answer is that since the Court of Appeal has declared in its Judgment that the primary party election conducted on the 15th January, 2011 at which the 1st Respondent emerged as Candidate of CPC for the election had been set aside, it means in effect that the 1st Respondent as a party to the Suits cannot be said to have been qualified to contest the election – having not been sponsored by the CPC for the election. However, we are not unaware of the pendency of an appeal against the Judgment of the Court of Appeal at the Supreme Court. The fact that an appeal is pending at the Supreme Court would not disentitle us from enforcing the judgment of the Court of Appeal now. Whatever we may decide in this Petition or by the Court of Appeal can be upturned by necessary implication by the judgment of the Supreme Court anytime it is given. For now, it is the judgment of the Court of Appeal that is subsisting and binding. Based on what we have said above, we have no hesitation in holding that the 1st respondent was not qualified to contest the election in view of the Court of Appeal Judgment, having not been sponsored by a political party. The effect of his holding is that the 1st Respondent was not duly or validly elected or returned as the winner of the election. His election or return is therefore nullified in accordance with Section 140(1) of the Electoral Act 2010 (as amended). Having nullified the election of the 1st Respondent, what 2010 (as amended). Having nullified the election of the 1st Respondent, what is the order to be made with respect to Kankia/Kusada/Ingawa Federal Constituency seat. We have painstakingly and soberly considered the surrounding facts of this Petition and we are of the view that in the interest of justice a fresh election ought to be ordered in respect of that Constituency. Accordingly, the 2nd Respondent (INEC) is hereby ordered to conduct a fresh election for Kankia/Kusada/Ingawa Federal Constituency of Katsina State within 90 days from the date of this Judgment”
Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing six (6) Grounds of Appeal, and the 1st and 2nd Respondents filed a Cross-Appeal against the final order of the Judgment with a Notice of Cross Appeal containing the Grounds of appeal. Briefs of arguments were duly filed and in the Appellant’s Brief prepared\ by J. Abbas Ibrahim, Esq., the following issues were distilled from the 6 Grounds of Appeal.
1. Whether the Hon. Tribunal had the jurisdiction to entertain and determine the Petition before it.
2. Was the alternative Ground on which the Petition was premised valid and was the Hon. Tribunal right in considering same without first and foremost considering the main Ground.
3. Whether the Hon. Tribunal was right in enforcing the Judgment of the Court of Appeal in Appeal No. CA/A/133/2011 CPC & Ors v. Sen. Yakubu Garba Lado in favour of the Petitioners.
The 1st and 2nd Respondents adopted the Appellants’ issues as formulated in their brief settled by Napolen O. Idenala, Esq. Uyi Igunma, Esq., and M.I. Abubakar, Esq. The 3rd and 4th Respondents did not file any brief. The 5th Respondent, however, filed a brief settled by Abubakar Malami SAN, Sulaiman Usman, Esq., and M.H. Adamu, Esq., which will have to be discountenanced because it asked this Court to allow the appeal.
It is well settled that the Respondent’s role in an appeal is to support the Judgment appealed against. Any Respondent who wishes to challenge same must file a cross appeal or Respondent’s Notice – see UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR (Pt.965) 447, Imoniyame Holdings Ltd. & Anor. v. Soneb Ent. (2010) LPELR – SC.114/2002, Obi v. INEC (2007) 7 SC 268, wherein the Supreme Court held as follows:-
“It is also the law that a Respondent to an appeal who neither files a cross-appeal nor a Respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. Therefore without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an Appellant they have attempted to play in this appeal. The effect of the action of these Respondents in the present appeal is that all the arguments in their Respondents in the present appeal is that all the arguments in their Respondent’s brief in support of the case of the Appellant in this appeal, shall be ignored in its determination. See Oguma Associated Companies Limited v. IBWA Ltd. (1988) 1 NWLR (Pt.73) 658; (1988) 3 SCNJ 113.”
The 5th Respondent did not file a cross-appeal or Respondent’s Notice, thus, this appeal will be resolved as per the arguments canvassed by the Appellant and the 1st & 2nd Respondents in their respective briefs.
In my view, the crux of the issue for determination in the appeal is – whether the Tribunal had the jurisdiction to hear and determine the Petition before it, and the Appellant’s answer to same is in the negative.
He submitted that their Grounds gave the Petition a semblance of an election Petition”, however, the Supreme Court has held that a litigant has the liberty to call his claim by any name but Courts have to look at the averments and facts in support to enable it place the claim where it rightly belongs, citing Dingyadi v. INEC (2011) 10 NWLR (1255) 347.
He further argued that the facts relied upon by the 1st and 2nd Respondents were principally that he was not validly nominated and sponsored by his political party (CPC) but the Tribunal overruled his objection that the Grounds of the Petition are premised on pre-election matters that are still pending before the Supreme Court. Furthermore, the Supreme Court has held that where qualification or disqualification is based on the nomination exercise of a political party, it is a pre-election matter and the Tribunal has no jurisdiction to entertain the Petition, citing Ucha v. Onwe (2011) 1 MJSC (Pt.11) 52; that the burden of proving disqualification under Section 65(2) of the Constitution (as amended) rests squarely on the 1st and 2nd Respondents, and could only the discharged independent of the pre-election Court proceedings as they were not parties to the proceedings, which relate to intra-party dispute between him and members of his party, citing Ogboru v. Iboru & Ors. (2004) All FWLR (Pt.225) 173 at 192; that the Tribunal failed to consider the fact that the 1st and 2nd Respondents were not parties to the intra party matters at the various Courts and ought not to have felt bound by this Court’s Judgment as the issues is still sub judice, citing Okafor v. INEC & Ors. (2006) All FWLR (Pt.316) 382; that it is only an aggrieved member of the same political party that has the necessary capacity or locus standing to challenge the validity of a fellow member’s nomination citing Zimit v. Mahmood (1993) 1 NWLR (Pt.267) 71 and Saulawa v. Badamasi Kabir & 4 Ors. (2011) 2 NWLR (Pt.1232) 417; and that the Tribunal reasoning at page 312 of the record will also mean that the said Judgment of this Court took effect from 20th April, 2011 after the election, and could not have affected his qualification to contest the said election, and could not have affected his qualification to contest the said election of 9th April, 2011, since he was backed up by a valid and subsisting Judgment of a competent court at the relevant time and cannot be said not to have been sponsored by a Political Party.
Furthermore, that the 1st and 2nd Respondents cannot complain that it was not him the CPC sponsored; that it is only the CPC that can lodge such a complaint, citing Ukpo vs. Adede (2001) FWLR (Pt.77) 850; and he urged us to hold that the Tribunal had no jurisdiction to entertain and determine the Petition before it on the ground that it was premised on the pre-election disputes of the CPC and its candidates.
On their own part, the 1st and 2nd Respondents referred us to – Madukolu v. Nkemdilim (1962) 2 SCNLR 341 Waziri v. Ali (2009) 4 NWLR (Pt.1130) 178; Sections 285(1) and 65(1) & (2) of the 1999 Constitution (as amended), Section 138(1) of the Electoral Act, S.P.D.C. (Nig.) Ltd. v. Ezeukwu (2010) All FWLR (Pt.541) 1501, Aguomba v. Uwais (2007) All FWLR (Pt.346) 440 and Babatunde v. P.A.S. & T.A. Ltd. (2007) All FWLR (Pt.372) 1721 in support of their position that the Tribunal has jurisdiction to hear and determine their Petition before it.
They further submitted that the pre-election issue in this case had been resolved by his Court, and there was no need for the Tribunal to delve into such issues as our decision thereon “was not made for fun nor was it intended to be in vain”, citing Waziri v. Ali (supra), Saulawa v. Kabir (2011) 2 NWLR (Pt.1232) 417, Ojo v. INEC (2008) 1 LRECN 599, Idris v. ANPP (2008) 4 LRECN 554 & Ijagbemi v. Ige (2011) All FWLR (Pt.560) 1314; that the Tribunal was right to rely on Onejeme v. Anazodo (2005) 2 LRECN 488 and Bayo v. Njidda (2003) 3 LRECN 144 to hold that the Petition does not deal with pre-election matters, and in a situation like this one where the regular Court has determined that a person is not the sponsored candidate of a party, it becomes a relevant and constitutional fact which the Tribunal cannot close its eyes to; and citing Obot v. Etim (2007) LRECN 737 that the Tribunal had a duty to apply and enforce the decision of this Court by virtue of Section 287(2) & (3) of the 1999 Constitution (as amended), which is exactly what it did.
They further argued that the Appellant’s arguments on the issue, and the authorities he cited are misconceived, and do not decide that when the regular Courts have exercised their jurisdiction under the Constitution and delivered a Judgment on a pre-election matter, the Tribunal should ignore or jettison the judgment so delivered simply because it does not have jurisdiction over pre-election matters, thus, the Tribunal was right not to rely on the decision in Ucha v. Onwe (supra).
They further submitted that the appeal to the Supreme Court does not negate or invalidate the valid and subsisting judgment of this Court unless and until the Supreme Court decides otherwise, citing Ojo v. INEC (supra), Idris v. ANPP (supra) and Ijagbemi v. Ige (supra); that the Judgment of this Court on the pre-election matter took effect from the date of the Federal High Court’s decision, citing Waziri v. Ali (supra); and that the Appellant’s argument overlooks the fact that CPC was the 1st Appellant in the appeal in which it was contended that the Appellant was not its candidate, and this Court entered Judgment in CPC’s favour; it overlooks the fact that he has filed an appeal to the Supreme Court against the CPC, which is the 1st Respondent vide Notice of Appeal to the Supreme Court; it overlooks the fact that CPC was the 4th Respondent to the Petition leading to this appeal wherein it abandoned its pleadings by failing to adduce evidence at the trial, and is deemed to have admitted the Petitioner’s claim that it did not sponsor the Appellant, and that the Appellant cannot hold brief for CPC, which is a party to the Petition and this appeal, and was represented by counsel throughout.
Now, I have earlier on today delivered the lead Judgment in Appeal No. CA/K/EP/NA/23/11 – Umar Adamu Katsayan v. Sani Sa’idu Fago & 4 Ors., which is based on the same facts and circumstances as in this case. The Grounds of Appeal are the same, the issues for determination are the same, and apart Mr. J. Abbas-Ibrahim, the counsel are the same.
Without much ado, I will repeat what I said in the Judgment I delivered-
“..Notice of the parties are disputing the fact that it is only a regular Court that is vested with the necessary jurisdiction to hear and determine the issue of nomination of a candidate for an election, which clearly a pre-election matter – see Zaraiyda v. INEC (2008) 10 NWLR (Pt.1094) 184 at 210 Amaechi v. INEC (2007) 18 NWLR (Pt.1065) 170 at 196, and Ucha v. Onwe (2011) 4 NWLR (Pt.1237) 386 wherein the Supreme Court per Tabai, JSC, categorically stated as follows-
“A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the election Tribunal has no jurisdiction.”
In this case, in overruling he said objection, the Tribunal held:-
“The Petition is not a pre-election matter of nomination and sponsorship but on qualification to contest which vest the Petitioners with locus standi to challenge the election and the Tribunal has the Jurisdiction to hear and determine same and we so hold. The preliminary objection is overruled.”
The Tribunal’s decision, obviously, flies in the face of the facts before it. The Petitioners’ alternative Ground (ii) for their Petition emphatically says that “the 1st Respondent was at the time of the election not qualified to contest the election as he was not sponsored by a political party”, and as the Appellant pointed but, the entire paragraph 9B of the Petition, which contains facts in support of the alternative Ground (ii), show that the Petitioners’ grouse is that the Appellant was not “sponsored by any political party”; that CPC refused to sponsor him, and that he and some other persons wrongfully compelled INEC and CPC to accept him as the candidate sponsored by CPC by force of the Judgment aforementioned. If these facts are not hinged on the nomination and sponsorship of the Appellant by a political party, which is definitely a pre-election matter, I don’t know what else can exemplify what a pre-election matter is. The law is settled that the grounds recognized for presenting an election Petition are acts or omission that were “contemporaneous” with the conduct of the election, and that an election Tribunal has no power to investigate matters that took place before the conduct of the election – see ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 at 55 and Ibrahim v. INEC (1999) 8 NWLR (Pt.614) 334.
“Contemporaneous” simply means – “occurring during the same period of time” – see Dictionary.com. This brings us to the Judgment of this Court, which the Tribunal relied on to assume jurisdiction over what is clearly a pre-election matter. Apparently, there was a dispute within the CPC (5th Respondent) as to who its candidate should be at the ejection held on the 9th of April, 2011. The dispute ended up at the Federal High Court, Abuja, which gave Judgment in favour of the Appellant, and he contested the said election on the 9th of April, 2011. But on appeal to his Court, the tables turned. The Court set aside the Judgment of the Federal High Court and declared that the Appellant was not the candidate of the CPC after all. What is of particular importance to this case is that the Judgment of this Court was delivered on the 20th of April, 2011, after the election. The Tribunal, n justifying its decision to assume jurisdiction held thus.
The 1st and 2nd Respondents have echoed the same sentiments; that the Tribunal has a “duty to abide by, apply or enforce” our Court’s decision. But who appointed the Tribunal the “enforcer” of this Court’s decision?
The Tribunal has its path well cut out for it; it is not an all-purpose Court that can entertain just any claim; it is created for election matters alone – Obi v. INEC (2007) 11 NWLR (Pt.1046) 565.
Surely, the issue of who and how the candidate of CPC was nominated, is not an election matter. Obviously, the Tribunal had no jurisdiction to entertain the Petition on the alternative Ground on which it hinged its decision, and I so hold. The main ground of the petition, which complains that the Appellant was not duly elected by majority of lawful votes cast at the election, is an election matter, on which the Tribunal should have focused its attention, rather it went on a frolic of its own and dabbled into a pre-election matter. The end result is that it wasted its time and efforts on a matter for which it had no jurisdiction, and neglected or overlooked the matter that it had jurisdiction over-an election matter that it was created to look into. The only order that this Court can make in the circumstances is to uphold the said preliminary objections filed by the 1st and 5th Respondents, and set aside the proceedings and decision of the Tribunal for being a nullity”.
This is what I said earlier today in this same Courtroom, and nothing has transpired since then to make me change my decision. I, therefore, adopt my reasoning and conclusion in Appeal No. CA/K/EP/NA/23/11 Katsayan v. Fago & 4 Ors. (supra) and I do hereby allow this appeal.
The proceedings of the Tribunal, and its judgment delivered on the 28th of September, 2011 are set aside. The cross-appeal with the preliminary objection raised thereon are based on a decision that is null and void, and is therefore of no moment. The cross-appeal filed by the Cross-Appellants is, therefore struck out. No order as to costs.
ABDU ABOKI, J.C.A. I agree.
THERESA N. ORJI-ABADUA, J.C.A.: I agree.
Appearances
J. Abbas-Ibrahim, Esq. with Elisha Y. Kurah, Esq.
Festus Okoye Esq and I.K. Shadrack Esq.For Appellant
AND
Napoleon O. Idenala, Esq. for the 1st and 2nd Respondent/Cross Respondents
A.S. Suleiman Esq. for the 3rd and 4th Respondents
Sulaiman Usman Esq for the 5th RespondentFor Respondent
