PRINCE NICHOLAS UKACHUKWU v. ANDY EMMANUEL UBA & ORS.
(2011)LCN/4791(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of September, 2011
CA/E/EPT/9/2011
RATIO
RESPONDENT’S BRIEF: POSITION OF THE LAW WHERE A RESPONDENT’S BRIEF FAILS TO PERFORM IT’S SUPPORTIVE FUNCTION
…the respondent may concede some points raised in the appellant’s brief but not to concede to the entire issues raised by the appellant. Though a respondent in his brief, may concede some points to the appellant (which to my mind is to support the development of our justice system), but the respondent in his brief must not deviate from his traditional supportive role. So he must support the judgment of the lower court and demonstrate by his argument that the appeal ought to be dismissed. It follows therefore that where a respondent’s brief fails to perform it’s supportive function but merely concedes all issues raised by the appellant, it will be seen to have reneged from it’s responsibility as a respondent’s brief and ought to be discountenanced. See OLANIYAN VS ADENIYI (2007) 3 NWLR (PT 1020) 1 and NUT VS COSST (2006) 5 NWLR (PT 974) 590. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JURISDICTION OF THE ELECTION TRIBUNAL: WHETHER THE ELECTION TRIBUNAL HAS JURISDICTION OVER MATTERS OF INVALID NOMINATION
Thus in ODEDO VS INEC (2008) in NWLR (PT 1117) 554 at 602, the Supreme court as per Niki Tobi JSC, states:- “It is not my understanding of Section 285 (1) (a) of the constitution that the subparagraph can accommodate pre-election matter. It is rather my understanding that the subparagraph provides for the determination whether any person has been validly elected as a member of the National Assembly. In any humble view, the subparagraph provides for election matters which give rise to post election and not pre-election proceedings”. In KOLAWOLE VS FOLUSHO (2009) 8 NWLR (PT 1143) 338 at 396, the Court of Appeal in relying on the above Dicta added as follows:- “From the foregoing dicta of the Supreme court, it is clear that the jurisdiction of the ordinary courts in pre-election matters as preserved for them by the constitution and the electoral Act is still Sacrosanct and cannot be eroded simply because an election had been conducted pending the determination of the Suit instituted before the election”…. I hold the view that from the plethora of judicial authorities cited, the election tribunal was seized of the jurisdiction to entertain the petition on the issue of invalid nomination same being a pre-election matter which ought to have been commenced in the regular court, if at all and assuming that the 1st and 2nd Respondents possessed the necessary locus standi”. See also the recent Supreme Court decision in UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
ACADEMIC EXERCISE: WHETHER THE COURT OF LAW IS A PROPER FIELD FOR ACADEMIC EXERCISE
The court of Law is not a proper field for academic exercise. See Julius BERGER (NIG) LTD VS FRIDAY FEMI, (1993)5 NWLR (PT293) 612, and Registered Trustee of LIVING CHRIST MISSION, ONITSHA VS OKOKONH. (unreported Appeal No CA/E/171/2008 Delivered on 18/5/2001. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
PRINCE NICHOLAS UKACHUKWU – Appellant(s)
AND
1. ANDY EMMANUEL UBA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PEOPLES DEMOCRATIC PARTY (PDP) – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State Houses of Assembly Elections Petitions Tribunal, sitting in Awka, Anambra State coram U.B. Bwala J. I.T. Cocodia J. and M.A. Adeigbe J. delivered on the 15th day of July 2011 in Petition No. EPT/AN/NAE/SE/01/2011. Prince Nicholas Ukachukwu vs Andy Emmanuel Ubah & 2 Ors, wherein the said tribunal struck out the petition on the ground that it is a pre-election matter and intra party dispute for which it lacked jurisdiction to entertain.
The appellant who was the petitioner filed a petition dated 26th April 2011 and filed on 26/4/2011 at the National and State Houses of Assembly Election petition tribunal, Awka hereinafter referred to as (the trial tribunal). The reliefs sought in the petition as set out in page 6 of the Record of appeal are herein below reproduced:-
“WHEREOF YOUR PETITIONER PRAYS as follows:-
(a) A declaration that the petitioner is the person with the majority of votes cast at the election.
(b) A declaration that the second announcement of the Returning officer made at Awka. Wherein the 1st Respondent was returned as elected be declared null and void as it is contrary to the Electoral Act 2011.
(c) An order directing INEC to issue a certificate of Return to the petitioner being the winner of the election having scored majority of votes cast in the election”.
(See page 6 of the Record).
The 1st Respondent’s Notice of Preliminary objection and Reply to the petition was filed on 2/6/11. The 2nd Respondent also filed a Notice of preliminary objection and a Reply to the petition dated 17/5/11 and filed on 19/5/11. See pages (70 to 432 of the Record).
The Petitioner’s reply in answer to the 2nd and 1st Respondent’s reply respectively are found in pages 433 to 504 of the Record. The 3rd Respondent also filed her reply to the petition. It is dated and filed on 31/5/11. (See page 505 to 513 of the Record).
Subsequently, the 1st Respondent filed a motion on notice dated 14/6/11 and filed on 16/6/11 wherein he sought the following orders:-
(a) An order striking out this petition No. EPT/ANA/NAE/HR/01/2011 between PRINCE NICHOLAS UKACHUKWU AND ANDY EMMANUEL UBA & ORS dated Saturday the 30th day of April 2011 and filed on the same date.
AND/OR
(b) An order striking out paragraphs 1, 2, (i), (ii), (iii), (iv) 3(xii), 4, 5, 7, 9,(1), (2), (3), (4) and 5 of the petition.
(c) And for such further order or orders as the Honourable Tribunal may deem fit to make in the circumstances.
The grounds for the application was listed as follows:-
(a) The petition is based on matters bordering on pre-election disputes.
(b) The matters so raised in the petition do not qualify as grounds in the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria 2009 (as amended) for questioning the validity of an election.
(c) The petitioner lacks the requisite locus standi to present this petition.
(d) This Honourable Tribunal lacks the jurisdiction to adjudicate over the matters on which the petition is predicated to wit: who was the candidate of PDP in the April 9th Election in the Orumba North/South Federal/Constituency.
The said motion is supported by a 5 paragraph affidavit sworn to by one Miss Ikem Anwuli as well as a written address. See pages 514 to 531 of the Record. There is also a further affidavit of 9 paragraphs dated 21/6/11 to which is annexed Exhibit “AOI”.
The petitioner reacted by filing a counter affidavit of 9 paragraphs as well as a written address opposing the 1st Respondent’s application to strike out the petition.
The 3rd Respondent’s counter affidavit and written address dated and filed on20/6/11 are as shown in pages 550 to 562 of the Record.
At the hearing of the said 1st Respondent’s motion for striking out the petition on 15/7/11 the parties duly adopted their written addresses.
In it’s Ruling delivered on the same 15/7/11 the trial tribunal held as follows:-
“The starting point for this ruling is paragraph I of the petition, which reads as follows:-
(1) Your petitioner Prince Nicholas Ukachukwu was a candidate of the Peoples Democratic Party (PDP) at the above election and also claims to have had a right to be returned at the election”.
Paragraph 3 of the petition reads as follows:
(3) Your petitioner states that the election was held on 9th day of April 2011 and results declared on 10th day of April 2011 and the following were the candidates and parties that participated in the election.
(1) Accord Party – Ikechukwu Obiorah
(2) CAN Party – Sir Chris Atuegwu
(3) ADC – Chukwunweike Nweke
(4) ALP Party – Nsofor Izuchukwu
(5) ANPP – Chief George Nwadubem
(6) APGA Party – Chukwumaeze Nzeribe
(7) CPC Party – Prof. Nonso Mojekwu
(8) CDC Party – Christian Ikechukwu Ofu
(9) HDP Party – Afam Okoye
(10) Labour Party – Umeoha Ike Esther
(11) PDP Party – Andy Emmanuel Uba
(12) PPP Party – Chief Adolphus Izaegbo.
See also paragraph 12 of the Petition.
“From the 2 paragraphs supra, it is clear that both the petitioner and the 1st Respondent belong to the same party. It is therefore an intra-party matter, as seen in paragraphs 1, 3, and 12 of the petition.
Secondly the issue raised in the petition are pre-election matters.
For the above reasons, we hold that we have no jurisdiction to entertain the petition, as nomination and sponsorship of a candidate by a party is the domestic or internal affair of the party.
We accordingly strike out the petition for want of jurisdiction”.
The petitioner hereinafter referred to as (“the appellant”) being dissatisfied with the said ruling filed a Notice of appeal containing three grounds and dated on the 30/7/11. An amended Notice of appeal dated 9/8/11 with the same three grounds of appeal was deemed filed on 19/8/11.
The three grounds of appeal shorn of their particulars reads thus:-
(i) Their Lordships members of the Election Petition Tribunal Panel below, misdirected themselves in law when they declined jurisdiction to entertain the petitioner’s petition and struck the same out on the ground that the petition raised intra party pre-election issues, without due and wholistic consideration of the facts and grounds upon which the petition had been brought.
(ii) Their Lordships members of the Election Petition Tribunal Panel below erred in law by striking out the petitioner/appellant’s petition on the ground that it raised intra party or pre-election issues, when the petition, properly read and understood, clearly raised post election issues founded on Section 65 (2)(b), 285 (1) (a) of the 1999 constitution and Section 31 (1) 137 (a) and 138 (1) (a) of the Electoral Act 2010.
(iii) The Tribunal below erred in law when it struck out the petition of the petitioner/appellant based on an incompetent application which had no bearing or relevance to the petition”.
In accordance with the provisions of the relevant Rules of court and Practice Direction 2011, briefs of argument were subsequently filed and exchanged by the parties who eventually adopted and relied on their respective briefs and replies at the hearing of the Appeal on7/9/09.
The appellant’s brief of argument dated 7/8/2011 was filed on 9/8/2011. It was settled by Chief U.N. Udechukwu (SAN).
The 1st Respondent’s brief of argument dated and filed on 12/8/2011 was settled by Prof. Ilochi A. Okafor SAN. That of the 2nd Respondent dated 15/8/2011 was settled by O.J. Nnadi ESQ. while the 3rd Respondent’s brief of argument dated and filed on 10/8/2011 was settled by Chief Olusola Oke. The appellant’s Reply Brief of argument to the 1st Respondent’s Brief is dated and filed on 15/8/20011, while his reply brief to the 2nd Respondent’s brief of argument is dated and filed on 17/8/2011
In the appellant’s brief of argument two issues were distilled for determination as follows:-
(a) Whether the conclusion reached by the Tribunal below based on paragraphs 1, 3 & 12 of the Petitioner’s petition alone, to the effect that the petitioner’s petition raises intra party or pre-election issues and that the tribunal therefore lacked the jurisdiction to entertain the petition, is justifiable, notwithstanding all the other averment contained in paragraphs 1, and 4 to 23 of the petition. (Distilled from Grounds 1 & 2).
(b) Whether the 1st Respondent’s application, on the basis of which the petition was struck out can sustain the prayer striking out the Appellant’s petition? (Distilled from Ground 3).
The 1st Respondent formulated two issues for determination as follows:-
1. In all the circumstances of this matter was the court below right in determining the issue of jurisdiction the way it did?
2. Was the tribunal below right in holding that the petition raised intra party and pre-election matters bordering on nomination and sponsorship of a candidate over which the tribunal had no jurisdiction to entertain?
The 2nd Respondent also raised two issues for determination as follows:-
1. Whether the tribunal as seen from the ruling of the tribunal considered the petition as a whole and thereafter came to the right decision that the petition filed by the appellant raised pre-election matter or intra party disputes which the tribunal has no jurisdiction to entertain.
2. Whether the petitioner/appellant was misled on the issue of jurisdiction raised by the 1st Respondent by any irregularity (if any) as to the title, form and mistake of the name of the constituency in respect of the issue of jurisdiction of the Tribunal to entertain the petition as a pre-election matter”.
For the 3rd Respondent, two issues were raised in her brief of argument for determination. They are:-
(a) Whether the conclusion reached by the tribunal below based on paragraphs, 1, 3 and 12 of the petitioner’s petition alone. To the effect that the petitioner’s petition raises intra party or pre-election issues and that the tribunal therefore lacks jurisdiction to entertain the petition, is justifiable, notwithstanding all the other averments contained in paragraphs 1, 4 – 23 of the petition. (Distilled from Grounds 1 and 2).
(b) Whether the 1st Respondent’s application, on the basis of which the petition was struck out, can sustain the prayer striking out the appellant’s petition. (Distilled from ground 3).
I have perused the petition, the Ruling of the lower tribunal and the grounds of appeal vis a vis the issues distilled by the parties for determination and I am inclined to adopt the two issues as raised by the appellant in the consideration of this appeal having sufficiently covered all the issues raised by the respondents.
ISSUE NO. 1
Dwelling on this issue, U.N. Udechukwu SAN, learned Senior counsel for the appellant submitted that the conclusion reached by the trial tribunal based on paragraphs 1, 3 and 12 of the petition alone, to the effect that the petitioner’s petition raises intra-party or pre-election issues and that the tribunal lacked jurisdiction to entertain the petition is unjustifiable in law having regard to all other averments contained in the petition particularly paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23.
He added that the trial tribunal ought not to have limited itself to a consideration of paragraphs 1,3 and 12 of the petition without regard to other paragraphs when by the Rules applicable to the application under consideration, all the paragraphs in the petition were deemed to have admitted or conceded by the 1st Respondent.
Learned Senior counsel further submitted that the trial tribunal was in gross error when it failed to apply the provisions of Section 65 (2)(b), 285 (1) (a), 287 (3) of the 1999 constitution and Sections 31 (1) 137 (1) (a) and 138 (1) (a) of the Electoral Act 2010 to the facts pleaded by the petitioner in his petition which facts were deemed by the applicable Rules to be admitted by the 1st Respondent. He added that the appellant’s case as made out in the petition is that the 2nd Respondent refused to deliver the certificate of Return to him as the candidate who was sponsored by the 3rd Respondent to contest the election but rather gave it to the 1st Respondent who was not sponsored by the 3rd Respondent to contest the election.
He further argued that the petition did not request the trial tribunal to determine the candidate of the 3rd Respondent as between the appellant and the 1st Respondent because the issue was settled by the 3rd Respondent who in it’s answer to the petition declared that the appellant was it’s candidate and this is in addition to a court order pleaded by the appellant. He cited OJO vs INEC (2008) 13 NWLR (PT 1105) 577.
Learned Senior counsel also referred to Section 285 (1) of the 1999 constitution to submit that the appellant’s petition was anchored on its provision and this gives the trial tribunal jurisdiction to entertain the petition. He also referred to ENEMUO VS DURU (2004) 9 NWLR (PT 877) 12 and ABANA VS OBI (2004) 10 NWLR (PT 881) 319. Also relying on the above authorities he submitted that one of the grounds of the petition was that the 1st Respondent was at the time of the election not qualified to contest the election not being a candidate sponsored by any political party to contest the election. The second ground being that the appellant was validly nominated but was denied the certificate of Return as the candidate of the winning party by the 2nd Respondent. These according to him takes the issue away from pre-election or intra party affair and thus confers on the tribunal the jurisdiction to entertain the petition under Section 138 1 (b) of the Electoral Act 2010.
The learned Senior counsel also submitted that the fact that both the appellant and the 1st Respondent belong to the same political party does not make the petition intra party affair or pre-election issue simpliciter because the following cases were determined by election tribunals even though the parties were members of the PDP. To wit: UBA VS UKACHUKWU (2005) 18 NWLR (PT 756) 1; EMODI VS ANIOSIKE (2004) 15 NWLR (PT 900) 433; ABANA VS OBI (2005) 6 NWLR (PT 920) 183 and VITALIS OKAFOR VS NZERIBE.
He added that the listing of the name of the 1st Respondent among those who participated in the election was based on the law because paragraph 4 (1) (c) of the1st Schedule to the Electoral Act 2010 provides that the pleading of the person declared by INEC as the winner is mandatory or the petition will be void as held in UDONTE VS BASSEY (1999) 5 NWLR (PT 604) 616 and YOHANA M. DICKSON VS ISAIAH BALAT (2004) 1 PR 243 at268 and 270
Learned counsel further referred to the case of OLOFU VS ITODO (2010) 44 NSCQR to contend that the facts are similar to that of this case and the Supreme court held that such situation is not pre-election but post election matter which an election tribunal can entertain.
Furthermore, he added that the reliefs sought by the appellant in the petition goes to show that the petition raised post election issues and not intra party pre-election issues.
For the 1st Respondent, it was submitted by Arthur Obi Okafor of counsel that the trial tribunal dealt with the matter holistically before it came to it’s determination as shown in page 722 of the Record of Appeal and did not limit itself only to paragraphs 1, 3 and 12 of the petition – but appraised before coming to the conclusion that the petition raises pre-election matters which it does not have jurisdiction to entertain. He added that the appellant raised the issue of sponsorship in his petition when in paragraph 12 he alleged that the 1st Respondent, DR. Andy Uba put out himself as the candidate of PDP. It was therefore clear that the 1st Respondent was issued with the certificate of return on the basis that he was the candidate of PDP.
Learned counsel also referred to paragraph 11 of the petition where the appellant relied on a pre-election Suit where an interim order was made restraining INEC from accepting any other name than that of the appellant as a candidate of PDP for the election but in paragraph 12 of the same petition the appellant pleaded to the effect that the 1st Respondent also claims to be the candidate of the PDP. This according to learned counsel would have created an absurdity whereby the tribunal will be drawn into deciding the validity of the 1st Respondent’s candidacy of the PDP in the election when in fact no judgment has been shown to have been entered against the 1st Respondent in the pre-election Suit No. FHC/AWK/CS/05/2011.
On the order of court relied upon by the appellant as a ground justifying his candidacy of the PDP in the election, learned counsel contended that the 1st and 3rd Respondents were not parties in the proceedings that led to the interim order so they are not bound by the said orders citing ODEDO VS INEC (2008) 17 NWLR (PT 1117) 554.
Besides he added, the very last order of the said Federal High Court was that parties should maintain status quo until the matter is disposed of which means that as between the Appellant and the 1st Respondent the court did not decide who the PDP candidate for the election would be.
He also referred to OJO vs INEC (2008) 13 NWLR (PT 1105) 577 relied on by the appellant in paragraph 3.8 of his brief to submit that it does not support the case of the appellant because in Ojo’s case the PDP was made a party and the issue of who the candidate of the PDP should be was settled by a final judgment of the Federal High Court unlike in the present order relied on by the appellant in Suit No. FHC/AWK/CS/05/2011 in which no final judgment has been given. Learned counsel also cited ONYEKWELU VS INEC (2010) 6 EP 214, where the court of appeal endorsed the prosecution of election petition by the appellant who was not returned in the election on the premises that the question of candidature had been settled by a final judgment of the Federal High Court.
Learned counsel further submitted that paragraph 41 (1) (c) of the 1st Schedule to the Electoral Act 2010 did not compel a petitioner to state the name of a person who did not participate in the election, neither did it bar a petitioner who participated in an election from stating that he did so and going by paragraph 3 of the petition, the appellant did not satisfy the requirements of paragraph 4 (1) (c) as he did not even state the scores of the candidates in the election. So the authorities cited in support of the issue by the appellant are irrelevant. Consequently, the contention of the appellant that his averment in paragraph 3 of the petition is in fulfilment of the law is unavailing. On the case of OLOFU VS ITODO (2010) NWLR (PT 1225) 545 heavily and extensively relied on by the appellant in paragraphs 3. 19 to 3 .25 of his brief of argument, learned senior counsel for the 1st Respondent also took time to exhaustively distinguish it from the facts and circumstances of the instant case.
For the 2nd Respondent, O.J. Nnadi of counsel tailored his submissions in line with that of the 1st Respondent. In addition he submitted that the most important thing is to determine whether the petition of the appellant is a pre-election matter as held by the trial tribunal. He argue further that it is the law that this court is not concerned so much with the reasons for the decision but rather with whether or not the tribunal was right in holding that the petition disclosed a pre-election matter. Learned counsel further contended that Sections 65 (2) (b), 285 (1) (a) 287 (3) of the 1999 constitution and Sections 31 (1), 137 (1) (a) and 138 (1) (a) of the Electoral Act did not aid or support the contention of the appellants, that the petition did not raise a pre-election matter. He relied on the cases of ANPP VS ARGUNGU (2009) 17 NWLR (PT 1171) 445 at 464 and OBASANJO VS YUSUF (2004) 9 NWLR (PT 877) 144 at 210. Learned counsel also distinguished the cases of ABANA VS OBI supra and ENEMUO VS DURU supra because while they are authorities that a person declared the winner and issued with FORM EC8E or ECSE (1) is the candidate of the political party who is qualified to bring an election petition pursuant to Section 137 (1) (a) of the Electoral Act 2010 (as amended). In the instant case, the appellant was not declared the winner or issued with for EC8E by INEC pursuant to Section 68 (c) of the Electoral Act 2010 so he is not entitled to present a petition.
Learned counsel also drew a distinction between the case of ONYEKWELI VS INEC and the instant case to submit that the case of the appellant remains a pre-election matter and the interim orders obtained therein cannot operate as to determine the candidacy of the petitioner and the 1st Respondent who was not even a party to Suit No.FHC/AWK/CS/05/2011 and to accede to the submission of the appellant’s counsel that the interim order is effective and operates against non parties will be contrary to Section 87 (10) and (11) of the Electoral Act and the authority of the Supreme Court in ODEDO VS INEC that a pre-election matter continues even after the conduct of the election, the subject matter of the pre-election dispute.
The appellant in his reply brief of argument to the 1st and 2nd Respondent’s briefs of argument made submissions which shall be considered in the course of this judgment as appropriate.
The 3rd Respondent also filed a brief of argument but in this case the submissions therein are in support of the case for the appellant. Learned counsel for the Respondent in his oral submission contended that it is unusual for a respondent to support the appellant’s case and urge this court to discountenance the said brief of argument because it is not the traditional role of a respondent to do so as he can only cross appeal if he is aggrieved over the matter.
The 3rd Respondent’s counsel had referred to Order 18 Rule a 4(2) of the Court of Appeal Rules 2011 to support his stance. The aforementioned provisions reads thus :-
4(2) “The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3 (1), (2) (3) (4) and 5 of this order”.
(Underlining for emphasis).
My understanding of it is that the respondent may concede some points raised in the appellant’s brief but not to concede to the entire issues raised by the appellant. Though a respondent in his brief, may concede some points to the appellant (which to my mind is to support the development of our justice system), but the respondent in his brief must not deviate from his traditional supportive role. So he must support the judgment of the lower court and demonstrate by his argument that the appeal ought to be dismissed. It follows therefore that where a respondent’s brief fails to perform it’s supportive function but merely concedes all issues raised by the appellant, it will be seen to have reneged from it’s responsibility as a respondent’s brief and ought to be discountenanced. See OLANIYAN VS ADENIYI (2007) 3 NWLR (PT 1020) 1 and NUT VS COSST (2006) 5 NWLR (PT 974) 590.
In the instant case, the 3rd Respondent did not only concede to all the points raised in the appellant’s brief but argued strongly in it’s brief in favour of allowing the appeal. The proper stance for the 3rd Respondent to take under the circumstance would have been to refrain from filing any Respondent’s brief (in the absence of any cross appeal) instead of filing one that amounts to a violation of the Rules of this court. It is purely the case of a wolf in sheeps clothing and this disguise having been exposed, I hold that the 3rd Respondent’s brief of argument be and is hereby discountenanced in the consideration of this appeal.
Now the main plank of this appeal is whether the appellant’s petition borders on intra party or pre-election issue as to justify it’s being struck out by the trial tribunal. For the appellant, the trial tribunal acted wrongly by reaching it’s decision based only on the contents of paragraphs 1, 3 and 12 of the petition without due regard to or any reference to paragraphs 2, 4 to 11 and 13 to 23 of the petition. I will now revisit the ruling of the trial tribunal and they are herein below reproduced in extensor for purposes of clarity. It reads:-
RULING
The 1st Respondent filed a Motion on Notice dated 14-6-2011 and filed 16-6-2011 seeking for:
“(a) an order striking out the petition because the issues raised in the petition are pre-election matters and also intra party dispute”.
It is supported by 5 paragraph affidavit and a written address.
The petitioner filed a written address to the Motion on Notice seeking for the striking out the petition.
The 3rd Respondent filed a counter affidavit of 4 paragraphs and a written address.
Parties also submitted oral arguments in adumberation of their positions.
We have considered all processes filed before us and the oral arguments of parties.
The starting point for this ruling is paragraph 1 of the petition, which reads as follows:-
“(1) Your petitioner, Prince Nicholas Ukachukwu was a candidate of the Peoples Democratic Party (PDP) at the above election and also claims to have had a right to be returned at the election”.
Paragraph 3 of the petition reads as follows:-
(3) Your petitioner states that the election was held on 9th day of April 2011 and results declared on 10th day of April 2011 and the following were the candidates and parties that participated in the election.
(1) Accord Party – Ikechukwu Obiora
(2) ACN Party – Sir Chris Atuegwe
(3) ADC Party – Chukwuniwike Nweke
(4) ALP Party – Nsofor Izuchukwu
(5) ANPP Party – Chief George Nwaduben
(6) APGA Party – Churkwumaeze Nzeribe
(7) CPC Party – Prof. Nonso Mujekwu
(8) CDC Party – Christian Ikechukwu Ofu
(9) HDP Party – Afam Okoye
(10) Labour Party – Umeoha Ike Esther
(11) PDP Party – Andy Emmanuel Uba
(12) PPP Party – Chief Adolphus Izaegbo”.
See also paragraph 12 of the petition.
From the 2 paragraphs supra, it is clear both the petitioner and the 1st Respondent belong to the same party. It is therefore an intra party matter, as seen in paragraphs 1, 3 and 12 of the petition.
Secondly, the issue raised in the petition are pre-election matters.
For the above reasons, we hold that we have no jurisdiction to entertain the petition, as nomination and sponsorship of a candidate by a party is the domestic or internal affair of the party.
We accordingly strike out the petition for want of jurisdiction.
HON. JUSTICE U.B. BWALA
CHAIRMAN
15/7/2011
HON. JUSTICE T.I. COCODIA HON. JUSTICE M.A. ADEIGBE
MEMBER MEMBER
15/7/2011 15/7/2011
From the foregoing, it seems clear to me that the trial tribunal considered all the relevant processes including the averments in the appellants petition notwithstanding the brevity with which the ruling was couched. I believe that they do not have to gaze into a crystal ball in picking out paragraphs 1, 3 and 12 of the petition without reading the other relevant paragraphs. The primary duty of a court or tribunal in the determination of any case is to peruse the processes before it and pick out the germain and salient issues that will lead to a fair and just conclusion.
It is not in controversy that paragraphs 1, 3 and 12 are part and parcel of the appellant’s petition. A perusal of paragraphs 1 and 3 will show at a glance that they are contradictory in terms and hits at the very heart of the appellant’s right to present the petition. For analytical purposes, I will reproduce the two paragraphs. They read:-
1. “Your petitioner, Prince Nicholas Ukachukwu was a candidate of the peoples Democratic party (PDP) at the above election and also claims to have had a right to be returned at the election.
(Underlining for emphasis).
3. Your petitioner states that the election was held on 9th April 2011 and results declared on 10th day of April 2011 and the following were the candidates and parties that participated in the election.
(Underlining for emphasis)
1. Accord Party – Ikechukwu Obiorah
2. CAN Party – Sir Chris Atuegwu
3. ADC Party – Chukwunweike Nweke
4. ALP Party – Nsofor Izuchukwu
5. ANPP Party – Chief George Nwadubem
6. APGA Party – Chukwumaeze Nzeribe
7. CPC Party – Prof. Nonso Nojekwu
8. CDC Party – Christian Ikechukwu Ofu
9. HDP Party – Afam Okoye
10. Labour Party – Umeoha Ike Esther
11. PDP Party – Andy Emmanuel Uba
12. PPP Party – Chief Adolphuslzaegbo”.
A simple analysis of the averments in the two paragraphs above shows that while the appellant is claiming to be a candidate of the PDP and had a right to be returned at the election. Paragraph 3 pulled the carpet from under his feet (at his own making) by listing clearly the parties and Senatorial candidates that actually participated in the April 9th election conducted by INEC for Anambra South Senatorial District.
If the latin Maxim, RES IPSA LOQUITUR (The thing speaks for itself) is anything to go by paragraph 3 of the appellant’s petition is very clear on the candidates presented by parties and cleared by INEC to contest the said election on 9/4/2011 to the exclusion of any other candidate from the same party because the law and the constitution does not allowed the fielding of more that one candidate by each political party for any single elective post. In the circumstance, the proper forum for any aggrieved aspirant to challenge the process of nomination by his party is as provided for in Section 87 (9) of the Electoral Act 2010 (as amended). This is because such a scenario has been statutorily recognized as a pre-election matter. What is more, paragraph 12 of the petition reads thus:-
“The 1st Respondent put out himself as the candidate of Peoples Democratic Party PDP for Anambra South Senatorial District without being a candidate of PDP or of any other party”.
This no doubt show that there was a dispute or crisis over nomination or candidature of the PDP to contest the April 9th 2011 Senatorial seat in Anambra South Senatorial District.
In the main I find no substance in the claim by the appellant that the trial tribunal treated only paragraph 1, 3 and 12 of the petition to the exclusion of other paragraphs.
I now move to the statutory provisions which the trial tribunal was said to have erred in not applying them. They are Section 65 (2) (b) 285 (1) (a) 287 (3) of the 1999 constitution and Sections 31 (1) 137 (1) (a) and 138 (1) (a) of the Electoral Act 2010.
The substance of the appellant’s argument with particular reference to Section 285 (1) and 287 (3) of the 1999 constitution and Section 137 (1) (a) of the electoral Act is that the appellant’s petition did not raise any pre-election issue or intra party matter and that the main thrust of the petition is that the appellant is the candidate of the PDP who participated in the election for Anambra south Senatorial District on 9/4/2011 which the PDP won.
Dealing first with Section 137 (1) (a) of the Electoral Act, 2010, it provides as follows:-
“An election petition may be presented by one or more of the following persons:-
(a) a candidate in an election”.
For purposes of clarity and avoidance of doubt, the marginal note to the aforesaid Section clearly stated as follows:-
”Persons entitled to present election petitions”.
From the foregoing, the simple and unambiguous reading and interpretation of same means that the only person entitled to present an election petition is a candidate in an election. Now in paragraph I of the appellant’s petition earlier reproduced, he claimed that he was a candidate of the PDP in the said election and ought to be returned as the winner of the election but in paragraph 3 of the same petition also earlier reproduced, he presented the officially recognized and indisputable state of affairs by listing the political parties that participated in the election as well as their candidates in the said election. The name that featured as a candidate for the PDP was the 1st Respondent (Andy Emmanuel Uba). This is further confirmed in Form EC8E INEC declaration of result form filed with the appellants petition at page 44 of the record. In the circumstance, can it be said that the appellant was a candidate for the PDP in the election that held on the 9th April 2011 for the Anambra South Senatorial District? The answer is indeed blowing in the wind.
On Section 285 (1) (a) of the 1999 constitution, (2nd Alteration) it provides that :-
“There shall be established for the Federation one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether:-
(a) any person has been validly elected as a member of the National Assembly…
The contention of the appellant was that the 1st Respondent was not qualified to contest the election because he was not sponsored by any political party and the question of his qualification to contest the election is a competent ground for challenging the validity of his election or return by virtue of Section 285 (1) (a) of the 1999 constitution.
A clear cut distinction must be made between the provisions of Section 285 (1) (a) of the 1999 constitution and Section 87 of the Electoral Act (as amended). Section 285 (1) (a) is meant to address a situation where an election has been conducted and a winner emerged or returned as a consequence of which the person who lost challenges the said election by filing a petition in an election tribunal. In this regard, the aforesaid provision is meant to deal with post election matters.
Thus in ODEDO VS INEC (2008) in NWLR (PT 1117) 554 at 602, the Supreme court as per Niki Tobi JSC, states:-
“It is not my understanding of Section 285 (1) (a) of the constitution that the subparagraph can accommodate pre-election matter. It is rather my understanding that the subparagraph provides for the determination whether any person has been validly elected as a member of the National Assembly.
In any humble view, the subparagraph provides for election matters which give rise to post election and not pre-election proceedings”.
In KOLAWOLE VS FOLUSHO (2009) 8 NWLR (PT 1143) 338 at 396, the Court of Appeal in relying on the above Dicta added as follows:-
“From the foregoing dicta of the Supreme court, it is clear that the jurisdiction of the ordinary courts in pre-election matters as preserved for them by the constitution and the electoral Act is still Sacrosanct and cannot be eroded simply because an election had been conducted pending the determination of the Suit instituted before the election”….
I hold the view that from the plethora of judicial authorities cited, the election tribunal was seized of the jurisdiction to entertain the petition on the issue of invalid nomination same being a pre-election matter which ought to have been commenced in the regular court, if at all and assuming that the 1st and 2nd Respondents possessed the necessary locus standi”.
See also the recent Supreme Court decision in UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386.
On the other hand, Section 87 of the Electoral Act 2010 (as amended) was introduced to deal with the procedure for the nomination of candidate by a political party. After the conclusion of the primaries by such political party, an aggrieved aspirant who seeks to challenge the emergence of a candidate from the said primary may apply to the Federal High Court or the High Court of a state or the FCT for redress under Section 87 (9). It follows therefore that issues emanating from party primaries, nomination and sponsorship of candidates are pre-election matters which falls outside the scope and jurisdiction of Election tribunals.
The appellant had also relied heavily on an interim orders of the Federal High Court Awka in Suit No. FHC/AWK/CS/05/2011 to contend that by virtue of the said order the issue of nomination or the candidature of the PDP was not in dispute because by the said order he was declared to be the rightful candidate for the Anambra South Senatorial seat on the ticket of the PDP. He had consequently contended that the trial tribunal ought to have given effect to Section 287 (3) of the constitution in relation to the said interim orders.
The copies of the orders were filed with the petition (see pages 59 to 63 of the Record of Appeal. A perusal thereof show that the original order was made exparte and neither the 1st Respondent nor the 3rd Respondent were made parties in the Suit and as such the 1st Respondent cannot be bound by such order, neither can his return as the winner of the election be affected in anyway. See MAIKORI VS LERE (1992) 3 NWLR (PT 231) 252 and NDULUE VS IBEZIM (2002) 12 NWLR (PT 780) 19.
Besides, the fact of instituting Suit No. FHC/AWL/CS/05/2011 by the appellant which Suit has not been shown to have been determined by a final judgment points to nothing else but the reality of a dispute as to who was or was not to be the candidate of the PDP for the election in question.
Thus in LADY MARGERY OKADIGBO VS PRINCE JOHN OKECHUKWU EMEKA & ORS. APPEAL NO. CA/E/EPT/03/2011.
(Unreported judgment delivered on 19/8/2011). This court in addressing a similar matter held inter alia that:-
“In the instant case, the order of the Federal High Court Awka (though exparte) was made pending the determination of the application for judicial review. In other words it was not a final decision but an interim order meant to last for a while.
Therefore, I really look askance at the propriety of the appellant dropping her anchor at this stage to assert herself as the rightful candidate of the PDP.
When the substantive suit that will legally determine that issue is still pending. What is more, it shows
glaringly and without any iota of doubt that the issue in contention is a pre-election matter which fortunately ( 1 Suppose) the appellant can still pursue to conclusion having been initiated in the Federal High Court, Awka even before the election that held on 9/4/2011”.
I entirely agree with the above dicta more so that the facts of the case are on all forms with the instant appeal and in fact it is the same interim order of the Federal High Court Awka in suit No. FHC/AWL/CS/05/2011 made on 13/1/2011 that was in contention in both cases.
Now there is no final and subsisting judgment of a court in favour of the appellant but an exparte order meant to last momentarily pending the determination of the substantive application. The subsequent order of the Federal High Court Awka made on 25/3/2011 urged the parties to maintain the Status quo until the matter is disposed of. There is nothing before this court to show that the matter has been disposed of on the merit. The issue in contention thus remains a pre-election matter. The appellant is free to continue with the matter at the Federal High Court as against his present attempt to wrongly place his case before the election tribunal. See ONYEKWELI VS INEC (2008) 14 NWLR (PT 1107) 317 and OSAKWE vs INEC (2005) ALL FWLR (PT 261) 325.
The appellant had strongly relied on the case of OLOFU VS ITODU supra in support of his contention that the matter is post election. In the said case the 1st Respondent contested the election on the platform and sponsorship of the PDP. His name was submitted to INEC by the PDP and it appeared in the list of candidates published by INEC.
The 1st Respondent was first declared winner of the election but subsequently the name of the appellant was sought to be substituted for the 1st Respondent. The issue then was whether after having contested and won an election, the appellant’s name could be substituted for his own.
So OLOFU’S case is clearly distinguishable from the instant case.
The same applies to ARANA VS OBI supra and ENEMUO VS DURU supra cited by the appellant. Both cases are authority that a person declared winner and issued with FORM EC8E or EC8E (1) is the proper candidate of the political party and qualified to bring an election petition.
In the circumstance, I hold that the tribunal was right in it’s finding that it lacks jurisdiction to entertain the appellant’s petition because it is a pre-election matter. This issue is therefore resolved against the appellant. Having resolved issue No 1 above to the extent that the trial tribunal was right to have struck out the appellant’s petition for want of jurisdiction to entertain it, being a pre-election matter, it becomes an expedition of pure academic interest to embark on the consideration of issue No 2 as raised by the appellant. The court of Law is not a proper field for academic exercise. See Julius BERGER (NIG) LTD VS FRIDAY FEMI, (1993)5 NWLR (PT293) 612, and Registered Trustee of LIVING CHRIST MISSION, ONITSHA VS OKOKONH. (unreported Appeal No CA/E/171/2008 Delivered on 18/5/2001.
In the result, I hold that this appeal lacks merit and it should be and is hereby dismissed. The Ruling of the National and State House of Assembly Tribunal sitting in Awka, Anambra State delivered on 15th July 2011 is hereby affirmed.
I award a cost of N30 000 in favour of the 1st and 2nd Respondents.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
Chief Tagbo IkeFor Appellant
AND
A.O. Anazor for 1st Respondent.
S.O Ibrahim ACLO (INEC) with O Ikorah (Mrs) SLC (INEC) for 2nd Respondent.
P.C. Udearoh for 3rd Respondent.For Respondent
