Chief T. A. Orji & Anor V. Peoples Democratic Party (PDP) & Ors (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

The respondent herein is the Peoples Democratic Party, (hereinafter referred to as the PDP a co-petitioner, now co-respondent with Oyeoma Ugochukwu and Hon. Chinwendu Nwanganga (Governorship candidate and running mate for the PDP) who took out separate election petitions against the results declared by the 4th respondent herein. The petitions were identified as ABS/GOV/EPT/4/2007 for the candidates and ABS/GOV/EPT/9/2007 for the present respondent and were consolidated upon the order of the tribunal below as evidenced at page 2207 of the printed record.

The Abia State Governorship elections took place on the 14th of April, 2007 and in the results that were declared INEC announced the 1st and 2nd appellants’ as winners of the said election as Governor and Deputy Governor of Abia State respectively.

Against such a declaration, the 1st respondent (as petitioner) filed a petition which same was allowed on the 25th February, 2008 by the lower tribunal and thereby nullifying the return of the 1st and 2nd appellants. It further proceeded and returned the candidates of the petitioner/1st respondent as Governor and Deputy Governor respectively of Abia state. It is against this judgment that the appellants have appealed, ex debito justiciae, to this court by its notice of appeal dated 11th March, 2008 and filed on the same date. The said notice contains 23 grounds of appeal.

As a point of commencement and at pages 54-55 of the printed record are the grounds upon which the petitions were based and are as follows:-

“1. The 1st and 2nd respondents were as at the date of the election each not qualified to contest as candidates for the election to the office of Governor/Deputy Governor of Abia state and the petitioners so informed the electorate during their campaign for that election.

2. The result/return from the election has not been announced/declared by the Appropriate Returning officer for that election.
3. The petitioners scored the majority of lawful votes cast in that Governorship/House of Assembly general elections held by INEC in Abia State on the 14th day of April, 2007 and ought to have been returned as elected being that they also scored at least one-quarter of all the votes cast in each of at least two thirds of all the Local Government Areas of Abia State. But the 1st and 2nd respondents were wrongfully declared and returned as elected.

THE PETITIONERS SHALL CONTEND AS AN ALTERNATIVE GROUND THAT:

The election is void being that it was not conducted in substantial compliance with the provisions of the Election Act 2006 and the guidelines, rules and regulations enacted and prescribed for the election being that:

(i) the respondents committed and or procured substantial malpractice in substantial part of the election and

(ii) the respondents committed substantial irregularities which rendered the election void.

The reliefs sought by the petitioners in their petition are to be found at pages 285-286 of the record which same reproduced are:-

RELIEFS SOUGHT

On the premise of the foregoing grounds and facts the petitioners pray that it be determined and ordered as follows:-

1(i) That the 1st and 2nd respondents were not qualified to contest as the candidates for PPA in that election held on 14th April, 2007 being that:

(a) the 1st respondent was indicted by an administrative panel set up by the Federal Government and the Federal Government accepted that indictment;

(b) the 1st respondent was stayed from contesting that election by the Federal High Court Kaduna in Suit No. FHC/KD/CS/39/2007.

(c) the 1st and 2nd respondents remained employed in the public service of Abia State up to a period of less than one month preceding the election.

(d) The 1st respondent is a member of a secret society.

(e) The 2nd respondent’s qualification to contest as a candidate in that election was removed by the non qualification/disqualification of the 1st respondent.

(ii) That following the disqualification of the 1st and 2nd respondents which were known or deemed to be known to the voters at the time of the election all votes cast for the 1st and 2nd respondents as the candidate of the Progressive Peoples Alliance are void.

(iii) That the result of the election to the office of Governor and Deputy Governor in that election held on the 14th day of April, 2007 for Abia State can only be declared and announced (at the election) by the appropriate returning officer who in this case is the Resident Electoral Commissioner, Abia State and not Mr. E. E. Enabor.

(iv) That the result of the governorship general election held on the 14th day of April, 2007 has not been duly and properly announced.

(v) That the announcement of the 1st and 2nd respondents by Mr. E. E. Enabor as the persons elected in that general election to the office of governor and deputy governor of Abia State be set aside.

(vi) That the petitioners having scored the majority of lawful and valid votes cast in that Governorship/House of Assembly general elections held by INEC in Abia State on the 14th day of April, 2007 and having scored at least one quarter of the valid votes cast in at least each of two third of the Local Government Areas in Abia State be returned as the persons elected to the office of the governor and deputy governor of Abia State.

THE PETITIONERS SHALL PRAY IN THE ALTERNATIVE IN ANY EVENT THAT THE RELIEFS NUMBERS (I) TO (VI) SET OUT ABOVE ARE NOT GRANTED THEN THAT IT BE DECLARED AS FOLLOWS:

2(i) That the general election held on 14th April, 2007 for the office of governor and deputy governor of Abia State is void on the ground that it is marred by substantial irregularities, malpractices and non-compliance with the provisions of the Electoral Act and the rules and guidelines enacted there under.

(ii) That the election be set aside.

(iii) That a fresh general election be conducted on a date determined by the tribunal or to be determined soon after by INEC for the office of Governor and Deputy Governor of Abia State.

3. That the respondents be condemned to pay the cost of this petition.

For the determination of the petition before it, the learned tribunal predicated same upon the following three issues hereunder:-

“(i) whether the 1st and 2nd petitioners in petition No. ABS/GOV/EPT/4/07 scored the majority of the lawful votes cast at the questioned election and not less than one quarter of all the votes cast in each of at lease two thirds of all the Local Government Areas in Abia State.

(ii) whether the election of the 1st respondent is voided by substantial malpractices.

(iii) whether the 1st and 2nd respondents were qualified to contest the questioned election.”

At pages 3652 and 3653 of the printed record the learned justices of lower tribunal on the 1st, issue held and said:-

“There is no foundation or basis as rightly stated by the 2nd set of Respondents counsel that there is no basis to challenge the result returned by the Independent National Electoral Commission (INEC) upon which 1st and 2nd respondents were declared winners of the questioned election … we finally on this issue hold that the petitioners have failed to prove that the 1st and 2nd petitioners have scored majority of lawful votes at the election to entitle them being returned as duly elected. Issue number one is resolved in favour of the two sets of respondents.”

On issue two, posing the question as to whether the election of the 1st respondent is voided by substantial malpractices, the lower tribunal in its findings at page 3657 further had the following to say amongst others:

“On the issue of non- compliance with electoral provisions or commission of electoral offences the law is more concerned with the extent and how far wide it occurred and whether it has substantially affected the result of the election. The respondent cannot be held responsible for what other people did in the form of unsolicited aid which the candidate or his agent was ignorant… The other witnesses called by the petitioners did not also testify favourably on this aspect. It is in view of the above that we hold that as the petitioners could not show substantial non- compliance with the provision of the Electoral Act and that the said non-compliance has substantially affected the election, we hold that by the provision of section 146 of the Electoral Act the petitioners have failed to prove that the questioned election is voided by substantial malpractices.”

The said section 146 of the Electoral Act 2006 provides as follows:

“An election shall not be liable to be invalidated by reasons of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

The said issue number two was therefore again resolved in favour of the respondents.

Issue number three on the question of qualification of the 1st and 2nd respondents, now appellants, were initially predicated on three grounds. In other words with the question of disqualification on the alleged indictment by an administrative panel of inquiry having been abandoned, the two grounds pursued were:

1. Disqualification on non resignation of the 1st and 2nd respondents from service of the public service of Abia State, one month before contesting the ejection.
2. Disqualification on the alleged membership of the 1st respondent of Okija Secret Society.

In its considered judgment on the evaluation of the evidence placed before the lower tribunal on the issue of disqualification, it accordingly arrived at the following deductions and conclusions at pages 3664, 3679, 3680 and 3681 of the record and said:

“It should also be noted that the letters of resignation tendered by the 1st and 2nd Respondent did not bear the date of receipt and/or stamp of the Government of Abia State. There is equally no letter conveying the approval as was held in Dashe v. Bawa (supra).

In view of the foregoing we hold that the 1st and 2nd respondents have not resigned their appointments and the said documents are hereby expunged from the record of this Tribunal and the ground on disqualification on non resignation of the 1st and 2nd respondents is resolved in favour of the petitioners… We have considered the submission of all parties… With regards to the evidence adduced … On this ground of the 1st Respondents alleged membership of Okija Secret Society. We are of the candid view that the two sets of Respondents did not succeed in controverting the evidence adduced by the two sets of petitioners especially the sworn deposition of PW5…

In view of the above we hold that having considered the pleadings of the parties and evidence adduced, the two sets of petitioners have proved that the 1st respondent is a member of Okika Secret Society. In view of this we resolve this third and last for determination in favour of the petitioners.”

Based on the foregoing conclusions especially on account of issue three, the Hon. Tribunal by a subsequent order nullified the return and declaration of the 1st and 2nd respondents (now appellants before us) from being the Governor and Deputy Governor of Abia State. As a consequential relief of the findings arrived at, it further proceeded and declared the 1st and 2nd petitioners in petition No.EPT/4/2007 Onyema Ugochukwu, Hon. Chinwendu Nwanganga v. Chief T. A. Orji and 2894 Ors. as the duly elected Governor and Deputy Governor of Abia State. In its pronouncement at page 3684 of the record the tribunal heard and said:-

“We hereby order that the 1st petitioner in the first petition No. EPT/GOV/04/2007 and 2nd petitioner be and are hereby declared and returned as the duly elected Governor and Deputy Governor of Abia State having scored the second highest lawful votes cast at the election after the disqualification of the 1st and 2nd Respondents.”

Dissatisfied, obviously with the conclusion and the decision arrived at by the lower tribunal, the appellants who were the respondents have filed their notice and grounds of appeal to this court dated and filed 11th March, 2008. Consequently the appellants filed their brief of argument dated 21st and filed on the 22nd April, 2008. In response to the appellants, brief, the 1st respondent filed a brief of argument dated 8th and filed 9th May, 2008. Also contained and imbedded therein the said respondent’s brief, the counsel advanced arguments in support of the preliminary objection wherein notice of same was given dated 14th and filed 20th May, 2008. The appellants replied to the preliminary objection in their appellants reply brief also dated 17th and filed 20th May, 2008.

On the 25th November, 2008 when the appeal was called up for hearing, the learned senior counsel, Chief J. B. Daudu in moving the notice of preliminary objection reference supra adopted and relied on the arguments of the 1st respondent contained in the brief of argument under reference and specifically at pages 12-14 of their brief. The learned senior counsel urged us to sustain the objection therefore.

Chief Wole Olanipekun SAN in submitting against the preliminary objection adopted and relied on their above mentioned reply brief at pages 1-9 thereof.

By the said notice of the 1st respondent’s preliminary objection, the same prays this court to:

“Strike out the following grounds of appeal in this appeal to wit: grounds 1, 10, 12, 13 and 21 for want of competence being that:

(a) the complaint raised in those grounds already constitute issues already contested and decided upon in the considered ruling of the Tribunal at an interlocutory stage;

(b) no appeal was filed against any of the interlocutory decisions within the statutory time;

(c) no extension of time has been sought or secured within which to appeal;

(d) no leave of court has been sought or secured to appeal.”

In substantiating the objection raised, the learned senior counsel Chief Daudu submitted that the appellants grounds 1, 10, 12, 13 and 21 raised issues that had already been argued and decided upon by the lower tribunal; that the said grounds cover issues which have been made the subject matter of interlocutory rulings. Reference was made to the printed record at pages 2171 to 2174 and 2201 to 2210. That no leave of court and or no extension of time have been granted to the appellants to appeal on that decision more than six months after the decision in the tribunal below. The learned senior submitted that as the issues were matters of procedure ruled upon by the Tribunal below in respect of which there was neither an appeal nor leave to appeal, raising them well over six months after such issues have been determined to finality has rendered those grounds and the issues covering them incompetent.

In solidifying his arguments, the learned senior cited the authorities in the cases of Khalil V. Yar’Adua (2003) 16 NWLR (Pt.847) pg. 446 at 479 and Onwu V. Oke (2001) 3 NWLR (Pt.700) Pg. 406 at 417-418 wherein he argued the failure rendered any such notice or grounds of appeal on such matters incompetent liable to and therefore be struck out. The learned senior counsel therefore urged us in the result to uphold the preliminary objection and strike out those offending grounds of appeal together with the issues distilled there from. In other words the affected issues Nos. (i), (v) and (viii) in the Appellants, brief.

In response to the preliminary objection the appellants, reply brief submitted graphically thereto but proceeded over board and included ground 11 of the ground of appeal which is not covered in the objection raised. The said ground does not therefore fall within the issue for contention at this stage.

The appellants learned senior counsel’s reply to the preliminary objection are in the following facets:-

(i) The jurisdictional nature of the complaints in ground 1 of the Notice of Appeal and its effect to the competence of the entire suits;

(ii) The admissibility of the evidence of PW5 together with Exhibits HS.

This approach is as distinctly recognized and canvassed by the Respondents in their Brief of Argument.

Submitting on the jurisdictional nature and effect of ground one, the learned senior Chief Olanipekun was dismayed, by the respondents erroneous contention that there must be pronouncement in the final judgment of the tribunal before ground one can be taken cognizance of as questioning the jurisdictional competence of the tribunal to hear and determine the petition. That the cases cited by his brother silk in that respect and all others relied upon by the Respondent are neither, in the least, opposite nor applicable to the facts and circumstances of this case. This he concluded because cases relied upon are ordinarily civil cases that have no bearing to election petition matters which are held to be sui generis. Reference was made to the provision of section 246(1)(b) of the 1999 Constitution on right of appeal in election matters which is recognized by the constitution. That from the purport of the foregoing provision, an appeal can only arises from the decision of an election petition tribunal which finally disposes off the case. In other words, that there is no piecemeal provision on the right of appeal in respect of election petition as it is the case in the ordinary civil or criminal proceedings in which the constitution has specifically recognized the right to ceaseless interlocutory appeals. Sections 242 and 243 of the Constitution are cited in support.

Learned counsel further cited the provision of section 149(1) of the Electoral Act which he argued has clearly and distinctly stated the only point at which an appeal against the decision of an election tribunal can be filed, i.e. to say within 21 days after the decision of the Election tribunal that a candidate returned as elected was not validly so returned. That throughout the entire gamut of the Electoral Act, there is no provision with respect to an appeal other than section 149. Further reference were also made to the cases of Okon v. Bob (2004) 1 NWLR (Pt.854) 378 at 395, Usani v. Duke (2004) 7 NWLR (Pt.871) 116 and also a recent decision of this court in the case of Amgbare v. Sylva (2007) 18 NWLR (pt.1065) 1 at 19.

That from the foregoing, the counsel re-iterated the absence of doubt that their choice of not rushing to this court to invoke its appellate jurisdiction over issues that were determined at the interlocutory stage is well founded and remains unquestionable, impeachable and flawless. A further authority cited to buttress the submission was Aondoakaa v. Ajo (1999) 5 NWLR (Pt.602) 206. That the cases relied upon by the 1st respondent as submitted earlier cannot be applied to this case; this learned senior argued is apart from the fact that they do not relate to election petition. Further more that even if their present case is not election petition proceedings, he submitted further that the circumstances of those cases do not make them apt for their present case. This, he garnered in view of the Supreme Court having approved of including appeals against interlocutory decisions in the final appeal and that the case of Iweka v. S. C. O. A (Nig) Ltd. (2000) 7 NWLR (pt.664) 325 is relevant in support. That the contention of the respondent against the grounds singled out and which he argued do not flow from the final judgment is therefore without any substance and legal basis. The senior urged for the objection to fail on this point and that the court should so hold.

The effect of jurisdiction learned senior argued is a threshold issue which cannot be lightly waived aside whenever same is raised. The absence of which would render the court acting in vain in the event of venturing to entertain the subject matter placed before it. Cited in support is the case of F.R.I.N. V. Gold (2004) 11 NWLR (pt.1044) 1 at 18-19. That there is not particular format by which an issue bordering on jurisdiction can be raised. That whether there is an appeal on it or not, once it is clear from the materials placed before the court that there is a defect in jurisdiction of the court, the issue can be taken up without any formality. Supporting the argument are the cases of Elabanjo V. Dawodu (2006) 15 NWLR (pt.1001) 76 at 115 and 128; A.P.C. Ltd. v NDIC (NUB Ltd.) (2006) 15 NWLR (Pt.1002) 404 at 457; Oloriode V. Oyebi (1984) 1 S C NLR 390.

Learned counsel further submitted that even without an appeal against the ruling of the tribunal that the petition is not premature against the clear averments by the Respondents that the results of the election have not been declared, this court can suo motu on the strength of Adesanya v. President, FRN, call on the parties to address it on that point, as the necessary condition precedent for a valid election petition is the declaration of results pursuant to section 141 of the Electoral Act.

The learned senior submitted this as more particularly so because despite the fact that the appellants raised an objection to the petition on this ground, the tribunal bluntly refused the objection and did sustain the petition as it was presented. That the final decision which granted the petition inexorably means that the judgment affirmed the competence of the entire petition. That by implication, any ground of appeal on the competence of the petition can validly be included on the judgment. On the admissibility of the evidence of PW5 and Exhibit HS which the 1st respondent argued was belated to be included in a final appeal, the learned senior counsel Olanipekun adopted their submissions made in respect of a right of appeal which can only be envisaged at the end of the proceedings in an election petition and the right which is irrespective of whether the decision is final or interlocutory. The senior urged for a total disregard of the 1st respondent’s contention. That once a point as this is raised to challenge the admissibility of a piece of evidence, even if taken during the trial and ruled upon before final judgment was delivered, the point forms part of the judgment of the court for which an interlocutory or a separate appeal is not required. That this point was well appreciated and applied by this court in First Bank of Nigeria Plc v. Tsokwa (2003) FWLR (Pt. 153) 205 at 223. Relevant also is the pronouncement by the apex court in the case of Okobia v. Ajanya (1998) 6 NWLR (Pt.554) 348 at 360.

In continuing his submission he stated as clear the very basis of the decision of the tribunal in this case which the evidence of PW5 and Exhibit HS. Learned senior fathomed that once this court exercised its powers under section 16 of the court of Appeal Act to expunge these pieces of evidence from the proceedings of the tribunal, the entire case of the respondent together with the judgment of the Tribunal will crumble like a pack of cards. That this objection on the authority in the case of Okobia v. Ajanya supra should also fail on this point. The learned senior on the totality urged that the objection be dismissed as it lacks any substance.

For the consideration of the preliminary objection, while the complaints raised in grounds of appeal nos. 1, 10, and 21 challenged the procedural propriety of the lower tribunal’s decision and not matters of admissibility of evidence, those in grounds 12 and 13 relate to the admissibility of the evidence by PW5 as well as the exhibit HS. The main thrust of the preliminary objection is that grounds 1, 10, 12, 13, and 21 of the grounds of appeal do not arise from the decision or judgment of the tribunal being the subject matter of this appeal. With reference for instance to particular (ix) to ground 1 of the Notice of Appeal at pages 4294 – 4295 of volume VI of the records which same is challenging the jurisdiction of the tribunal to entertain the petition, wherein it states:-

“When…

ix arising from (i), (ii), (iii), (iv), (v), (vi), (vii); and viii supra, the lower tribunal lacked the jurisdiction to entertain the petitioners petition.

As rightly submitted by the appellants learned senior counsel therefore, with the sui generis nature of election petition cases, the procedural rules and the law applicable thereto are distinctly set out in the Electoral Act 2006 and the Election Tribunal and Court Practice Direction 2007 made pursuant to the 1999 constitution. Section 246(1) of the constitution has given the scope of when an appeal can be brought as of right against a decision of an election tribunal. This has clearly been stated in the decision of this court in the case of Okon v. Bob also Usani v. Duke under reference supra.

Further still and in recent decision by this court again in the case of Amgbare v. Sylva supra, it was clearly restated by his Lordship Galadima JCA at page 19 that:-

“A right of appeal in an election petition as enshrined in section 246(1)(b)(ii) of the 1999 constitution can only arise when the decision is on any question as to whether any person has been validly elected to the offices of Governor or Deputy Governor which by implication refers to the conclusion of the whole proceedings and a decision given thereon.”

A similar approach was embarked upon in an earlier decision of Aondoakaa V. Ajo also, (supra) wherein; an objection was raised to a ground of appeal against the final decision of an election tribunal which also included an appeal on a point decided at an interlocutory stage. In dismissing the objection, this court had the following to say at pages 226-227:-

“There is some reasoning that impels one to consider that a ground of appeal from a final judgment incorporating a complaint against an interlocutory decision given in the course of a trial should be competent. It is that due to the nature of election petition of which time is of the essence, it is much more time saving to incorporate all complaints from interlocutory decisions with those from the final judgment in an appeal.

A cue can be taken from the decision of the Supreme Court in Onibu v. NEC (1989) 2 NEPLR 24. The Supreme Court per Nnamani, JSC said, and quoting section 36 of Decree 37 of 1987 in pari material with section 86, (supra) that:

“It would appear to one that the only matter which is appealable to the Court of Appeal is the determination on an election and from the wordings of this sub-section 36(i) this must mean the final determination of the election petition… In distinction to this, a decision in an election must mean a decision in the course of the proceedings and would include the interlocutory questions as was settled in the case…”

In light of this therefore the stretched interpretation given to section 86 (supra) by learned counsel for the 1st and 6th Respondents is, with respect, not tenable. In conclusion, it is my decision that the additional ground of appeal of the appellant relating to the interlocutory decision in the course of the trial of the petition is competent.”

Their Lordships of the apex court in the case of Iweka v. S. C. O. A. (Nig.) Ltd. supra also per Ogundare JSC supra held thus and said:-

“Under this rule a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by trial court even though he has not appealed against that interlocutory order when it was made.”

From the foregoing authorities therefore as rightly submitted by the learned appellant’s senior counsel, any ground of appeal which is contained in the Notice of Appeal in this case cannot be questioned or defeated merely on the footing that the issue it covers was one that was settled at an earlier stage of the proceedings before judgment.

It is further relevant to restate that the cases of Khalil v. Yar’Adua and Onwu v. Oke relied upon by the senior counsel for the 1st respondent, applicable they might be in ordinary civil cases, they are not however relevant to the case in issue. This is because they do not in the first place relate to election petition matters. And secondly the authorities run counter to the Supreme Court’s decision in the case of Iweka v. S.C.O.A. (Nig.) Ltd. as related supra.

With the jurisdictional refuttal prominently serving a foundational basis in the notice of appeal at hand, the issue is so fundamental of a nature and which cannot be lightly waived aside when same is raised. This is trite because the consequential effect of a court acting without jurisdiction renders any proceeding, no matter how well conducted a nullity. The case of F.R.I.N. v. Gold Supra is in point. The issue of jurisdiction has been well pronounced upon in plethora of authorities of Olabanjo v. Dawodu, A.P.C. Ltd. v. NDIC (NUB Ltd.); and Oloriode v. Oyebi Supra. Also the case of Adesanya v. President, FRN supra, wherein and as rightly also submitted and argued by the learned senior counsel for the appellant, the final decision which granted the petition inexorably meant that the judgment affirmed the competence of the entire petition. The implicative consequential effect was that any ground of appeal on the competence of the petition can validly be included on the judgment.

Further still and on the admissibility of the Evidence of PW5 and Exhibit HS, even though that point was taken during the trial and ruled thereupon before final judgment was delivered, the point forms part of the judgment of the court for which an interlocutory or a separate appeal is not required. The case in point was submitted upon by the learned appellants counsel in the case of First Bank of Nigeria Plc v. Tsokwa supra, wherein this court per Sanusi JCA at page 223 said:-

“I shall restate even at the expense of being accused of being repetitive that the ruling of the lower court which was made subject of the two grounds of appeal Nos. 2 and 3 pertains to wrongful admission of evidence or wrongful exclusion of evidence. Having not been appealed against by the appellant before final judgment was handed down, it then became part of the main or substantive trial and therefore not an interlocutory one. It is my view therefore that nothing could prevent the matter being made subject or (sic)ground of appeal alleging that in admissible evidence had been admitted or admissible evidence has been rejected.”

The foregoing decision took the que from their Lordship of the apex courts’ earlier decision in the case of Okobia v. Ajanya supra wherein Mohammed JSC at page 360 said:-

“A decision made by the trial court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made of the issue. Thus a party wishing to appeal against the judgment of the trial court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. Both are fundamental as the error insight occasion a miscarriage of justice. The Court of Appeal may report to its general powers under section 16 of the Court of Appeal Act 1976 in dealing with wrongful rejection of admissible evidence by taking one of the following three steps 1. If the appeal court is of the opinion that the inadmissible evidence cannot reasonably have affected the decision it will not interfere. 2. If it is of the opinion that without the inadmissible evidence the decision would have been different it will interfere; and 3. If, however, there is evidence in the case, and although the appeal court thinks that the admissible evidence must have influenced the decision, yet it is unable to say without the inadmissible evidence the decision would or would not reasonably have been different, the proper course is to order for a retrial.”

As rightly submitted by the learned appellants, senior counsel, it is obvious that the complaints raised in the said grounds objected to border on the admissibility of the evidence of PW5 and the document exhibit HS. The very basis of the decision of the lower tribunal being the judgment appealed against, is also the evidence of the same PW5 and exhibit HS. Without further much ado on the preliminary objection so raised, it is as rightly submitted by the learned appellants’ senior counsel is erroneous, grossly misconceived and therefore holds no substance. Same is therefore overruled and dismissed.

On the merit of the substantive appeal, the learned senior counsel Chief Olanipekun also adopted and relied on the appellants, brief of argument dated 21st and filed 22nd April, 2008. Counsel informed that the said brief is based on notice and grounds of appeal contained at pages 4243 – 4309 with same dated and filed 11th March, 2008. He therefore withdrew the 1st notice of appeal and grounds dated 7th March, 2008 which is contained at pages 3753 to 3817 of volume VI of the record. Senior counsel enjoined the court on issues four and five to strictly interpret the provisions of section 182(1)(h) and 318(1) of the Constitution 1999 relating to the Interpretation of secret society. This he argued especially having regard to the twenty one ingredients, elements that define or make up for what is known as a secret society by the constitution. That, not a single one of the said constituents was pleaded by the petitioner/1st respondent in this appeal. Reference was copiously made to pleadings on the record and submitted that none of the ingredients under section 318 of the constitution was specifically pleaded. That any evidence given thereon would serve no purpose but ought to be discountenanced. On the penal nature of the membership of a secret society the learned senior submitted that the lower Tribunal lacked the jurisdiction to pronounce thereon. He therefore referred to pages 93-100 of their brief of arguments on the pronouncements made by the apex court in the cases of A. C. v. INEC and Amaechi v. INEC references therein supra. That the lower tribunal acted ultra vires section 285(2) of the Constitution which spells out its jurisdiction. The senior urged that the appeal be allowed, and the decision and judgment of the tribunal should be set aside.

Chief J. B. Daudu senior counsel for the 1st respondent in urging for the dismissal of the appeal adopted and relied on the said respondent’s brief dated 8th and filed 9th May, 2008. The learned senior on the provisions of section 182(1) and 318(1) of the Constitution submitted the novel expectation by his brother silk for the appellants because he expected the petitioner to have pleaded law in its pleadings. This he argued is contrary to the rules of pleadings. That the only requirement to establish section 182(1) is that which had been pleaded by the petitioners; in other words that the 1st appellant is a member of a secret society. Reference to establish same is at page 425 vol. 1 of the record. That the deposition sworn to by PW5 at pages 2057-2060 of volume 3 of the record, satisfies the requirement of section 318(1) of the constitution that deals with the definition of secret society. That the expectation of all the ingredients in section 318 in being present is a gross misconception. On the penal nature of secret society the learned senior submitted as misconceived; and that paragraph 43 of the 1st respondents brief at pages 25-26 is under reference; also that the case of Amaechi v. INEC relied upon supra does not apply to the facts of this case. The learned senior urged for the dismissal of the appeal in its entirety and to affirm the decision of the lower tribunal.

The learned senior counsel prince L. O. Fagbemi for the 2nd respondent and Mr. Livy Uzonkwo for the 3rd to 2,891 respondents did not file any brief of arguments on behalf of their clients; there were therefore no submissions in their respect thereof.

On points of law the learned senior Chief Olanipekun for the appellants further submitted the necessity of pleading facts before the application of law to the facts so pleaded. In other words that law cannot be applied in a vaccum. That by paragraph 4(1) (d) of the 1st schedule to the electoral Act 2006, the grounds and facts are to be clearly pleaded. That the sections of the constitution should not be interpreted in isolation but ought to be taken together. Senior counsel urged that the appeal be allowed.

With learned senior counsel for the appellants having withdrawn their first notice and grounds of appeal dated 7th March 2008 contained at pages 3753 – 3817 contained in volume VI of the record, same is therefore struck out. The notice and grounds of appeal left for consideration therefore is contained at pages 4242-4309 dated and filed 11th March, 2008 in volume VI of the record.

From the twenty-three grounds of appeal filed, the appellants distilled ten issues for determination as follows:-

(i) Having regard to the clear pleadings backed by the reliefs of the Petitioner/1st Respondent to the effect that the result of the election had not been announced/declared as at the time the petition was filed, whether or not the condition precedent for the filing, whether or not the condition precedent for the filing/presentation of an election petition had arisen or crystallized, to warrant the presentation of the petition by the petitioners and for the lower tribunal to assume jurisdiction on same.

(ii) Whether or not within the con and interpretation of section 182 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999, read together with section 318 (1) of the same Constitution, 1st and 2nd Appellants were at the time of election, employees in the public service of a state (Abia State) to warrant their resigning from their employment at least 30 days to the date of the election.

(iii) Even if the answer to issue (ii) supra is in the affirmative, whether or not having regard to the pleadings and evidence placed before the lower tribunal, the lower tribunal was not in grave error to have held and concluded that the Appellants breached and/or were disqualified from contesting the election by section 182(1)(g) of the Constitution.

(iv) Considering the pleadings of the Petitioner/1st Respondent vis-a-vis the inadmissible evidence tendered by them whether or not it was established before the lower tribunal that Okija Shrine is a secret society within the ambit, con and definition of section 182(1)(h) read together with section 318(1) of the 1999 Constitution.

(v) Having regard to the state of the pleadings of the Appellants vis-a-vis the mandatory provision of paragraph 1(1)(c) of the Election Tribunal and Court Practice Direction 2007 (Practice Directions) and the inadmissible evidence proffered by the Petitioner/1st Respondent whether sufficient materials were placed before the lower tribunal for it to come to the conclusion that the 1st Appellant was a member of Okija Secret Society.

(vi) Having regard to the specific jurisdiction of the lower tribunal as prescribed and circumvented by section 285(2) of the Constitution coupled with the fact that the twin issues of non-resignation of Appellants from the public service of Abia State and the purported membership of the 1st Appellant of Okija Secret Society are pre-election matters, whether or not the lower Tribunal had jurisdiction to entertain the said issues and nullify Appellants’ election on same.

(vii) Whether or not the lower Tribunal was not in serious error occasioning a miscarriage of justice;

(a) By allowing petitioners in consolidated petitions EPT/GOV/4/2007 and EPT/GOV/09/2007 to adopt and call a single line of witness.

(b) By allowing and adopting a witness (PW5) whose witness statement was attached only to the Reply of the petitioner/1st Respondent who abandoned and/or never relied on the said witness evidence.

(c) By not giving judgment for and in each of the two consolidated petitions and/or

(d) By not considering each of the two petitions before adopting judgment in one for the other.

(viii) Considering the reliefs claimed by the Petitioner/1st Respondent, the faultless finding of the lower tribunal that Appellants scored majority of lawful votes cast at the election and the mandatory provisions of section 179(2)(a)(b) of the 1999 constitution whether or not the lower tribunal’s decision returning the candidate of the 1st Respondent as the winner of the election to the office of the Governor of Abia State on 14th April, 2007 is not perverse and highly erroneous.”

(ix) Assuming without conceding that the lower tribunal was even right in its decision relating to the non-resignation from office of the 1st and 2nd Appellants 30 days to the election and the purported membership of the 1st Appellant of the the Okija Secret society, whether or not the election of the Appellants is not saved by the mandatory provisions of section 146(1) of the Electoral Act, 2006.

(x) Considering the entirety of the pleadings, the admissible evidence led before the lower tribunal and the circumstances of this case, whether or not the judgment of the lower court is not altogether erroneous.”

On behalf of the 1st respondent five issues were formulated for determination and are as follows:-

“1. whether there is any substance in the appellants’ complaint that the petition was incompetent ab initio because one of the grounds (which eventually was abandoned) companied(sic) that the results of the election was announced by the wrong INEC official and that the grounds on non resignation and being a member of a secret society are pre-election matters outside the jurisdiction of the tribunal?

2. whether the fact that all the parties consented to and the tribunal allowed the petitioners in the consolidated petitions to call and adopt a single line of witnesses and the fact that 2 separate judgments were not delivered in the 2 consolidated petitions was wrong in law and if so whether there has been a miscarriage of justice thereby?
3. whether the tribunal below was right in accepting and acting on the evidence of the PW5 and the video recording in Exhibit HS?
4. whether the tribunal below was right in holding that the Appellants were not qualified to contest the election as candidates on the twin grounds of 1st appellant being a member of a secret society and the non-resignation of both appellants from the public service of Abia State at least 30 days before the election?
5. whether the order by the Tribunal below returning the Respondents as duly elected to the office of the Governor and Deputy Governor respectively after holding that the 1st and 2nd respondents were not qualified to contest the said election is justified?”

The appellants first issue seeks to resolve whether or not the condition precedent for the filing/presentation of an election petition had arisen or crystallized to warrant the presentation of the petition by the petitioner and for the lower tribunal to assume jurisdiction on same. The learned senior counsel Chief Olanipekun submitted in total that the absence of a declaration of any result had rendered the petitions inchoate or premature. In pursuant with candour and tenacity the learned senior emphasized ground 2 of the grounds under which the petition was brought before the lower tribunal which reads thus at page 423 of volume 1 of the record.

“The result/return from the election has not been announced/declared by the appropriate Returning Officer for that election.”

On a thorough x-ray thereof of the reliefs sought particularly (iii), (iv) and (v) by the Petitioner/1st respondent, the senior counsel garnered that a cause of action can only accrue in favour of a petitioner after the declaration of the result of the election as provided under section 141 of the Electoral Act. While juxtaposing the effectual judicial definitions of “cause of action” with the pleadings and/or factual situation of this case as at the time of filing the petition, the learned senior copiously and graphically submitted in summary that:-

(i) There was no justifiable complaint on ground as at the time the petition was filed.

(ii) There was civil right and/or obligation arising for determination of the lower tribunal as presented to it by the petitioner.

(iii) There was no dispute which called for the invocation of the judicial powers of the lower tribunal.

(iv) The petition itself is from within a void.

(v) The pleadings of the petitioner speak volumes against them and also against the assumption of jurisdiction. They cannot go against their pleadings and no external aid or any intrinsic or extrinsic parameter is needed to interpret or highlight the said pleadings.”

The learned senior in grounding his submission cited a number of authorities in particular where reference was made to the recent decision of the apex court in case of FRIN V. Gold (2007) 11 NWLR (Pt.1044) 1 at 19; also decisions of Adeyemi V. Opeyori (1976) 9-10 SC 31 and Ibrahim V. INEC (1999) 8 NWLR (Pt.614) 334 at 352-353 amongst others.

The 1st respondent in response to the said issue on jurisdiction submitted same as mere academic exercise especially in view of section 160 of the Electoral Act.

It is trite law that declaration of the results is a pre-condition and serves a governing factor controlling the filing of a petition. It is sine qua non a condition precedent to instituting an election petition, thus promoting the effectual backing and basis of section 141 of the Electoral Act, 2006.

It is the plaintiff’s action therefore that vests jurisdiction in a court. The cases of Adeyemi v. Opeyori and Mustapha v Governor of Lagos State supra are very relevant in point. The apex court has also held in the case of FRIN V. Gold, supra that where a cause of action is absent in a suit, the court is divested of jurisdiction to entertain it. The court further held that once a lower court has no jurisdiction to adjudicate on a matter and even if it had done so, such adjudication would be adjudged a nullity by the appellate court. This is because jurisdiction is a very fundamental issue that robs off the competence of a court to hear and decide a matter. In its further determination the apex court further held that a party that submits itself to a court for adjudication of a matter for which he is seeking redress, but without cause of action, cannot clothe the court with jurisdiction to hear and determine the matter; and even if by an oversight the court vests itself with jurisdiction and decides the case, an appellate court is bound to nullify the decision. At page 19 of the same decision their Lordships of the apex court per Mukhtar JSC reading the lead judgment said:-

“A proceeding that emanated from a court without jurisdiction is like one that never took place at all, because the court should not have entertained the suit; for it is incompetent to do so. This is the exact position in this appeal. The court of first instance had no jurisdiction to hear the matter, and so its decision was nullity and has to be treated as such (even if at that stage the issue of limitation of action was not raised.)”

Without having to belabour the point, it is apt to restate that the foregoing are all relevant principles very well enunciated by the various judicial pronouncements in support of absence of jurisdiction in a court. The issues however is whether the said principle could properly be related and apply to the circumstance and the matter in the case at hand. By the petition filed at the tribunal, this issue was raised and upon which the lower tribunal did pronounce as non significant. The issue by its very nature serves self defeatist to the petition as it would amount to approbating and reprobating for purpose of having the benefit of which ever direction the wind blows. In other words, the same petitioners who complained the absence of declaration of any result of the election should not have turned around to lay claim that they scored the vote of 136,858 which they argued amounted to the majority of lawful votes cast in the questioned election held by INEC in Abia State on the 14th day of April, 2007. This they contended in view of the disqualification alleged against the appellants; that the declarations of the 1st and 2nd respondents who are now the appellants as having been returned as elected were therefore wrongful. Page 54 of the record stating the grounds on which the petition is brought at paragraph B.3 of Volume 1 of the record of appeal is in reference.

Further more and by the very nature of the judgment arrived at by the tribunal, the contention of the absence of declaration of the result could not hold; more so in view of section 160 of the Act wherein provision is made for the delegation of powers of the commission. The absence of jurisdiction on the tribunal contrary to the submission by the learned senior counsel for the appellants does not therefore hold as rightly submitted by the senior counsel for the 1st respondent. The appellants 1st issue is resolved against their as the subject matter of the petition come squarely within the jurisdiction of the tribunal.

Further more and on the other leg of jurisdictional competence of the tribunal raised by the appellants’ issue six, same relates to the twin issues of non-resignation of appellants from the public service of Abia State and the purported membership of the 1st Appellant of Okija Shrine Secret Society, which the learned senior submitted are pre-election matters. Counsel submitted at great extent on the restrictive nature of the tribunal’s jurisdiction as provided under section 285(2) of the Constitution which is neither inquisitorial nor does it have power to investigate what transpired before the election, in particular the two issues as presented by the petitioner. That the petitioners having admitted it, knew the matters long before the election, but had failed to take action under section 32(4) of the Electoral Act. The following authorities were also cited in support:- Obi V. INEC (2007) (Pt.1046) 11 NWLR 565 at 635; Yusuf V. Obasanjo (2004) All FWLR (pt.213) 1884 at 1946-1947; Rimi v INEC (2005) 6 NWLR (Pt.920) 56 and Anazodo v Audu (1999) 4 NWLR (pt.600) 530. Learned senior submitted that the provision of section 32(4) of the Electoral Act, 2006 clearly brings into fore the fact that the lower tribunal does not have the jurisdiction to entertain the issue upon which the nullification of the appellant herein was anchored by the lower tribunal. That unlike courts of law that are created under section 6(6) of the constitution with unlimited jurisdiction, subject to the provisions of the same constitution, the lower tribunal does not have any extra-ordinary or omnibus jurisdiction even in respect of nomination of candidates. A further authority to buttress his submission was the case of Kasilawu Farms Ltd. V. Attorney General of Bendel State (1986) 1 NWLR (pt.19) 695.

That having regard to section 285(2) of the Constitution, relating to the jurisdiction of the lower tribunal, the senior expatiated, that the tribunal does not have penal jurisdiction to either determine or investigate someone as being a member of a secret society or declare him as such particularly in the manner, form and format embarked upon by the lower tribunal. Reference was again made to the apex court’s decision in the case of Action congress v INEC (2007) 12 NWLR (pt.1048) 222 as well as the recent decision of Amaechi V. INEC (2008) 1 MJSC at pages 53 – 55 wherein counsel argued, Oguntade JSC, painstakingly and clinically considered the penal or quasi-penal provision of the constitution relating to disqualification of candidates from election and thus came to the inescapable conclusion that, none of the said sections is self executory and there must be a pronouncement by a competent court of law in respect of any of such sections before a candidate can be disqualified. Counsel in further submission restated the Supreme Court’s position, wherein it seized the opportunity to make pronouncements on the entirety of the sub-sections under section 182 of the Constitution and considered the sub-section against the fundamental provision of section 36 of the Constitution relating to fair hearing. That having regard to the jurisdiction of the tribunal under section 285(2) of the Constitution, the senior submitted the error arrived at by the lower tribunal judges in their findings at pages 3690-3681 of the record and also acted ultra vires their extent of jurisdiction. The learned senior therefore urged the issue to be resolved against the petitioner/1st respondent.

Responding to the submission on issue no.6 the learned senior for the 1st respondent enjoined and informed the appellants to properly accord a literal and ordinary interpretation in reading the entire Electoral Act for purpose of appreciating that the Tribunals jurisdiction to determine grounds of qualification, non qualification and disqualification was unimpeded by the above provision. Learned counsel to buttress his submission cited the decision of this court in the case of ANPP V. PDP (2006) 17 NWLR (Pt.1009) 467 at 487-488. The counsel on this issue concluded that from the provisions of the Electoral Act 2006 and section 137-(i) of the 1999 constitution only a court of law or tribunal has the power to disqualify a candidate to any election in Nigeria. Further reference was again made to the dictum of Onnoghen JSC in ACTION CONGRESS V. INEC under reference supra, and urged the issue to be resolved in their favour.

The provision of section 285(2) of the constitution which vests jurisdiction in the lower tribunal reproduced states as follows:-

“285(2) There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals, which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House.”

The jurisdiction of the lower tribunal from the above provisions, as rightly submitted by the learned appellants counsel is not at large but specific and limited i.e. to say “to hear and determine petitions relating to whether any person has been validly elected to the office of Governors…”

In the case of Obi v. INEC, under reference supra, the apex court in the pronouncement on the tribunals jurisdiction said thus at page 635.

“It must always be remembered that an election petition tribunal is not an all purpose court that can entertain all sorts of claims or reliefs. It is created for election matters alone.”

Also in Yusuff V. Obasanjo supra, the apex court again per Mustapha JSC had this to say at great length:

“Sections 131 and 137 (equivalent of sections 177 and 182 relevant to the office of Governor) of the constitution also merely provide for the qualification of a person to be elected as a president or disqualification of a person to be elected as president respectively. These sections will only come into play with or be relevant before the election. In my view, the election to the office of the President (including the Vice president) and to any political office under the 1999 Constitution and under the Electoral Act, 2002 can only be questioned under section 134 of the Electoral Act-which clearly states the grounds upon which an election petition can be based. The court of Appeal while interpreting an identical section that is section 41 of Decree No.18 of 1992 in the case of Kurfi V. Mohammed (1993) 2 NWLR (Pt.277) 602 at 616 held that:

‘In the conclusion on this point it must be emphasized that every petitioner must try and bring his complaints under one of the three heads of complaints set out under section 41(1)(a)-(c). If he cannot do so it will be just too bad.’

Thus under this decision, the provisions of section 134 of the Electoral Act are exhaustive. An election or return cannot be questioned on any issue outside the provision of section 134 of the Electoral Act. I agree with this interpretation as mentioned above, the relevant constitutional provision, can only arise before the election i.e. section 131 of the constitution:-

‘A person shall be qualified for election to the office of the president… In my view, such infraction cannot be a basis for questioning an election or return.”

Further still and also on the same principle Salami, JCA in the case of Ibrahim V. INEC (1999) 8 NWLR (pt.614) 334 at 351 made the following remarks and said:-

“It is abundantly clear from those provisions that the grounds recognized for purpose of presenting an election petition are acts or omission that was contemporaneous with the conduct of the election. Election tribunal has no power to investigate matters which took place before the conduct of the election. National Electoral Commission v. National Republican Convention (1993) 1 NWLR (Pt. 267) 120, 129 and Adebiyi V. Babalola (supra).”

In the case of Rimi V. INEC (2005) 6 NWLR (pt.920) 56 section 134 of the Electoral Act, 2002 which is in pari materia with section 145 of the Electoral Act, 2006 was considered and the petition was struck out for incompetence because the grounds of the petition were outside the provision of section 134 of the Electoral Act, 2002.

The summary of Rimi V. INEC (supra) is simply that the petitioner alleged that his name was substituted less than 30 days to the election as the candidate of the Peoples Democratic Party contrary to section 23 of the Electoral Act, 2002. His other ground for challenging the election of the returned candidate was that the candidate did not pay his tax as and when due. The lower tribunal declared the petition incompetent on the basis that the grounds of the petition were unknown to the electoral law. On appeal, the Court of Appeal affirmed the decision of the lower tribunal.

Also in Anazodo V. Audu (1994) 4 NWLR (pt.600) 530 an election petition which is in pari materia with the present appeal was unanimously dismissed by both the Election Tribunal and the Court of Appeal. In the said case, this court per Muntaka-Coomassie, JCA at page 547 held and said:-

“It is a fact which cannot be altered that the issue of primaries, selection and nomination of candidates to contest an election at any given time is the exclusive preserve of the political parties. Whatever happened before PDP and INEC cannot be questioned by the Election Tribunal unless and until anyone of them flagrantly violated the guidelines of the party or the INEC. It appears that no credible evidence was adduced by the petitioner to show that PDP has not breached their internal guidelines nor does it show that INEC refused to abide by its guidelines. I am satisfied after due consideration of the record and the submissions of all the counsel in this appeal that the Election Tribunal and indeed this Court have no power to interfere with the clear decisions of both political party (PDP) and INEC.”

The reproduction of section 32(4) of the Electoral Act, 2006 is also relevant especially when read along side section 285(2) of the Constitution. The said section 32(4) which provides as follows:-

“Any person who has reasonable grounds to believe that any information given by a candidate in an affidavit is false may file suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained on the affidavit is false.” From the foregoing provision, the jurisdiction of the lower tribunal is shown to be specific and very much delineated and compartmentalized, by the constitution, as rightly submitted, in my view, by the learned appellant’s senior counsel. In other words, the tribunal does not have jurisdiction to assume over any matter arising from Section 32(4) of the Electoral Act 2006. By contrast and while section 145 (a) of the Act is a general provision but excluding all grounds of adjudication under section 32(4) of the same Act which is a special provision and derogates therefore from the former. It is paramount to restate further unlike courts of law that are created under section 6(6) of the constitution and therefore are clothed with unlimited jurisdiction, subject to the provisions of the same constitution, the lower tribunal does not have any extra-ordinary or omnibus jurisdiction. In the case of Kosikwu Farms Ltd. v. Attorney General of Bendel State (1986) 1 NWLR (Pt.19) 695 this court held that no court or tribunal has power to expand its jurisdiction. What the lower tribunal did in that case was to expand its jurisdiction.

The apex court in the recent decision of Action congress V. INEC cited supra considered a number of salient issues vis-a-vis, statutory and constitutional provisions and in particular section 137 of the constitution relating to disqualification of a presidential candidate; the section is in pari materia to section 182 of the same constitution. At pages 257 -260 of the judgment, Katsina-Alu (JSC) in putting the legal position in proper perspective held as follows:-

“It is settled principle of interpretation that a provision of the Constitution or a Statute should not be interpreted in isolation but rather in the con of the constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted: see Buhari & Anor. V. Obasanjo & Ors. (2005) 13 NWLR (pt.219). But where the words of a statute are plain and unambiguous, no interpretation is required; the words must be given their natural and ordinary meaning…

It was also contended for the defendant that the ground of disqualification in section 137(1)(i) is self-executing. I am not impressed by this contention. I think a dispassionate reading of the provision will reveal that it is not self-executing. To invoke against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature or kind contemplated by section 137 (i), which provides that “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality” as well as the provision in sub-section (5) of section 36 that “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The disqualification in section 137(1)(i) clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of the safe-guards in section 36(1) and (5) of the constitution… Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to section 36(5) of the constitution of the Federal Republic of Nigeria, 1999. I say again that conviction for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power: see Sokefun V. Akinyemi (1981) 1 NCLR 135; Garba V. University of Maiduguri (1986) 1 NWLR (Pt.18) 550.”

Further still and at pages 262-263 the learned jurists continued and said:-

“The legal position has since changed with the enactment of the Electoral Act, 2006. I do not want to speculate on what informed the action of the lawmakers but suffice it to say that the lawmakers in their wisdom took away this power from the Defendant. And as it can be seen clearly, this power is not vested in the courts by section 32(4) (5) and (6) of the Electoral Act, 2006 … In the light of these provisions I think it is beyond argument that the lawmakers clearly intended that the courts would have the power to deal with matters of disqualification of candidates in an election in the 2007 general elections.”

Also in the recent decision of Amaechi v. INEC (2008) 1 MJSC at page 63 their Lordships of the apex court re-affirmed the jurisdiction of the ordinary courts to decide pre-election matters and which is unimpaired by virtue of Sections 178 (2) and 285(2) of 1999 Constitution. At pages 53-55 of the report for instance his Lordship Oguntade J.S.C vividly and exhaustively considered at great extent the penal and quasi-penal provision of the constitution relating to disqualification of candidates from election and arrived at a conclusion that non of the said sections is self executing and that there must be a pronouncement by a competent court of law in respect of any of such sections before a candidate can be disqualified. Although in the cases of Amaechi and Action congress v INEC supra, what were in question were the issues of indictment under section 181 (1)(i) of the Constitution, the court nevertheless seized the opportunity to make pronouncement on the entirety of the sub-sections under section 182 and considered the sub-section against the fundamental provision of section 36 of the Constitution relating to fair hearing.

At pages 54-56 of Amaechi’s case the apex court amongst others had to say:-

“… It seems to me that section 182(1)(i) only enables a judicial Commission of Inquiry or administrative tribunal to determine the culpability of a citizen where it is alleged that such citizen has been in breach of the standards of behaviour expected in public life.”

At page 3680-3681 of the printed record, the lower Tribunal held and said:-

“In view of the above, we hold that having considered the pleadings of the parties and evidence adduced, the two sets of Petitioners have proved that the 1st appellant is a member of Okija secret society.”

From the provisions of sub-sections 182(1)(g) and (h) of the Constitution, the person sought to be elected would not be eligible for election if he/she is a person employed in the public service of the Federation or of any State, and had not resigned, withdrawn or retired from employment at least 30 days to the date of the election; or he is a member of any secret society.

From my own deductions of the sub-sections, same pre-suppose situations where such aspired persons are already clothed with the status and therefore needed no further proof thereof. In other words, it would have been established facts that sub-sections 182(1)(g) and (h) are no longer facts in issue. A poser question at this point is, with the findings arrived at by the learned lower tribunal judges at pages 3680-3681 of the record reproduced supra, was the tribunal right in setting out to prove whether or not the 1st appellant is a member of the Okija secret society? This is bearing in mind the jurisdictional limit of the tribunal as provided for under section 285(2) of the Constitution.

A further question to ask therefore is, do the status of the appellants fall within the scope of section 182 (1)(g) and (h) of the constitution as alleged? The said provisions ought rightly to be interpreted in the light of the decided cases and as arrived at in plethora of authorities. The case of Ibrahim V. INEC under reference supra for instance is relevant where Salami JCA said “Election tribunal has no power to investigate matters which took place before the conduct of the election.” Further authorities on principles and guidelines on cannon of interpretation are the cases of Okotie-Eboh V. Manager, Akuneziri V. Oknwa, and Action congress v. INEC all under reference supra.

The lower Tribunal’s jurisdiction under section 285(2) of the Constitution had been clearly reproduced supra. In relating its findings to its jurisdiction supra, and in the light of section 32(4) of the Act, it had no power to investigate.

In the result therefore, I find and as rightly submitted by the learned senior for the appellants that the lower Tribunal had clearly overstepped its jurisdiction and acted ultra vires on the conclusion arrived at having regard to its limited jurisdiction. The said issue six is therefore resolved against the 1st respondent and in favour of the appellants. In the event however that the lower tribunal had jurisdiction, I would proceed to determine the merit of the other remaining issues.

A careful perusal of the 1st respondent’s issues 2, 3 and 4 are all fused into appellants issues (ii), (iii), (iv), (v), and (vii). By the nature of the submissions made thereon by counsel and with closer interrelation which do not give demarcating dividing line, the issues would best be taken together for their consideration thereof.

Appellant’s issues two and three were argued together with the latter flowing from the former. In other words whether the appellants were employed in the public service of Abia State to warrant their resignation from their employment as required by section 182(1)(g) of the Constitution; and that even if they were held to be, whether having regard to the pleadings and evidence adduced before the lower tribunal, it was not in grave error to have held and concluded that the appellants breached and/or were disqualified from contesting the election by section 182(1)(9) of the same Constitution.

In arguing the said two issues, the learned appellants senior counsel, and for the consideration thereof related to the constitutional interpretation of section 182(1)(g) as well as the facts on the pleadings and evidence. The senior on the pleadings for instance, firmly argued that the petitioner failed to state what offices each of the appellants held; and that in this regard, no shred of evidence was led in proof of the allegation, and the reason which the allegations, he said, were bare. From the said foregoing section, that there must be proof or evidence of employment of the person which this section forbids from contesting or mandates to give a notice of resignation 30 days before election. That the word “employ” envisages an employer, an employee and an employment in itself. That it further connotes a situation of master and servant. That it is only when these conditions are present that a resignation of the employee from the service of the employer is anticipated or expected.

Further reference was made to section 318(1) of the Constitution in the interpretation of public service of the Federation or of a State; and wherein the categorizations do not include a Chief of Staff to a Governor or Commissioner for a State.

The learned senior submitted at great length and re-iterated that the Constitution has specifically and intentionally mentioned some persons or offices and excluded some. That the maxim “generatia specialibu non derogant” applies; that is to say that specific mention of one species of a thing means the exclusion of others and/or that the several would not include the specifics. That the interpretation given to section 182(1)(g) of the Constitution by the lower tribunal corrupts the of the clear provisions of the Constitution afore-quoted. On the need for clear interpretation of a statute, the learned senior counsel cited numerous authorities in support in particular Notes v. Don Caster Amalgamated Colliercies Ltd. (1940) AC 1014 at 1022, and Ehuwa v. O.S.I.E.S. (2006) 18 NWLR (pt.1012) 544 at 568-5690 also the legal maxims in Blacks Law Dictionary 7th Edition page 1635, Ogbuinyinya V. Okudo (1979) 6-9 SC 32.

Further more and on the pleadings and evidence, the learned senior submitted the trite position of the law wherein parties are bound by their pleadings and issues tried on such pleadings. A number of authorities cited in support include Akpapuna v. Nzeka (1983) 2 SCNLR 1 per Irikefe JSC. That the pleadings of the petitioner had failed to state certain salient, crucial and mandatory facts as revealed in the case of Momoh v. Okewale (1977) 6 SC 81. Learned counsel argued that the State Civil Service Commission can neither appoint nor dismiss nor demand for or accept letter of resignation from a commissioner and/or Chief of Staff directly appointed by a Governor of a State. The learned senior re-affirmed that the proof ought to be a matter of evidence establishing the facts which must first have been averred on the pleadings. Reference was made to the deposition of one Dr. Rex Oluka at page 716-717 of the record of appeal and who, the counsel argued was never called as a witness. For the definition of a public office, the learned senior counsel drew the court’s attention to the case of Dada v. Adeyeye (supra) at page 99-101. Another related authority is the case of Rufus Alli Momoh v. Afolabi Okewale & Lagos City Council (1977) 6 SC 81. Learned counsel further garnered that the period of one month as defined by section 18(1) of the interpretation Act Cap.123 Laws of the Federation 2004, is very explicit. In other words “month” – means a calendar month reckoned according to the Gregorian calendar.”

That by pleading one month instead of 30 days, the petitioner has failed to situate its complaint within the meaning and intendment of section 182(1)(g) of the Constitution and has therefore failed to activate that section of the Constitution against the 1st and 2nd respondents to warrant their entering into their defence; yet the Tribunal, believed these pleadings upon which no evidence was led to hold that the 1st and 2nd Respondents were not qualified to contest the election in issue. The learned senior in further support cited the case of Yabo v. Kajiji (2004) 43 WRN 93 at 112-113 and monumentally distinguished same with the case at hand. That the lower tribunal in its deduction misplaced the burden of proof and wrongly shifted same on the appellants. That the tribunal in discountenancing Exhibits LC1, LC2 and LC3 said the Exhibits were neither pleaded nor attached to the appellants’ reply. Yet the same tribunal countenanced the evidence of PW5 and Exhibit “HS” on the issue of “secret Society” thus treating the Applicants and the petitioner under different standards, one preferential and the other deferential.

The learned senior on the said combined issues urged that the appeal be allowed as it was by the apex court on the authority in the case of Iheanacho v. Chigere (2004) 17 NWLR (pt.901) 130.

Further still and on the documents exhibits LC1, LC2 and LC3 related supra, the senior counsel argued that they convincingly show that appellants resigned from their respective portfolios; but that the lower tribunal strangely discountenanced the Exhibits on the faulty ground that there was no evidence of the acceptance of resignation. That the position in law is that while there is a right on an employee to resign from his office, there is no discretion on the side of the employer to refuse the resignation. Cited in support is the case of Yesufu v. Governor of Edo State (2001) 13 NWLR (Pt.731) 517. The counsel urged that issues (ii) and (iii) be resolved in favour of the appellants.

Issues (iv) and (v) were also argued together by the appellants and both were all taken along with issues (ii) and (iii) as it is supra and argued simultaneously by the 1st respondent as their issue 4.

The 1st respondent also considered their issues 2 and 3 together; and while the former responded to appellants issue seven, the latter was to issue five. From all the various issues, the most crucial are the twin grounds alleging non-resignation and belonging to Okija secret society as well as the effect of the consolidation. It would be pertinent therefore to proceed to take the appellants submission on the said issues (iv), (v), and (vii) along with issues (ii) and (iii) which were earlier taken. This is convenient as a result of the co-interrelation between all the issues.

Having considered the arguments by the appellant’s senior counsel on issues (ii) and (iii) therefore, he submitted that issues (iv) and (v) are novel. This he argued because they touch on and relate to the membership of a secret society within the con of section 182(i)(h) of the Constitution. That the 1st of the kind of such allegation was the case of Falae v. Obasanjo (1999) 4 NWLR (Pt.599) 476 and which same allegation was eventually abandoned. That in dealing with this issue, consideration has to be taken of the term “membership of any secret society” within the narrow definition of section 182(1)(h) read together with section 318(1) of the Constitution, followed by a consideration of the phrase by juxtaposing it with the petitioner’s pleadings vis-a-vis admissible evidence before the lower tribunal. That the Constitution leaves no one in doubt as to its own definition and perception of a secret society and also that when the Constitution has made specific provision (on, in this wise definitions on a particular issue), no one, not even the National Assembly can add or subtract from it. Cited in support is the case of Attorney General of Abia State v Attorney General of the Federation (2005) 12 NWLR (pt.940) 452 at 503. That with reference to the Petitioner’s pleading, there is nowhere he pretended to be basing its allegations within the con and contemplation of the constitution. Reference was made to paragraph 1(c), (i), (ii) of the petition and emphasis was specifically drawn to the phrase:

“to the detriment of the legitimate interest of those who are not members.”

The learned senior submitted the weighty nature of the foregoing phrase and which places much burden on a plaintiff, in this case the petitioner, who ought to have pleaded all the negative atrocities associated with the membership as alleged. That whatever evidence had been led outside the pleadings of the petitioner at the lower tribunal goes to no issue as re-stated in the case of Hashidu v. Goje (2003) 15 NWLR (pt.843) 352 at 380.

The learned senior urged that every evidence on record traceable to PW5 relating to what he said on Okija secret society should therefore be expunged. That the Okija secret society as pleaded in the petition is not in tandem with the secret society defined by the constitution. That what is pleaded in the petition and interchangeably used in the evidence of PW5 is the Okija Shrine. That a Shrine cannot constitute or metamorphose into a secret society. For clear expatiation, the learned senior drew our attention to paragraphs 27 and 28 of the 1st and 2nd respondents reply to the petition which amounted to a total denial. That the response also revealed the absence of anything like Okija secret society within the definition of secret society, either constitutionally, grammatically or in mundane terms.

The learned senior counsel in further submission related to the judicial pronouncements on Okija Shrine with specific reference to the celebrated case of Onyenge v. Ebere (2004) 13 NWLR (pt.889) 20 where the issue of Okija Shrine was extensively considered at great extent more than ever pleaded, anticipated, submitted and envisaged by the petitioner at the lower court including but not limited to the taking of oaths at the Shrine by the juju priest, redeeming pledges, appearing before the Shrine and juju in their regalia and came to the conclusion that it is a customary arbitration Shrine recognized as such by the entire people of the South Eastern States of Nigeria and whose decisions are binding on them. That were the Okija Shrine to be a secret society as envisaged by the constitution or at all, the Supreme Court would not have hesitated to so pronounce as it did in the case of Awoniyi v. Registered trustees of Amorc (1990) 6 NWLR (pt.154) 42 at 47. That the judgment of the Supreme Court in Ebere case is binding on all courts in Nigeria and that the failure of the lower tribunal to apply it amount to a breach of the sacred doctrine of stare decisis, to say the least. That one is at a loss as to why the lower tribunal refused to follow and/or apply the judgment of the Supreme Court on this same issue.

While considering the effect of the Practice Direction vis-a-vis the evidence of PW5, the learned senior submitted the former forces of law have vitiated the effect of the testimony of PW5. In other words, that in the absence of the petitioner failing to attach the sworn testimony of PW5, the appellants herein (as Respondents at the lower Tribunal) could not have responded to it. That there is no provision of the Electoral Act which permits a Respondent to reply to a petitioner’s replied.

That the 1st – 3rd respondents before the lower tribunal (with 1st and 2nd Appellants as the 1st and 2nd Respondents respectively) filed their reply to the petition on the 6th June, 2007 while the petitioner filed its petitioner’s reply wherein it grafted the sworn testimony of PW5, on 19th June 2007 – long after the time allowed the 1st and 2nd petitioners/respondents to file their reply, had expired. Counsel strongly submitted that by the combined effect of paragraph 14(2)(a)(i) of the First schedule to the Electoral Act 2006 and 4(10(d) of the same schedule supra, to introduce the evidence of PW5, at a time the Respondents/Appellants had lost their right in law to amend their reply to introduce substantial facts in answer to the vastly unpleaded facts contained in the sworn testimony of the PW5 is to say the least, prejudicial and unfair. That on the authority of the case of Obong v. CBN (1993) WSCLJ 268 at 284, it was held that a reply is not necessary if the only purpose is to deny the allegation in the defence. Also in the case of Adeniji v. Fetuga (1999) 5 NWLR (Pt.375) at 391 it was held further that a plaintiff should not raise a new cause of action in the reply and that a reply must not also plead facts different from the allegations in the statement of claim; that where this rule is breached, it has now been held that the plaintiff is making a departure and/or that the said reply has departed from the statement of claim. The case in point is Herbert v. Vaughan (1972)3 All ER 122. That there is no gainsaying the fact that the evidence of PW5 constitutes a new fact specifically prohibited by paragraph 14(1); that it is an illegal evidence and the lower tribunal was in serious error to have held that the testimony was filed within time and that there was no need for any application to comply with the provision of paragraph 14(2)(a)(1) of the first schedule to the Electoral Act, 2006. That the admission of exhibit “HS” is in breach of the provision of paragraph 41(5) of the Practice Direction which provision is mandatory. That the lower tribunal has no jurisdiction to transfer and/or transplant such evidence to EPT/GOV/ 4/2007.

The learned senior counsel also submitted succinctly on the failure of the respondent to tender the purported register of members of Okija Secret Society. In his continued submission the counsel emphatically argued that if it was true that the Okija Secret Society maintains a register of members and considering the fact that PW5 claimed to be its secretary and who keeps the register, that he would have enthusiastically brought and tendered same. That having alleged, that Okija secret society has a register which is documentary, PW5 was therefore precluded from giving oral evidence in the said Okija matter. The senior cited the provision of section 132 of the Evidence Act thereof. That the law remains constant and irreversible to the effect that withholding the said register is fatal to the petitioner’s case and has dealt a deadly blow to its allegation.

That this obviously accords with reason especially considering that the provisions of section 182(1) of the constitution 1999 being penal in nature and therefore requires proof beyond reasonable doubt. Reference in support was again made to the case of Okotie-Eboh v. Manager (supra).

In resolving the issues, the learned senior urged that this court take the following points into consideration:-

“(a) The petitioner pleaded the membership register of the alleged Okija Secret Society and undertook to produce it to show that it contained the name of the 1st Respondent.

(b) The Petitioner did not plead any facts of any alleged ceremony held in 2006.

(c) The Petitioner subpoenaed the Inspector-General of Police to produce certain documents and he did. The purported Register was not one of the documents which he was required to produce.

(d) No person is permitted in a court of law to plead one case and then argue an entirely different case. The Petitioner was duly bound to produce the very documents which it pleaded and which it made the basis of its assertions against the 1st Respondent. See Elias v. Omo-Bare (1982) All NLR (Pt.1) Vol.1, 70.

(e) The PW5 called his so called Secret Society Ogwugwu Apku Shrine. The Respondent contends that Ogwugwu Akpu is the Okija juju specifically involved in the case of Onyenge v. Ebere (2004) 13 NWLR (pt.889) 20, which the Supreme Court found to be a customarily accepted Jural juju in Igbo land.”

The learned senior counsel while submitting further posed a question whether there is any law in existence pronouncing Okija Shrine as a secret society? Responding negatively to the question, the senior submitted the absence of any single known statute, either in form of an Act of the National Assembly, Decree, Law of Abia State House of Assembly or Edict which has prohibited Okija Shrine as a secret society. That the issue is a very serious one which needs penal prohibition. That sect ion 62(2)(ii) of the Criminal Code which talks of unlawful society is in contra-distinction to a secret society. That section 65(1) of the same criminal code also provides that a prosecution for an office under sections 63 and 64 shall not be instituted except with the consent of the Attorney General. The senior submitted the absence of evidence that even if the words “unlawful society” and “secret society” are inter-changeably used, any member of Okija secret society has been prosecuted and sentenced. The senior quickly sounded a note that the ingredients of unlawful society as defined by section 62(1) of the Criminal Code are far different from the simple definition of a secret society, in the Constitution, with the former presupposing a wider geographical nefarious activities; and that the result of the grave definition gives the president under the provision of section 62(2)(ii) of theCriminal Code the power to declare such a society as unlawful in any part of Nigeria.

The learned senior argued further that, looking at the situation from any angle or parameter, there is no evidence concrete or otherwise that Okija Shrine is a secret society. That the purported dated and year of initiation of the 1st appellant was not mentioned and more, that his number on the register was not mentioned. That it was, and still remains an allegation brought in almost bad faith and which the learned senior argued constitutes a gross abuse of the processes of the court. Further still, that the decision of the lower tribunal on this issue constitutes a threat to our democracy. The said issues were urged to be resolved in favour of the appellants.

Issue seven is where the appellants questioned the competence of the lower tribunal wherein it consolidated two petitions before it. That is to say EPT/GOV/4/2007 and EPT/GOV/9/2007 and proceeded to allow “calling a single line of witnesses.” That the tribunal did not give judgment for and in each of the two consolidated petitions and/or did not consider each of the two petitions before adopting judgment in one for the other.

In his submission on this issue, the learned appellants, senior frantically argued that the appellants counsel although he objected to the procedure adopted in the calling of the witnesses, he was however overruled. That the matter is complex in that PW5 who was allowed to give evidence starting from page 2711 of the record was not giving evidence in respect of and/or for the party that wrongly front loaded its evidence through the backdoor in a reply, but was giving evidence for another party that did not name him as a witness nor frontloaded its evidence deposition. Counsel made it clear that inspite of a long list of witnesses front-loaded in the two petitions, only eight of them were common to one another. That PW5, as earlier repeatedly stated, was only brought in a reply by the petitioner/1st respondent to the appellant’s reply. That with the nature of the procedure adopted, the lower tribunal was patently in error to have held that it listened to and assessed the two sets of petitioner’s witnesses/evidence. That also latently erroneous is the transplanting of evidence in respect of one petition to the other by the lower tribunal. That equally and further wrong is the failure of the lower tribunal to deriver judgment in respect of the two consolidated petitions. That the very strange and curious arrival on the scene of PW5 has no judicial authority or precedent permitting the type.

Cited in support are the cases of Attah v. Nnacho (1965) 28 NWLR, Nas v. C.H.E. (Nig.) Ltd. (1977) 5 SC 1, Enigwe v. Akangwe (1992) 2 NWLR (Pt.225) 505 and Afoezioha v. Nwokoro (1991) 8 NWLR (pt.615) 393. The learned senior therefore submitted the judgment of the lower tribunal as nullity, with same being a product of two consolidated petitions which were not distinctly or individually considered and evidence in respect of each not evaluated independently of the other. The case in reference is Haruna v. Modibbo (2004) 16 NWLR (pt.900) 487. That there is a world of difference between consolidation of cases and joinder of parties. Cited also in support is Adepoju v. Awoduyilemi (1999) 5 NWLR (pt.603) 364.

The learned senior counsel urged us to treat this purported reply of the petitioners in EPT/GOV/9/2007 through PW5 as was done in the judgment under reference i.e. to strike it out completely. That this, learned senior argued because it is strange, very unusual, highly incongruous, undoubtedly over reaching and impermissible in law and procedure. The senior called on the court to resolve this issue also against the petitioners/respondents.

As earlier stated and by the interrelated nature of the issues and submission of counsel, the 1st respondent’s issues 2, 3 and 4 would also be taken together in response to the appellant’s issues (ii), (iii), (iv), (v) and (vii) thereof.

Taking issues 2 and 3 together, the 1st respondents senior counsel gave the sum total of the complaints by the appellants of alleged procedural infractions committed by the trial tribunal in its dealing with the propriety of the evidence of PW5 and the failure to deliver two judgments after the petitions had been consolidated.

The learned senior submitted as too late in the day for the appellants to complain about the competence of the PW5 to testify in the proceedings.

This he argued because the issues had been comprehensively decided in an interlocutory decision. That no leave of court or extension of time has been secured to appeal against that decision, which he submitted therefore stands. Counsel cited in support the case of Ede v. Omeke (1992) 5 NWLR (Pt.242) 428 at 434 and Out v. A.C.B. International Bank Ltd. (2008) 3 NWLR (Pt.1073) 179 at 199. He further intimated that it is too late in the day for the appellants to complain against the competence of the PW5 as a witness. That notice was given about his evidence, with reference thereon on that behalf being made to pages 1125 of the records for Respondents Reply in ABS/GOV/EPT/4/2007 and page 1476 of the records for the (2nd set of petitioners) Reply which clearly notified the appellants that a witness will be called to give evidence of the 1st appellant’s initiation into a secret society. Further reference was made to the appellant’s position at trial on the issue of the petitioner’s single line of evidence, in particular the pronouncement made by the INEC’s learned counsel Livy uzonkwu (SAN) wherein he was recorded at page 271 of the record. That the appellant’s who were duly represented by counsel acquiesced. Learned counsel proceeded and emphasized that when a party has consented to a procedure at the trial he cannot turn round on appeal to complain against it. The case of Awuse v. Odili (2005) 16 NWLR (pt.952) 416 at 480 was cited in support and submitted that the appellants were not taken by surprise over the evidence of PW5, but had ample notice thereof. Furthermore, that the evidence the sworn testimony of PW5 was properly before the tribunal in so far as it was duly filed and served. Learned senior cited the case of Abubakar v. Yar’Adua (2008) 4 NWLR (pt.1078) 538 at 543.

In his further submission in the event that this court finds that there was a procedural irregularity arising from non attachment of the PW5’s witness statement to the petition but to the reply and other procedural complaints, the counsel argued that this does not vitiate the proceedings, because there was no miscarriage of justice and no party was therefore prejudiced. That the use of the front loading system is relatively new and is not yet a nation wide practice although some jurisdictions are already interpreting its provisions. Learned senior cited in support the decision of the Ilorin Division of this court in the case of Olaniyan V. Oyewole (2008) 5 NWLR (pt.1079) page 144 at 139-140.

On the issue of consolidation, the learned senior argued that assuming that only one judgment was indeed delivered, which counsel did not concede, that it is not for the appellants who did not suffer prejudice to complain but the respondents. That it was not necessary to deliver multiple judgments as the reference by the court to the fact that a judgment applies to other consolidated suits will suffice. Cited in support was the case of Nkanma v. Odili (2006) NWLR (pt.977) page 587 at 600-601 also the case of Uba v. Etiaba and 653 ors. (2008) 6 NWLR (pt.1082) p.154 at 187 a decision of this court. The learned senior submitted that issues 2 and 3 be resolved in their favour in the absence of any miscarriage of justice suffered by the appellants.

Submitting on their issue four (4), the learned senior further argued that the same is in reality the crux of the appeal as it attacked the conclusions of the tribunal below on the two grounds of qualification of the appellants to contest the election in issue.

On the issue of 1st respondent being a member of a secret society, counsel argued the appellants seeking to make the issue of membership of a secret society as one that requires proof akin to one establishing that he has been called to the Bar or that his name is enrolled in the register of medical practitioners. That the Constitution and decided cases do not place such a high standard on a personal matter such as being a member of a secret society. That it is a matter of choice for a person to belong to a secret society. That the Constitution does not render it a criminal offence for one to belong to a secret society and that section 38 of the said Constitution only prohibits it without prescribing a punishment. That the prohibition is only a limitation to the otherwise infinite freedom of association. That secret societies, fraternities, confraternities and other like associations that fit the description of the Supreme court in Registered Trustees of ARMOC v. Awoniyi (1994) 7 NWLR (pt.355) 154 at 178 where the Supreme Court held that “secret society or association under section 35(4) of the 1979 Constitution means a society or association not being solely cultural or religious body, that uses secret signs, oaths, rites or symbols, whose greeting or other activities are held in secret and whose members are under oath, obligation or other threat to promote the interest of its members, or to aid one another under all circumstances without due regard to merit, fair play or justice” are registered in some cases. That the definition in section 318 of the Constitution does not require registration as a mandatory character and attribute. That the appellants simply miss the point that a constitutional democracy is run on the engine of honour, fair play equity and constitutional observance. That every elected governor takes the oath of office and allegiance to the constitution as stipulated in the appropriate schedule to the said Constitution.

That the central obligation arising from the oath sworn solemnly on one of the Holy Books in the open view of the whole world is that the person taking the oath will be loyal and faithful to the Federal Republic of Nigeria and bear true allegiance to the requirements and dictates of his office. That what the constitution frowns at and indeed disapproves of is the existence of allegiance to any other association. That the object of the Constitution in section 182 has been pronounced upon by the Supreme Court in Amaechi I.N.E.C. v. supra at page 305. That relating to legal proof of membership, no one is required to produce a register of membership or any other formal evidence: That it is a simple matter of election and political honesty. That the secret nature of the organizations as such the law does not require their registration under the Companies and Allied Matters Act or the registration of those signs and signals referred to by PW5 under the trade marks or copyright legislations. That what was on the record was a simple unadulterated unchallenged evidence of his membership of a secret society. That in the absence of the 1st appellant giving evidence in denial, they were deemed to have abandoned the denial in their reply that he, the 1st appellant as 1st respondent at the trial, is not a member of a secret society in the absence of any evidence to support the pleadings. That the appellants have missed the point being made which is whether or not it is the same Okija Shrine, which PW5 referred to as a secret society to which allegiance is first among members which is also a cultural arbitration centre, is a matter that must be established by credible evidence, which is lacking. The issue whether or not Okija Shrine harbours a secret society never came up for decision by the apex court in the case of Onyenge v. Ebere (supra); and whether or not the Shrine is synonymous with the society was also never discussed or decided in that case.

On the evidence of PW5 learned senior re-iterated the witness’s testimony that the Okija secret society exists and that he is a member. He also testified that the 1st Respondent (now 1st appellant) T. A. Orji is also a member. With that being the only evidence, it therefore weighed on one side of the scale, with no evidence on the other arm of the scale to compete therewith.

On the failure to produce the register of members of the Okija Shrine, counsel argued that the entry of the name of a person in a register is not part of the constitutional definition of membership of a secret society. That reliable oral evidence if unchallenged is sufficient on the matter of such membership. That non-production of the register does not vitiate the evidence. That the witness PW5 under cross examination confirmed that the appellants are the leaders of their secret society. That Exhibit “HS” the video tape presented the visual evidence of a fact which the PW5 visually identified to the tribunal as the special initiation of the 1st Respondent into the Okija Secret Society. That the witness PW5 therefore gave direct eye witness evidence on Exhibit “HS”, which in itself is a fact relevant to a fact in issue. That unlike the video tape in Madueke v. Okoroafor under reference supra, in this case, PW5 gave direct evidence of the content of Exhibit “HS”, which was played in the open court to the view of the bench, the bar and the gallery.

On whether or not the ingredients of membership of a secret society was proved as required by sections 182-(1)(h) and 318 (1) of the (1999) Constitution, the senior submitted that a society will be secret if it manifests the characteristics (a) listed under the definition and if it (b) is formed to promote a cause, the purpose of which is to foster the interest of its members and to aid one another under any circumstances without due regard to merit, fair play or justice, to the detriment of the legitimate interest of those who are not members; and (c) if the membership is incompatible with the function or dignity of any public office under this Constitution, and (d) whose members are sworn to observe oaths of secrecy. That the decision as to incompatibility with the function or dignity of any public office under the constitution is objective. That it will be determined by what a reasonable person will consider being unbefitting to the public office of a governor. That PW5 confirmed that 1st appellant is the one in Exhibit “HS” and yet he chose not to at least make an effort to come and deny that fact. That despite the vicious attack mounted by the appellants against the evidence of PW5 the trial tribunal at the end of the day still found him as a truthful, material and relevant witness. Counsel submitted that this court had no opportunity at all to have watched and assessed that witness under the same circumstances. That it is not therefore open for this court to substitute its views based on the perception of the appellants and conclusions in place of the findings and deduction of the tribunal below on the credibility of the PW5 which was derived from their observation of the demeanour of the witnesses. A number of authorities cited in substantiation were: Ozuruoke v. Okolie (2000) 1 NWLR (pt.642) 569 at 575; Nnadozie v. Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 381-382; and Uba v. Ukachukwu (2004) 10 NWLR (Pt.881) 224 at 256-257, 259-260 and 270.

On the disqualification of the appellants because they did not resign their position 30 days before the elections, the learned senior submitted an obvious flow in the appellants’ arguments. In other words in their assumption that since the offices of “Civil Commissioner” and “Chief of Staff” are not mentioned in the definition and classification of public officers in section 318, the occupant of these offices are not civil servants. That nothing can be further from the truth as the proper and indeed correct interpretation is that the category of offices or officers in the public service of a state or federation is not closed. That the word ‘include’ which prefixes the various offices identified affirm that the list is not closed and that any person who draws remuneration from the executive arm of government through tax payers’ funds is a public officer.

Learned senior further submitted the common ground in of the pleadings the parties that the 1st and 2nd respondents were both in the public service of Abia state in the respective capacities of “Chief of staff to the Governor” and “Civil Commissioner” prior to the election. That issues were therefore only joined as to whether or not they duly resigned at least thirty days to the date of the election. That the 1st petitioner as PW1 led evidence qua(sic) his sworn depositions which were admitted in evidence led in support of the pleadings. That the petitioners thus introduced evidence which if believed would require rebuttal from the Respondents. That the 1st Respondent never adopted any deposition either in this petition, nor did he testify. The 2nd Respondent filed a sworn deposition which is Exhibit “LB” in these proceedings but that he never mentioned a word about any fact which relates to the issue of resignation. That proceedings in this petition are regulated by the Practice Direction which elaborately prescribes the procedure by which evidence shall be led. Reference was subscribed to paragraph 4(1) and (3) of the said Practice Direction and which counsel argued is enacted in mandatory terms. That the admission of the documents Exhibits “LC1” and “LC2” for the 1st and appellant does not accord them any weight. That no explanation was given as to why he could not be called to testify. Reference was further made to the cases of Bustin Okpara v. F.R.N. (1977) 4 SC 53; Ojukwu v. Governor of Lagos State and Ors. (1985) 2 NWLR (Pt.10) 806 at 818B. That the 1st appellant was not made available for any cross- examination on the content of those documents which related to him. That opportunity for cross-examination is the veritable tool by which a fair hearing is guaranteed in proceedings which are sui interpares. That the documents were a clear manifest an after thought and a deliberate contrivance to defeat justice. That it is not surprising therefore that the lower tribunal did not attach any weight to it. That resignation never takes effect without proof of notification. See the case of Benson v. Onitiri (1960) NSCC Vol. 1 page 52; also section 306(1) and (2) of the 1999 Constitution. That once the petitioners introduced the evidence of non-resignation, the burden as held by the tribunal rightly shifted to the appellants to lead admissible evidence of their respective resignation. That they did not produce admissible and reliable evidence of those letters. That they are therefore caught by section 149(d) of the Evidence Act on presumption of withholding evidence. Reference in support was made to the case of Alalade v. Awodoyin & Ors. (1999) 5 NWLR (pt.604) 529 at 539 to 540 a decision of this court wherein allegations of crime was involved and requiring proof beyond reasonable doubt. Oral evidence was led on the facts pleaded and the affected parties elected not to testify to deny those facts. The court held that the oral evidence satisfied proof beyond reasonable doubt. The learned senior counsel in further submission stressed that the disqualification of either or both of the appellants is mutually destructive to them. See the case of P.D.P V. I.N.E.C. (1999) 11 NWLR (Pt.626) 200 at 239-240.

The learned senior urged us to affirm the trial tribunal’s conclusions on this issue found as a fact and to hold that the 1st and 2nd Respondents did not resign from the public service of Abia State as required by section 182(1)(g) of the 1999 Constitution. That the said issue 4 should therefore be resolved in their favour.

In further submission in reply to the 1st respondent, the appellants counsel argued the absence of any serious contention by the respondents in respect of the very core issues raised in this appeal and which he stressed have been canvassed in the appellant’s brief of argument. Learned senior opined that apart from scratching these points on the surface, the attempt made by the Respondents in addressing these core issues is so bereft of any legal efficacy that this court cannot but accept the argument and submissions of the appellants, together with all the statutory and judicial authorities in support of same. That having failed to offer any legal resistance to these points, they are deemed to have been conceded. The case of Adesanya V. Otuweu (1993) 1 NWLR (Pt.270) 414 at 456 was cited in support. In adopting their earlier arguments in reply to the preliminary objection, the counsel further submitted that the issues raised herein the appeal are more of law than facts such, even if the points were not canvassed at the tribunal, an appellate court can, on the basis of the pleadings and the relevant law, decide the points on the law applicable to such issues. This is without the necessity of the Appellants raising those issues of law in their appeal. That all the legal/constitutional issues involved in this case and as highlighted herein were not considered at all by the tribunal which chose to ignore them completely in reaching its conclusion when it handed down the judgment. That both on the pleadings in the petition and evidence led in support of same, the petition cannot succeed on the core issues herein identified. That the respondent in paragraphs 30 and 31 of its brief totally missed the point made by the appellants about the manner of bringing in the PW5 through a reply and argued that same is a procedural irregularity which was decided at an interlocutory stage. That the provision of the Practice Direction is to guide the trial or this petition. That it is therefore misconceived for the Respondent to try and unwittingly whittle down the provision thereof, made pursuant to the Constitution and which this court has held to be a condition precedent to the presentation and maintenance of an election petition as declared in the case of Buhari v. INEC (2008) 4 NWLR (Pt.1078) 546 at 601. That bringing PW5 through the petitioners reply in EPT/9/2007 at a time when the Respondents/Appellants could not answer to his allegations and to his far-ranging evidence; is unfair and prejudicial to the Respondents/Appellants. See the apex court in the case of Obot v. Central Bank of Nigeria (1993) 8 NWLR (pt.310) 140 at 161.

That in the peculiar provisions of the Practice Directions whereby parties are mandatorily required to front load the sworn testimonies of their witnesses before the respondents could file their respondents, reply in answer thereto, the failure of the petitioners to list PW5 as a witness and to attach his sworn deposition as at the time of filing the petition clearly offends against the principles of fair hearing, and his evidence therefore ought to be expunged. That it is equally an inexcusable fundamental breach of the Practice Directions which governed the hearing of the petition. See the case of Buhari v. INEC supra. The learned senior therefore urged this court to hold that the PW5 was an incompetent witness and to expunge his testimony together with exhibit “HS” which was tendered through him.

In confirming the utter disregard to the provisions of sections 137 and 139 of the Evidence Act, the learned senior relied on the apex courts, decision in the case of Duru v. Nwosu (1989) 4 NWLR (pt.113) 24 at 50. That the misdirection on the part of the tribunal as to the standard of proof required to establish the allegation of non-qualification, obviously led the tribunal to think and applied the standard of balance of probabilities. That the correct standard as shown is proof beyond reasonable doubt which would include the production of the said register of members. Cited further in support is the Supreme Court’s view in Amaechi v. INEC supra at pages 306-307.

On a final note the learned senior counsel submitted that going by the findings of the tribunal, (assuming the findings are unimpeachable, a position not conceded herein) the order of the return of the candidate of the Appellant is not the appropriate one to make. The case of Kangama v. INEC (1993) 3 NWLR (Pt.284) 681 at 715 was cited in support. The senior therefore urged in favour of the allowing of the appeal.

Issues (ii), (iii), (iv), (v) and (vii) are all interrelated, core and compelling. In other words they are all embracing of the allegation of the non-qualification of the appellants to contest the election as candidates on the twin grounds of non-resignation of both appellants from the public service of Abia State at least 30 days to the date of the election, and also that the 1st appellant was a member of the Okija secret society. The issues also circumscribe to the potent reliance on the admissibility of the evidence of PW5 and together with Exhibit ‘HS’ which forms the bedrock of the entire decision of the tribunal. The culmination of the issues concluded with the effect of consolidation of the two petitions EPT/GOV/4/2007 and EPT/GOV/09/2007 and thereby adopting a single line of witness and in particular that of PW5 whose deposition was not front loaded, and consequently also adopting one judgment for the other.

The determination of the twin core issues will necessarily involve the constitutional interpretations of sections 182(1)(g), (h) and also 318. In other words while the status of the offices occupied by the Appellants, and of Okija Shrine as a secret society are both constitutional, the competence of the petition is covered by the Electoral Act with the admissibility of the evidence of PW5 as well as exhibit “HS” being governed by the Evidence Act. The consideration of same would also relate to the pleadings and the evidence adduced.

In the first place, the provision of section 182(1)(g) provides thus:-

“(1) No person shall be qualified for election to the office of Governor of a State if –

(a)…

(b)…

(c)…

(d)…

(e)…

(f ) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election.”

The person so related to must be employed in the public service of the federation or of any state. There must therefore be the proof or evidence of employment of the person so mandated to give notice of resignation. The employment must be in the public service of the federation or any state.

The interpretation of public service of a State has been explicitly explained in section 318(1) of the Constitution to mean:-

“the service of the state in any capacity in respect of the Government of the State and includes service as –

(a) clerk or other staff of the House of Assembly;

(b)…

(c)…

(d)…

(e)…

(f)…

(g)…

With reference to paragraphs “A” 2(a) and (b); and C1 (a)(i)(v); and (b) of the petition; paragraph 4 of the reply of the 1st to 3rd Respondents and paragraph 2(b) of the reply of INEC, it is common ground of in the pleadings of the parties that the 1st and 2nd respondents/appellants were both in respective capacities as the Chief of Staff to the Governor and Civil Commissioner. The reproduction of the relevant paragraphs of the petition questioning the non-resignation at paragraph 6C1(a)(i)(b) at pages 423-424 of the record state as follows:-

“a(i) The first respondent was at all material times a public officer in the public service of Abia State, Between 2006 and 2007 the Economic and Financial Crimes Commission (EFCC) made a finding and reported that 1st Respondent, T. A. Orji conspired with the Executive Governor of Abia State and members of the House of Assembly to embezzle over N5,000,000,000.00 (five Billion Naira) by using the Chief of Staff to the Commissioner of Abia State to divert funds.

(b) Each of the 1st and 2nd Respondents was yet in the public service of Abia State within a period of one month preceding the date of the election. They still earn salaries and allowances from the Government of Abia State. They have continued to retain their accommodation in Abia State Government quarters and their official vehicles. These facts were made known to the electorate during our campaigns. Oral and documentary evidence shall be led at the trial on these facts.”

From the definition at section 318 of the Constitution supra the offices of civil commissioner and Chief of Staff are neither mentioned therein nor in the classification of public officers. While the appellants thereon submitted the occupant of those offices not being civil servants, the 1st respondent submitted a serious misconception especially in the light of the use of the word “include” which he argued prefixes the various offices identified affirm that the list is not exhausted; rather that any person who draws remuneration from the executive arm of government through tax payers’ funds is a public officer.

As rightly submitted and argued by the learned appellants, senior counsel, the establishment of the averments ought to be a matter of evidence. By the deposition of one Dr. Rex Otuka in his sworn testimony at paragraphs 9(xviii) and (xxiv) at pages 716-717 of the printed record he had the following to say:-

“(xviii) The first respondent was at all material times a public officer in the public service of Abia state…

(xxiv) Each of the 1st and 2nd Respondents were yet in the public service of Abia State within a period of one month preceding the date of the election. They still earn salaries and allowances from the Government of Abia State. They have continued to retain their accommodation in Abia State Government quarters and their official vehicles. These facts were made known to the electorate during our campaigns.”

In the case of Dada v. Adeyeye (2005) 6 NWLR (pt.920) 1 at 19-20 this court per Amaizu JCA in the interpretation of the definition of a public office as provided in section 318 of the Constitution held and said:-

“To answer the question, I refer to the provisions of the relevant sections of the law. Section 66(1)(f) of the Constitution provides:

(1) No person shall be qualified for election to the senate of the House of Representative if

(f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.”

The question then is when is a person in the public service of a state? The answer can be found in the definition of the words “Public Service of a State.”

Section 318(1) of the constitution defines the words as –

“Public Service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as.”

From the above definition therefore, it is clear that the Governor of a State is not in the public service of that State within the meaning of section 318 (1). The Deputy Governor, the speaker and all other political office holders are not in the public service of the state.” I am however aware that under the fifth schedule to the Constitution, the definition of public officers, includes political office holders. In my respective view, the definition is only for the purposes of dealing with “Code of Conduct for Public Officers. This fact is clearly brought out in part II of the said fifth schedule. It reads:-

“Part II

Public Officers for the purposes of the Code of Conduct.

1. The president of the Federation
2. The Vice president of the Federation etc.”

Also in the case of Rufus Aili Momoh v. Afolabi Okewale & Lagos City council (1977) 6 SC 81, the issue for determination and decision was whether a driver employed by the Lagos City Council is a public officer. The apex court after considering the evidence adduced in the lower court held that there was no evidence before the High Court that the driver in question was appointed by the Civil Service Commission either of the Federation or of the State of Lagos. It was consequently held therefore that the driver was not a public officer and was not therefore protected by the Public Officers Protection Act.

On the authority of Dada v. Adeyeye supra, and having regards to the definition of the words “Public Service of a State’, as defined under section 318(1) of the Constitution, wherein clerk or other staff of the House of Assembly are specifically listed, the enumeration of non political officers in the Government goes to confirm that the conclusion of one signify the exclusion of the other.

With the petitioners/respondents pleading the appellants being public office holders, the burden and onus is on them to adduce evidence in substantiation of same. It is not enough for instance to plead and rely on the deposition of their witness Dr. Rex Otuka at paragraphs 9(xviii) and (xxiv) supra without more and or calling the witness to testify. The standard of proof to necessitate the onus of proof shifting was obviously not attained by the petitioners.

At page 3664 of the printed record the lower tribunal held and said:-

“It should also be noted that the letters of resignation tendered by the 1st and 2nd Respondents did not bear the date of receipt and/or stamp of the Government of Abia state. There is equally no letter conveying the approval as was held in Dashe v. Bawa (supra).

In view of the foregoing we hold that the 1st and 2nd Respondents have not resigned their appointments and the said documents are hereby expunged from the record of this Tribunal and the ground on disqualification on non- resignation of the 1st and 2nd Respondents is resolved in favour of the petitioners.”

In the case of Yabo v. Kajiji (2004) 43 WRN 93 at 112-113 the petitioner who asserted the fact of none resignation testified and at least tendered exhibit P1 – which the tribunal found to have been mutilated and therefore declined to accord it any weight at all. In distinguishing the case from the one at hand, the petitioner in making assertion, did not as rightly submitted by the appellants counsel call any evidence whether oral or documentary to prove the facts alleged. At page 3649 of the printed record for instance the lower tribunal further had this to say on the evidence of PW1 in petition No. EPT/GOV/4/2007:-

“Having admitted receiving such documents from his agents, this presupposes that he was not present during the making of such documents. It is for this reason that we share and agree with the submission of the learned silk of counsel to the 2nd set of respondents on his branding the entire testimony of PW1 as hearsay.”

Section 135(1) of the Evidence Act Laws of the Federation of Nigeria 1990 reproduced states as follows:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”

The duty lies on the petitioners to prove that the appellants were in fact public officers within the meaning of section 318 of the Constitution. Further more and deducing from the decision of this court in the case of Yabo v. Kajiji supra, the law is trite that for standard of proof required to attain, the petitioner must lead specific evidence to prove the facts that the 1st and 2nd respondents/appellants were in the public service and were receiving salaries. The mere assertion without more is not sufficient. The lower tribunal for instance at page 3663 of the record, held and said:

“We hold that it is not for the petitioners to provide documentary evidence of the non-resignation in question as argued by the Respondents. The burden which is on preponderance of evidence has shifted to the Respondents the moment the petitioner’s evidence from PW1 is before this Tribunal. The PW1 testified to the fact that the 1st and 2nd Respondents remained in the public service of Abia State Government by using official vehicles remaining in Government quarters and collecting salaries. It is for the 1st Respondent to rebut such evidence.”

It is noteworthy to restate also that the tribunal while at page 3649 of its judgment in petition No. EPT/GOV/4/2007″ branded the entire testimony of PW1 as hearsay;” penultimately in the same judgment, it was yet the evidence of the said PW1 that was believed to have established the allegation that the 1st and 2nd respondents did not resign from their respective offices. Relying on the case of Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, it was not open for the lower tribunal to have picked or chose.

By the provision of section 137(1) of the Evidence Act and as rightly submitted and argued by the learned appellants’ senior counsel, the burden of proof to establish the ingredients of the assertion that the appellants were in the public service of Abia state was on the petitioners. In other words and again relying on the authority of Yabo v. Kajiji (supra) the onus was on the petitioner to tender the pay slip of the appellants, their bank statements where salaries were credited, the vehicle numbers of the official cars retained, the number and description of official quarters which they occupied. The absence of such extent could not have shifted any onus to the appellants under section 137 of the said Evidence Act. Rightly so therefore, the burden of proof of all the foregoing fundamentals was squarely placed on the petitioner as provided by section 139 of the same Evidence Act.

Again and as rightly submitted by the appellants counsel, the lower tribunal with all respect misplaced the burden of proof and wrongly shifted the same on appellants. In support is the authority in the case of Iheanacho v. Chigere (2004) 17 NWLR (pt.901) 130 wherein at page 152 the learned jurist Onu (JSC) on the misplacement or misconstruction of burden of proof held and said:-

Beside, looking at the judgment in totality, it will be observed that the trial judge misconceived the placing of the evidential burden under the grave error that the burden of proving that they were entitled to the ownership was on the Appellants. See the case of Akinkunmi v. Sadiq (1977) 8 NWLR (Pt. 516) 273) at 291 where it was held that where a court misplaces the onus of proof on the wrong party thus erroneously shifting the burden placed by law under section 136 of the Evidence Act, Cap.22, Laws of the Federation, then the judgment ought to be set aside. See UBN Ltd. v. Osezuah (1977).”

As rightly also submitted and argued by the learned appellant’s senior counsel, the respondent’s arguments have been squarely directed at proof of resignation without first addressing whether appellants fall under the category of civil or public officers who are mandated to resign before seeking political office. The failure to first establish the latter before embarking on the former would in my humble view amount to putting the cart before the horse. The absence of belonging to the category would not necessitate resignation. The provision of section 360(1) and (2) of the Constitution reproduced state as follows:-

“360(1) Save as otherwise provide in this section, any person who is appointed, elected, or otherwise selected to any office established by this constitution may resign from that office by writing under his hand and addressed to the authority or person by whom he was appointed, elected or selected.

(2) The resignation of any person from any office established by this constitution shall take effect when the writing signifying the resignation is received by the authority or person to whom it is addressed or by any person authorize by that authority or person to receive it.”

Throughout the constitutional provision reproduced and under reference supra, there is no where that the office of the Chief of Staff to the Governor or Commissioner is mentioned. In other words, the offices are not creations of the Constitution and so cannot apply to them. A clear cut confirmation is obvious in section 192 of the Constitution wherein it states:-

“192(1) There shall be such offices of commissioners of the Government of a State as may be established by the Governor of the State.”

The existence of the office of the commissioner of a state as clearly designated is at the pleasure of the Governor who chooses to establish same as he desires and pursuant to section 208 of the Constitution. In other words, the holder of the office is at the pleasure of the Governor and which ceases to exist when the office of the Governor ceases, vide section 208(5) of the same Constitution.

It is obvious therefore and contrary to the contention of the 1st respondent’s counsel but as rightly submitted by the appellants senior counsel that by the combined reading of sections 208(2)(d) and (5) and 192 of the Constitution, a clear revelation shows that the offices of Chief of staff to the Governor (who is the head of the personal staff of the Governor) and commissioner of the state, which the Tribunal found the appellants to be holding respectively, in the service of Abia state, were political offices as against public service offices. The proviso to section 208(5) gives a further confirmation that:-

“Where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.”

In the case of Registered Trustees PPFN v. Shogbola (2004) 11 NWLR (Pt.883) 1 the Court of Appeal in the determination of a public service offices at page 20 amongst others reiterated the nature and characteristic of the following factors which must co-exist:-

“… namely that the office was created by the constitution, statute or other enabling legislation, secondly that its function, duties and power are as defined by law and other regulations; thirdly that the position must show some permanency.”

An apparent and distinguishing factor is the permanence in the public service, as against the temporary nature of political offices.

On the totality of the foregoing therefore, the office of Chief of staff to the Governor (which is an office in the personal staff of the Governor according to section 208(2)(d) and (5) of the Constitution) and commissioner of the government of the state (which is a political appointment according to sections 192 and 193 of the Constitution) are not public service offices to which section 306 of the Constitution requiring resignation, apply.

Further more and on the allegation against the 1st appellant being a member of the Okija secret society the provisions sections 182(1)(h) and 318 of the Constitution of the Federal Republic of Nigeria are crucial. On the one hand the former section which prohibits a person who is a member of a secret society from contesting an election states as follows:-

“182(1) No person shall be qualified for election to the office of Governor of a State if:-

(a)…

(b)…

(c)…

(d)…

(e)…

(f)…

(g)…

(h) he is a member of any secret society.”

On the other hand section 318(1) defines secret society to include any Society, association, group or body of persons (whether registered or not)

“(a) that uses secret signs, oaths, rites or symbols and which is formed to promote a cause, the purpose or part of the purpose of which is to foster the interest of its member and to aid one another under any circumstances without due regard to merit, fair play or justice, to the detriment of the legitimate interest of those who are not members.

(b) the membership of which in incompatible with the function or dignity of any public office under this constitution and whose members are sworn to observe oaths of secrecy; or

(c) the activities of which are not known to the public at large, the names of whose members are kept secret and whose meetings and other activities are held in secret.”

From the definition and perception of a secret society, supra, what is paramount is the use of secret signs, taking of oaths, performance of rites, and whether the society has been formed to promote a cause, to further the purpose of its members amongst others and which is to the detriment of the legitimate interest of those who are not members.

The learned 1st respondents’ counsel submitted that the case at the trial was fought within the ambit of pleaded facts and that 1st appellant failed to call any evidence to rebut the mass of evidence stacked against him leading to the inevitable conclusion that he was indeed a member of a secret society. Further more, that the Constitution and decided cases do not place such a high standard of proof on a personal matter such as being a member of a secret society. That they are not criminal organizations like the Odozi-Obodo society in the Colonial Eastern Nigeria whose sole objective was in the apprehension and elimination by death of all persons caught stealing. Further more that no one needs to establish that it is a vicious or criminal organization or that it is proscribed or contained in the list of illegal or criminal associations. Learned senior cited the object of the constitution in section 182 as pronounced upon by the apex court in Amaechi v. INEC supra wherein it was held at page 305 thus:

“The aim of section 182(1)(i) of the 1999 Constitution is to ensure that only persons of impeccable character and integrity are eligible for the office of a governor of a State. It is to ensure transparency and high standard of probity in governance.”

Counsel further submitted that as it relates to legal proof of membership, no one is required to produce a register of membership or any other formal evidence.

At paragraph I(c), (i), (ii) of its petition at page 425 of the printed record, the petitioner pleaded and said:-

“(c)(i) The 1st respondent is a member of a secret society. The petitioner shall call oral and documentary evidence of his initiation into the Okija secret society.

(ii) Initiation into the said secret society involved the stripping of the 1st respondent up to only his pants and his submitting himself to the Chief Priest of the secret society bound in chains while a live cockerel was wielded over his head and around him.”

In summary, the petitioner’s pleading is to the effect that the 1st appellant was a member of Okija secret society. Section 318(1)(a) of the Constitution reproduced supra, contemplates list of hosts of ingredients which proof ought to be by evidence. In other words, the weighty nature of the requirement no doubt and as rightly submitted by the learned appellants, counsel, places much burden on the petitioner, who should not only plead the facts listed but also to assert same by evidence. For instance, there is nowhere contained in the petition that the membership of Okija secret society is incompatible with the dignity and function of any public office. There is also no pleading stating that the activities of the Okija secret society are not known to the public at large or that the names of its members are kept in secret, while meetings and other activities are held also in secret. The submission by the learned 1st respondent’s senior counsel that the case at the trial was fought within the ambit of pleaded facts is in my humble opinion far fetched. It is trite law and very elementary that parties are bound by their pleadings

The 1st and 2nd respondents/appellants in their reply to the petition at paragraphs 27 and 28 averred and said:-

“27. Paragraph 6C(c)(i) of the petition is false. It is denied.

The 1st Respondent is not a member of any secret society.

In any event there is not secret society known to the law as Okija secret society and the 1st Respondent is not a member of any such society. At the hearing of his petition, the Respondents shall pray the Tribunal to strike out paragraph 6C (C)(i) of the petition for being incompetent and that the tribunal lacks the jurisdiction to delve into the matter, the petitioner’s having failed to comply with section 32(4) of the Electoral Act, 2006.

28. The 1st Respondent not being a member or an initiate of any secret society cannot answer to paragraph 6c(c)(ii) of the petition. The 1st Respondent however emphatically denies that he ever under went any form of initiation into any secret society.”

A clear-cut question that arises from the foregoing revelation is: what is a secret society? The meaning and definition which is well spelt out in the provision of section 318 of the Constitution and reproduced supra. The determination of whether or not Okija Shrine is a secret society and therefore caught up by section 182(1)(h) is solely dependent upon the interpretation of section 318 as to whether it comes within the definition of the section thereof.

By the appellants denying the allegation of belonging to a membership of a secret society in paragraphs 27 and, 28 supra, they have specifically joined issues with the petitioners/respondents on the denial of non existence of any secret society known to law as Okija secret society and/or his initiation to either such society or any secret society at all. It is pertinent to restate that by the respondents/appellants paragraph s 27 and 28, supra, they were merely denying an allegation, which was alleged by the petitioners/respondents. The onus therefore explicitly rested on the petitioners at the trial who were the proponents of the allegation to prove the existence of Okija Shrine secret society within the meaning of the constitution and to further demonstrate that 1st appellant was in fact initiated and became a member.

The respondent submitted on the denial by the appellants of secret society membership amounting to abandonment in the absence of any evidence in support of the pleadings thereof. This in my humble opinion is with all respect misconceived and misplaced, as it was not for the appellants to disprove the allegation of their membership but rather, it is for him who asserts to prove. That burden lay weighty on the respondent. The learned respondents counsel sought to clinge to the evidence of PW5 and his sworn deposition. With all greatest respect, the deposition and evidence of PW5 as a witness would have held water and substance if and only if same was pursuant to facts pleaded on the pleadings, the absence which the evidence have no basis but only floating in the air and would have no resting place. The cases of George and 2 others v. Dominion Flour Mills Ltd. (1963) 1 ANLR 71, NIPC v. Thompson (1969) NMLR 99 are relevant.

In the case of Akpapuna v. Nzeka (1983) 2 SC NLR 1, for instance, Irikefe JSC held and said:-

“It is trite law that issues are tried on the party’s pleadings and the parties are to be bound thereby. My understanding of the correct legal position is that a defendant in a civil action is not obliged to walk blind folded through a booby trapped and uncharted minefield in order to discover at the end and thereof what case he has to meet.”

Also in the case of Hashidu v. Goje (2003) 15 NWLR (pt.843) 352 at 381-382, 389, this court in summary held that a lower court has power and duty to expunge wrongly admitted evidence from the record at the stage of judgment. The court further held that an appellate court has the bounding duty to expunge inadmissible evidence improperly admitted and by trial court decided the case on admissible evidence even when no objection has been raised. See also case of Alashe v. Olori-Ilu (1965) NMLR 66; Ajayi v. Fisher (1956) SCNLR 279; and, UBN v. Ozigi (1994)3 NWLR (pt.333) 385 wherein the apex court upheld the judgment of this court which in turn upheld the judgment of a trial High Court per Olagunju J. (as he then was and of blessed memory) whereby an inadmissible evidence was expunged at the stage of judgment even though it was tendered and admitted without objection. The apex court upheld the propriety which in the absence both the Court of Appeal and itself would have had the jurisdiction to expunge.

As rightly submitted and argued by the learned appellant’s senior counsel, contrary to the submission by the 1st respondent’s counsel, the evidence of PW5 to what he said on Okija secret society, whether in terms of meetings, seeing 1st appellant at their meetings, oaths administered, signs of members and the like, are not facts derived from the pleadings of the petitioners. They do not as it were have any nexus or sintila of connection with the petitioner’s pleadings.

In the absence of coming within the definition of section 318 of the Constitution by short of qualifying as a secret society, as rightly in my view and submitted by the learned senior for the appellants, the Okija secret society from all facets of life as pleaded in the petition is not in tandem with the secret society defined by the constitution.

The chambers Dictionary (New Edition) published Allied chambers Limited defines Shrine which is distinct from secret society and it means:-

“the tomb of a saint or other holy person; a place hallowed by its association with a sacred object or person, a niche, alcove or shelf for a religious image.”

PW5’s sworn testimony at paragraphs 6, 7 and 9 reproduced said:-

“6. That I am the Registrar or Secretary of the Ogwugwu Akpu or the Okija secret society/the Okija Shrine and as such I keep some of the records of the society/Shrine.

7. That as secretary of the Ogwugwu Akpu Society Shrine, I am familiar with the procedure for membership initiation ceremonies and other activities and rules of the Ogwugwu Akpu Society and Okija Shrine or the Okija secret society.

8…

9. That membership of the Ogwugwu Akpu society the Okija Shrine entails a number of procedural steps and initiation ceremonies and the registration of or the entering of the name of the intending or new member into the register of membership of the Ogwugwu Akpu Society by the Secretary i.e. myself.”

With the cumulative definition of the word Shrine, as defined by Chambers Dictionary, and also the evidence of PW5 reproduced supra, the collective deductive similitude do not bring Okija Shrine or Okija secret society within the meaning of the constitution. In other words Okija secret society does not by any sintila or iota of deduction connote a type kind secret society within the clear meaning of constitutional provision as defined by section 318 of same supra.

It is only after the establishment of the basic ingredients of definition under section 318 that the onus will turn and shift onto the appellants to rebut the 1st appellants’ membership of the said society if at all it exists and secret in nature. The authority of Duru v. Nwosu (1989) 4 NWLR (pt.113) page 24 at 36 is relevant on the point.

In the cerebrated decision of the case of Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20, the apex court in the extensive consideration of the issue of Okija Shrine, acknowledged the oath taking procedure before the Okija Shrine and pronounced it as valid.

At page 40 of the report the apex court per Tobi JSC said:-

“This court recognizes oath taking as a valid process under customary law arbitration. In Ume v. Okoronkwo (1996) 10 NWLR (Pt. 477) 133 12 SCNJ 104, Ogwegbu JSC held that oath taking was one of the methods of establishing the truth of a member and was known to customary law and accepted by both parties. I am bound by the decision”

The court in the said authority also made further references to other decisions both ancient and modern on the bindingness of oath taking before Shrines, if parties so agreed. The deductive implication of the conclusion arrived at in Ebere’s case was that were the Okija Shrine to be a secret society, as envisaged by the constitution or at all, the apex court could not have certainly hesitated in pronouncing thereon. This is apt because as rightly submitted and argued by the learned appellants’ senior counsel, a secret society cannot be pronounced by the Supreme Court as being a binding customary arbitration institution so recognized by the entire people of South Eastern States of Nigeria.

As rightly also and however submitted by the learned Respondent’s counsel the issue before the supreme court in Onyenge v. Ebere (supra) was whether or not oath taken at the Ogwugwunakpu Okija Shrine qualifies for a binding customary arbitration, which the apex court held in the affirmative. The question of whether or not that Shrine harbours a secret society is the issue now in great controversy in this appeal and which requires the pleading of the ingredients establishing same as defined under section 318 of the Constitution. In the absence of such pleaded facts and ingredients, the respondent’s desire on the proof of the legal status of Okija Shrine is only wishful and which is yet to be embarked upon.

Furthermore and on the effect of the evidence of PW5, the same forms the fulcrum reliance by the Respondents. In respect thereof, the learned counsel re-iterated the witness’s testimony that Okija secret society exists and that he is a member. He also testified that the 1st Respondent – T. A. Orji is also a member. Learned senior emphasized that with this evidence only weighing on one side of the scale, there is no evidence on the other end of the scale to compete in weight with that laid before the tribunal. Again that non-production of the register did not vitiate the evidence. In his submission on Exhibit “HS” he said that same had presented visual evidence of a fact which PW5 visually identified to the Honourable tribunal as the special initiation of the 1st Respondent into the Okija secret society.

It is pertinent to re-state on the onset that the competence of PW5 as a witness and the admissibility of his evidence are matters governed by law. The respondent’s counsel affirmatively submitted as belated for the appellants to complain at this stage about the competence of the PW5 to testify in the proceeding. Learned senior referred to the interlocutory decision arrived at earlier and consequent to which no leave of court or extension of time had been obtained to appeal thereon. Just for purpose of brief recapitulation, this matter had been dealt with at the preliminary objection earlier in this judgment, whereat leave is not necessary in the situation at hand wherein the evidence of PW5 and the exhibit “HS” formed the crucial grundnorm of the judgment of the lower tribunal and upon which appeal required no leave, especially where the tribunal greatly relied thereupon the evidence and the exhibit in arriving at its judgment. The submission by the learned respondent’s counsel with respect therefore holds no water. He had, I hold, totally missed the point because the issue in question as rightly submitted by the appellants’ learned counsel is the competence of the witness and the admissibility of Exhibit “HS”.

In the matter at hand, the petitioner did not attach the sworn testimony of PW5 to his initial petition and as such the appellants herein, as the respondents at the trial tribunal, had no opportunity to have responded thereto. Exhibit “HS” was also not listed among the exhibits to be tendered. The testimony of PW5 was therefore not front loaded, but only brought in through the petitioners reply. There is no provision in the Practice Direction either enjoining a petitioner to bring an additional witness through his reply, or equally permitting a respondent to respond to a petitioners reply.

The reproduction of paragraph 1(i)(a), (b) and (c) and (2) of the Practice Direction is relevant and state thus:-

“All petitions to be presented before the tribunal or court must be accompanied by:-

(a) list of all the witnesses that the petitioner intends to call in proof of the petition;

(b) written statements on oath of the witnesses and

(c) copies or list of every document to be relied on at the hearing of the petition.

(2) A petition which fails to comply with sub-paragraph (i) of this paragraph shall not be accepted for filing by the secretary.”

It is also noteworthy to emphasize that the Practice Directions were made by the President of the Court of Appeal pursuant to the powers vested on him by section 285(3) of the Constitution as well as paragraph 50 of the 1st Schedule to the Electoral Act 2006, and has variously been pronounced to have the force of law. In the case of Okereke v. Yar’adua (2008) 6 NWLR (Pt.1082) 37, this court held that a petition which is not accompanied by the relevant witness statements is incompetent and should be struck out. At page 64 of the decision it was held thus:-

“In the instant petition there was no list of witnesses that the petitioner intends to call in proof of his petition and written statements of witnesses on oath and the copies or list of documents to be relied on for the hearing of the petition were also not attached to the petition as required by the court Practice Directions, 2007, though it is my candid view that the petitioner has the locus standi to present the petition by virtue of section 144(1)(a) of the Electoral Act, 2006, nonetheless the petition as presently constituted is not only defective but incurably defective and … is hereby struck out for being incompetent.”

On the authority of the decision in the case of Okereke V. Yar’adua (supra) which was predicated on an application to bring in witness statements and exhibits which were not front loaded with the petition as at the time of filing, PW5 as a witness and his evidence inclusive of the exhibit ‘HS’ which was also not filed along with the petition are alien and should have had no legal recognition in the petition at the trial tribunal. This I hold because same were surreptitiously brought in through the back door and the reliance thereon, certainly, was not only erroneous but also overreaching the respondents/appellants. There is also no evidence on record that the witness PW5 and the document exhibit ‘HS’ were brought by the leave of the tribunal.

Furthermore and in the case of Buhari v INEC (2008) 4 NWLR (1078) 546 at 601 this court in declaring the force of the Practice Direction held and said:-

“The Practice Directions has a constitutional flavour… The Practices Directions constitute a rule for the guidance and regulation of election petition proceedings as established by the constitution and it must be obeyed strictly as they constitute condition precedent to the presentation and maintenance of an election petition.”

As rightly submitted and argued by the learned senior counsel for the appellants therefore, the respondent’s senior counsel, with all respect, was grossly misconceived in the attempt to unwittingly whittle down the provisions of the said Practice Direction which is made pursuant to the constitution.

Also in the case of Obot V. central Bank of Nigeria (1998) 8 NWLR (Pt.310) 140 at 161, the apex court held amongst others and said:-

“If prejudicial allegations are to be made against a party, he must normally be given particulars of them before the hearing so that he can prepare his answers. In order to protect his interest he must also be enabled to controvert, correct or comment on other evidence or information that may be available before the hearing. The right course is usually to give him advance notification.”

In further reference to Olatubosun v. NISER council (1988) 3 NWLR (Pt.80) 25 Oputa JSC made the following observation on p.52 B-C thereof:-

“… one of the essential elements of fair hearing is that the body investigating the charge (in this case of misconduct) must not receive evidence on representation behind the back of the person being investigated. This was our decision in Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 at 618. In that case this court also added that the court will not inquire whether such evidence or representation did not work to the prejudice of the person being investigated. It is sufficient that it might. The risk of it is enough.”

There was no advance notice given to the respondents/appellants on PW5 as a witness and exhibit ‘HS’ as required by paragraph 1(1) of the Practice Direction which makes it mandatory on parties to front load the sworn testimonies of their witnesses before the respondents could file their respondents response in answer thereto. This is in accordance with the principles of fair hearing to guard against springing up of unexpected surprises and embarrassments in court.

In the circumstance, PW5 with all respect was an incompetent witness and consequent to which the testimony given by him, inclusive of the exhibit ‘HS’ tendered through him all bear no probative value. Same are accordingly expunged from the record on the authority of the case of Hashidu v. Goje under reference supra.

Further more and on the status and competence of the evidence by PW5 even if he had been a competent witness it was held in the case of Adepoju v Awoduyilemi (1999) 5 NWLR (pt.603) 364 that a petitioner cannot introduce new facts not otherwise contained in his petition in his reply because as at the time of filing his petition, those facts were within his knowledge and if he did not adequately put them in his petition, the proper thing to do will be to amend the petition, which amendment must however be within the period permitting the time within which to file the petition. This is in view of paragraph 14(2)(a)(i) of the first Schedule to the Electoral Act 2006, which provides:-

“14-(1)(2) After the expiration of the time limited by:-

(a) Section 141 of this Act for presenting the election petition, no amendment shall be made:

(i) introducing any of the requirements of subparagraph (i) of paragraph 4 of this schedule not contained in the original election petition filed…”

Further still and on the competence of the testimony of PW5, taken for granted that the witness was competent, the petitioner by the provision of section 135(1) of the Evidence Act, if he desired judgment was bound in law to produce the very membership register which was pleaded since it was alleged to be in existence and in the possession of the Inspector-General of Police at the time. It must as rightly submitted and argued by the learned senior for the appellant, go beyond the bare assertion that the 1st Respondent is a member of the alleged Okija secret society. In the case of Okotie-Eboh v. Manager under reference supra, the apex court held amongst others and said:-

“Another recognized cannon of interpretation is the ejusdem generic rule which provides that where particular words are followed by general words, the general words are limited to the same kind as the particular words, unless of course, there be something to show that a wider sense was intended… Bearing the above principles of interpretation in mind and being of the view that a law which seeks to disqualify a person from contesting an election on grounds of indictment for embezzlement or fraud imposes a disability and ought to be interpreted strictly.

“Now it is settled law that a statute which imposes a penalty on a citizen ought to be interpreted strictly…

There is no doubt that the purpose of section 66(1) of 1999 Constitution is to deny to some citizens the right to contest to be a member of the National Assembly if they had at one time or the other done certain things. The provision imposes a disability. It is therefore penal in nature.”

The failure of the petitioner to produce the Register, or any document at all was very fatal to his case and readily calls for the invocation of section 149(d) of the Evidence Act wherein the presumption is that the production would have worked against them.

On the existence of any law pronouncing Okija Shrine as a secret society, while the appellants submitted in the negative the 1st respondents counsel argued membership of a Secret Society is prohibited in each of sections 38(4) and 182(1)(h) of the 1999 Constitution. That with same being a constitutional matter the violation thereof disqualifies the offender from seeking election to the exalted office of a Governor of a State. That PW5 was found to be a truthful witness. The earlier determination noted was that he was not an accredited witness under the Act with his evidence being belated. With the disqualification of PW5 as a witness, there is no evidence concrete or otherwise and as rightly submitted by the appellant’s senior counsel that Okija Shrine is a secret society and talks less of the 1st appellant being a member. In other words and again as rightly submitted by the appellants counsel, there was no finding by the tribunal that Okija Shrine is a secret society before running into the conclusion that on the basis of the inadmissible evidence of PW5, the 1st appellant is a member of a secret society? The failure of the tribunal to make a finding on such a vital issue central to the determination of the case would surely work in favour of the appellants.

In the case of Okpuri v. Jonah supra Ademola CJF at page 105 held and said:-

“Throughout his judgment the learned judge avoided making any specific findings of facts on issues before him, nor did he make any attempt to draw inferences from the facts before him … I would allow the appeal.”

Also in the case of UBA v. Achoru (1990) 6 NWLR (pt.156) 254 at page 272, and Atanda v. Ajani (1989) 3 NWLR (pt.111) 5119 at 539 the apex court again re-affirmed the point that a trial court must dispassionately consider all the issues raised in a case. In the case of Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 at 441 for instance, the Supreme Court held that:-

“It cannot be over emphasized making findings on issues joined by parties in litigation on their pleadings is an indispensable part of the exercise of writing a good judgment. For the ultimate verdict is to flow naturally from those findings… Where a court of trial fails to make findings on material and important issues of facts or approach the evidence called by the parties wrongly the appellate court has no alternative but to allow the appeal.”

With further reference to the evidence of PW5, the star witness to the petitioner at the trial, he testified that Okija Shrine has been in existence before he was born. He was at the time of evidence 55 years old but was unable to tell the tribunal whether any law is in existence prohibiting or designating Okija Shrine as a secret society. This is more so as rightly submitted by the appellants counsel when consideration is given to the law as enacted by the witch craft and juju order in council (1958) Laws of the Federation of Nigeria) pursuant to section 207(2) and 210(f) of the Criminal Code of Eastern Nigeria, wherein several Shrines and societies existing in Eastern Nigeria were listed as unlawful Shrines and societies. The Okija Shrine which according to the evidence of PW5, has been in existence since time immemorial was not however listed. The apex court in the decision of Nwoboko Odobo v. The Queen (supra) for instance pronounced the society known as “Odozi-Obodo Society” as unlawful. At page 2 of the report Ademola CJF held regarding the society as follows:-

“It was established that all the applicants are members of the Odozi-Obodo society and the 1st appellant made use of the society to carry out his orders and to oppress the people. The case against him is clear that he killed the deceased himself.”

In the recent decision of the Supreme Court in Nnadozie v. Mbagwu (2008) 3 NWLR (Pt.1074) 363 at page 389, Oguntade JSC also, while appreciating the practice of referring cases to oracles for settlements in Eastern parts of Nigeria and Nna-dozie case, the Chukwu Oracle, stated that some of the oracles whose practices are anti-social have been prohibited by law.

From the cumulative deduction and parameter of the evidence before the lower tribunal, the summary is that the ascription of Okija Shrine being a secret society has no foundational basis but a mirage. In the absence of establishing the Shrine falling within the definition under section 318 of the Constitution, there can be no imputation upon the 1st appellant being a member of a none existent such society designated as Okija secret society. The membership is solely dependant and subject upon the former which ought to first be established, i.e. to say that the said Okija Shrine is indeed a secret society having been prohibited and outlawed either by legal legislation or judicial pronouncement in the court of law.

Suffice to say at this stage therefore that on the total deductive summary on the pleadings of the petitioner and evidence led in support thereof, especially that of PW5 together with the exhibit “HS” which are totally incompetent, also in the light of the constitutional and statutory provisions and interpretations, it is apparent and obvious that the appellants issues (ii), (iii), (iv), and (v) are all also resolved in their favour thereof.

Issue (vii) relates to a complaint against the lower tribunal in consolidating two petitions i.e. EPT/GOV/4/2007 and EPT/GOV/2007 and, thus allowed a procedure of “calling a single line of witnesses,” but proceeded and delivered its judgments by adopting one for the other.

At pages 3684-3685 of the printed records, the lower tribunal held and said:-

“As this is a consolidated petition we find it mandatory to give our judgment in petition No.EPT/GOV/9/2007. This tribunal has considered the pleadings and the evidence adduced by the second set of petitions. The similarity in the two petitions namely EPT/GOV/4/2007 and EPT/GOV/9/2007 made the consolidation of the two petitions mandatory as enjoined by the provisions of paragraph 46 of the First Schedule to Electoral Act 2006. It is on record that in view of the consolidation, the two sets of petitioners resorted to adopting a single line of witnesses thereby whatever we hold in petition No. EPT/GOV/04/2007 is equally applicable to petition No. EPT/GOV/09/2007.

It is for this reason that we hold that the reliefs sought by the second set of petitioners in EPT/GOV/9/2007 are hereby granted. The return and declaration of the 1st and 2nd Respondents as Governor and Deputy Governor of Abia-State be and are hereby nullified. The 1st and 2nd petitioners in EPT/GOV/4/2007 be and are hereby duly returned and declared as the Governor and Deputy governor of Abia State.”

The appellant senior counsel submitted that the lower tribunals judgment amounted to a nullity, as same being product of two consolidated petitions which were not distinctly or individually considered. The 1st respondent however argued the absence of prejudice suffered by the appellants even if one judgment was delivered as alleged; which the counsel argued was not but infact two. That judgment in EPT/GOV/4/2007 applied to EPT/GOV/9/2007 thus delivering 2 judgments in the process.

It is apt and admittedly that consolidation of cases is for convenience and ease of hearing and which same no doubt is permitted by the Electoral Act 2006 vide paragraph 46 of the First schedule to the said Act. This however does not derogate from the fact that in a consolidated case, each case still retains its own identity and has to be treated specially and specifically.

Also in the decision of this Court Abuja Division on consolidation of petitions is the case of Buhari v. INEC and Abubakar v. Yar’adua respectively (2008) 4 NWLR (pt.1078) 546 and 475 which are very well pronounced and explicit on this issue. This is where the proceedings were consolidated, but each petition was heard separately. Judgment were read on the same day, wherein the court first read the judgment in Buhari v. INEC, dismissed same, and then turning to Abubakar v. Yar’adua which it also later dismissed. This was not the case with the situation and procedure adopted by the lower tribunal in the case under consideration. The law is therefore trite where suits are consolidated, each case retains its separate and individual existence and judgment should at the end of the proceedings be given in respect of each suit. Further authorities in support are:- Nasr v. C.H.E. (Nig.) Ltd. (1977) 5 SC1, Enigwe v. Akanigwe (1992)2 NWLR (Pt.225) 505 and Afoezioha v. Nwokoro (1991) 8 WNLR (Pt.615) 393 wherein at page 405, this court per Ikongbeh JCA (of blessed memory) relying on the Supreme Court decision in Dugbo v. Kporoaro (1958) NWLR 7 held as follows:-

“The law regarding consolidation is clear. Consolidation is only for convenience of trial and does not fuse the consolidated suits. The suits still maintain their individual identity and character and the evidence given in respect of one does not ipso facto become evidence in the other or others.”

PW5 as a witness and his evidence inclusive of exhibit ‘HS’ have been considered incompetent, with his deposition not being front loaded but coming from the backdoor through a reply thereof. The adoption of his evidence for the purpose of the two sets of petitions as a single line of witnesses even if agreed by parties at the trial would not in the circumstance legalize the incompetence of the evidence thereof. Further more and in the absence of the petitioner in petition No. EPT/GOV/9/2007 failing to call any of its witnesses, the evidence given on behalf of EPT/GOV/4/2007 inclusive of PW5 could not properly have been considered in respect of EPT/GOV/9/2007 as held by the learned tribunal in its judgment. This I hold because the distinct and individual nature of the two petitions each needed to be evaluated individually even though consolidated. In the case of Haruna v. Modibbo supra, two petitions were consolidated and heard together but the tribunal failed to treat the petitions distinctly and separately in its judgment. This court on appeal found in favour of the appellant in allowing the appeal and dismissed the consolidated petitions. In delivering the lead judgment Aderemi JCA had this to say amongst others at pages 559-560.

“Nothing can be more certain than for a person who seeks a redress in the court of justice to have a clear cut pronouncement on the reliefs he sought in a separate legal document called judgment; notwithstanding that a consolidation has been made between his case and that of another in the course of trial. Consolidation of actions; yes, but it will be absurd to have a consolidation of judgments …”

The principle of consolidation as laid down therefore is that it does not create a set of in separate Siamese twins. In other words, although the suits are tried and determined in a same proceeding, each remains a separate and distinct action; judgment should therefore be given at the end in respect of each suit.

As rightly submitted and argued by the learned senior for the appellants, the lower tribunal was patently in error to have held that it listened to and assessed the two sets of petitioners witnesses/evidence. The tribunal was also latently in error by transplanting of evidence in respect of one petition to the other, and thereby delivering judgment in respect of the two consolidated petitions which were indeed pronouncements. However and although that did not amount to a nullity as submitted by the learned senior counsel for the appellants, the pronouncements were certainly erroneous.

The said issue is also resolved against the petitioners/respondent and in favour of the appellants.

Issue 9 is on the assumption of non-resignation from office of the 1st and 2nd appellants 30 days to the election and the purported allegation of membership of the 1st appellant of the Okija secret society and whether or not the election of the appellant is not saved by the mandatory provisions of section 146(1) of the Electoral Act, 2006.

The said section 146 relates to certain defects not to invalid election.

Without having to embark on an academic exercise, it is appropriate to restate straight away that this issue has been extensively dealt with and subsumed in the preceding issues in particular- issues (ii), (iii), (iv) and (v) which are all resolved in favour of the appellants. Dwelling into the arguments of counsel on same would only amount to a repetition and an exercise serving no additional purpose but a waste of time. The said issue without much a do is also resolved in favour of the appellants therefore.

Appellant’s issues 8 and 10 have been adumbrated by the respondent into issue 5. That is to say having regard to the entire pleadings, the evidence before the lower tribunal inclusive of the exhibits admitted, whether or not its ultimate decision returning the 1st respondent in this appeal as the winner of the election to the office of the Governor of Abia State on 14th April, 2007 was not perverse and highly erroneous.

It is not in question that the lower tribunal found that the appellants did score majority of lawful votes cast at the election and the mandatory provisions of section 179(2)(a)(b) of the 1999 Constitution. The odds against them and giving rise to their disqualification by the tribunal however was the allegation under section 182(1)(g) and (h) of the Constitution 1999.

At pages 3683-3684 of the record for instance the lower tribunal held and said:-

“It is for this reason that we hold that as the first set of petitioners’ prayers as contained in their petition do not include the return of the 1st petitioner, in the event of disqualifying the 1st and 2nd Respondents, the consequential relief which follows such finding as the one made by this tribunal is to declare the 1st Petitioner in petition No. EPT/GOV/4/2007, Onyema Ugochukwu, Honourable Chinwendu Nwanganga v. Chief T. A. Orji and 3894 Ors. as the duly elected Governor and Deputy Governor of Abia state. On this we are fortified by the decision of Bayo v. Njidda supra page 588, paragraph c-f where the learned JCA held:-

“A trial court or tribunal has power to grant a consequential relief. A prayer/consequential order need not be claimed, even though it can only relate to a matter adjudicated upon. Such order is made subsequent to a decision, and it is one which flows directly or naturally from the decision which is inevitably consequential to it.”

The consequential order made was a result of the disqualification which has been found to be greatly erroneous. In the absence of the former i.e. any disqualification as alleged, the latter would have no place. In other words, and having regard to the conclusion arrived at earlier in this judgment, the issue of consequential order has no place, and did not arise.

The arguments of counsel on the propriety or not of the consequential order made penaltimately are of no relevance in the consideration in issue. It goes without saying therefore that issues 8 and 10 by the appellants in the light of the earlier foregoing issues are both also resolved in their favour.

On the totality of the appeal before us, and having regard to the entire petition at the trial tribunal in particular to the pleadings, evidence of PW1 which was branded as hearsay as well as that of PW5, having been declared an incompetent witness, also his evidence inclusive of Exhibit ‘HS’ it is my considered opinion, I hold, that the conclusion arrived at by the lower tribunal, with all respect, was highly perverse and erroneous.

In the result this appeal is meritorious and succeeds. I therefore allow same. The judgment of the lower tribunal subject of challenge in this appeal is hereby set aside and the petitions EPT/GOV/4/2007 and EPT/GOV/9/2007 are hereby dismissed. I also make an order upholding the election of the appellants as the duly elected and returned candidates having won the election to the office of the Governor and Deputy Governor respectively of Abia State on 14th April, 2007.

The appeal is meritorious and is accordingly allowed.

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Other Citations: (2009)LCN/3114(CA)