Abdullahi I. Garba V. Musa S. B. Usman & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

This is an appeal against the decision of the National Assembly Governorship and Legislative Houses of Assembly Election Petition Tribunal sitting in Minna, Niger State, delivered on the 6th of December, 2007.

The facts of the petition as told by the Appellant are that the Appellant was validly nominated by the All Nigeria Peoples Party, simply referred to as ANPP, to contest the election held on 21st April, 2007 for the office of Member House of Representatives for Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State subsequent to the withdrawal of the candidature of the 1st Respondent vide Exhibit P6, but was unlawfully excluded from the election, in that the 2nd and 3rd Respondents refused to substitute his name with that of the 1st Respondent as requested by the ANPP, who was hitherto the 2nd Petitioner at the Tribunal but whose name was later struck out on the 23rd of October, 2007. The complaint of the Appellant was thus the refusal of INEC the 2nd Respondent to substitute him as provided in Section 34 of the Electoral Act, 2006.

The story, as told by the 1st Respondent was that he was duly nominated for the election by the ANPP and all attempts to substitute him was not successful and consequently he made the final list of eligible candidates as released by the 2nd and 3rd Respondents for the election of 21st April, 2007 and contested the election.

The 2nd Respondent i.e. INEC declared the 1st Respondent the winner of the election, having polled the highest number of votes cast at the election and returned him accordingly as the winner of the Member Representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency.

The Appellant, not satisfied with the election and return of the 1st Respondent filed a petition before the Niger State National Assembly Election Petition Tribunal upon the following grounds:-

1. That the 1st Respondent was not at the time of the election qualified to contest the election, in that the 1st Respondent, though a member of the 2nd Petitioner was not sponsored by the 2nd Petitioner to contest the election.
2. That the 1st Petitioner who is the candidate validly and duly nominated by the 2nd Petitioner, was unlawfully excluded from the election in that the 2nd and 3rd Respondents refused to substitute the 1st Respondent with the 1st Petitioner as duly requested for by the 2nd Petitioner.
3. Though the ANPP (2nd Petitioner) polled the highest number of votes at the election held on the 21st of April, 2007, for the office of the Member Representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency, Niger State.

The Petitioner prayed for the following reliefs;

i. A declaration that the omission of the name of the 1st Petitioner as the candidate duly nominated by the 2nd Petitioner to contest the aforementioned election was unlawful.

ii. A declaration that the return of the 1st Respondent as the winner of the above mentioned election is null and of no effect whatsoever, in that the 1st Respondent was not the person nominated nor sponsored by the 2nd Petitioner and consequently, he was not a candidate for the said election.

iii. A declaration that the 1st Petitioner was the lawful candidate duly nominated by the 2nd Petitioner, who was entitled to be returned as the person who polled the highest number of votes cast at the election held on the 21st April, 2007.

iv. An order of this Honourable Tribunal directing the 2nd and 3rd Respondents to immediately return the 1st Petitioner as the member elect for the Kontagora/Wushishi/Mashegu/Mariga Federal Constituency and issue a certificate of return to this effect.

All the Respondents jointly and severally denied the allegations raised in the petition. The matter went to full trial whereby the Petitioner testified in person and did not call any other witness. Written Addresses were filed and adopted by the parties. In a considered judgment delivered on the 6th of December, 2007, the Tribunal dismissed the petition of the Appellant.

The Appellant is aggrieved by this decision and appealed to this Court vide two Notices of Appeal the first dated and filed on the 13th of December, 2007 and the second Notice of Appeal was filed on the 21st December, 2007. Learned counsel for the Appellant however abandoned the 1st Notice of Appeal and same is hereby stuck out.

Equally aggrieved by part of the decision of the tribunal delivered on 6th December, 2007, the 2nd and 3rd Respondents have cross appealed to this Court vide a Notice of Cross Appeal dated and filed on the 21st of December, 2007. The grounds of the main appeal without their particulars are hereby reproduced:

GROUNDS OF APPEAL

GROUND ONE:

The Judgment is against the weight of evidence.

GROUND TWO:

The Tribunal erred in law in the interpretation of Section 36(1) of the Electoral Act, 2006 and also misapplied the principles of the application of statutory provisions as restated in the case of UGWU VS ARARUME (2007) 12 NWLR (PT.1048) 365, which led the Tribunal in reaching the conclusion that;

“In UGWU VS ARARUME (supra), cited by the learned counsel for the Respondents the Supreme Court held that the requirement of a statute whether mandatory or directory, must be complied with and sanctions of disobedience will follow. Also in the case of F.G.H. VS ZEBRA ENERGY LTD, it was held when a matter is clearly spelt out in a statute and the procedure for carrying out such duty is laid down a party has no choice but to comply fully with the provision of the statute. The provisions of Section 36(1) of the Electoral Act are very clear and unambiguous on the procedure to follow when a candidate wants to withdraw from any election. We do not subscribe to the view expressed by the learned counsel for the Petitioner that the word “shall” in Section 36(1) is mere directory. It is our humble opinion that the word shall” in the said section is of mandatory nature because under the 1999 Constitution, a person/candidate for election can only be sponsored by a political party. It therefore follows that the withdrawal from election can only be done through the political party that nominated him. From our observation above and the authorities referred to. We find and hold that the 1st Respondent’s letter of withdrawal (Exhibit P6) does not comply with Section 36(1) of the Electoral Act 2006. It is also our view that Exhibit P61 having failed to meet the requirements of the law I there was no valid withdrawal by the 1st Respondent. The 1st Respondent therefore remained the only candidate for the ANPP in the April 21st 2007 Election for Kontagora/Wushishi/Mashegu/Mariga Federal Constituency Niger State”, thereby occasioning a miscarriage of justice.

GROUND THREE:

The Tribunal erred in law and misapplied the principles laid down in the case of UGWU VS ARARUME (supra), on the interpretation of statutes particularly Section 34(1) and (2) of the Electoral Act, 2006 which error led the tribunal to hold that;

“In the case at hand, Exhibit P7 which the Petitioner regarded as the letter of substitution did not satisfy the requirements of Section 34 of the Electoral Act and the guidelines because no reason was given for the said substitution. In the case of UGWU VS ARARUME (Supra), at p.30 – 93, paragraph H – E, the Supreme Court per Chukwuma-Eneh; JSC has this to say on Section 34(1) (2) of the Electoral Act, 2006:

“Regarding the provisions of Section 34 as whole in the con of the Electoral Act, 2006, I have no doubt in my mind of its mandatory nature. Not least in strengthening my conclusion here is the use of the word “shall” in the provision. The word as “shall” used in Section 34 (1) and (2) of the Electoral Act denotes the mandatory nature of provision and that it has to be strictly complied with. The words of the Section do not admit of any substantial compliance with the stipulation as provided therein and so the word “shall” in the provision of Section 34(1) and (2) cannot be directory.

Exhibit P7 letter of substitution having failed to state “cogent and verifiable reasons is not valid in law and so we hold. We also hold that the Petitioner was not validly substituted and was therefore not a candidate for the election of 21/4/07 into Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State. In view of our findings above we hereby resolve the 1st issue for determination in favour of the 1st Respondent.”

And this has caused injustice to the Appellant.

GROUND FOUR:

The tribunal in arriving at the decision to dismiss the appellant’s petition failed to be guided by the principles of Equity and to discharge its judicial duty to do justice to all parties, when it allowed the Appellant, who had been vigilant and consistent in realizing the purport of his nomination as a candidate at the election, to suffer the consequences of the act of omission on the part of the All Nigeria Peoples’ Party and the 3rd Respondent, who excluded the Appellant from the contest and this has caused injustice to the appellant.

GROUND FIVE:

The tribunal failed to be guided by the principles of public policy, which belies all election matters when it upheld the return of the 1st respondent as the member representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State, where as a matter of fact from the pleadings and evidence led before the Tribunal, the public/the Electorate, did not vote for the 1st respondent, more so, the electorate had the knowledge of the withdrawal by the 1st respondent from the said contest.

GROUND SIX:

The tribunal in dismissing the appellant’s petition failed to properly evaluate the evidence before it and did not take into consideration the effect of the failure by the 2nd and 3rd respondents to lead evidence to controvert the case of the appellant and this has caused injustice to the appellant.

GROUND SEVEN:

The tribunal erred in law in its interpretation of Section 36(1) of the Electoral Act in relation to the withdrawal by the 1st respondent for the contest of the election, vide Exhibit P6 and this led the tribunal to hold that;

“An examination of Section 36(1) of the Electoral Act, 2006 will reveal that there are two elements that are required to be done where a candidate desires to withdraw from contest.

These elements are:-

i. He has to give notice in writing to the political party that nominated him.

ii. That political party conveys such withdrawal to INEC not later than 70 days to the election. See also the case of JUSTICE PARTY VS INEC supra at page 943, where it was held that a party nominated cannot withdraw his candidature as a matter of course as he has to do so through his political party that nominated him. As can be seen from the said Exhibit P6 (letter of withdrawal) it was addressed by the 1st respondent to the Electoral Commissioner Minna Office directly. The letter did not go through the political party as provided in Section 36 (1) of the Act. Secondly, there is no evidence to show that Exhibit P6 was sent to INEC not later than 70 days to the elections and this has occasioned a miscarriage of justice.

GROUND EIGHT:

The tribunal abdicated its judicial duty and conducted the proceedings in breach of the principle of fair hearing, in that it failed to hear and determine the Appellant’s application dated and filed on the 15th of August 2007, before proceeding to delivered judgment in the petition thereby occasioning a miscarriage of justice.

There is only one ground in the cross-appeal, to wit;

The lower tribunal erred in law when it held that the Petitioner has locus standi to present the petition.

As is the practice in this court, parties filed and exchanged briefs of argument. In the main appeal, the appellant’s Amended Brief settled by Yakubu C. Maikyau, Esq., was dated 18th April, 2008, filed 21st April, 2008 and deemed properly filed and served on the 4th of June, 2008. The following issues were formulated for determination;-

1. Whether failure by the tribunal to hear and determine the appellant’s application dated 18th August 2007 did not render the proceedings in this petition a nullity?
2. Whether the tribunal properly relied on the case of UGWU VS ARARUME (supra), in interpreting Section 36(1) and (2) of the Electoral Act 2006, to hold that the Notice of Withdrawal written by the 1st Respondent was invalid?
3. Whether the case of UGWU VS ARARUME (supra), is applicable to the facts and circumstances of this appeal in relation to the requirement of Section 34 (1) and (2) of the Electoral Act 2006?
4. Whether in dismissing the petition, the tribunal discharged or performed its primary responsibility to do justice to all the parties?

The 1st Respondent’s Amended Brief of Argument settled by Hussain Omar Garba, Esq., also formulated three issues for determination. However, he adopted as his first issue the Appellant’s first issue for determination.

The remaining two issues for determination are issues 2 and 3 to wit;

2. Whether the learned judges of the trial tribunal were right in their interpretation and application of the provisions of Section 36(1) and Section 34(1) and (2) of the Electoral (sic) 2006 to the facts of this case as enunciated in the case of UGWU VS ARARUME (supra),
3. Whether the tribunal in its quest to do justice rightly dismissed the petition.

The 2nd and 3rd Respondents’ Brief settled by Sam T. Ologunorisa, Esq., formulated only two issues for determination to wit:

1. Whether the failure of the Appellant to move his application dated 15th August, 2007 can be visited on the lower tribunal thereby rendering its proceeding a nullity.
2. Whether the petitioner was validly nominated and unlawfully excluded.

At the hearing of the appeal, learned counsel for the appellant, Y.C. Maikyau, Esq., adopted and relied on the appellant’s Amended Brief of Argument filed on the 21st/4/08 but deemed properly filed on the 4th June, 2008. Learned counsel applied to withdraw issue one for determination. Same is therefore accordingly struck out including all arguments canvassed thereon. He also relied on appellant’s Reply Brief dated 18th April, 2008 but filed on the 21st April, 2008.

Adumbrating on issue 2, learned counsel emphasized the point that Section 36(1) and (2) of the Electoral Act is the section to be considered in this appeal and not Section 34 of the Electoral Act as there is no need for cogent and verifiable reasons to be given by the party. It is the view of learned counsel that the case of AGWU VS ARARUME does not apply to the facts and circumstances of this case. Maikyau, Esq., referred also to Exhibit R6 tendered by the 1st respondent and submitted that the 1st respondent did not testify at the tribunal but rested his case on that of the appellant. It is his view that all the several exhibits tendered by the 1st respondent including Exhibit R6 should be discountenanced by the court as there was no evidence linking Exhibit R6 or any of the Exhibits tendered to the facts of this case. He urged the court to allow the appeal and discountenance all arguments of the 1st respondent having rested his case on that of the appellant.

Garba, Esq., for the 1st respondent adopted and relied on the 1st respondent’s Amended Brief of Argument dated and filed on the 4th June, 2008. He also abandoned his reply to issue 1 for determination formulated by the appellant’s counsel same having been withdrawn by the counsel. He urged the court to dismiss the appeal.

Omughele, Esq., for the 2nd and 3rd respondents adopted and relied on the 2nd and 3rd respondents’ Brief of Argument filed on the 27th May, 2008 but deemed properly filed on the 4th June, 2008. Learned counsel also relied on the cross appellant’s Brief of Argument dated and filed on the 22nd January, 2008. He urged the court to dismiss the main appeal and allow the cross appeal.

Maikyau, Esq., for the 1st Cross Respondent also adopted and relied on the 1st Cross Respondent’s Brief of Argument filed on the 27th July, 2008 vide an order of court granted on that same day and urged the court to dismiss the cross appeal.

After a careful consideration of all the issues raised by the parties, it is my humble view that the issues raised by the Respondents can be subsumed under the issues raised by the Appellant. Accordingly, the appeal will be determined upon the issues formulated by the appellant as they encapsulate the complaint in the grounds of appeal.

Issue two; whether the tribunal properly relied on the case of UGWU VS ARARUME (supra), in interpreting Section 36(1) and (2) of the Electoral Act 2006, to hold that the Notice of Withdrawal written by the 1st Respondent (Exhibit P6) was invalid?

In arguing this issue, learned counsel for the Appellant, Maikyau, Esq., referred to the grounds under which the petition was brought, statement of facts as contained in paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27, and reliefs sought by the Petitioner/Appellant and the 1st Respondent’s reply to the petition particularly paragraphs 1, 2, 3, 4, 5, and 6 and the statement of 1st Respondent on oath and submitted that from the state of the pleadings as reproduced above, it is not in dispute that the 1st Respondent admitted notifying his party of his intention not to contest for the office of the member representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State. What seems to be the case for the 1st Respondent learned counsel submitted was that the substitution of his name was not successful. Learned counsel submitted that having admitted that he withdrew from the contest, and the fact not been controverted the court was urged to believe Exhibit P6, as the true evidence of the 1st Respondent’s withdrawal from the contest before it. That in the reply filed by the 2nd and 3rd Respondents, there was no denial of the fact that the 1st Respondent wrote a letter of withdrawal dated 7th February, 2007, Exhibit P6. He referred this court to the cases of DUROSARO VS AYORINDE (2005) 8 NWLR (PT.927) 407; ARABAMBI VS ADILANCE BEVERAGES INDUSTRY LTD {2003} 19 NWLR (PT.959), and urged the court to rely on the unchallenged and uncontroverted evidence of withdrawal of the 1st Respondent.

It is submitted that the word “shall” as used in Section 36 should not serve as a safe haven or refuge for the 1st respondent to hide and reap where he did not sow. He stated that, the respondents have merely contended that by virtue of Section 36(1) of the Electoral Act 2006, the withdrawal by the 1st respondent vide Exhibit P6 was not effective, and that the provision of Section 36 was couched in mandatory terms and that the failure to route the said Exhibit P6 as prescribed by Section 36 of the Electoral Act rendered the withdrawal by the 1st respondent invalid. Learned counsel submitted that Exhibit P6 is not only deemed as unimpeachable evidence of the 1st Respondent’s withdrawal from the contest but also constitute conclusive proof of the fact that the person in whom the electorate expressed their franchise is the appellant. It is argued that, although Exhibit P6 was addressed directly to the 3rd respondent, it did not render the withdrawal invalid. It is submitted that by the authority of AMADI VS NNPC (2000) 10 NWLR (PT.674) 76, the word “shall” as used in Section 36 of the Electoral Act 2006, was directory rather than mandatory and that the appellant substantially complied with such a directive. It is therefore his view that, the mere fact that the said letter of withdrawal was not submitted directly by the Political Party to INEC is a mere procedural irregularity which should not be used to defeat the end of justice. He relied on the case of EGOLUM VS OBASANJO (1999) 7 NWLR (PT.611) 355 at 413.

It is also argued that it was not disputed that Exhibit P6 was given and received by the 3rd respondent, an agent of the 2nd Respondent and upon the request for certified true copies by the appellant, Exhibit P6 was made available to the appellant by the 3rd respondent and it was duly certified as true copy of the original. It is stated that Exhibit P6 was in existence to the knowledge of both the political party and INEC about 72 days to the date of the election, which was held on the 21st April, 2007. He referred to the unreported case of HAJIYA AMINA AND ANOR VS DAHIRU AWAISU KUTA and 13 ORS Petition No. SEN/EPT/NS/50/07 delivered by the tribunal on the 11th of March 2008, wherein it was held that a Commissioner of INEC represent the Commission and any decision taken is deemed to be that of the Commission.

It is also argued that irrespective of the use of the word “Shall” in Section 36(1) of the Electoral Act, it was not mandatory for the notice of withdrawal of the 1st respondent candidature to be conveyed to the Commission by the Political Party. That the word “shall” used in that con was directory, rather mandatory. Reliance was placed on the case of IFEZUE VS MBADUGBA AND ORS (1984) SC 79 at 135. He further submitted that what makes Section 36(1) mandatory is not the requirement of the 1999 Constitution which requires that a candidate must be sponsored by a Political Party, that, what should make Section 36(1) either mandatory or otherwise is the provision of the Section itself and the con to which the word “shall” was used. He stated that from the con of Section 36(1) of the Electoral Act, that the word was used as directory rather than directly. He relied on the case of KAMBA VS BAWA (2005) 4 NWLR (PT 914) 43 AT 72. He also referred to exhibits P7, P8, P9 and P10, which according to him were all quite emphatic as to the candidature of the appellant including payment of the sum of N120,000.00 to the Political Party as nomination fees.

Learned counsel for the appellant also distinguished the case at hand from the case of UGWU Vs ARARUME (Supra). It is stated that, in the case at hand, there was never a contest for nomination between the 1st respondent and the appellant as candidates. The 1st respondent had withdrawn before the emergence of the appellant as the candidate; therefore the situation at hand did not come within Section 34 of the Electoral Act 2006. He referred also to the case of JUSTICE PARTY VS INEC (2006) ALL FWLR (PT 339) 907 relied upon by the tribunal to hold that since the notice of withdrawal of the 1st respondent was not routed through the Political Party then the notice was invalid and ineffective. It is also the view of learned counsel for the appellant that, the case in hand is distinguishable from all the aforementioned cases, including the case of GOOD HEAD VS AMACHREE (2004) 1 NWLR (PT 854) 352, in that in the case in hand, both the political party and INEC were aware of the withdrawal of the 1st respondent and for which reason Exhibits P7 to P10 were issued but for reasons best known to INEC, it excluded the name of the Appellant from the final list, despite paragraph 2 of exhibit P8, written by counsel to the 1st respondent in his position as the then Chairman of the party. Learned counsel therefore urged the court to hold that by reason of Exhibits P1 – P11, there was valid withdrawal by the 1st respondent from the contest and that Exhibit P6 did not violate the provisions of Section 36(1) of the Electoral Act, 2006. It is his view that the 1st respondent should not be allowed to approbate and reprobate. The court was urged to resolve this issue in favour of the appellant.

Responding, learned counsel for the 1st respondent H.O. Garba, Esq., submitted that under the provision of Section 32(1) of the Electoral Act, every political party shall not later than 120 days before the date appointed for a general election under the provisions of the Act, submit to the Commission the candidate the party proposed to sponsor. He referred to paragraph 10(b) of the appellant’s ground of petition where the appellant averred that he was the candidate validly and duly nominated by ANPP but was unlawfully excluded from the election in that the 2nd and 3rd respondents refused to substitute the 1st respondent with him as duly requested for by the 2nd petitioner i.e. ANPP. Learned counsel submitted therefore that by virtue of paragraph 10 (b) of the petition, since the appellant was not the original nominee as required by Section 32(1) of the Act, he (the Appellant) can only find succour under the provision of Section 34 of the Act. It is his view that Exhibit P7 tendered by the appellant, which is to the appellant, the letter of substitution written by the 2nd petitioner to the chairman of the 2nd respondent did not meet the requirement of the law and as so held by the lower tribunal. He placed reliance on the cases of UGWU Vs ARARUME (2007) 12 NWLR (PT 1048) 367, and AMAECHI VS INEC (2008) 5 NWLR (PT 1080) 227 AT 388 – 386. He further submitted that exhibit P7 did not provide any reasons for the substitution of the 1st respondent and thus against the provisions of Section 34(1) and (2) of the Act which demands for “Cogent” and “Verifiable” reasons for any substitution to be effective.

Learned counsel for the 1st respondent further stated in respect of exhibit P7 that, under Section 34(1) of the Electoral Act 2006, the Independent National Electoral Commission shall be informed of the change of a candidate by a political party sixty (60) days to the election. What this means is that if a Political Party desirous of taking advantage of Section 34 fails to submit its application to the Commission within the said 60 days. INEC shall not act upon such an application. The onus was therefore on the political party to prove submission and receipt of such application by INEC not later than 60 days to the date of the election.

It is his argument that while it is true that the two letters seeking to substitute the 1st respondent i.e. Exhibits P7 and R6 were dated 20th day of February 2007, and thus within the 60 days contemplated by Section 34(1) of the Act, and Exhibit R5, it is submitted that before the said exhibits can be valid and effective, they must have been received by INEC not later than the midnight of 20th February, 2007. It is also his submission that no shred of evidence was led before the lower tribunal in proof that the National Secretariat of ANPP did submit to INEC Exhibit P7 or R6 as required by law. It is the view of the learned counsel that the alleged certification of Exhibit P7 by INEC is not by itself proof that it was submitted and received by INEC on 20th February 2007, and nowhere was it pleaded by the petitioner that Exhibit P7 was indeed submitted to INEC within the period provided in Exhibit R5 and Section 34(1) of the Electoral Act 2006.

Learned counsel further submitted that Exhibits P1, P2, P4, P6, P8, P9, P10 and P11, relied upon by the appellant did not meet the requirement of Section 34 of the Electoral Act 2006. It is also submitted that the fact that by virtue of exhibit P6, the 1st respondent withdrew from the contest to the office in contention, cannot be said to be right because it falls short of the provision of Section 36(1) of the Act, which stipulates that any letter signifying intention on the part of a candidate to withdraw must be expressed through his political party who shall then inform the commission. He relied on the cases of; UGWU Vs ARARUME (Supra) at page 445; AMAECHI VS INEC (Supra) at page 318; and JUSTICE PARTY VS INEC (2006) ALL FWLR (PT 339) 907 at 943. It is submitted that by the appellant’s admission at paragraph 4.35 of his brief, Exhibit P6 was addressed to the Electoral Commissioner, David Mark Road, Minna, Niger State. The addressee of Exhibit P6 is not the Political Party of the 1st respondent and by the provision of section 36(1) of the Act, his intention to withdrew from the race cannot be communicated directly and independently to the addressee by him 1st respondent. It is therefore submitted, on the authority of WUDIL VS ALIYU (2004) ALL FWLR (PT 236) & at 280 that since the method provided in Section 36(1) of the Act respecting the procedure for withdrawal from contesting an election has not been followed, there was no valid withdrawal.

Learned counsel equally pointed out that the defect in procedure adopted in transmitting Exhibit P6 is not cured by paragraph 3 of the 1st respondent’s statement on oath, annexed to his reply. It is his view that the 1st respondent did not testify before the tribunal and consequently could not adopt his deposition on oath and submitted that by paragraph 4(3) of the Practice Directions 2007, applicable to Election Petitions in the lower tribunal, before statement of witnesses made on oath can be taken as evidence and acted upon, it must have been adopted and that since the 1st respondent’s statement on oath was not adopted, it has no evidential value. It is therefore his view that Exhibit P6 standing alone do not create substitution for the appellant and/or nomination. He stated, Exhibit P6 only created an intention by the 1st respondent to withdraw from the contest which the tribunal had found to be procedurally defective and ineffective. It is further submitted that what would have created substitution of the appellant with the 1st respondent, would have been Exhibit P7, and that Exhibit P7 never made reference to Exhibit P6 and it would be mischievous to read into Exhibit P7 the wordings of Exhibit P6. Since Exhibit P7 did not pass the legal test under Section 34 of the Act, it is unhelpful to the appellant’s contention.

Learned counsel also referred to Exhibit P2 relied upon by the appellant an INEC Form CF 004A made pursuant to Sections 34 and 36 of the Act. The Form when completed, should be endorsed by Principal Officers of the appellant’s and 1st respondent’s political party as required by paragraph 8 of the INEC Guidelines and Regulations for the conduct of Federal, State and Area Council Election 2007 made pursuant to the 1999 Constitution and Electoral Act 2006. It is submitted that the said Form was not so endorsed and neither was the form dated. It is further submitted that in paragraph 9 of the Guidelines and Regulations referred to above, in addition to providing cogent and verifiable reasons as required in Section 34(2) of the Electoral Act, a fresh Form CF001 of substituted candidates shall also be submitted to the Commission. It is therefore argued that apart from the fact that no cogent and verifiable reasons were offered in Exhibit P7, no Form CF001 was completed and submitted to the Commission to suggest to it that the appellant was substituted in place of the 1st respondent. It is further argued that no letter of withdrawal sent to the Commission including Exhibit P6 allegedly sent by the 1st respondent and/or Form CF004A carries the endorsement of the principal officers of the Party (ANPP) as required by paragraph 8 of the Guidelines and Regulations referred above.

It is also further submitted that, it is not in evidence before the lower tribunal that counsel to the 1st respondent, then the Niger State Chairman of ANPP signed the purported substitution form represented by Exhibit P2 and that it is therefore mischievous to seek to supplant the evidence in a brief as done by appellant’s counsel in paragraph 4.43 of his brief. It’s also argued that there was no oral evidence before the tribunal in support of Exhibit P2 as regards the name or designation of the signatories on Exhibit P2. He relied on the case of WEST AFRICAN BREWERIES LTD VS SAVANNAH VENTURES LTD (2002) FWLR (PT 112) 53 AT 72 paras A – C Ratio 21.

It is further contended that by virtue of Section 35 of the Electoral Act, there is a presumption that the final list of candidates for the contest are displayed 30 days before the date of the election. This means that the appellant was aware that his name failed to make the final list and he stated so in paragraphs 9(b) and 10(b) of the record and written statement on oath at pages 3 and 11 of the record respectively. It is also submitted that the appellant made copious references to a letter dated 13th February 2007 in his paragraph 4.53, 4.63 (a), 4.63(f) and 4.67 of his brief in an attempt to suggest that the appellant was validly substituted with the 1st respondent as required by law. It is submitted that, the authenticity of this letter was put into question and failure of the appellant’s counsel to have the deponent who deposed to the said document called in oral evidence, resulted in the name of the 2nd Petitioner to be struck out (see pages 181 – 182 of the Record). It is his view that since the deponent was not called to clear the conflict and genuineness of the letter, no weight should be attached to the said letter. He relied on the case of G.CHITEX VS OCEANIC BANK (2005) 7 SCNJ 278 at 290 lines 30 – 33; and REGISTERED TRUSTEES, CAC VS SADIKU (2002) FWLR (PT 95) 238 at 254.

He therefore submitted that since the letter dated 13th February 2007 was neither pleaded nor tendered in evidence, it cannot be relied upon at this stage. He referred to the case of KWARI VS RAGO (2000) FWLR (PT 22) 1129 AT 1146 – 1147. He also referred to the case of ABACHA VS FAWEHINMI (2000) 4 SCNJ 400 at 429 and the case of ISHOLA VS UNION BANK (2005) 2 SCNJ 191 at 203, lines 24- 34 and OBULOR VS OBORO (2001) FWLR (PT 47) 1004 at 1010.

It is further submitted on the said letter that even if it had been pleaded and tendered; it couldn’t have been acted upon because being a public document it ought to be certified under Section 111 of the Evidence Act before it can be acted upon. He relied on EDOZIEN Vs ONWUZURURIKE (2005) ALL FWLR (PT 290) 1597 at 1602: and FAWEHINMI VS IGP (2000) FWLR (PT 12) 2015 at 2044. He urged this Court to resolve this issue in favour of the Respondents.

The only answer that counsel for the 2nd and 3rd respondents had for on this issue raised by the appellant was in the question, whether the Petitioner was validly nominated but unlawfully excluded.”

Learned counsel Ologunorisa, Esq., for the 2nd and 3rd respondents submitted that the appellant had the evidential burden which according to him was not discharged to prove that the legal requirements for the substitution were met. He submitted that the legal requirement for substitution of candidates are as contained in Sections 8 and 9, of the Guidelines and Regulations for the Conduct of Federal, State and Area Council Elections 2007 and Section 34 of the Electoral Act, 2006. It is submitted that Exhibit P6, the letter of withdrawal of the 1st respondent did not satisfy the provisions of the law because it was not routed through the ANPP neither was it witnessed by any Principal Officer of the Party at the National level. There was no ‘cogent’ and ‘verifiable’ reason given as provided for under Section 34(1) of the Act. It is therefore submitted that since the document submitted by the appellant did not meet the requirement of the law as provided by the Electoral Act, the 2nd respondent was right in disregarding them, and the lower tribunal was right to have so held and urged this Honourable Court to discountenance the attempt by the appellant to label his case under the realm of unlawful exclusion and hold that the appeal is totally devoid of merit.

In arguing issue 3 to wit: Whether the case of UGWU VS ARARUME (supra) is applicable to the facts and circumstances of this appeal in relation to the requirement of section 34(1) and (2) of the ELECTORAL ACT 2006. Learned counsel for the appellant expressed the view that since the 1st respondent had already withdrawn his candidature vide Exhibit P6, the Party was at liberty to introduce another candidate and this led to the emergence of the appellant. Consequently, the issue of substitution did not arise as the 1st respondent had withdrawn as at the time of bringing in the appellant.

It is therefore his contention that this matter does not come within the ambit of Section 34(1) and (2) of the Electoral Act but fails squarely within Section 36 of the Act. There was no requirement for cogent and verifiable reasons to be furnished since it is not strictly speaking a case of substitution. It is submitted that, it was the voluntary act of the 1st respondent in withdrawing his candidature that created the opening for the appellant to become a candidate. Consequent upon this, the requirement for cogent and verifiable reasons to be made available to the Commission did not arise and urged this court to so hold.

In arguing issue 4 that is, whether in dismissing the petition, the Tribunal discharged or performed its primary responsibility to do justice to all the parties. Learned counsel for the appellant was of the view that the major focus of the Election Petition Tribunal is to give to the electorate what represented the expression of their franchise and the duty to achieve this cannot be fettered by statue. He referred to the case of DOGARAC VS. GWARZO (1965) NNLR Page 9 at 10. It is his view that the facts of this petition calls for the equitable jurisdiction of the Tribunal. The question to be asked, according to him, is whether the tribunal did justice in dismissing the petition by insisting that the 1st respondent who himself admitted withdrawing his candidature remained in the contest. Also whether it was proper to allow the 1st respondent who had withdrawn his candidature, to reap where he did not sow by taking away the victory of the appellant’s campaign? It is his submission that this is not justice. It was also his view that the court should do substantial justice rather than undue adherence to technicalities. He relied on PACKER Vs PACKER (1958) Page 15 at 22; WILLOUBY VS INTERNATIONAL MERCHANTS BANK NIG LTD (1997) 1 NWLR (PT 48) 105 AMAECHI VS INEC (2008) 5 NWLR (PT 1080) 227 at 264.

Learned counsel further submitted that the appellant was nominated after the 15th respondent wrote Exhibit P6 and the ANPP did not complain about the way and manner Exhibit P6 was routed. It is therefore too late for them to complain as they cannot blow hot and cold at the same time. He referred to the cases of NGIGE VS OBI (2006) 14 NWLR (Pt 999) 196 – 197; and ENGINEERING ENTERPRISE CONTRACTOR OF NIGERIA VS A.G. KADUNA STATE (1987) N.S.C.C. 601 at 613. The sum total of the above stated cases is that the court must move away from the era when adjudicatory power of court was hindered by a continuing adherence to technicalities.

He further argued that the 1st respondent was indolent as far as the pursuit of this office was concerned and equity cannot aid him. It is argued that the Lower Tribunal failed to take into account the interest of the public in deciding the Petition and urged this Honorable court, on the authority of EMESIM VS NWACHUKWU (1999) 6 NWLR (PT 605) 151, to set aside the judgment of the lower Tribunal and grant the reliefs sought by the Appellant before the Tribunal already enumerated above.

In his responses learned counsel to the 2nd and 3rd Respondents submitted that while the court’s pre-occupation remains the dispensation of justice, it has a duty to give justice to a deserving party. See EKONA VS OSIDE (2004) ALL FWLR (PT 216) 562 at 572. Learned counsel submitted that Election Petitions are by their nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of the courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction. Citing BRUCE VS EZE (2004) FWLR (PT.209) 987. It is however submitted that the provisions of the Electoral Act 2006, and the Regulation and Rules made there under demands strict compliance. Learned counsel submitted that, the burden was on the appellant to prove that he was validly substituted in accordance with the provisions of Section 34 (2) of the Electoral Act 2006, which burden he failed to discharge.

It is submitted that the appellant was aware of the fact that his name did not make the final list yet he went about printing posters as claimed by him and engaging in campaign for an election to the office in which to his knowledge he was not a candidate and was not recognized as one by the 2nd and 3rd respondents. Learned counsel was of the view that since Exhibit P6 was never copied to him, his status could not have been elevated to that of a candidate merely because he paid the sum of N120,000.00 nomination fees. Learned counsel referred to Section 35 of the Electoral Act 2006, which he opined the appellant never rebutted, that appellant was aware 30 days before the election that his bid to substitute the respondent failed as his name did not make the list. He referred to JUSTICE PARTY Vs INEC Supra and submitted that the appellant, being aware of the fact that his name did not make the list, 30 days to the election, he was reckless to have embarked on the printing of campaign poster et al and equity cannot come in aid of a reckless act. Learned counsel submitted finally that all the authorities cited by the appellant is just a bid to evoke sympathy and compassion and sway this court against the clear provisions of a statute as represented by Section 34(1) & (2) as well as Section 36(1) of the Electoral Act 2006, which spelt out the procedure for withdrawal and substitution of a candidate and to which the court is to give effect. He therefore urged this court to dismiss the appeal and affirm the decision of the Lower Tribunal.

In his reply brief, learned counsel for the appellant posited with regards to Issue 2 that, since Exhibit P6 was sent through the 3rd respondent to the 2nd respondent that in law was good service because the 3rd respondent, being an agent\privy of the 2nd respondent, can perform the functions of the principal (INEC). It is also submitted that there was ample evidence to prove that Exhibit P6 was made by the 1st respondent, as a result of which Exhibits P7, P8, P9 and P10 were also made. He contended that Exhibits R1, R2, R3, R4, R5, and R6 tendered by the respondents were admitted by consent of the parties. It is also submitted that the respondents did not lead evidence to relate any of these Exhibits to their case. That these documents were merely place before the court and the respondents rested their case. He relied on TERAB VS. LAWAN (1992) NWLR (PT 231) 569 at 575; NWOLE VS IWUAGWU (2006) ALL FWLR (PT 316) 325 at 344; GOVERNOR OF KWARA STATE VS EYITAYO (1997) 2 NWLR (PT485) 11 at 121; to state that since the respondents did not relate the exhibits to the case, the court should not rely on any of those documents.

It is also submitted that the fact that the 1st respondent voluntarily withdraw was clearly admitted by him. He cannot now take refuge under Seetion 34 (1) & (2) of the Act. The appellant is entitled to challenge his exclusion under Section 145(1)(d) of the Electoral Act 2006. It is submitted further that the 1st respondent should not be allowed to claim that he did not withdrew properly in order to allow him enjoy the victory at the polls he never went for or participated in. He therefore urged this Honorable Court to resolve issue 2 in favour of the appellant.

In his Issue 3, learned counsel for the appellant argued that it was not the appellant who sought to do the substitution but the ANPP. It was ANPP’s prerogative to nominate a candidate and they expressed their position vide Exhibits P7, P8, P9 and P10. He argued further that where there was a failure by the 2nd and 3rd respondents to include the name of the appellant, the remedy was for the Political Party, in this case the ANPP and its candidate to insist on its candidature whose name was left out as a result of the omission on the part of the INEC. The law will not allow the ANPP to retreat at this point and begin to show support for the 1st respondent who voluntarily withdrew. It is his view that, the ANPP cannot at this stage abandon the appellant in favour of the 1st respondent, as that would be inequitable and would amount to injustice on the appellant, since the 1st respondent neither campaigned, nor did he spend any money for the position of the member representing Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State. It is argued that what the 1st respondent did was to print posters in line with his desire as expressed in Exhibit P4, which was the chairmanship position which the 1st respondent did not deny.

After a careful and detailed consideration of the issues as argued by the appellant and the respondents in their respective briefs of argument, it is my humble view that the nagging questions arising from this issue that need answers are:-

1. Did the 1st respondent validly withdrew his candidature and if so, was the appellant validly substituted by his Party, the All Nigeria Peoples Party ANPP?
2. If the answer to the above question is in the affirmative, was the appellant unlawfully excluded by the Independent National Electoral Commission, INEC? That is, was INEC right to have excluded the name of the appellant?

To answer these questions, the relevant Sections of the Electoral Act, 2006 dealing with the subject matter will be considered as well as the INEC Guidelines for Elections. Section 36(1) and (2) of the Electoral Act, 2006, that deals with withdrawals of candidate from polls provides thus:-

(1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election and the Political party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election.

(2) Where the Commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his Political Party shall be allowed to nominate another candidate not later than 60 days before the date of election.

What in effect Section 36(1) and (2) is saying is that a candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election. The Political Party shall then convey such withdrawal to the Independent National Electoral Commission, INEC and which shall only be allowed not later than 70 days to the election. Where the Commission is satisfied that a candidate has withdrawn as provided in section 36(1), his political shall be allowed to nominate another candidate not later than 60 days before the election.

In the instant case, it is not in dispute that the 1st respondent was the initial nominee of the ANPP to contest for the office as a member representing Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State. However, on the 7th of February, 2007, the 1st respondent wrote a letter, admitted as Exhibit P6 addressed to the Resident Electoral Commissioner, Niger State, the 3rd respondent herein, expressing his desire to withdraw from the race for Kontagora/Mashegu/Wushishi/Mariga Federal Constituency. This letter, Exhibit P6 is hereby reproduced.

Exhibit P6

Sarkin Bauchi Usman Residence,

Unguwar Kudu,

Kontagora, Niger State.

7th February, 2007.

The Residential Electoral Commissioner,

David Mark Road,

Minna, Niger State.

Dear Sir,

NOTICE OF INTENTION TO WITHDRAW FROM THE RACE FOR KONTAGORA WUSHISHI, MARIGA AND MASHEGU FEDERAL CONSTITUENCY

I write to inform you about my desire and decision to withdraw from the race for Kontagora, Wushishi, Mariga and Mashegu Federal Constituency.

My decision is informed by my desire to contest for the Chairmanship of Kontagora Local Government area, a position I believe would better serve the interest of my people.

Please accept my best wishes.

Yours faithfully,

Sgd

Mallam Musa S.B. Usman

CC:

i. The Chairman,

All Nigeria People’s Party (ANPP)

Niger State,

Minna.

ii. The Director,

State Security Services

State Annex

Niger State – Minna.

iii. i/c State Security Service

Kontagora Local Government Area

Kontagora.

iv. The Chairman,

All Nigeria Peoples Party (ANPP)

Kontagora Local Government Area

Kontagora.

Above for your information and necessary action please.

It is contended for the appellant that from the state of pleadings, it was not in dispute that the 1st respondent admitted notifying his party of his intention not to contest for the office of member representing Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State and that there was no denial of these facts by the respondents see Exhibit P6. It is further contended that the word “shall” used in Section 36 of the Act is only directory and not mandatory and that the failure to route Exhibit P6 as prescribed by Section 36 did not render the withdrawal by the 1st respondent invalid.

On the other hand, it is contended for the 1st respondent that since the appellant was not the original nominee of his party as required by Section 32(1) of the Electoral Act, the appellant can only find succour under the provision of Section 34 of the Electoral Act 2006.

Now the question is, is the provision of Section 36 of the Electoral Act mandatory, that must be complied or it is only directory as contended by the appellant so that failure to strictly comply with the same will not render the withdrawal of the appellant invalid more so when Exhibit P6 was copied to the ANPP at both the State and Local Government levels and who proceeded to inform INEC that 1st respondent was being replaced by the appellant as shown in Exhibit P7.

It is a cardinal principle of our interpretation of statutes that where in their ordinary meaning, the provisions of an enactment are clear and unambiguous, effect must be given to them without recourse to any aid internal or external. It is the duty of the court to interpret the words of the lawmakers as used. The words of a statute must therefore be construed in accordance with the intent of the lawmaker and the primary duty of the court in the interpretation of statutory provision is to give effect to the words used. Section 36(1) of the Electoral Act, provides for the right of a candidate to withdraw from election. He may do so in writing signed by himself and delivered by himself to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election. Whether the word “shall” used in a legislation should be construed as being directory or mandatory depends on the con in which the word is used. In IFEZUE VS MBADUGHA (1984) 1 SCNLR 427. (1984) 5 SC 79 at 135. The Supreme Court per Eso, JSC, had the following to say:-

“It is now trite that the word “shall” does not always mean “must” a matter of compulsion. It could be interpreted, where the con so admits as “may’, whereas “may” is also not always “may”. It may sometimes be equivalent to “shall”;. It is my understanding of the said section of the law that the word ‘may’ used in the first part of the section does not carry with it an obligation or compulsion. It is only permissive but the 2nd arm of the section where ‘shall’ is used, is mandatory because once a candidate nominated by a Political Party withdrew his candidature, then there is a duty or obligation on the Political Party to convey such withdrawal to the Commission so that the Political Party shall be allowed to nominate another candidate.

In the instant case, instead of routing his withdrawal through his Political Party that nominated him, the 1st respondent wrote to the 3rd respondent, the Resident Electoral Commissioner, Minna but copied the withdrawal letter to his Political Party ANPP. In reaction to the 1st respondents’ letter of withdrawal, the ANPP there and then wrote Exhibit P7 to INEC substituting the 1st respondent with the appellant. Before Exhibit P7 was written, the party wrote to the 2nd respondent vide a letter dated 13 February, 2007, intimating it of the withdrawal of the 1st respondent and attaching the said withdrawal letter, Exhibit P6 to its letter. In the circumstances, the failure of the 1st respondent to write the withdrawal of his candidature direct to his political party that nominated directly can only be an irregularity and does not by such failure to write to the political party invalidate the withdrawal as found by the trial court. More so, when the said substitution was done within the period of 60 days prescribed by Section 36(2) of the Electoral Act.

The 1st respondent contended that the court cannot make use or rely on the letter dated 13th February because same was not tendered as an Exhibit. There is nothing that stops a court from making use of documents in its file to resolve a mater one way or the other in its quest to do justice. See TSOKWA MOTORS (NIG) LTD VS U.B.A. PLC (2008) 2 NWLR (PT.1071) 349; and AGBAREH VS MIMRA (2008) 2 NWLR (PT1091) 378.

The essence or purport of requiring notice of withdrawal to be routed through the Political Party is not farfetched. It is in my view among other reasons is to avoid a situation where a candidate will withdraw without reference to the Political Party thereby giving the other Political Parties undue advantage. The Political Party is also expected to know in order to enable it nominate another candidate. The intendment of Section 36(1) is to protect Political Parties from possible collusion between a candidate and other Political Parties. This can be further demonstrated by a situation whereby a candidate withdraws by sending his notice of withdrawal to INEC without reference to the Political Party sponsoring his candidature, the election might be conducted only to discover that the party whose candidate withdraws without recourse to it had no candidate and it would be too late for the Political party to take any steps as it would be taken as having failed to field a candidate at the election. This is the direct converse of what happened in the case of GOODHEAD VS AMACHREE (2004) 1 NWLR (PT854) 352.

The situation in the present appeal is quite different with the facts in the case of GOODHEAD VS. AMACHREE. In the instant case, the Political Party was in the know of the voluntary withdrawal by the 1st Respondent. The party also by a letter dated 13/2/2007, notified the 2nd respondent of the voluntary withdrawal of the 1st respondent. This was in addition to writing Exhibits P7, P8, P9, P10 and P11, wherein both the Niger State Chapter and the National Headquarters of ANPP insisted on the candidature of the appellant. The appellant also paid the sum of N120,000.00 nomination fees to his political party and filed the necessary forms. In the circumstances, therefore, the Party did not loose any chance of presenting a candidate by reason only that Exhibit P6 was addressed to the 3rd respondent while the party was copied with the same, and both chairmen of ANPP Kontagora and Niger State were copied with the said notice of withdrawal. The word ‘may’ used in Section 36(1) of the Act is permissive or directory. There is nothing to show that failure to channel a withdrawal letter through the political party can invalidate the substitution of a candidate. It is neither the fault of the appellant nor that of his party that he should be made to suffer for what he has not contributed. My sense of justice does not allow such. Equity must come in, in aid of the appellant.

In the instant case also, it is the party that brought in the appellant as its nominated candidate after the withdrawal of the 1st respondent. The party never denied receiving Exhibit P6 or writing Exhibits P7, P8, P9, and P10, nor complained that after 1st respondent’s withdrawal they had no opportunity to field another candidate. The 2nd and 3rd respondents did not at anytime deny receipt of Exhibits P6, P7, P8, P9 and P10. It simply omitted to include the name of the appellant.

The courts have on several occasions warned on the necessity to sweep aside technicalities where they obstruct the primary duty to do substantial justice. See AFOLABI VS ADEKUNLE (1983) 2 SCNLR 141; OKEOWO VS MIGLIORE (1979) 11 SC 138 and UDO VS. STATE (1981) 6 – 7, 157. This court and the Supreme Court have in a plethora of cases frowned at the attitude to adhering to technicalities. The court should not allow technicality of the law to override the justice of the case. See ALAMIEYESEIGHA VS FRN (2006) 16 NWLR (PT 1004).

The guiding principle of a court in deciding cases is to do justice. That is justice according to law. What is just in any particular case is what appears to be just to the just man, in the same way as what is reasonable to the reasonable man. The proper role of the court is to do justice between the parties before it. If there is any rule of law which impairs the doing of justice, then it is within the province of the court to do all it legitimately can do to avoid the rule or even change it so as to do justice in the instant case before it. See EMESIM VS NWACHUKWU (1999) 6 NWLR (PT.608) 154.

In doing justice according to law in a situation where there is an enabling statute, a court of law should allow itself to follow the course of a liberal interpretation of the statute to accommodate the tenets of justice, while at the same time not throwing overboard the intention of the draftsman. In the instant case, I have said before that it is not the intention of the draftsman that failure of a candidate to route the withdrawal of his candidature through the political party that nominated will Invalidate such withdrawal so long as the political party was copied with the withdrawal letter and same was done within the period allowed by the Electoral Act, and the political party is fully in the know.

The 1st respondent cannot now approbate and reprobate. He cannot reap where he did not sow. He cannot now take refuge under Section 34(1) and (2) of the Electoral Act that no ‘cogent’ and ‘verifiable’ reason was proffered for his substitution. The 1st respondent cannot rely under the cover of technicality to claim that he did not withdraw properly in order to allow him enjoy the victory at the polls he never went for or participated in. It is my view that the 1st respondent validly withdrew his candidature under Section 36(1) of the Electoral Act, 2006.

The question following is whether the appellant was validly substituted with the 1st respondent. It is contended for the 1st respondent that Exhibit P7 provided no reasons for the substitution of the 1st respondent apart from saying it was doing so based on Section 34(1) and (2) of the Electoral Act 2006 which states that ‘cogent’ and ‘verifiable’ reasons must be given for the substitution which Exhibit P7 failed to supply. Learned counsel for the appellant had contended that the facts of this case do not come under Section 34(1) and (2) of the Electoral Act, 2006. That it is a matter squarely within Section 36 of the Electoral Act and there was therefore no need for cogent and verifiable reasons to be furnished since it was strictly speaking a case of substitution.

I cannot but agree more with the submission of the learned counsel for the appellant that the facts of this case do not come within the purview of Section 34(1) and (2) of the Electoral Act. It is squarely a matter of withdrawal of a candidate under Section 36 of the Electoral Act and there is therefore no requirement for ‘cogent’ and ‘verifiable’ reasons to be furnished since it was not strictly speaking a case of substitution. It is in evidence before the Tribunal that the 1st respondent had already withdrawn his candidature vide Exhibit P6 and he himself has not denied this fact. By Section 36 (2) of the Act, the Political Party was at liberty to nominate another candidate not later than 60 days before the date of election. The fact of the 1st respondent’s withdrawal is more than enough ‘cogent’ and ‘verifiable’ reasons why the appellant should be substituted for the 1st respondent who voluntarily withdrew from the contest. In fact there is no better ‘cogent’ and ‘verifiable’ reasons than the fact of withdrawal of a candidate to contest an election,

It was the voluntary act of the 1st respondent in withdrawing his candidature that created the opening for the appellant to become a candidate. Consequently, the requirements for ‘cogent’ and ‘verifiable’ reasons to be made available to the Commission does not arise. Let me make bold to say that in any case of withdrawal of a candidate from an election under Section 36(1) does not require any ‘cogent’ and ‘verifiable’ reasons to be furnished to the commission before the substitution could be valid. It is the fact of withdrawal that necessitated the nomination of another candidate which the political party is entitled to do by operation of the law as provided under Section 36(2) of the Electoral Act. The fact that Section 34(1) & (2) was referred to in making the substitution is of no moment since the fact of withdrawal is in itself ‘cogent’ and ‘verifiable’ reason to warrant the grant of an automatic substitution. I therefore agree with the appellant’s counsel that Section 34(1) and (2) does not apply to the facts and circumstances of this case. The cases of UGWU VS ARARUME (SUPRA); AMEACHI VS INEC (SUPRA) does not therefore apply to the facts and circumstances of this case. The Tribunal was therefore wrong to have relied on them and to dismiss the appellants’ petition. It is therefore my view that the appellant was validly substituted with the 1st respondent. Exhibits P1, P2, P4, P6, P8, P9, P10 and P11, all go to strengthen the stand of the appellant that he was the rightful candidate for the ANPP who ought to have been returned and not the 1st respondent who voluntary withdrew his candidature from the contest as evidenced in Exhibit 4 especially when read along with Exhibit P6.

Learned counsel for the respondents had contended that for Exhibit P7 to be effective and capable of substituting the 1st respondent there must be evidence that the National Chairman of the party (ANPP) submitted or caused to be submitted to INEC Exhibit P7 as required by Section 34(2) of the Electoral Act. It is on record that the 1st respondent never testified before the Tribunal and the issue of when the exhibits were received and/or acted upon is matter of evidence to be led before the tribunal. This issue in fact did not arise in the pleadings of the parties before the Tribunal, more so, the 1st respondent rested his case on that of the appellant and the issue of whether these exhibits were submitted and acted upon within the prescribed period envisaged by the Electoral Act was not an issue before the Tribunal and the respondent cannot make an issue out of it now at the appeal stage.

In fact, neither the ANPP nor the 2nd respondent, INEC complained that the withdrawal letter, Exhibit P7 was not conveyed to it at least 70 days to the date of the election as required by Section 36 (1) of the Electoral Act. At least it is evidence before the Tribunal that Exhibit P6 was written at least 72 days to the election. The respondent neither by his reply to the petition nor by his sworn deposition contested the issue of receipt of Exhibit P6 by the Commission. There was also no evidence before the Tribunal to challenge the fact that when Exhibit P7 was written to the Commission, the statutory period allowed the Political Party to nominate a candidate under Section 36(2) of the Act had lapsed, i.e. not made later than 60 days before the election. What the learned counsel for the 1st respondent presented in his brief of argument was to present an entirely different case from their stand at the Tribunal. It is now trite that counsel’s presentation no matter how articulate and brilliantly presented it might be, it cannot take the place of oral evidence. The 2nd and 3rd Respondents never complained that they could not react to Exhibit P7 because it was submitted to it outside the time provided by Section 36(2) of the Act.

An issue which was not raised, considered and determined by a lower court cannot arise for determination in an appeal against its judgment. Being a fresh or new issue requires specific leave of the Court of Appeal to raise it now on appeal. When the leave is not sought and obtained, such an issue has no place in the appeal.

See ZAGA VS AMAN (2005) 10 NWLR (PT 933) 299; GOUBADIA VS STATE (2004) 6 NWLR (PT.869) 360; HARRIMAN VS HARRIMAN (1987) 3 NWLR (PT 60) 244.

Based on the foregoing, it is my view that the appellant was lawfully nominated by his political party but was unlawfully excluded by INEC to contest the election held on the 21st April, 2007 for the office of member, House of Representatives for Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State. I also hold the view that Section 34 of the Electoral Act, 2006 has no application in the present circumstances of this case, as it is a matter of substitution under Section 36 of the Act. Since the primary method of contest for elective offices by the Constitution of the Federal Republic of Nigeria, 1999 is between the political parties as it is only the party that canvasses for votes, it follows that it is the party that wins an election. See section 221 of the Constitution and the case of AMEACHI vs INEC (2008) 5 NWLR (PT 1080) 227. In any case, in the instant case, both the appellant and the 1st respondent belong to the same political party, ANPP. It was therefore the appellant and not the 1st respondent who contested the election. The 1st respondent remained no more than a pretender in office. The unchallenging feature is that ANPP was the sponsoring party. In AMEACHI VS INEC (Supra) the Supreme Court per Oguntade, JSC said at page 319 as follows:-

“……the duty of the court is to answer the question which of two contending candidates was the validly nominated for the election. It is a purely an irrelevant matter whether the candidate in the election who was improperly allowed to contest, wins or loses. The candidate that wins the case on the judgment of the court simply steps into the shoes of his invalidly nominated opponent whether as loser or winner.”

Based on the foregoing therefore, as the name of the appellant was unlawfully omitted by non inclusion of his name amongst the names of nominated candidates to contest election by INEC, the appellant simply steps into the shoes of the 1st respondent who had withdrawn his candidature to contest for the office. All the issues raised for determination in the appeal are therefore resolved in favour of the appellant and against the respondents. The appeal therefore succeeds and it is hereby allowed. The judgment of the Tribunal delivered on the 6th December, 2007 is hereby set aside. Consequently, I now make the following orders:-

1. It is hereby declared that the omission of the name of the petitioner as the candidate duly nominated by the ANPP to contest the election to the office of member House of Representatives for Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State was unlawful.
2. It is also declared that the return of the 1st respondent as the winner of the above mentioned election is null and void and of no effect whatsoever in that the 1st respondent was not the person nominated nor sponsored by the ANPP and consequently he was not a candidate for the said election.
3. It is hereby declared that the appellant was the lawful candidate duly nominated by the ANPP, who was entitled to be returned as the person who polled the highest number of votes cast at the election held on the 21st of April, 2007-
4. The 2nd and 3rd respondents are hereby ordered to immediately return the appellant as the winner of the said election and to accordingly declare the appellant as the member elect for the Kontagora/Mashegu/Wushishi/Mariga Federal Constituency of Niger State and issue a certificate of return to that effect.

The appellant is also entitled to costs of this appeal which is assessed at N500,000.00 against all the respondents jointly and severally.

Cross Appeal

In the cross appeal, the cross appellants brief of argument was settled by Sam T. Orogunorisa Esq. and formulated the sole issue for determination to wit;

“Whether the Petitioner/Respondent has the locus stand to present the petition”?

The 1st Cross-Respondent’s brief of argument, settled by Yakubu C. Maikyau Esq., adopted the sole issue formulated by the Cross Appellant to this appeal. At the hearing of the Cross-Appeal, learned counsel for the Cross-Appellants, Mr. Sam T. Ologunorisa Esq., adopted and relied on the Cross-Appellants’ Brief of Argument dated 22nd January 2008 and filed on the same day and urged this court to allow the Cross Appeal and strike out the petition of the Petitioner/Respondent for being incompetent.

The 1st Cross-Respondent counsel Yakubu C. Maikyau, Esq., also adopted and relied on the 1st Cross-Respondent’s brief of argument dated and filed on the 7th of July 2008 and deemed properly filed on the 27th of July 2008 and respectfully urged this Honourable Court to dismiss the Cross Appeal as lacking in merit.

In arguing the sole issue for this Cross-Appeal, to wit: “Whether the Petitioner/Respondent has the locus standi to present the petition?” Learned counsel for the Cross Appellants S.T. Ologunorisa, Esq., submitted that the term locus standi was defined by the Supreme Court in ADESANYA VS. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2001) FWLR (PT.46) 859 at 864 as;

“Legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like standing or title to sue”.

He therefore defined locus standi or standing as the right of a party to appear, and be heard on the question before any court or tribunal. According to him, the question of standing of a plaintiff is not dependent on the success on the merits but is a condition precedent to a determination on the merits. Therefore, where a plaintiff has no locus standi, his claim must be dismissed on that ground and it will be unnecessary to decide the question in the declaration he claims. He argued further that by Sections 144(1) and 145(1)(d) of the Electoral Act, 2006, the only person who can question an election is one who was validly nominated but was unlawfully excluded from the election. He relied also on the cases of OKON VS BOB (2004) 1 NWLR (PT.854) 378 at 400 to 401; OKONKWO VS. INEC (2004) 1 NWLR (PT.854) 242 at 248; JUSTICE PARTY VS INEC (2006) ALL FWLR (PT.339) 907 at 941,

Learned counsel for the Cross Appellant further submitted that the Petitioner/Respondent lacks the locus standi to institute the petition, that his case became bad the moment the 2nd Petitioner withdrew and had its name struck out of the petition. He further distinguished the case of UGWU VS ARARUME supra from the case at hand. That, the case of UGWU vs ARARUME supra was based on Section 34 of the Electoral Act 2006 relating to substitution while this case is based on Section 145(d) of the Electoral Act 2006, relating to who can institute an action on Election Petition matters. He therefore urged this court to strike out the petition of the Petitioner/Respondent.

In his response, learned counsel to the 1st Cross-Respondent submitted that the circumstances that may amount to unlawful exclusion of a candidate validly nominated by a Political Party under section 145(1)(d) of the Electoral Act 2006, is not exhaustive. He submitted that all the authorities cited by the Cross-Appellant are under the Electoral Act 2002, and are therefore inapplicable to the present case because the present case is predicated on the Electoral Act 2006. By section 144(1) of the Electoral Act 2006, an Election may be presented by one or more of the following:-

a. A candidate at an election

b. A Political Party which participated at the election.

It is thus submitted that based on Exhibits P7 – P10, the appellant was validly nominated by the ANPP in place of the 1st Cross Respondent but was unlawfully excluded by the 2nd and 3rd Cross-Appellants. It is submitted that the appellant became a candidate for the ANPP by virtue of the aforementioned Exhibits and by the provision of Section 144(1) of the Electoral Act 2006; he has the locus standi to present the election. He relied on the following authorities: WOWO VS. NDAKO APPEAL NO: CA/A/279/07; ROYAL PETROLEUM CO. LTD VS. FRN LTD (1997) 6 NWLR (T.510) 584; BUHARI VS OBASANJO (2005) 2 NWLR (PT.910) 241; P.P.A. VS. SARAKI (20071 17 NWLR (PT.1064) 453. Learned counsel for the Appellant/Cross Respondent argued that the Cross Appeal is totally jacking in merit and urged this court to resolve the singular issue in the Cross Appear in favour of the 1st Cross Respondent.

Section 145(1)(d) of the Electoral Act 2006 provides thus;

(1) An election may be questioned on any of the following grounds:

(d) That the Petitioner or its candidate was validly – nominated but was unlawfully excluded from the election.

I have given due consideration to the averments therein contained in the 1st Cross Respondent petition particularly paragraphs 10, 11, 12 and 15 thereof which are herein below reproduced;

10. Your petitioner state that sometime around the month of October 2006, the 1st respondent wrote a letter dated 1st October 2006, to the chairman of the 2nd petitioner, representing his ward, to indicate his desire to contest for the seat of the Chairman of Kontagora/Local Government Area of Niger State. This letter shall be relied upon at the hearing of this petition.
11. Your petitioner state that in addition to the above mentioned letter, the 1st respondent wrote another dated 7th February, 2007 which he addressed to the 3rd respondent. In this letter, the 1st respondent reiterated his desire to contest for the seat of Chairmanship of Kontagora Local Government Area of Niger State. The Petitioner shall rely on the campaign posters for the office of Chairmanship of Kontagora Local government Area, printed distributed by the 1st respondent for his campaign.

The petitioner add that as at the time of writing the letter dated 7/2/07 mentioned above, the 1st respondent had been nominated to contest election to the office of the member representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State.

12. Your petitioner further states that the letter dated 7/2/07 contained a notice of withdrawal by the 1st respondent from contesting the election into the office of the member representing the aforesaid Constituency clearly indicating a preference for the chairmanship of Kontagora Local Government Area of Niger State.
13. Your petitioner add that as a necessary follow-up to the matters stated above, the 2nd petitioner equally wrote a letter dated 20th February, 2007 to the Chairman of the 2nd respondent intimating the 2nd respondent of the substitution of the 1st respondent for the 1st petitioner as its candidate for the office of the member House of Representatives, representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency. The Petitioner shall rely on this letter dated 20/02/07 and notice is hereby given to the 2nd and 3rd respondents to produce the original at the trial of this Petition.

It appears to me from the paragraphs of the petition herein above reproduced as well as the Exhibits tendered, particularly Exhibits P7, P8, P9 and P10, the 1st Cross Respondent was validly nominated by his party to contest for the aforementioned office. Section 145(1)(d) of the Electoral Act 2006 provides that a validly nominated candidate can question an election.

It is therefore my humble view that the combined reading of Sections 144 and 145(1)(d) of the Electoral Act 2006, as well as the averments of the 1st Cross Appellant’s Statement of Facts and Exhibits attached thereto, would prove that the 1st Cross Respondent was validly nominated, which by the Provisions of Section 145(1)(d) of the Electoral Act 2006, confers on him the locus standi to question the election. A plaintiff will have locus standi in a matter if he has a special legal right or alternatively, if he has suffered or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. In ADEBUSUYI VS ODUYOYE (2004) 1 NWLR (PT.854) 406 at 416, the court held;

“However the Electoral Act does not define the ambit of the term “candidate”, but Section 134(1)(d) (which is in pari materia with Section 145(1)(d) of the Electoral Act 2006) gives a petitioner or its candidate validly nominated but unlawfully, excluded from the election a right to file a petition. Therefore, a party who intended to contest an election but was disallowed may claim a right to file petition at the Election Tribunal.”

The Appellant/cross Respondent therefore has the locus standi to present this petition. The issue is resolved in favour of the Appellant/Cross Respondent and against the 2nd and 3rd Respondents/Cross Appellants.

It is observed that, the Cross Appeal was filed by the 2nd and 3rd Respondents, REC and INEC respectively. Same was not even filed by the 1st Respondent whose election is being questioned in the present appeal.

INEC has the exclusive power to conduct elections and declare the results and it does not share that power with anyone. Its mandate is to see that elections are free and fair and to that extent, it must therefore be seen or expected to be seen as an impartial umpire. It does not therefore lie in INEC to be seen to indulge in filing objections or cross appeals as in the instant case in respect of election petitions where they are suppose to be seen as impartial umpire but they appear to have derailed in their role as impartial umpire. The president of the Court of Appeal, Hon. Justice Umaru Abdullahi, CON, had cause to admonished INEC and Nigeria Police on the impropriety of appeals filed by them against decision of election tribunals declaring a candidate winner of an election but they do not seem to hid seriously to the warning. He observed in the case of AGAGU VS MIMIKO (2009) 7 NWLR (PT.1140) 342 at 441 para A – D that;

“The other appellants are nominal parties who have no stake as to the outcome of the appeal. It is none of their business to decide the person whom the electorates elect and consequently declared by the court to be the winner and person returned. The primary functions of these purported appellants are to ensure that there is fairness and security at the elections. Public policy demands that the two institutions do no descend into the arena, and theirs is to tend the rope in the interest of peace and stability in the land. Thus, they should learn to remain neutral and strive to attain the aura of neutrality bestowed on them by the constitution of the Federal Republic of Nigeria…….. “See also INEC VS. OSHIMOLE (2009) 4 NWLR (PT 1132) 609. This attitude does not portray INEC as an impartial umpire. It does not lie in INEC to question people’s choice.

Based on the foregoing, I find that the 1st Cross-Respondent has the locus standi to present the petition and that the Cross-Appeal lacks merit and must be accordingly dismissed. I award a cost of N300,000.00 in favour of the 1st Cross Respondent against the Cross Appellant.

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Other Citations: (2009)LCN/3375(CA)