Adamu Shehu Suleiman V. Salisu Zakari & Ors (2009)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

The instant appeal is against the judgment of the Governorship and Legislative Houses Election Tribunal, Sitting in Bauchi State, which was delivered on 25/9/2007, thereby dismissing the Appellant’s petition No. NAGLH/EPT/BA/18/07 filed against the 1st- 5th Respondents.

It is a notorious fact, that the 3rd – 5th Respondents had conducted an election into the House of Representatives for Ningi/Warji Federal Constituency of Bauchi State on 21/4/07. The Appellant allegedly contested the said election upon the platform of the 2nd Respondent. He claimed to have been duly nominated by the 2nd Respondent. His name was resultantly cleared and published by the 4th Respondent on 15/3/07 in the list of all the contestants for the Ningi/Warji Federal Constituency seat in question; the futile attempt to substitute him with the 1st Respondent notwithstanding. However, at the conclusion of the election and collation of the results thereof, it became obvious that the 5th Respondent declared and returned the 1st Respondent as the winner instead of the Appellant.

Thus, on 18/7/07, having been dissatisfied with the result of the election, the Appellant filed in the lower tribunal a 25 paragraphed petition (No. NAGLH/EPT/BA/18/07) challenging the declaration and return of the 1st Respondent. The petition was predicated on a total of seven grounds, to wit:

24. And your petitioner states that the facts and grounds upon which he relies for this petition are as follows:

a. The 1st Respondent who was not nominated for the election into the House of Representatives for the Ningi/Warji Federal Constituency and was therefore not screened and cleared by INEC the 4th Respondent herein as at 13th February, 2007. The last day for the substitution of candidates by political parties as prescribed by section 34 (1) of the Electoral Act, 2006 could not and should not have been returned by the 3rd – 5th Respondents as duly elected in the said election as he was not qualified to contest and never contested the elections into the House of Representatives to represent Ningi/Warji Federal Constituency.

b. That the petitioner was duly nominated by the 2nd Respondent and was screened and cleared by INEC the 4th Respondent herein following his compliance with all the necessary conditions imposed by the said 4th Respondent.

c. That the 2nd Respondent never nominated the 1st Respondent nor was he ever screened and cleared by INEC the 4th Respondent herein as at the 13th February, 2007 which was the last date for the exercise.

d. That the petitioner was a candidate at the election on the ticket of the 2nd Respondent as he was not validly and or lawfully substituted as at the proper date of substitution as prescribed by Section 34 (1) of the Electoral Act, 2006 neither was he ever communicated any purported substitution and he vigorously and painstakingly campaigned and ultimately won the election at the poll of 21st April, 2007 with a total of votes.

e. That on or about the 22nd April 2007 the 5th Respondent, agent of the 3rd and 4th Respondents declared that the 1st Respondent, who was not and ought not to have been a candidate at the election, was duly elected in fragrant and total violation of the Electoral Act 2006.

f. That the exclusion of the petitioner from the election for which he was validly nominated, screened and cleared by the 4th Respondent and for which he vigorously campaigned, was in gross violation of the electoral Act, 2006 and therefore unlawful, illegal, null, void and of the effect whatsoever.

g. That the inclusion of 1st Respondent, if actually he was totally violates the provisions of the Electoral Act, 2006 since he was not a candidate up to the time when the 2nd Respondent could have validly and effectively made a substitution.

By the said petition, the Appellant had prayed the lower tribunal for the following six reliefs: a. A Declaration that the request for change or substitution of the petitioner with the 1st Respondent made by the 2nd Respondent on the 19th March, 2007 vides its letter with Reference No. ANPP/HDQ/INEC/19 signed by Sen. Sai’du Umar Kumo or any other letter for that matter and accepted by the 4th Respondent was in breach of the spirit and letter of section 34 (1) of the Electoral Act, 2006 and therefore unlawfully, illegal, null, void and of no effect whatsoever.

b. A Declaration that the publication of the name of the 1st Respondent by the 4th Respondent as the candidate of the 2nd Respondent for the house of representatives representing Ningi/Warji Federal Constituency, Bauchi State was in fragrant contravention of section 35 of the Electoral Act, 2006 and therefore unlawful, illegal, null, void and of no effect whatsoever.

c. A Declaration that the petitioner was the lawful and legitimate candidate of the 2nd Respondent for the House of Representatives representing Ningi/Warji Federal Constituency, Bauchi State in the National Assembly Election of 21st April, 2007.

d. That the petitioner be declared the validly elected and or returned winner of the election, into the House of Representatives for Ningi/Warji Federal Constituency.

e. An order directing the 3rd – 4th respondents to issue a Certificate of Return to the petitioner for being the duly elected candidate for the House of Representatives representing Ningi/Warji Federal Constituency, Bauchi State in the 21st April, 2007 election

ALTERNATIVELY

A declaration that the exclusion of the petitioner who has validly nominated, screened and cleared for the aforesaid election has wrongful and the inclusion of the 1st Respondent who was not validly nominated, screened and cleared null and void and therefore the said election into the House of representatives seal for Ningi/Warji Federal Constituency be nullified as a result of the wrongful exclusion of the petitioner and an order for a fresh election in which the petitioner shall be the validly nominated candidate of the 2nd Respondent be held.

On 17/7/07, in the course of the pre-trial proceedings, the lower tribunal granted an order consolidating the present petition with petition No. NAGLH/EPT/BA/19/07: HON. ABDUL NINGI & ANOTHER V. SALISU ZAKARI & 4 ORS. The two consolidated petitions simultaneously proceeded to trial. At the conclusion of the said trial, the lower tribunal delivered two distinct judgments on 25/9/07 in respect of both petitions. The judgment of the lower tribunal, with particular regard to the petition No. NAGLH/EPT/BA/18/07 which gave rise to the instant appeal was, inter alia, to the following effect:

On the whole we find the petition totally lacking in merit and is dismissed. The petitioner failed to prove the main claims and the alternative claims which are accordingly hereby dismissed.

This is the Tribunal judgment.

There shall be no order on costs.

See page 344 of the main record of proceedings of the lower tribunal.

Instructively, the Appellant filed his notice of appeal, along with a total of eleven grounds of appeal, in the lower tribunal’s registry on 04/10/07, urging on this court to grant thereto the following reliefs:

a. A reevaluation/appraisal of the Lower Tribunal by this court.

b. An order allowing the appeal and setting aside the judgment and orders of the Lower Tribunal dated 25th day of September, 2007.

c. A declaration that the Appellant proved his claims before the Lower Tribunal and is entitled to judgment his favour.

d. An order entering judgment in favour of the Appellant directing the 3rd – 5th Respondents to issue him with a Certificate of Return as the duly elected candidate for the House of Representatives for Ningi/Warji Federal Constituency of Bauchi State.

Alternatively

An order of retrial before another panel of justices of the Lower Tribunal.

See pages 345 – 351 of the main record.

Initially, the appeal was filed against only the 1st – 5th Respondents, the original respondents to the said petition. However, pursuant to the Appellant’s application, this court made an order on 18/12/08 joining the 6th Respondent to the appeal, as an interested party likely to be affected by the outcome of the appeal.

Parties had filed and served their respective briefs of argument. Most particularly, the Appellant’s amended brief of argument dated 23/02/09, was filed on 26/02/09. It was however deemed properly filed and served, with the leave of court, on 17/6/09. The 1st and 2nd Respondents’ amended brief was filed on 09/7/08. The 3rd – 5th Respondents brief was filed on 23/11/08. There is however nothing in the record to show that leave of the court was sought and duly obtained to either amend or deem the said 1st & 2nd Respondents’ and 3rd – 5th Respondents’ briefs as having been properly filed and served. The 6th Respondent’s brief was filed, on 22/6/09, within time. The Appellant has equally filed a reply brief to the 6th Respondent’s brief, which was deemed properly filed and served on 28/9/09.

On 28/9/09, when the appeal last came up for hearing, only the Appellant’s and 6th Respondent’s counsel, Dr. J.O. Olatoke (with Soji Oloworafe and B.O. Omobara, Miss) and Ben Ogbuche (with Mohammed Tetengi and Grace Sunday) were in court. Regrettably, neither the 1st – 5th Respondents, nor the counsel thereof showed up in court, despite the fact that they had been evidently served with the notice of hearing of the appeal against the 28/9/09 in question.

In the course of the hearing of the appeal, the Appellant’s learned counsel adopted the amended brief thereof, and urged upon the court to accordingly allow the appeal and declare the Appellant as having been duly elected, or in the alternative to order for a fresh election, with the Appellant as the 2nd Respondent’s candidate. The learned counsel had also urged upon the court to deem the briefs, filed by the counsel to the 1st and 2nd Respondents and 3rd – 5th Respondents’, as having been argued and adopted by them; in accordance with Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007.

The 6th Respondent’s learned counsel commenced his submission by alluding to the notice of preliminary objection, filed and incorporated in the brief thereof. He submitted that the notice of preliminary objection was not filed earlier, because the 6th Respondent was not originally joined as a party to the petition in the lower tribunal. He contended that the Appellant did not contest the election in question; as such he had no locus standi to go to the lower tribunal, and by extension, to appeal to this court. He cited Section 285 (2) of the 1999 Constitution for that contention. That, the two cases of AMAECHI V. INEC & UGWU V. ARARUME (supra), cited and relied upon by the Appellant did not avail him. The reason being that the Appellant did not go to the Federal High Court, as was the case in AMAECHI’s and UGWU’s cases (supra). The court was urged upon to accordingly allow the preliminary objection.

Responding to the Appellant counsel’s submission, the learned counsel to the 6th Respondent adopted the argument contained in the brief thereof, filed on 22/6/09, and thus urged the court to affirm the decision of the lower tribunal and dismiss the appeal. The learned counsel referred to, and relied upon, the case of ABUBAKAR V. YARADUA (2008) 19 NWLR (Pt. 1120) 1 at 8384 paragraphs G -A; 133 paragraphs D – E, and submitted that the Appellant cannot approbate and reprobate at the same time. In the sense that, “he cannot ask that the election be nullified on grounds of corrupt practice and for unlawful exclusion” at the same time.

In reply to the 6th Respondent’s submission, the Appellant’s learned counsel adopted and relied upon the Reply brief thereof, and urged on the court to dismiss the 6th Respondent’s preliminary objection, as being an abuse of process of the court. That, the case of ABUBAKAR V. YARADUA (supra) is not apposite to the instant case, as it relates to grounds of petition and not prayers, contrary to the 6th Respondent counsel’s submission. Whereas, in the present case, the exclusion of the Appellant (complained of) is allegedly an alternative prayer or ground of the petition, contrary to YARADUA’s case in which the grounds for corrupt practices and unlawful exclusion were put together. On the whole, the learned counsel urged the court to allow the appeal, set aside the decision of the lower tribunal, and declare the Appellant as person elected or in the alternative to order a fresh election, in the interest of justice.

ON THE VALIDITY OF THE 1st – 5th Respondents’ briefs of argument:

It is in record, as alluded to above, that the 1st and 2nd Respondents had filed an amended brief of argument on 09/7/08. It was filed by Kefas M. Magaji Esq; of K. Magaji & Associates. On their part, the 3rd – 5th Respondents equally filed their brief on 23/11/07. It was filed by Igwe Fidelis Esq; of Fidelis Igwe & Associates. However, most intriguingly, there is nothing in the records to confirm that any of the above mentioned two briefs had been amended, with the leave of the court, at any point in time after the Appellants amended brief was filed, with the leave of the court, on 17/6/09.

In view of the above findings, it has become obvious and rather imperative that the two briefs filed by the 1st & 2nd Respondents and 3rd – 5th Respondents on 09/7/08 and 23/11/07, respectively, ought be deemed to be incompetent, for having been filed long before the Appellants’ amended brief was filed, with the leave of court, on 17/6/09. For the said-two briefs to be valid, the leave of the court must have been sought and duly obtained. Unfortunately for the 1st – 5th Respondents, that was not done.

Thus, contrary to the contention and prayer of the Appellant’s learned counsel, the 1st – 5th Respondents’ briefs ought to be discountenanced by this court for their being incompetent, in accordance with Order 17 Rule 4(a) of the Court of Appeal Rules, 2007. The said briefs of the 1st & 2nd Respondents and the 3rd – 5th Respondents are accordingly hereby struck out, in accordance with the provisions of rules 4(1) and 10 of Order 17 of the Court of Appeal Rules, 2007 (supra). Consequently, this appeal shall be determined solely on the Appellant’s amended brief and the Reply brief, and the 6th Respondent’s brief in question.

The Appellant has raised a total of four issues in the said amended brief thereof, to wit:

3.1 Whether or not from the totality of the evidence adduced before the Lower Tribunal it was established that the Appellants substitution and replacement with the 1st Respondent was done less than 60 days to the election in issue which was held on 21/04/2007 and in total disregard to the provisions of section 34 of the Electoral Act 2006? Grounds 2, 3, 4, and 5.

3.2 Whether or not the Appellant via his pleading and evidence before the Lower Tribunal did not discharge the burden of proof of his case that he was lawfully nominated but unlawfully excluded from the House of Representatives Election for Ningi/Warji Federal Constituency of Bauchi State held on 21/04/2007 as to make the burden of proof shift to the Respondents? Grounds 1,7,8,9 and 10.

3.3 Whether or not the learned justices of the Lower tribunal were right in holding that Exhibit “P” was an inadmissible document and whether they were right to expunge it from the record? Ground 6.

3.4 Whether or not the evidence of Appellant’s witnesses at the trial Tribunal was in any way contradictory in material particulars as to the outcome of the case and whether the evidence before the Lower Tribunal did not make out a prima facie case in favour of the Appellant’s claim as to warrant a rebuttal from the Respondents. Ground 11.

On his own part, the 6th Respondent has raised a total of three issues in the brief thereof, viz:

ISSUE ONE

4.01 Whether the lower tribunal was right in holding that from the totality of the evidence proffered at the trial, the Appellant did not only fail to prove that his substitution with the 1st Respondent was done in violation of section 34(1) & (2) of the Electoral Act, 2006 but also failed to prove his case for which his petition was dismissed. (Grounds 1, 2, 3, 4, 5, 7, 8, 9 & 10)

ISSUE TWO

4.02 Whether the lower tribunal was justified in refusing to accord probative value to the evidence presented by the Appellant on the ground that it was conflicting, contradictory and therefore unreliable. (Ground 11)

ISSUE THREE

4.03 Whether the lower tribunal was right in holding that the only secondary evidence admissible in proof of public document is certified true copy thereof. (Ground 6).

ON THE 6TH RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION

It is pertinent, that the 6th Respondent’s learned counsel had, in the course of his argument, alluded to the notice of preliminary objection incorporated in the brief thereof, in accordance with Order 10 Rule 1 of the Court of Appeal Rules, 2007. In view of the salient and fundamental points raised in the notice of preliminary objection, it’s become rather imperative for me to, first and foremost, accord priority thereto before delving into the issues raised in the two briefs for the determination of the appeal on the merits.

The preliminary objection is to the effect, inter alia, that the Appellant’s appeal is incompetent by virtue of the very fact that the issues raised therein and the evidence before the trial tribunal, as borne out by exhibits G, H, Q and R, border on the infraction of the provisions of Section 34 (1) and (2) of the Electoral Act, 2006. It was submitted, that since the- infraction of Section 34 (1) and (2) of the Electoral Act, 2006 relates to issues which preceded the election of 21/4/07 for Ningi/Warji Federal Constituency, both the lower tribunal, nay this court, lack the jurisdiction to entertain the appeal.

The 6th Respondent was allegedly constrained to raise this preliminary objection at this eleventh hour, on the ground that he was not made a party to the appeal until on 18/12/08, when he was joined by the order of the court. That, the Appellant was propelled to join the 6th Respondent after the delivery of the judgment of this court on 05/6/08, in the, sister appeal (No. CA/J/EP/HR/323/2007), thereby returning the 6th Respondent as the elected member representing the Ningi/Warji Federal Constituency at the National Assembly.

The provisions of Section 144 (1) of the Electoral Act 2006, as well as the notorious case of DR. EMMANUEL ANDY UBA V. DAME VIRGY ETIABA (2008) 6 NWLR (Pt. 1082) 154 at 183 C- F, were cited to the effect, that election petition tribunal is vested with the exclusive jurisdiction to hear and determine election petitions under the Electoral Act, 2006. On that footing, it was argued that since the Appellant did not contest the election of 21/4/07, as he was substituted with the 1st Respondent who contested the said election against the 6th Respondent, this court lacks the jurisdiction to entertain the appeal, which arose out of the Appellant’s petition (No. NALGH/EPT/BA/18/07) before the lower tribunal. In support of that contention, the learned counsel cited and relied upon the case of ESTATE ASINYA V. INEC & 4 ORS (2005) 16 NWLR (Pt. 950) 157 at 176.

It was equally argued that from the content of Exhibit Q, dated 20/3/07, and Exhibit H, the Appellant was obviously aware of his substitution before the election of 21/4/07, but did not institute any action before either the State High Court or Federal High Court at Jos, as the case may be, to challenge his alleged wrongful substitution. He allegedly waited until after the election was conducted, in which he was not a candidate, to file the petition at the tribunal challenging his substitution with his fellow party member (1st Respondent) by the 2nd Respondent.

According to the learned counsel, the substitution (of the Appellant) is the cynosure or heart- beat of the petition at the lower tribunal and by extension, the instant appeal. The counsel thus raised a poser as to-

“Whether this appeal court can entertain appeals from an election petition tribunal over acts that were not contemporaneous with the conduct of the election of 21-04-07?”

The learned counsel, without much ado, submitted thus:

My answer to this poser is a resounding No which is so answered by reason of the fact that what the Appellant wanted the lower tribunal to determine was whether or not the Appellant or the 1st Respondent was the sponsored candidate of the 2nd Respondent (ANPP) or rather which of the two amongst the Appellant and the 1st Respondent was properly validly or legally nominated by their party – the ANPP.

The counsel further argued, that the Appellant’s complaint over his substitution with the 1st Respondent has the colouration of an intra-party feud, of which neither the lower tribunal, nor this court has jurisdiction, as the issue is not justiciable in either of the two courts. See DR. (MRS) BUKOLA ADESUYI V. HON. BABATUNDE ODUYOYE (2004) 1 NWLR (Pt. 854) 406 at 431. OKONKWO V. INEC (2004) 1 NWLR (Pt. 854) 242 at 294 – 295 H – D; OKON V. BOB (2004) 1 NWLR (Pt. 854) 378 at 400 B- H.

Further reference was made to exhibits G, H, Q & R, which were alleged to have been eloquently borne out of the fact of non-participation of the Appellant in the 21/4/07 election in question, which fact robs both the lower tribunal and this court of the jurisdiction to entertain the issue as presented by the appellant.

It was likewise the contention of the 6th Respondent’s counsel, that the substitution of the Appellant with the 1st Respondent, vide Exhibit G, was properly and legally done in keeping with the provisions of Section 34 of the Electoral Act, 2006. This court is urged to accordingly follow the decision of the Supreme Court in the notorious case of AMAECHI V. INEC. See also A.P.G.A V. OHAKIM (2009) 4 NWLR (Pt. 1130) 116 at 154 C; CGC (NTG) LTD V. OGU -(2005) 8 NWLR (Pt. 972) 366 at 381 – 382. BAIDO V. INEC (2008) 12 NWLR (Pt. 1101) 379; ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) 554 at 602 A – C; 612 B – C; Section 285 (1) & (2) 1999 Constitution; Section 144 (1) (a), (b) – (d) of the Electoral Act, 2006, respectively.

The two notorious cases of AMAECHI V. INEC (supra) & UGWU V. ARARUME (2007) 12 NWLR (Pt. 1048) 367, upon which the Appellant placed heavy reliance were allegedly predicated on pre-election matter of substitution. See ADEOGUN V. FASHO GBON (2008) 17 NWLR (Pt. 115) 149 at 200 D – E. In view of the foregoing, the learned counsel to the 6th Respondent urged on the court to hold that the lower tribunal, and nay this court, are not the appropriate venue for the ventilation of the Appellant’s grievances over his substitution with the 1st Respondent for the 21/4/07 election into Ningi/Warji Federal Constituency seat in question. See SULLIVAN CHIME V. HON. OUBEM ONYIA & 2798 ORS (2009) 2 NWLR (Pt. 1124) 1 at 72 – 73 H – A.

The Appellant’s response to the preliminary objection is contained at pages 1-11 of the Reply brief thereof. The Appellant learned counsel’s submission is to the effect, inter alia, that since the lower tribunal had made findings and delivered its judgment upon Section 34 of the Electoral Act, 2006 and Exhibits G, H, Q & R, the 6th Respondent cannot come by way of a preliminary objection against this appeal, but to either file a cross-appeal or Respondent’s notice of intention to contend that the judgment be affirmed on grounds other than those relied upon by the lower tribunal. It is contended that the preliminary objection is incompetent. See ODU V. FAWEHINMI (2005) 15 NWLR (Pt. 949) 601 – 605; GALADIMA V. TAMBAI (2000) 11 NWLR (Pt. 677) 1; BAKAR MARINA (NIG) LTD V. DANOS CUROLE MARINA CONTRACTORS (INC) (2001) 7 NWLR (Pt. 712) 337; DELTA STATE GOVT. V. OKON (2002) 2 NWLR (Pt. 752) 665; OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (Pt. 271) 517.

That, the preliminary objection would have been competent if it’s not in the main challenging the jurisdiction of the lower tribunal on the ground already decided and pronounced by it. On the whole, this court has been urged upon to dismiss the preliminary objection, and accordingly determine the appeal on the merits thereof, as the 6th Respondent has submitted the same issue for determination in issue NO.1 of the brief thereof.

However, as an alternative submission, in the event that the court deems the preliminary objection to be competent, the Appellant’s learned counsel further contended that the preliminary objection is frivolous, lacking in merit and ought to thus be dismissed. Reference was made to paragraphs 3.05 and 3.06 of the 6th Respondent’s brief, to the effect that the Appellant falls within the category of persons mentioned in Section 144 (1) (a) of the Electoral Act, 2006 i.e a candidate at the election. It was argued that the Appellant was a candidate at the election of 21/4/07 for Ningi/Warji Federal Constituency in question. See OKOEBOR V. POLICE COUNCIL (2003) 12 NWLR (Pt. 834) 444 at 47 A; 472 FH; 483 A-H.

The cases of UBA V. ETIABA (supra), and ASINYA V. INEC (supra) relied upon by the 6th Respondent were allegedly not helpful thereto. That, while UBA’s case deals with tenure of office of a governor of a State, (Anambra State), the case of ASINYA was decided on the ground that the Appellants in that case were just members of All Progressive Grand Alliance (APGA), but not candidates (duly) sponsored by the said party at the election held on 19/4/03. Thus, the two cases not having been decided on ground of unlawful substitution (the bone of contention in the instant case), they are allegedly not apposite for the just and fair determination of the present case. We have been urged to so hold.

Responding to paragraphs 3.07 – 3.09 of the 6th Respondent’s brief, it’s argued that since the Appellant challenges the illegal and unlawful substitution thereof in the said election of 21/4/07, he is by law a contestant, thus clothed with locus standi to maintain the action. That, both the lower tribunal and this court were proper and appropriate venues for him to ventilate the grievances thereof. See CHIME V. ONYIA (2009) 2 NWLR (Pt. 1124) 1 at 72 B – C.

According to the learned counsel, the Appellant does not need to seek redress in either the State or Federal High Court, since he is not seeking interpretation of the constitutional provision dealing with the tenure of office of governor, as in the case of UBA V. ETIABA (supra), out rather his complaint centres on unlawful substitution, which has been well tabled in the right venue. See CHIME V. ONYIA (supra). The court was urged to so hold.

It is further maintained, that while nomination is within the exclusive discretion of a political party, substitution of an already nominated candidate is not within the exclusive discretion of the party, but rather regulated by the Electoral Act. Thus, where the substitution is unlawfully carried out, it is beyond an intra party issue, but one to be determined by the Election Tribunal. According to the learned counsel, the Act prescribed a specific period within which a valid and legal substitution can be done otherwise, same will be unlawful, illegal, null and void and at no effect whatsoever as it was done to the Appellant herein and it is the lower Tribunal that can determine same consequent upon which an aggrieved party may appeal to this Honourable Court. See Section 34 (1) & (2) of the Electoral Act, 2006.

The case of OKON V. BOB (supra) relied upon by the 6th Respondent in the submission thereof, is allegedly distinguishable from the one at hand. The other cases of APGA V. OHAKIM (supra), CGC (NIG) LTD V. OGU (supra); BAIDO V. INEC (supra), and ODEDO V. INEC (supra) were also allegedly not relevant for the just determination of the instant case. That, all the cases cited by the 6th Respondent are allegedly no longer good law, in view of Section 34 (2) of the Electoral Act, 2006 which has restricted the power of the political party. See PDP V. KWASIEC (2006) 3 NWLR (Pt. 968) 565 at 623 – 624.

In response to paragraphs 3.15 – 3.16 of the 6th Respondent’s brief, it was contended, inter alia, by the Appellant’s counsel that the term ‘nomination’ is not analogous to unlawful ‘substitution’, therefore the case of ADEOGUN V. FASHOGBON (supra) relied upon by the 6th Respondent is not helpful to his position, while CHIME V. ONYIA (supra) has been allegedly misconceived by him. See ADEOGUN V. FASHOGBON (supra) at 174 paragraphs D – F.

It was finally submitted that to allow the 6th Respondent’s objection is to allow technicality and injustice to prevail in the matter, and that this is the mischief the Supreme Court wanted to correct in the attitude of the politicians in the case of AMAECHI V. INEC (supra). The court has accordingly been urged upon to dismiss the 6th Respondent’s preliminary objection in its entirety, for lack of merit.

I have amply considered the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the various illuminative authorities referred to therein. I have also had the privilege of critically, albeit dispassionately, perusing the records of proceedings of the lower tribunal, as a whole. By virtue of Order 10 Rule 1 of the Court of Appeal Rules 2007, where a respondent intends to rely on a preliminary objection to the hearing of the appeal, he is required to give at least three days clear notice to the Appellant prior to the hearing, setting out the grounds of the objection. The fundamental object of a preliminary objection is to essentially contend that the appeal is incompetent and fundamentally defective, and should thus be discountenanced by the court. This explains the rationale in according priority to the disposal of the objection before delving into the determination of the appeal on the merits. This is so, because once the objection is sustained, the appeal becomes liable to be aborted. See NEPA V. ANGO (2001) 5 NWLR (Pt. 137) 627.

As a matter of general principle, a preliminary objection is raised by means of a notice of motion. This is with a view to enabling the court hear the argument of respective parties on the objection. See TEPSIN V. KYAMINAN (2003) FWLR (Pt. 149) 1517; ACB V. APUGO (1995) 6 NWLR (Pt. 399) 65.

Thus, essentially, the purpose of giving notice of preliminary objection is to accord the other party an opportunity to respond thereto, and to avoid springing surprises thereon. See AGBAKA V. AMADI (1999) 11 NWLR (Pt. 572) 16.

However, notwithstanding the provision of Order 10 Rule 1 of the Court of Appeal Rules, (supra), requiring that a preliminary objection should be by way of a notice (on motion), the objection can be incorporated in the respondent’s brief of argument. Nonetheless, the respondent must seek the leave of the court to move the notice of objection prior to the oral hearing of the appeal, otherwise, it would be deemed to have been abandoned. See NSIRIM V. NSIRIM (1990) 3 NWLR (Pt. 138) 285; OFORKIRE V. MADIKE (2003) 16 NWLR; OHENHEN V. UHUMUAVBI (1995) 6 NWLR (Pt. 401) 303.

By way of an exception to the above general rule, where a notice of preliminary objection was filed by a respondent, and incorporated (argued) in the brief thereof, to which the Appellant filed a reply brief, the purpose of giving a notice of the preliminary objection to the appellant is deemed to have been duly satisfied. See EGBUNIKE V. ACB LTD (1995) 2 NWLR (Pt. 375) 34; OGIDI V. EGBA (1999) 10 NWLR (Pt. 621) 42.

It is instructive, that the Appellant has most vehemently objected to the 6th Respondent’s notice of preliminary objection, on the simple ground that-

“the 6th Respondent having participated at the proceeding before trial tribunal wherein the judgment being challenged was given in favour of the 6th Respondent among others, his objection is incompetent.”

See paragraph 2.01, at pages 1.2 of the Appellant’s reply brief.

I think, there is a need to correct the seemingly wrong impression in the Appellant learned counsel’s submission thereof alluded to above. The reason being that the 6th Respondent cannot rightly be said to have “participated at the proceeding before (the) trial tribunal wherein the judgment being challenged was given in favour of the 6th Respondent…” As rightly stated by the 6th Respondent’s counsel, at paragraph 3.04, page 14 of the brief thereof, the reason for raising the preliminary objection in this eleventh hour was predicated on the fact that the 6th Respondent was not made a party to the appeal until on the 18th of December, 2008 when he was joined by the order of this Honourable Court on the application of the Appellant who was propelled by the fact that the 6th Respondent won his appeal against the 1st Respondent for which he was returned as the elected member representing Ningi/Warji Federal Constituency at the National Assembly vide the judgment of this Honourable Court delivered on 5/6/2008 in Appeal No. CA/J/EP/HR/323/2007.

As alluded to at the outset of this judgment, although the two petitions (NAGLH/EPT/BA/18/07 and NAGLH/EPT/BA/19/07), were consolidated and simultaneously tried together, they were treated, and rightly in my view, as two distinct proceedings. This explains the very reason that informed the wisdom of the lower tribunal to deliver two separate judgments, in respect of the two petitions in question. It is a notorious fact, that although the 6th Respondent was a party (and indeed the petitioner) in the second petition (NAGLH/EPT/BA/19/07), he was never joined by the Appellant as a party to the first petition (NAGLH/EPT/BA/18/07) that gave rise to the present appeal.

The general principle governing consolidation of actions in courts of law has been adumbrated upon in quite a plethora of authorities. One of such decided authorities was indeed EZIKE V. EGBUABA (2008) 11 NWLR (Pt. 1099) 627 at 653 paragraphs F – H wherein this court inter alia, held thus:

One general and fundamental principle of consolidation of actions is that, although the actions consolidated are tried and determined together in the same proceeding, each remains a separate and distinct action and a separate judgment given thereon at the end of the joint or common trial. Therefore, the distinctiveness of the actions so consolidated does not render the evidence in one suit ipso facto evidence in the other. Per SAULAWA, JCA.

It should be reiterated, for the avoidance of doubt, that it’s a trite and fundamental principle that where actions, suits or appeals are consolidated by court or tribunal, as the case may be, each retains the separate and distinct existence thereof. Thus, at the end of the joint trials or proceedings, a separate judgment must be given regarding each suit, action or appeal. The court should not therefore determine one action and ignore the other. Most undoubtedly, the whole essence of consolidating actions is to save time and costs. See NASR V. COMPLETE HOME ENTERPRISES (NIG) LTD (1977) 5 SC 1. LEDIJU V. ODULAJA (1943) 17 NLR 15; DUGBO V. KPOROARO (1958) WRNLR 73; EZIKE V. EGBUABA (supra) at 653 paragraph H; 654 paragraphs A – B & 658 paragraph G – H, respectively.

I have considered the fact that the decision of the lower tribunal, which gave rise to the instant appeal, was predicated on the two issues raised in the counsel’s briefs of argument vis-a-vis the provisions of the Electoral Act, 2006, most especially Section 34 thereof. I have also taken note of the fact that Grounds 1, 2, 3, 4, 5, 7, 8, 9, 10 & 11 of the Appellant’s grounds of appeal have formed the very basis of the Appellant’s complaint against the lower tribunal’s decision, on most especially exhibits G, H, Q & R vis-a-vis the provisions of Section 34 of the Electoral Act, 2006. The three issues formulated in the 6th Respondent’s brief, were so raised “in the most unlikely event of the dismissal of the 6th Respondent’s preliminary objection.” See paragraph 4.01 page 25 of the 6th Respondent’s brief.

In the circumstance, it would appear that what the 6th Respondent did was to merely incorporate, and build upon, the notice of preliminary objection into his argument regarding the three issues formulated at pages 25 – 58 of the brief thereof.

There’s every reason for me to hold, that having regard to the fact that the findings and ultimate decision of the lower tribunal were amply based on Section 34 of the Electoral Act, 2006 vis-a-vis Exhibits G, H, Q & R, the most ideal way for the 6th Respondent to challenge the said decision was for him to have filed either a cross-appeal, or a respondent’s notice in accordance with order 9 of the Court of Appeal Rules, 2007.

There is no doubt regarding the fact that the judgment of the lower tribunal appealed against, was substantially in favour of the 6th Respondent. That, being the case therefore, if the 6th Respondent was desirous of challenging the decision of the lower tribunal, for whatever reason, he had the option of either filing a cross-appeal or a respondent’s notice, in accordance with Order 9 of the Court of Appeal Rules, 2007 (supra). Thus, the notice of preliminary objection, incorporated and argued in the 6th Respondent’s brief, is highly preposterous, to say the least. See BAKER MARINA (NIG.) LTD V. DANAS CUROLE MARINA CONTRACTORS INC. (2001) 7 NWLR (Pt. 712) 337; GALADIMA V. TAMBAI (2000) 11 NWLR (Pt. 677); DELTA STATE GOVT. V. OKON (2002) 2 NWLR (Pt. 752); ODU V. FAWEHINMI (2005) 15 NWLR (Pt. 949) 578 at 604 paragraphs B – G respectively.

Most certainly, there are some circumstances or situations that could warrant a respondent to deem it expedient or even imperative, to file a cross-appeal in a pending appeal. Some of these circumstances or situations have been judicially adumbrated upon thus:

(a) Where there are separate and distinct causes of action and a party seeks to challenge the decision upon one cause of action and another party on a different cause of action;

(b) Where there “are several parties and the respondent seeks to vary the decision or order of the court on a point the appellant has no interest therein;

(c) When the respondent is desirous of contesting the jurisdiction or vires of the court;

(d) Where the respondent seeks to reverse any of the findings of the court below;

(e) Where the respondent wishes a complete reversal of the decision of the lower court.

It ought to be reiterated, that in all the above mentioned situations or cases, a respondent is required to file a cross appeal. See OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (271) 517; ODU V. FAWEHINMI (supra) at 604 paragraphs D – G. See also the recent case of DIAMOND BANK NIG. PLC & ANR V. ISAAC J. ESSIEN ESQ appeal No. CA/J/283/2006 (unreported) in which this court, inter alia, held thus:

Invariably, the law is well settled, that where a respondent seeks to set aside a decision of a lower court on any crucial material aspect, he must do so by way of a cross-appeal and not a respondent’s notice. See SUMMONU V. ASHIROTA (1975) 1 NWLR 16; ELLOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (Pt. 14) 47; ANYADUBA V. NIGERIAN RENOWNED TRADING CO. LTD (1990)1 NWLR (Pt. 127); BRIGGS V. BOB-MANUEL (supra) at 955 paragraphs D – E.”

On the other hand, a respondent’s notice becomes applicable only in a situation where a respondent intends to obtain the judgment of the lower court, but at the same time seeks to vary it. See OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (Pt. 271) 517; DELTA STATE GOVT. V. OKON (2002) 2 NWLR (Pt. 752) 662; BAKER MARINA (NIG) LTD V. DANOS CUROLE MARINA CONTRACTORS INC. (2001) 7 NWLR (Pt. 712) 337; ODU V. FAWEHINMI (supra) at 604 – 605 paragraphs G – A, respectively.

In view of the above highlights, I have no hesitation whatsoever in upholding the submission of the Appellant’s learned counsel, to the effect, that the present notice of preliminary objection, incorporated and argued in the 6th Respondent’s brief, is rather frivolous and ought to thus be discountenanced by this court. Thus, the said notice of preliminary objection is hereby discountenanced, for being incompetent.

I have had a course to, herein above, copiously allude to the four issues raised in the Appellant’s brief and the three issues formulated in the 6th Respondent’s brief. Having amply compared and contrasted the issues raised in the two briefs in question, there is every reason for me to believe and hold that they are not mutually exclusive. I have therefore deemed it appropriate to determine this appeal upon the basis of the four issues formulated in the Appellant’s brief. After all, it’s his own appeal.

ISSUE NO.1:

The Appellant’s issue NO.1 raises the question of whether or not from the totality of the evidence adduced before the lower tribunal, it had been established that the Appellant’s substitution and replacement with the 1st Respondent was done less than 60 days to the election in issue, which was held on 21/04/07, and in total disregard for the provisions of Section 34 of the Electoral Act, 2006. The issue was said to have been distilled from grounds 2, 3, 4 & 5 of the Grounds of Appeal. The Appellant’s argument on issue NO.1 could be found at pages 7 – 20 of the record.

An allusion was made to paragraphs 3 – 11 of the petition, to the effect that the Appellant had stated, clearly therein that he is and was at all time material a registered member of the 2nd Respondent, and that he was duly nominated by his party to contest the election into the Ningi/Warji Federal Constituency of Bauchi State. That, after his nomination, his name was sent to the Respondent who screened and cleared him as a candidate, and his name was published in the list of (other) candidates for election of 15th March, 2007.

It was submitted that on 19/3/07, one ‘Senator Saidu Umar Kuma’ (sic) originated a letter, purportedly on behalf of the 2nd Respondent, to the 4th Respondent, to the effect that the Appellant’s name be changed and replaced with that of the 1st Respondent for the election in question.

Reference was made to the evidence of the Respondent’s witnesses, especially that of RW2 (1st Respondent) under cross-examination, who admitted that the Appellant was the candidate of the 2nd Respondent prior to the substitution vide exhibit G, dated 19/03/07. That, prior to exhibit G, the 1st Respondent (RW2) was a member of the Action Congress (AC).

Exhibits D, E, F, G, L, O & P, were also alluded to, establishing the fact that the Appellant was 2nd Respondent’s candidate up till the 19/3/07. That, exhibits I, J & K also showed that the 1st Respondent was in fact the candidate of Action Congress (AC).

Further references were made to the evidence of PW1 under cross-examination at pages 39 – 53 of the record, PW3, under cross examination by the 3rd – 5th Respondents’ counsel, PW5, at pages 226 – 227 of the record, PW6, at pages 228 – 229 of the record; and PW7, the Appellant himself, at pages 229 – 234 of the record respectively, to the total effect that the Appellant was the candidate of the 2nd Respondent up to the date of the election.

The Appellant also maintained that the RW1 at page 238 of the record, RW2, at page 239 of the record, “conceded under cross examination that the Appellant was the candidate of the 2nd Respondent before substitution.”

Exhibit P, the list of names of candidates for the election published on 15/3/07 by the 4th. Respondent was also referred to by the Appellant’s counsel and submitted, inter alia, thus:

By paragraphs 7 (ii) (iv) (v) (vi) (vii) of the 6th Respondent’s petition the 6th Respondent contended that the 1st Respondent herein was not the candidate of 2nd Respondent at the election of 21st April, 2007 but the Appellant, we also humbly refer your Lordships to the unreported judgment of this Honourable Court in Appeal No. CA/J/EP/HR/323/2007: HON. ABDULAHMED NINGI & ANOR V. SALISU & 4 ORS delivered on 5/6/08 at pages 2 – 3 and 19 – 20, where the 6th Respondent corroborated the case of the Appellant.

It was argued, that from the totality of the plethora of evidence, both oral and documentary before the lower tribunal, it cannot be said that the Appellant merely paraded the provisions of Section 34 of the Electoral Act 2006, as erroneously decided by the lower tribunal.

On whether or not the substitution of the Appellant with the 1st Respondent via Exhibit G was properly and legally done, in accordance with Section 34 of the Electoral Act, 2006, we were referred to (i) Section 34 (1) & (2) (3) of the Electoral Act, 2006, (supra); (ii) the case of AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227 at 385 paragraphs G – D; 385 F – A; (iii) the evidence of RW1 & RW2 under cross examination; and (iv) Exhibit G – the letter or “instrument” of substitution. It was contended, that Exhibit G falls short of the requirement of Section 34 (supra) and, that it does not qualify as an instrument of change or substitution, as it does not satisfy the provisions of Section 34 of the Electoral Act 2006 (supra). It was thus contended, that the lower tribunal was in grave error to have held that the Appellant merely paraded the provisions of section 34 of the Electoral Act, 2006. See CHARLES UGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR (2007) All FWLR (Pt. 377) at 864 – 865 A – D; 867.

We were urged upon to hold that the Appellant was never legally, lawfully and/or properly substituted, in accordance with Section 34 (2) of the Electoral Act 2006 as 2nd Respondent’s candidate, for the election in question, since the exhibit “did not contain any reason at all and was done less than 60 days to the date of the election.”

We were equally urged to follow the decision of the apex court in the notorious case of AMAECHI V. INEC (supra), and accordingly declare the Appellant as the winner of the election in question, since his substitution was not validly done. A further reference was made to. AMAECHI’s case, especially at pages 318 – 319 paragraphs D – C, wherein Oguntade, JSC held, inter alia, thus:

In his argument in the brief filed for PDP, JK Gadzama SAN, senior counsel (sic) argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice with respect to counsel. I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election. Omehia remained no more than a pretender to the officer. The one unchanging feature is that PDP was the sponsoring party.

On that note, the Appellant’s learned counsel urged us to resolve the issue NO.1 in favour of the Appellant.

On the other hand, the 6th Respondent’s issue NO.1 was distilled from grounds 1, 2, 3, 3, 4, 7, 8, 9 & 10 of the Grounds of Appeal. That issue is not in any way at variance with the Appellant’s issue NO.1, alluded to above.

In the course of the submission thereof, the 6th Respondent’s learned counsel placed special emphasis on the provisions of Section 34 (1) & (2) of the Electoral Act, 2006 vis-a-vis the grounds of the petition copiously stated in paragraphs 24 (1), (b), (c), (d), (e), (f) & (g), contained at page 6 of the record. It was submitted, that the onus of proving the assertions therein contained in the petition lies upon the Appellant, to prove on the preponderance of acceptable evidence, if he desires to succeed. That, his success depends on the strength of his own case, and not on the weakness of the defence. For that proposition of law, the learned counsel placed reliance on sections 135, 136 & 137 of the Evidence Act, as well the cases of SULLIVAN CHIME & ANOR V. OKEY ELEA & ORS (2009)2 NWLR (Pt. 1125) 263 at 341 G – H; ALH. GAMBA MOHAMMED V. HAJIYA RABI MOHAMMED (2008) 6 NWLR (Pt.1082) 73 at 88 – 89; FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD (2009) 5 NWLR (Pt. 1135) 588 at 599 D – G; 613-614 H – B, respectively.

It was further submitted, that the Appellant had a responsibility to prove, to the satisfaction of the lower tribunal, with credible evidence that the 1st Respondent was not the 2nd Respondent’s candidate for the election of 21/4/07 by 13/02/07 i.e by 60 days to the date of that election. Reference was made to the Appellant’s six witnesses that testified before the lower tribunal. The witnesses’ statements on oaths at pages 41- 53 of the record. It was contended, that it’s enough to call a litany or legion of witnesses – one witness would have been enough provided that he is a credible witness. See ENGINEER GOODNEWS AGBI V. CHIEF AUDU OGBE & ORS (2005) & NWLR (Pt. 926) 40 at 134 B – C.

It was argued that the statements of Appellant’s six witnesses were found not to have been made by them. That, the lower tribunal rightly found that-

“PW1-PW6 admitted that they did not write their statements and four of them admitted not even signing them …” See pages 320 – 322 of the record.

According to the learned counsel, the above findings of the lower tribunal have not been appealed against; the implication being that the Appellant concedes that his witnesses were not the makers of the statements credited to them, and that they were not faithful witnesses. See UMAWAH V. ATTAH (2006) 17 NWLR (Pt. 1009) 503 – 536 C – E

We were urged not to disturb the findings of the lower tribunal in question, as it was in a far better position to reach that conclusion. See ILORI V. TELLA (2006) 18 NWLR (Pt. 1011) 267 at 288 B – C; NGIGE V. OBI (2006) 14 NWLR (Pt. 999) 1 at 195 G- H; 220 F- G.

The Appellant’s statement on oath, contained at 39 – 42 of the record, the two letters of substitution and protest, admitted as exhibits ASS7 and ASS8, at pages 32 and 34 of the record, and exhibits G & Q were also referred to. The findings of the lower court on Exhibit G, contained at page 33 of the record, was equally alluded to, to the effect that the lower tribunal held that exhibit G has no probative value, and therefore attached no weight thereto.

It was contended that, the Appellant failed to make out a prima facie case on the substitution thereof. That, the Appellant not having proved anything, the Respondents were not obliged to prove anything. See ILOABACHI V. ILOABACHI (2005) 13 NWLR (Pt. 943) 695 at 718 E- F.

It was argued, that the Appellant was not consistent in presenting his case. At, one time he said he was not substituted, and still remained 2nd Respondent’s candidate who contested the election. At another time, he claimed to have wrongly been substituted, in breach of Section 34 (1) & (2) of the Electoral Act, 2006 and heavily relied on cases of AMAECHI V. INEC (supra) and UGWU V. ARARUME (supra).

However, according to the 6th Respondent’s counsel, unfortunately, the two cases in question do not favour the Appellant’s position. The reason being that in both cases, the Appellants commenced their action in the Federal High Court, unlike in the present Appellant’s case. He did not avail himself of that opportunity; as such the two cases are not on all fours with the Appellant’s case. See ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) 554 at 602 A -C; 612. B-C; ADEOGUN V. FASHOGBON (2008) 17 NWLR (Pt. 115) 149 at 200; AGBI V. OGBEH (2006) 11 NWLR (Pt. 990) 65 at 138; AUDU V. GULA (2004) 4 NWLR (Pt. 864) 463; IHEANACHO V. CHIGERE (2004) 17 NWLR (Pt. 901) 130 at 160 paragraph H.

According to the learned counsel, the totality of the findings of the lower tribunal was made more formidable and insurmountable by the tenacity of the Respondents’ pleadings and evidence, proffered through RW1 and RW2, and more importantly, the Appellant’s failure to cross examine RW1, the ANPP’s State Secretary that testified on who the candidate was sponsored by the party thereof. See ANPP V. USMAN (2008) 2 NWLR (Pt. 1100) 1 at 57 E – F; ANSAMBE V. BON LTD (2005) 8 NWLR (Pt. 928) 650 at 661 – 662 H – A; ARABAMA V. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (Pt. 959) 1 at 28 E- H, respectively.

On the above submission, the court has been urged to resolve issues 1 & 2 of the Appellant against him.

I have accorded a critical, but rather dispassionate consideration on the submissions of the Appellant’s and 6th Respondent’s learned counsel regarding issue NO.1 in question. As alluded to above, the issue No, 1 raises the very vexed question of whether or not from the totality of the evidence adduced before the lower tribunal, the Appellant had established that the substitution thereof with the 1st Respondent was done less than 60 days to the election, held on 21/4/07, and in total disregard to the provisions of Section 34 of the Electoral Act, 2006 (supra). Most undoubtedly, the fulcrum of the Appellant’s complaint in the petition revolves around the question of nomination and candidature of the Appellant at the election of 21/4/07 into Ningi/Warji -Federal constituency in Bauchi State. Ironically, however, the issue of nomination and candidature of a person to contest an election on the platform of a political party is essentially a pre-election matter or issue, which comes within the exclusive jurisdiction of either a State High Court or Federal High Court to determine. See UGWU V. ARARUME (2007) 12 NWLR (Pt. 1048) 367; AMAECHI V. INEC (supra) at 310 – 311 H – D.

It is a trite fundamental principle of the law of evidence that he who alleges must prove. See Sections 135, 136 & 137 of the Evidence Act, Laws of the Federation, 2004. It is the duty of a plaintiff to prove the case thereof on the balance of probability, or preponderance of doubt. Although there may be an occasion when the burden or onus of proof may shift, but this can only happen when the plaintiff satisfactorily discharges the burden placed there upon. See ILOABACHI V. ILOABACHI (2005) 13 NWLR (Pt. 943) 695 at 718 E – F.

The law is well settled, that the burden of proof does not ordinarily shift to a defendant until it has been proved by the plaintiff. And that a claimant must rely on the strength of his own case, and not on the supposed weakness of the defendant’s case. See ANSAMBE V. BON LTD (2005) 8 NWLR (Pt. 928) 650 at 661 – 662 paragraphs H – A; ARABAMBI V. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (Part 959) 1 at 28 paragraphs E- H.

I have earlier alluded to the averments in the 25 paragraphs of the petition of the Appellant, contained at pages 2 – 7 of the record of the lower tribunal. The averments of the Appellant in paragraph 24 (d) – (g) of the petition thereof, are to the following effect:

“d. That the petitioner was a candidate at the election on the ticket of the 2nd Respondent as he was not validly or lawfully substituted as at the proper of substitution as prescribed by Section 34 (1) of the Electoral Act, 2006 neither was he ever communicated any purported substitution and he vigorously and painstakingly campaigned and ultimately won the election at the poll of 21st April, 2007 with a total of votes.

(e) That on or out the 22nd April, 2007 the 5th Respondent, agent of the 3rd and 4th Respondents declared that the 1st Respondent, who was not and ought not to have been a candidate, was in gross violation of the Electoral Act, 2006.

(f) That the exclusion of the petitioner from the election for which he was validly nominated, screened and cleared by the 4th Respondent and for which he vigorously campaigned, was in gross violation of the Electoral Act, 2006 and therefore unlawful, illegal, null, void and of the effect (sic) whatsoever.

(g) That the inclusion of the 1st Respondent, if actually he was totally violates the provisions of the Electoral Act, 2006 since he was not a candidate up to the time when the 2nd Respondent could have validly and effectively make a substitution.”

See page 6 of the record. I have copiously reproduced, herein above, the five prayers (reliefs) and the alternative prayer of the petition, contained at page 7 of the record. I do not think it’s necessary to, once again, copiously reproduce them here. As pointed out herein above, the fulcrum of issue NO.1 revolves around the allegation of Appellant’s substitution and replacement with the 1st Respondent, prior to the election of 21/4/07 in question. Most undoubtedly, the issue of nomination and substitution comes within the purview of the provisions of Section 34 of the Electoral Act, 2006 (supra), which are to the following effect:

34. (1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.

(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.

(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date refereed to in subsection (1) of this section.

By virtue of the provisions of Section 34 of the Electoral Act, 2006 (supra), it’s become rather obvious that any political party desirous of changing, substituting, replacing or discarding a candidate thereof in an election has a duty to fulfill the following rather stringent conditions:

(a) That the application for the substitution of a candidate must be made by a political party and no other;

(b) That, the political party must notify INEC in writing of the intention to substitute, change or replace it not later than 60 days of the impending election; and

(c) That, the political party must give cogent, convincing, strong and verifiable reasons for the substitution of the candidate.

See ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) 554 at 643 paragraphs A-E.

However, it’s a fundamental and well settled principle of law, that the issue of nomination and substitution of a candidate is a pre-election matter. It is not, by any stretch of an imagination, a post election matter. It is at best an intra-party dispute, which is indisputably beyond the jurisdiction of any election tribunal (the lower tribunal inclusive), no matter how eminent.

The lower tribunal certainly is devoid of any jurisdiction to entertain the petition, erroneously filed ther8 at by the Appellant, which gave rise to the instant appeal. The main feature that obviously disqualified, and effectively ousted the trial tribunal’s jurisdiction from entertaining the petition in question, is that the substitution of the Appellant is completely outside the purview of the provision of Section 285 of the 1999 Constitution, which provides thus:

285. (1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-

(a) any person has been validly elected as a member of the National Assembly;

(b) the term of office of any person under this constitution has ceased;

(c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and

(d) a question or petition brought before the election tribunal has been properly or improperly brought.

(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 petition 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.

By virtue of the provision of Section 285 of the 1999 Constitution (supra), it has become rather indisputable, that the jurisdiction of the lower tribunal, nay any election tribunal for that matter, is restrictive, constrained and thereby limited to only (post) election matters, and not pre-election disputes or squabbles, as in the instant case. Most undoubtedly, the Appellant’s case was deeply rooted in an intra-party dispute, which incidentally arose prior to the election of 21/4/07, thus the Appellant lacked the locus standi to file the instant petition in the lower tribunal. Consequently, the lower tribunal was equally devoid of any jurisdiction to entertain the said petition. See AMAECHI V. INEC (supra) at 333, wherein the apex court held, inter alia, per Katsina-Alu, JSC thus:

A petition as to who is validly elected as Governor can only arise after an election and in this case, as I have already pointed out, the appellant case arose before the election of 14th April 2007, involving and (sic) intra-party dispute and consequently the appellants could not go, before an election tribunal to seek an order of pre-election.

There is no gainsaying the very obvious fact, that reliefs predicated on pre-election matter are clearly and unequivocally extraneous to the jurisdiction of election tribunals. See the case of ODEDO V. INEC (supra) at 612 paragraphs B-C, Niki Tobi, JSC. See also the recent decision of this court in Appeal No. CA/C/NAEA/47/2008: ELDER BASSEY ETIM V. HON. EMMANUEL BASSEY OBOT & 7 ORS: Appeal No. CA/C/NAEA/47/2008, dated 12/02/2009 (unreported).

In ETIM V. OBOT’s case (supra) in particular, it was strenuously, albeit fruitlessly, postulated upon by the 1st Respondent’s learned counsel, inter alia, that the issue of whether or not AMAECHI V. INEC’s case (supra) was a pre-election matter, or an election petition, did not arise therein as an issue of jurisdiction for determination before the apex court, but rather as a relevant matter in its consideration of an appropriate consequential order to be made. Thus, the issue of pre-election or post election matter allegedly did not arise in that case, as raised in the later case of ETIM V. OBOT (supra). In answer to the said submission, this court held, inter alia, that-

Undoubtedly, the provisions of Section 34 (2) of the Electoral Act 2006 vis-a-vis the apex court’s decisions in UGWU V. ARARUME (supra) and AMAECHI V. INEC (supra) there upon, have effectively radicalised the electoral process in this country. But for the authoritative decisions of the Supreme Court in those two cases, both Ararume and Amaechi would have been in exactly the same pathetic situation as Chief Omuoha in the case of ONUOHA V. OKAFOR (1983) 14 NSC 494; Senator Okon in OKON V. BOB (2002) 5 WRN 69; and Dalhatu in DALHATU V. TURAKI (2003) 15 NWLR (Part 843) 310, respectively.

I have no doubt, that the Federal High Court, Abuja having declared in the said judgment thereof the 1st Respondent to be the only PDP’s proper candidate for the April 2007 UYO Federal Constituency election, he (1st Respondent) has therefore been conferred with the essential locus standi to enable him present the petition in the lower tribunal in accordance with Section 144 (1) (a) of the Electoral Act, 2006. Per Saulawa, JCA.

With particular regard to the above far-reaching decision of this court in the case of ETIM V. OBOT (supra), for the present Appellant to have successfully relied upon the apex court’s authoritative decisions in ARARUME V. UGWU (supra) and AMAECHI V. INEC (supra), he ought to have, as a matter of condition precedent, gone to either the State High Court or Federal High Court to seek and obtain an order declaring him as the validly nominated candidate of the 2nd Respondent at the said election.

My above view is predicated on the trite and well founded principle that all matters preceding election, including nomination, substitution, changing of candidate by whatever name or adjective so-called, come within the purview of the exclusive judicial powers of the State and Federal High Courts. See Section 285 of the 1999 Constitution, which limits the jurisdiction of election tribunal (the lower tribunal inclusive) to post-election matters or disputes.

The provision of Section 285 (1) (a) of the 1999 Constitution, has specifically and in no uncertain terms provided thus:

285. (1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-

(a) any person has been validly elected as a member of the National Assembly;

Thus, by virtue of the said Section 285 (1) (a) of the 1999 Constitution (supra), no election tribunal in this country (the lower tribunal inclusive) has jurisdictional competence to accommodate or entertain pre-election disputes or matters, such as nomination or substitution of a candidate by a political party. The said Section 285 (1) (a) of the constitution rather unequivocally provides for the determination of whether any person has been validly elected (not nominated or substituted) as a member of the National Assembly. The subparagraph undoubtedly provides for election matters giving rise to election disputes (petitions) and not pre-election matters or proceedings.

In the instant case, as the circumstances surrounding the reliefs sought by the Appellant at the lower tribunal were predicated strictly on pre-election squabbles (i.e. validly nominated but unlawfully substituted), Section 285 (1) (a) of the 1999 Constitution could not in any way avail him. See ODEDO V. INEC (supra) at 602 paragraphs A – C; 612 paragraphs B – C, per Niki Tobi, JSC.

Having critically, albeit dispassionately, considered the entirety of the evidence adduced by the parties at the trial of the petition, there is every cogent reason for me to hold that the lower tribunal was right in dismissing the said petition on the ground, inter alia, that the Appellant was not consistent in the presentation of the case thereof. It was rather unbelievable that the Appellant would claim both in the petition and brief as he did, that he was wrongly substituted in contravention of Section 34 (1) & (2) of the Electoral Act, 2006, for which he relied heavily on AMAECHI V. INEC (supra), and UGWU V. ARARUME (supra).

Most undoubtedly, the two cases in question upon which the appellant heavily relied could not, by any stretch of imagination, be rightly said to be on all fours with the instant case.

There is no doubt, that the two notorious cases of Amaechi and Ugwu (supra) are not on all fours with the instant case, thus could not rightly be said to avail the Appellant. This is definitely so, because the actions in the two cases in question were commenced from the Federal High Court. Contrary wise, the action (petition) in the instant case was straight away filed in the lower election tribunal. The Appellant, who claimed to have been wrongly substituted with the 1st Respondent, ought to have filed his action in either the State High Court or the Federal High Court, for him to rightly avail himself of the authorities in Amaechi and Ugwu in question.

The Supreme Court, as alluded to above, had in the recent decisions thereof authoritatively, and in no uncertain terms, asserted that the provisions of Section 285 of the 1999 Constitution (supra) cannot in any way accommodate pre-election matters. This is so, because Section 285 (1) (a) of the Constitution provides unequivocally for the determination of whether any person has been validly elected as a member of the National Assembly. Thus, the sub-paragraph provides for election matters which give rise to post election dispute, and not pre-election proceedings. As emphatically held by the Supreme Court in ODEDO V. INEC (supra), at 602 paragraphs A – C.

As the reliefs sought by the appellant are on pre-election matters, Section 285 (i) (a) could not avail him as that sub-paragraph does not provide for litigation arising from party primaries. And that was what this court dealt with in Amaechi, the majority decision of the Court of Appeal ignored. Per Niki Tobi, JSC.

At this point in time, I have deemed it appropriate to point out that in ODEDO V. INEC (supra), there was a split decision of the Court of Appeal’s panel wherein Mikailu and Bada, JJCA, in a majority decision thereof struck-out the appeal, on the simple ground that it was a mere academic exercise. The majority decision delivered by Mikailu, JCA, was to the conclusive effect thus:

In the final conclusion, it is clear in view of the above that the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an electiontribunal which is in the appropriate venue, having been set up. Consequently, the appeal is struck out as a mere academic exercise.

However, not, strangely, Denton-West, JCA in the exercise of her right of dissent, parted ways with her learned brothers, allowed the appeal and struck-out the cross-appeal. In her lone but undoubtedly flawless voice, the learned jurist conclusively, inter alia, held thus:

This is clearly a pre-election matter. It is about nomination of a candidate for an election by a political party. This is not a matter for election tribunals. The election tribunals have no jurisdiction to entertain dispute over primary elections within the political party for selection or nomination of candidates to contest election on the platform of a political party. Having considered the submission of learned counsel on the issue of whether the appeal is not academic, it is my humble view in line with recent decision of the apex court that it is not.

His Lordship, Niki Tobi, JSC, in his usual erudite characteristic, exhaustively explained the circumstances surrounding the split decisions of this court in ODEDO’s case (supra), and thereby came to the conclusion thus:

See p. 601 ODEDO V. INEC paras D – G.

Who is correct: Mika’ilu, JCA or Denton-West, JCA? “That is the relevant question Mika’ilu, JCA in his judgment from pages 559 to 562, with the greatest respect, did not go into the details of the matter. Denton-West in here (dissenting) judgment from pages 565 to 610, did exactly what Mika’ilu failed to do, which he ought to have done. Most importantly, Mika’ilu, JCA did not consider the decision of the court in Amaechi v. INEC which was obviously cited by counsel for the Appellant. I expected him to consider the decision before taking apposition one way or the other. He said that he did not do so.

In Amaechi, this court dichotomized between a pre-election matter and an election matter for purposes of determining whether a suit is merely an academic exercise. Denton-West, JCA took the pains to analyse the judgment of this court and in the true tradition of precedent and the principles of stare decisis followed that judgment. I was not in the panel in Amaechi but I entirely agree with my brothers’ decision that a pre-election matter cannot be said to be one of mere academic exercise. On the contrary it is a live issue.

In addition to the above authorities, I think it’s apposite to refer to the recent case of ADEOGUN V. FASHOGBON (supra), wherein the apex court held, inter alia, at page 2006 as follows:

From the above, it is clear the 1st Respondent is challenging his substitution as a candidate of the PDP for the 21st April, 2007 election to Ife Federal Constituency of the House of Representatives with the 1st Appellant as well as the selection of the said 1st Appellant as the candidate for the said election. There is no doubt that these are pre-election matters which the relevant courts have jurisdiction to handle separate from the election tribunals.

The Appellant had alluded, in paragraph 9 of the statement on oath thereof, to his substitution vide exhibit G, dated 19/3/07 and exhibit Q, dated 20/3/07, respectively. By virtue of the above pieces of evidence, it’s rather obvious that the Appellant was aware of the 2nd Respondent’s attempt to substitute him with the 1st Respondent, at least from the said 19/3/07, when exhibit G was written to INEC. The election was held on 21/4/07. Between 19/3/07, when exhibit G was written and sent to INEC and 21/4/07, when the election was held, there were a total of at least 32 clear days. Undoubtedly, the Appellant had an ample opportunity and sufficient time to go to either the State High Court or Federal High Court and lodge his complaint, with a view to stopping or restraining the 2nd Respondent from substituting him. But for reasons best known thereto, he became unperturbed, nonchalant and went into a slumber.

He waited until after the- election was conducted (on 21/4/07), results announced, and the 1st Respondent declared and dully returned by the 3rd – 5th Respondents as the winner thereof before he deemed it fit to go to the lower tribunal and filed the instant petition.

Thus, by virtue of the nonchalant and rather loquacious attitudinal disposition thereof, there is every reason for me to content, and rightly in my view, that the Appellant was the architect of his own misfortune. He freely chose to go into slumber, when he ought to have been vigilant and up and doing. He chose to throw caution to the wind and went to the lower tribunal, when he ought to have gone to either the State High Court or the Federal High Court to challenge his alleged unlawful substitution with the 1st Respondent by the 2nd Respondent. Certainly, it was not only wrong but also wasteful for the Appellant to have gone to the lower tribunal in the first place, rather than filing an action in either the State High Court or Federal High Court to challenge his alleged unlawful substitution, in accordance with Section 34 of the Electoral Act, 2006. And, instructively, it’s a trite legal maxim that Nemo commodum capere potest injuria sua propria; i.e No one can derive (any) benefit from his own wrong. Just as it’s a trite and fundamental equitable doctrine that – Vigilant bus et non dormientibus jura subveniunt. That’s to say – the law aid the vigilant, not the indolent.

It must be reiterated, for the avoidance of doubt, that the jurisdiction of regular courts of law, most especially the State and Federal High Courts, as regards pre-election disputes, is sacred, (sacrosanct). By virtue of the Supreme Court’s authoritative and far-reaching decisions in AMAECHI V. INEC (supra), ARARUME V. UGWU (supra); ADEOGUN V. FASHOGBON (supra); ODEDO V. INEC (supra) et al, it has become rather obvious that the mere holding of an election during the pendency of an action filed in a High Court regarding a pre-election matter, challenging the validity of a nomination or substitution of a candidate, would not in any way adversely affect, or deprive such ordinary or regular court of its jurisdiction to conclude the matter even (up) to the appeal court (the apex court inclusive). See ODEDO V. INEC (supra) at 613 paragraphs A – B; 614 paragraphs E- F; 634 paragraphs G – H; AMAECHI V. INEC (supra) at 315.

In AMAECHI’s case (supra), Oguntade, JSC held inter alia, at 315 paragraphs A – B thus:

As I shall shortly show, it is my view that the approach of the respondents to this case was to kill Amaechi’s case in the misconceived notion that once election were held the court would lose its jurisdiction. It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by Section 178 (2) and 285 (2) of the 1999 Constitution

As painstakingly alluded to above, the Appellant in the instant case does not have the privilege or liberty of availing himself the benefit of the authorities referred to above, for the simple reason that he chose to go to the lower tribunal, knowing fully well that it’s only the State High Court or Federal High Court that has the exclusive jurisdictional power to entertain and determine the issues of nomination and substitution of candidates, which are strictly pre-election matters. And by virtue of the provision of Section 285 (1) (a) of the 1999 Constitution (supra), Election tribunals have no jurisdiction to entertain or accommodate pre-election matters or disputes.

It is indeed trite, that by virtue of Section 144 (1) of the Electoral Act, 2006 both a candidate who contested an election and a political party that participated in the election, are entitled to file or present a petition in an election tribunal. Instructively, Section 145 (1) of the said Act provides that an election petition may be questioned upon any of the following four grounds:

(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election.

(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or

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

The circumstances surrounding the instant case and the resultant obvious findings to the effect, inter alia, that the Appellant’s complaint in the main strictly relates to nomination and substitution of a candidate, which is essentially a pre-election dispute, that falls squarely within the purview of the jurisdiction of either the State High Court or Federal High court, to the exclusion of the lower tribunal, and any other election tribunal for that matter. Thus; it would not only be naive, but also outrageously ridiculous for the Appellant’s learned counsel to have urged upon us, as he did, that the court should follow the recent Supreme Court decision in AMAECHI V. INEC (SUPRA) delivered on 25/10/2007 and declare the Appellant as the winner of the House of Representatives Election for the Ningi/Warji Federal Constituency of Bauchi State since his substitution was not validly done and since he was the candidate of Respondent who won the election. See AMAECHI V. INEC (supra) … Oguntade JSC at pages 318 – 319 paragraphs D – C opined that:

In his argument in the brief filed for PDP, J.K Gadzama SAN, Senior Counsel (sic) argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice with respect to counsel, I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election. The one unchanging feature is that PDP was the sponsoring party.

With respect to counsel, the above submission is, to say the very least, misleading and rather prepestrous. It is not in doubt, that by virtue of the provision of Section 22 of the Supreme Court Act, the apex court has the same jurisdictional power as the court of first instance to make any order it deems expedient in the interest of justice, for the determination of the real question in controversy in the appeal before it. So also the Court of Appeal, by virtue of the provisions of Section 15 of the Court of Appeal Act, 2004.

However, the well settled principle guiding the court in the invocation or exercising of the jurisdictional power thereof are that-

(a) The lower court of trial must have the legal power to adjudicate in the matter before the appellate court can entertain same;

(b) The real issue raised by the claim of the appellant at the lower or trial court must be capable of being distilled from the grounds of appeal;

(c) All necessary materials must be available to the court for consideration;

(d) The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent; and

(e) The injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself.

See OBI V. INEC (2007) 11 NWLR (Pt. 1046) 565; ODEDO V. INEC (supra) at 636 – 637 paragraphs H – D, respectively.

In the instant case, there is nowhere in the record it’s been indicated that the power of this court under Section 15 of the Court of Appeal Act (supra) has been invoked. Secondly, as repeatedly alluded to above, the lower tribunal has been found not to have had the fundamental jurisdiction to entertain the petition, in the first place. And the implication of which is that the proceedings of the lower tribunal have been rendered a nullity, on the simple, albeit radical, ground that it lacked the vires to entertain the petition.

It is a fundamental and well settled principle of law, that before a court can exercise the jurisdictional power or competence thereof in any given action or matter, the following conditions precedent must be duly satisfied:

(a) The court must be properly constituted by the right members thereof and none of such members is disqualified for whatever reason;

(b) The subject matter of the case must be within the court’s jurisdiction and no wherein which prevents the court for exercising its jurisdiction; and

(c) That the case must come before the court by due process of the law and upon fulfillment of any condition precedent to the exercise of such jurisdiction.

See MADUKOLO V. NKEMDILIM (1962) 2 SCNLR 341; WESTERN STEEL WORKS LTD V. IRON & STEEL WORKERS UNION (NO.1) (1986) 3 NWLR Pt. 50) 617; ALAMIEYESEIGHA V. IGONIWARI (NO.2) (2007)7 NWLR (Pt. 1034) 542 at 594 B – D; 613 C – D, respectively.

The distinctive feature which radically robs the lower tribunal of the necessary jurisdictional competence or power to entertain the petition before it by the Appellant, was the fact that by virtue at Section 285 (1) (a) of the 1999 Constitution it’s empowered to strictly entertain only matters pertaining to and arising from elections. Thus, most undeniably, it has no power to entertain pre-election disputes or matters, as in the instant case.

In the light of all that has been painstakingly postulated above, there is every reason for me to hold that the Appellant’s argument on issue No. 1 is devoid of any merit, and same is hereby resolved in favour of the 6th Respondent.

Having regard to the circumstances surrounding the appeal, as a whole, vis-a-vis the resolution of issue NO.1 in the 6th Respondent’s favour, there is no gain-saying the fact that to delve into the determination of the remaining 2nd, 3rd and 4th issues on the merits would tantamount to a sheer academic exercise. Instructively, an action, matter, appeal or suit is said to be academic if it turns out to be merely theoretical, and of no practical utilitarian value to the party that filed it, even if judgment or decision is given in favour thereof. See ODEDO V. INEC (supra), in which the apex court held, inter alia, per Niki Tobi, JSC, at 600 paragraphs B- D thus:

An academic issue or question is one which does not require an answer or necessary to the case on hand. An academic issue or question could be a hypothetical or riot question. An academic issue or question does not relate to the issues in the litigation because it is spent as it will not ensure any right or benefit on the successful party.

See also TANIMOLA V. SURVEY & MAPPING GEODATA LTD (1995) 6 NWLR (Pt. 403) 617; NWOBOSHI V. ACB (1995) 6 NWLR (Pt. 404) 658; OGBONNA V. PRESIDENT, FRN (1997) 5 NWLR (Pt. 504) 281; NDUKE V. IBEZUM (2002) 12 NWLR (Pt. 780), A.G FEDERATION (2006) 3 NWLR (Pt. 967) 346 at 419, respectively.

Undoubtedly, the apex court has, in the case of AMAECHI V. INEC (supra), created a dichotomy between a pre-election dispute and an election matter simpliciter, for the purposes of determining whether or not a suit or action is merely an academic exercise. Indeed, the apex court did decide that a pre-election matter cannot be’ said to be one of mere academic exercise. Contrariwise, it is certainly a live issue. See ODEDO V. INEC (supra) per NIKI TOBI, JSC at 601 paragraphs D- G.

However, in the instant case, having found and held, rightly in my view, that the substratum or fulcrum of the Appellant’s petition was predicated on the issues of nomination and substitution, which are fundamentally pre-election matters, the lower election tribunal lacked the jurisdiction to entertain and determine the petition in question on the merits. By implication thus, the remaining issues 2, 3 & 4 have become rather academic, since the lower tribunal was devoid of the necessary jurisdictional competence to determine the petition upon which the said issues were predicated. And I so hold.

As postulated above, the instant case is distinguishable from ODEDO’s case (supra) in so many ways than one. In the later case, the apex court upheld Denton-West, JCA’s minority (dissenting) view to the effect that the case was clearly a pre-election matter outside the jurisdiction of election tribunals, therefore the appeal was not academic since the trial Federal High Court Enugu, from which the appeal emanated, had the requisite jurisdictional competence to entertain the matter. Contrariwise, in the instant case by virtue of the clear and unequivocal provisions of Section 285 (1) of the 1999 Constitution (supra), the trial lower tribunal ought not to have entertained the petition in the first place. It erred in law when it found that the Appellant had locus standi to file the petition, on the ground that the complaint therein clearly borders on the issues of nomination and substitution of a candidate which are strictly pre-election matters, thus triable and determinable only by either Federal High Court or State High Court. It is a well settled principle of law, that the application of the doctrine of stare decisis, otherwise known as judicial precedent, does not condone the exercise of judicial discretion. It (i.e the doctrine of stare decisis) is indeed a mandatory principle. As authoritatively stated by the apex-court in AMAECHI V. INEC (supra) at 379 – 380 paragraphs H- A.

It is what must be done; i.e. it is mandatory. The doctrine is based first of all on the relevant likeness of or between the cases – the previous and the one before the court. If there is no likeness between the two, there is no need to consider whether the previous one should be followed or departed from.

I have no iota of doubt in my mind, that the lower tribunal had exceeded its judicial powers when it proceeded to determine the petition on the merits when it’s so obvious that the Appellant lacked the fundamental locus standi to file the petition in the first place. The lower tribunal’s action has amounted to what the House of Lords termed ‘the substitution of the uncertain and crooked cord of discretion for the golden and straight met wand of the law.’ See PETTITT V. PETTITT (1970) Act 777 at 808, per Lord Hodson.

Most undoubtedly, the law is well settled that where in any given case a court lacks the jurisdiction or vires to entertain a matter, the entire proceedings that may have been embarked upon is liable to be struck out. And neither the trial court nor the appellate court has the competence to delve into the determination of any further issue on the merits thereof. See OLUTOLA V. UNILORIN (2004) 18 NWLR (Pt. 905) 416; APGA V. OHAKIM (2009) 4 NWLR (Pt. 1130) 116 at 161 paragraphs E- H.

Before putting the last dot in this judgment, I have deemed it expedient to commend to the Nigerian politicians and leaders alike, the highly exemplary virtues of one of the foremost fathers of democracy, the great American President, Abraham Lincoln. It is indeed an understatement to state that Abraham Lincoln’s legendary dogged commitment to democracy and its ideals is second to none! His commitment to the values and ideals of democracy throughout his lifetime was characterized by patience, courage and faithful adherence to the pursuit of the American dreams as cherishingly chartered by the American Constitution. We tend to simply remember him as a great American President, overlooking the travails he went through: and the storms he weathered in the course of his life time.

It’s indeed legendary, that Abraham Lincoln’s political career had been punctuated by an interestingly chequered history. In 1832, he contested and lost the election for a Federal Legislative seat. In 1834, he contested and won a seat in the Legislative Assembly. In 1838, he contested for the Office of Speaker, House of Representatives and lost. In 1840, he contested for Elector and lost. In 1846, he contested the election for Congress and lost. In 1848, he contested for Congress and lost. In 1855, he contested for Senate and lost. In 1856, he contested for Vice President and lost. In 1858, he contested for the Senate and lost. In 1860, he took the bull by the horns, so to say, and contested for President, and by divine providence, he won. See ENCYCLOPAEDIA OF 7700 ILLUSTRATIONS: SIGNS OF THE TIMES, by PAUL LEE TAN, published by R.R. DONNELLEY & SONS, 1990 at pages 1373 – 1374.

Thus, from the foregoing chronological break down of the political adventure or upheavals thereof, Abraham Lincoln had participated in not less than ten (10) different elections into the various political offices alluded thereto above. Yet he was able to win only two of those ten (10 elections. i.e in 1834 (when he won a legislative seat) and the second and indeed last victory was in 1860 (when he won the historic Presidential election). It is said that the game of politics is not a ‘do-or-die affair’. And I have no reason whatsoever to disagree.

Hence, in the light of the above findings, I have no hesitation whatsoever in coming to the conclusion that the present appeal is devoid of any substantial merits, and same is hereby dismissed by me. Consequently the judgment of the lower tribunal, which was delivered on 25/9/07, is hereby set aside. The petition filed in the lower tribunal on 18/5/07, is hereby struck out for lack of jurisdiction.

There shall be no order as to costs.

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Other Citations: (2009)LCN/3457(CA)