Aliyu Bello Mohammed Sambo & Anor V. Mohammed Adamu Aliero & Ors (2009)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

Two petitions, KB/EPT/SEN/2/2007 and KB/EPT/SEN/7/2007 were presented before the Kebbi State National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting at Birnin Kebbi challenging the return of Mohammed Adamu Aliero who had been fielded by the People’s Democratic Party (PDP) to contest the election for the Kebbi Central Senatorial District seat held on 21st April 2007. The Petitioners alleged inter alia that Mohammed Adamu Aliero who at the end of the election conducted by the Independent National Electoral Commission(INEC) was declared and returned the winner of the election, was not qualified to contest the election. Aggrieved by the declaration and return, Aliyu Bello Mohammed and Alhaji Abubakar Atiku Bunu, the – respective candidates of the Democratic People’s Party (DPP) and the All Nigeria Peoples Party (ANPP) in the very election, challenged the declaration and return in their separate petitions. Their sponsors were co-petitioners.

The two petitions are articulated on three grounds each with two grounds being common to both petitions. The two grounds common to the petitions are:-

(i) That the 1st Respondent was at the time of the election not qualified to contest the election and

(ii) That the election was invalid by reason of corrupt practices and or non compliance with the mandatory provisions of the Electoral Act, 2006.

Whereas the third ground in petition No KB/EPT/SEN/2/07 avers that 1st Respondent was not validly nominated to contest the election, the petitioners in No. KB/EPT/SEN/7/07 in their third ground claim that the 1st Respondent was not duly elected by a majority of lawful votes cast at the election.

In the particulars in support of their common grounds it is alleged that there was invalid or improper merger between the Kebbi State chapter of the ANPP and the Kebbi State chapter of the PDP that led, contrary to the provisions of the Electoral Act, to the improper substitution of the lawfully nominated and sponsored candidate of the PDP with the 1st Respondent; that at the time of the substitution, the 1st Respondent was the candidate sponsored by the ANPP and the candidature was persisting. In petition No. KB.EPT/SEN/7/2007 it is further averred that the PDP had not given congent and verifiable reasons for the substitution of its candidate with Mohammed Adamu Aliero; that 1st Respondent’s election was also marred by thuggery, violence, snatching and or stuffing of ballot boxes, bribery, undue influence and other corrupt practices.

Petition NO. KB/EPT/SEN/2/2007 concluded by praying the tribunal to void 1st Respondent’s election and order a fresh election. The petitioners in petition No. KB/EPT/SEN/7/2007 made the same prayers and in the alternative sought a declaration that the 2nd petitioner therein, Abubakar Atiku Bunu, being the lawfully Elected candidate be so returned. The Respondents joined issues with the petitioners in their replies to the two petitions. 1st and 2nd Respondents particularly averred that 1st Respondent was validly nominated as a candidate of the 2nd Respondent and with the overwhelming support of the latter’s members; that the nomination conforms with the provisions of the Electoral Act as well as the 1999 Constitution of the Federal Republic of Nigeria; that there was neither a merger between the Kebbi State chapters of the PDP and the ANPP nor was 1st Respondent’s nomination the product of such merger. 1st and 2nd Respondents were emphatic that 1st Respondent had never been presented as ANPP’s candidate for the 21/4/01 election and that the election was conducted in substantial compliance with both the electoral Act and the Constitution. Being a gross abuse of the Tribunal’s processes, the 1st and 2nd Respondents prayed the tribunal for the dismissal of the petition.

The 3rd – 5th Respondents in their reply to the allegations in petition No. KB/EPT/SEN/2/01 averred to similar defences as those made by the 1st and 2nd respondents. Additionally, the 3rd -124th Respondents in petition No. KB/EPT/SEN/1/01 averred that the petitioners lacked the locus stand to challenge 1st Respondent’s nomination and if they did, the appropriate time to contest the issue was before and not after the election had been concluded and the results announced; The 3rd -124th Respondents denied, paragraph by paragraph, all the allegations of corruption, violence, thuggery, rigging and other malpractices.

With parties pleadings, the preliminary objections raised in the 1st and 2nd Respondents replies to the two petitions as well as the issues formulated by the parties as calling for consideration in the determination of the petitions, the tribunal pursuant to its powers under the election tribunal and Court Practice Directions reduced the issues for determination to three, thus:-

“1. Whether or not having regard to the basis of and facts in support of the grounds of the petition, or any of them, the Tribunal has jurisdiction or is competent to entertain this petition.

2. Whether within the intendment of Section 145 (1) (a) of the Electoral Act and Section 65 (2) (b) of the 1999 Constitution, the 1st Respondent was qualified to contest the election into Kebbi Central Senatorial District held on 21st April, 2007.
3. Whether or not the infractions of the Electoral Act, 2006 as alleged, if established as required by law, constitute substantial non-compliance with the Electoral Act 2006.”

At the pre-trial conference the parties agreed that the objections raised by the 1st and 2nd respondents which gave birth to the tribunal’s first issue as reproduced above, be rolled over and determined at the end of the trial of the petitions. It was also agreed that all the statements of witnesses on oath in respect of the petitions be adopted during trial and that the witnesses would not be cross examined. Documents were to be tendered as Exhibits from the bar.

At the end of a full trial of the consolidated petitions, the tribunal in its judgment delivered on 10th October, 2007 dismissed the two petitions having found: both unmeritorious. It consequentially upheld the return of Mohammed Adamu Aliero as the duly elected Senator for Kebbi Central Senatorial District arising from the 21st April, 2007 election.

Being dissatisfied with the decision of the Tribunal, the petitioners separately filed their notices of appeal against the tribunal’s judgment.

Whereas Appeal No. CA/S/EP/SN/5/2009 filed on 30/10/07 by Aliyu Bello Mohammed Sambo and the Democratic People’s Party (DPP) is predicated on the notice of appeal containing five grounds, Appeal No.CA/S/EP/SN/6/2009, also filed on the 30/10/09, by the All Nigeria Peoples Party and its candidate Alhaji Abubakar Atiku Bunu is on a notice that has seven grounds. We ordered the consolidation of the two appeals at the instance and with the consent of counsel to all the parties thereto. It is pertinent to note at this point that by a motion on notice dated 3rd but filed on 8th July 2009, the 1st and 2nd Respondents in appeal No. CA/S/EP/NA/S/7/09 have challenged the competence of that particular appeal. The motion which is pursuant to order 7 rules 1 and 10 of the Court of Appeal Rules, 2007 as well as the inherent jurisdiction of this court urges that the appeal be struck out on the grounds that:-

“i) The 1st Respondent/Applicant who had hitherto served as a Senator of the Federal Republic of Nigeria following his election into that office in 2007 was appointed a Minister of the Government of the Federation (specifically Minister of the Federal Capital Territory, Abuja) sometimes in 2008, an office he assumed on 17th December, 2008.

iv) The said Senate Seat by the event that has happened and in the circumstances is no longer the subject of any live dispute between the parties in the appeal as the said Senate seat is now vacant by operation of law necessitating the conduct of a fresh election to fill the seat.

v) The pronouncement made by the court in this appeal at this time will be purely academic as it can not benefit any of the parties to the appeal.

vi) The reliefs sought in this appeal are no longer relevant to support a living issue having regard to the present state of affairs.

vii) The court has no jurisdiction to entertain an academic issue or a matter which does not raise an issue in controversy as a live or living issue.

viii) This application is brought in utmost good faith and in the interest of justice.”

We granted leave to parties to file written addresses on the objection raised by the 1st and 2nd Respondents. Having done so, they adopted and relied on their written submissions as arguments for or against the objection. Being a challenge to our assumption of jurisdiction over the appeal, it is incumbent to dwell on the objection first and, depending upon the outcome, either sustain the objection and strike out the appeal or otherwise assume jurisdiction and proceed to determine the appeal on its merit.

1st and 2nd Respondents’ preliminary objection is supported by an eleven paragraph affidavit deposed to by one Musa Ibrahim of counsel. Paragraphs 4, 5 and 6 of the supporting affidavit are hereunder supplied for ease of reference because of their importance.

“4. I know that the 1st Respondent/Applicant was elected as a Senator of the Federal Republic of Nigeria in 2007 on the platform of 2nd Respondent as its candidate.

2. Sometimes in 2008, the 1st Respondent/Applicant was appointed as a Minister of the Government of the Federal Republic of Nigeria, specifically, Minister of the Federal Capital Territory, Abuja, a position which he has assumed since December 17, 2008.
3. The Senatorial Seat occupied by the 1st Respondent/Applicant upon his assumption of office became vacant.”

The foregoing paragraphs have not been controverted by any of the Respondents to the objection in support of which the paragraphs were deposed to. The paragraphs must be acted upon as truth of what they contain. See: OGOEJEOFO Vs OGOEJEOFO (2006) 3 NWLR (pt 966) 205 SC.

Learned Counsel to the objectors has formulated one issue to be considered in the determination of the objection.

The issue reads:-

“Whether or not the court, in the light of the changed circumstances that have occurred since the litigation giving rise to this appeal has any jurisdiction to entertain the appeal”.

Learned counsel for the Applicants/objectors recounted the facts deposed to in support of the objection. He said that the instant appeal had arisen from the decision of the Election Tribunal of 10th October, 2007 dismissing Appellant’s petition. The appellants had challenged the return of the 1st Respondent who was returned the duly elected Senator of the Kebbi Central Senatorial seat by the 3rd Respondent. 1st Appellant had sought the nullification of the return and the court’s declaration that he was the duly elected candidate instead of the 1st Respondent. At the time the matter was commenced at the tribunal, learned counsel argued, there was a live issue: the judicial challenge to the 1st Applicant/objector’s occupation of the Senatorial seat on account of his winning the election.

The facts remained, counsel further contended, that 1st Respondent had been elected as declared by the 3rd Respondent which return had been upheld by the Election Tribunal upon the dismissal of Appellants/Respondents petition. Up till December 2008 when the 1st Respondent relinquished the seat on his being appointed a Minister of the Federal Republic of Nigeria, he had effectively occupied the Senatorial Seat as his election had neither been nullified nor set aside. On 1st Respondent’s assumption of the ministerial slot however, the seat became vacant by operation of the law. Learned counsel relied on S.68(1)(d) of the 1999 Constitution and the case of B. A ALEGBE SPEAKER, BENDEL STATE HOUSE OF ASSEMBLY V M. O. OLOYO (1983) Vol 14 NSCC 315 and urged us to conclude that the disputed Kebbi Central Senatorial Seat had become automatically vacant thereby rendering the controversy in the litigation on it a lifeless one. The 2007 Senatorial election that provided the Appellants/Respondents the locus to challenge 1st Respondent’s election and return had ceased to exist. Only a fresh Senatorial election conducted by INEC can grant the Appellants the reliefs they seek. Learned counsel argued relishly that the intervening circumstances have preempted any pronouncement of this court as the very circumstances had rendered the disputed seat vacant. The Applicants have ceased being beneficiaries of the election and any pronouncement of this court as to the validity or otherwise of the election would be in vain. Courts, argued counsel, have no jurisdiction to decide academic issues as the one in the instant appeal. Counsel commended to us the Supreme Court decisions in AG FEDERAL V ANPP (2003) 18 NWLR (PT 851) 182 and BADEJO V FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (PT 464) 15 that support his position. He urged that we decline jurisdiction over the appeal.

Learned senior counsel to the Appellant, Mr. Ricky Tarfa, as a preliminary point, challenged the competence of the objection as same had not been raised three clear days to the hearing of the appeal as required by orders 7 and 10 of the Court of Appeal Rules. He relied on the decisions in ISHENO V JULIUS BERGER NIGERIA PLC (2003) 14 NWLR (pt. 840) 289 AT 304 and IGP V ANP (2007) 18 NWLR (pt.1066) 457 AT 482 and urged us to discountenance the objection.

Learned Senior counsel otherwise responded to the objection in their written brief and presented a single issue that has arisen for the determination of the objection thus:-

“whether having regard to the circumstances of this appeal. The appeal has become an academic issue.”

He argued that the qualification or otherwise of the 1st Respondent to contest the 21st April 2007 Kebbi Central Senatorial election remains a live and vibrant issue. Learned Senior counsel submitted that the legal effect of the success of the appeal will be that 1st Respondent was never 2nd Respondent’s candidate in the election and had never occupied the Senate Seat in dispute. This, learned senior counsel argued, remains a live issue until the expiration of the tenure of the current National Assembly by 2011. The case of B. A. ALAIGBE SPEAKER BENDEL STATE HOUSE OF ASSEMBLY V M. O. OLOYO supra relied upon by the Respondents/Applicants, it is submitted, does not avail the 1st and 2nd Respondents. The facts of the case differ from those in the instant case. 1st Respondent had accepted the Ministerial appointment while actively defending the appeal from the decision of the Election Petition Tribunal.

The seat as such was not vacant. Appellants case at the tribunal as well as in this court is that 1st Respondent had never occupied the Senatorial Seat.

The question of vacating the Seat does not therefore arise as the 1st Appellant rather than the 1st Respondent was the lawful winner of the election. Counsel referred to the definition of a lifeless and academic issue contained in the case of AGBAKOBA V INEC 2008 18 NWLR (Pt.1119) 489 AT 546 He urged us to apply same in dismissing the objection. He further cited and relied on LABOUR PARTY V INEC (2008) 13 NWLR (pt 1103) CA 73, LABOUR PARTY V INEC (2009) 6 NWLR (pt 1137) SC 315 AT 3337 – 338, TUNDE ISIAQ & ORS V OKANLAWON SONIYI unreported judgment of the Lagos division of the Court of Appeal in Appeal No. CA/L/EPT/LAS/NA/04/2007 and AMAECHI V INEC (2008) ALL FWLR (pt 407) 103 to buttress what effect the success of the appeal would have. Learned senior counsel concluded by submitting that the issue being a live one, this court has jurisdiction thereon and urged us to assume same.

Learned counsel to the 3rd – 5th Respondents Yahaya Mahmood Esq. collaborated with the learned senior counsel to the Appellant in his response. He referred us to Section 285, Section 246 as well as Section 287 of the Constitution which respectively create the Election Petition Tribunal, the right of appeal from the tribunal’s decision to this court and for the enforcement of the tribunal’s decisions as long as same subsists.

Mr. Mahmood submitted that the decision of the tribunal which gave rise to the instant appeal was pursuant to the tribunal’s lawful exercise of its jurisdiction. Such a decision, learned counsel argued, even if erroneous persists in the eyes of the law until it is set aside. The appeal which the 1st and 2nd Respondents ask should be struck out is the Appellants constitutionally guaranteed resolve to have the subsisting decision of the tribunal revisited and nullified. The appeal, learned counsel contended, is not lifeless and its consideration an academic exercise. He urged that the objection be dismissed.

Now, is the instant appeal, in the light of the facts in support of the objection, spent and lifeless thereby rendering our consideration of the appeal a useless exercise that confers no benefit even to the Appellants?

The question is pertinent following the Supreme Court’s definition of what an academic issue that the 1st and 2nd Respondents submitted the instant appeal has become and for that reason should be struck out.The apex Court had said of an academic issue or matter in Plateau State v Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346 at 419 thus:-

“A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiffs even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity”

The Court maintained the same definition per Tobi JSC in Odedo V INEC (2008) 17 NWLR (pt.1117) 554 at 600 as follows:-

“An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary dos not relate to the live issues in the litigation because it is spent as it will not ensure any right or benefit on the successful party.”

In the case at hand, the Appellants as petitioners challenged the election of the 1st Respondent as the Senator for Kebbi Central in the National Assembly. The Tribunal in the exercise of its jurisdiction under Section 285 (1) adjudged the petitions unmeritorious and dismissed same.

The same 1999 Constitution has provided in Section 246 (1) (b) for the petitioners right of appeal in the event of any dissatisfaction against the tribunal’s Judgment thus:-

“Section 246 – (1) An appeal to the Court of Appeal shall lie as of right from –

(b) Decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –

(c) Any person has been validly elected as a member of the National Assembly under this Constitution.”

The petitioners have chosen to exercise their right as created supra.

The 1st Respondent who the tribunal decided was duly elected had relinquished the seat during the pendency of the appeal. The 1st and 2nd Respondents have objected to our assumption of jurisdiction over the appeal. They contend that it would be futile to proceed as the exercise has become academic. I am unable to agree with their counsel.

Firstly, the issue to be determined in the instant appeal cannot be said to have been rendered lifeless by virtue of 1st Respondent’s relinquishing the disputed Senatorial seat which the tribunal adjudged, consequent upon its dismissal of Appellants petition, 1st Respondent was duly elected to occupy. The Appellants may or may not succeed in the appeal. But if they do, and this is only possible after the hearing of the appeal which the 1st and 2nd Respondents asked us not to, their success would lead to the nullification of 1st Respondent’s return, conduct of a fresh election, or even the return of the 2nd petitioner in petition No. KB/EPT/SEN/1/07 as the duly elected Senator for the Kebbi Central Constituency. A process that can bring about such results cannot be said to be without essence, lifeless and academic.

Besides, the doctrine of fair hearing as encapsulated in Section 36 (1) of the 1999 Constitution has provided for the right of the Appellants to approach the courts and, on their being heard over their grief and establishing their case, obtain appropriate reliefs against any person, government or authority. This right must not be aborted midstream by peremptorily terminating their case. Declining jurisdiction over the instant appeals on the basis of the reason provided by the 1st and 2nd Respondents is to deny the petitioners their constitutionally guaranteed right of having their legitimate complaints heard and determined one way or the other.

Democratic governance stands to suffer from such a negative approach.

No court properly so called offers itself for such a negative purpose. The right of the litigant to VENTILATE his grief including his right of appeal against a judgment given against him has always been jealously guarded by the courts. The courts do not in such moments allow their jurisdictions to be subjected to manipulations by the defendant. See ADEISUN V FASHOGBON (2008) 17 NWLR (pt 1115) 149 at 190 and HDP V INEC (2009) 8 NWLR (pt 1143) 297 at 324 AND 330. 1st and 2nd Respondent’s objection accordingly fails. It is overruled.

The appeals are alive and being not academic would be heard and determined on their merit.

Parties have filed and exchanged their briefs of argument. Same were adopted and relied upon at the hearing of the appeal. Two issues have been distilled by the Appellants in Appeal No. CA/S/EP/SN/5/2009 as calling for the determination of their appeal. The issues read:-

“1. Whether having regard to the combined effect of sections 34, 36, and 38 of the Electoral Act 2006 the 1st Respondent was at time of the election not qualified to contest the election held on 21st April, 2007 into the Kebbi Central Senatorial District of the National Assembly of the Federal Republic of Nigeria (Distilled from ground 1, 2, and 3).

2. Whether or not in view of the facts before the tribunal the appellants proved their case and whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate.”

The 1st and 2nd Respondents in this particular appeal presented two similar issues in their joint brief for the determination of the Appeal. These are:-

i. Having regard to the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006, whether the 1st Respondent was not qualified to contest the election into the Kebbi Central Senatorial District of the National Assembly held on 21st April, 2007. (Grounds 1, 2 and 3).

ii. Having regard to the facts and evidence before the lower tribunal particularly the fact that the ANPP and PDP fielded candidates respectively at the election of 21st April, 2007, whether the lower Tribunal was not right in dismissing the Appellants petition for their inability to prove their case- (Grounds 4 & 5).

The 3rd – 5th Respondents have at page 8 their brief adopted the two issues identified by the Appellants for the determination of the appeal. The two issues have already been reproduced in this judgment for ease of reference.

The Appellants in Appeal No. CA/S/EP/SN/6/09 presented five issues for the determination of their appeal thus:-

“1. Whether a reply and preliminary objection raised in breach of regulated procedure must be entertained as of right in an election petition.

2. Whether a ground based on invalid nomination in an election petition cannot be sustained as a valid ground for challenging an election, regard being had to the Electoral Act.
3. Whether it is necessary to specifically plead cogent and verifiable reason before evidence in proof thereof can be entertained even in circumstances where facts relating to the plea were averred to in an election petition.
4. Whether the evidence adduced by the petitioners was not enough to establish that the 1st Respondent was not qualified to contest election on the ground of non compliance with Electoral Act.
5. Whether the learned justices of the Tribunal were right in not giving consideration to exhibits P1-P9 tendered and admitted in evidence on the ground that the deductions of the Appellants counsel there from can be said to have amounted to giving evidence by a counsel in address.”

On their part, the 1st and 2nd Respondents to the appeal have distilled four issues for the determination of the appeal. The issues read:-

“1. Whether or not the Tribunal was right in holding that preliminary objection bordering on jurisdiction can be raised at anytime and without being supported by any affidavit (Distilled from Ground 1).

2. Given the grounds of the petition and the provisions of section 145 of the Electoral Act, 2006 and sections 65 and 66 of the 1999 Constitution, whether the 1st Respondent was not qualified to contest for the Governorship election of 14th April, 2008 (Grounds 2 and 4). (sic)

3.. Whether based on the state of the pleadings and the evidence before the court, the petitioners have established the purported substitution of the 1st Respondent and whether same is capable of being adjudicated upon by the Tribunal (Grounds 3,5 and 6).

4. Given the facts and evidence led at the trial, whether the tribunal was correct in their evaluation and appraisal of evidence as to come to a right decision (Grounds 7 and 8).”

The 3rd – 124th Respondents have at page 9 of the brief adopted the five issues formulated by the Appellants for the determination of the Appeal.

The three core issues on the basis of which the appeals will be determined are as contained in the 1st, and 4th issues formulated by the 1st and 2nd Respondents and the 2nd issue crafted by the Appellant in Appeal No. CA/S/EP/SN/6/09 hereunder reproduced for ease of reference:-

“1. Whether or not the Tribunal was right in holding that preliminary objection bordering on jurisdiction can be raised at anytime and without being supported by any affidavit (Distilled from Ground 1).

2. Whether a ground based on invalid nomination in an Election petition cannot be sustained as a valid ground for challenging an election, regard being had to the Electoral Act
3. Given the facts and evidence led at the trial, whether the tribunal was correct in their evaluation and appraisal of evidence as to come to a right decision (Grounds 7 and 8).”

Appellants’ grouse under the first issue for the determination is that the tribunal has acted on two incompetent processes, the replies to the petition filed outside the time allowed by law and without leave of court as well as the preliminary objection challenging the jurisdiction of the tribunal to proceed on the petition which objection was filed in a form different from the one prescribed by the rules of court also. Learned Senior Counsel to the Appellants contended that the Respondent’s replies to their petition and the preliminary objection that was neither supported by any affidavit nor accompanied by a written address in support of the reliefs sought were incompetent. Both have breached paragraph 12 (1) of the 1st schedule of the Electoral Act, 2006 and paragraph 6 (2) of the Election Tribunal and Court Practice Directions, 2007. The Tribunal, learned senior counsel submitted, was wrong to have acted on both. Had the replies of the two Respondents been discountenanced, the evidence led by the petitioner would have remained uncontroverted and the petition concluded as established. Learned senior counsel submitted that the Practice Directions as well as the provision of the 1st schedule to the Electoral Act were not made for fun and must be complied with. He relied on LADIPO VS ODUYOYE & OTHER (2004) 1 EPR 705 at 708 and OLUJINLE VS ADEABGO (1988) 1 NSCC 625 at 636, and urged that we hold the Respondents’ preliminary objection and reply incompetent. It is argued that the tribunal is wrong in law to have considered the processes and determined Appellants case as having not been made out on minimum evidence. Senior counsel for the Appellants urged us to resolve the issue in their favour and allow the appeal.

Responding to the Appellant’s argument on the first issue, learned senior counsel who settled 1st and 2nd Respondents brief emphasized the importance of jurisdiction in the adjudication process. Any proceedings by the court or tribunal in the absence of jurisdiction, learned senior counsel submitted amount to a nullity. Because of its importance, the law allows the issue of jurisdiction to be raised by the parties or even the court on its own at any time or stage of the proceedings or even for the first time on appeal. Senior counsel referred to and relied on EMUZE VS V.C. UNIBEN (2003) FWLR (pt 170) 1411 at 1422, OLABA VS AKEREJA (1988) 3 NWLR (pt 84) 508; ODOFIN VS AGU (1992) 3 NWLR (pt 229) 350, TURAKI VS DALHATU (2003) FWLR (pt 170) 1378 at 1405; OLORIADE VS OYEBI (1984) 1 SCNLR 390 and EZOMO VS OYAKHIRE (1985) 1 NWLR (pt 2) 195, and contended that even if 1st and 2nd Respondents objection to the competence of the petition bears all the lapses mentioned by the Appellants, on the authorities, the tribunal is right to have considered the objection in order to ensure that its precious time is not wasted by delving into a nullity.

Further arguing the issue, learned senior counsel to the 1st and 2nd Respondents submitted that their processes never had the defects the Appellants ascribed to them. 1st and 2nd Respondents joint reply to the petition, from the record, is dated 11th June 2007 contrary to the 2nd July 2007 contended by the Appellants. The process dated 2nd July, 2007 is the Respondents motion on notice along with a written address challenging the competence of the petition and the jurisdiction of the tribunal. Such a reply filed within time being competent cannot be ignored. All the processes filed by the Respondents were filed within the time prescribed by the rules of court and none had taken the Appellants by surprise. The procedure adopted can not be faulted. Learned senior counsel argued that the submissions of learned senior counsel to the Appellants being misplaced, the issue to which they relate has to be resolved against the Appellants.

Yahaya Mahmood learned counsel to the 3rd – 124th added his voice on the issue by stressing the importance of jurisdiction. He submitted that unlike other applications, an objection on grounds of a court’s jurisdiction can be raised orally and even informally by the court suo motu. The 1st and 2nd Respondents had entered conditional appearance and as required by its rules filed a motion on notice along with a written address challenging the jurisdiction of the tribunal. The processes could not have been ignored learned counsel argued that the objections was rightly considered by the tribunal in arriving at its decision.

Learned senior counsel to the 1st and 2nd Respondents is on a firm terrain in his contention that the record of appeal does not support the Appellants in their allegations of lateness in the filing of 1st and 2nd Respondents reply to the petition and eventually the competence of the preliminary objection. The two processes span pages 84 and 106 of the record of appeal. The reply which contains a Notice of preliminary objection as to the competence of the Appellant’s petition is dated 7th and filed on 11th June, 2007. Further to their joint reply, the 1st and 2nd Respondents filed a separate motion on notice formally raising their objection to the tribunal’s jurisdiction. The motion on notice along with a written address though dated 8th June, were also filed on 11th June, 2007, 3rd – 124th Respondents’ reply to the petition, See page 107 to 112 of the record, was filed on 14th June, 2007. Appellant’s reply to the 1st and 2nd Respondents written address in support of their preliminary objection settled by A. A. Malami of Counsel is at pages 113 – 126. The reply is dated and filed, on 18th June, 2007.

More devastating is the fact that even preceding and in addition to their reply to the petition and the further motion on notice on their objection, the 1st and 2nd Respondents had along with their memorandum of conditional appearance also filed their preliminary objection. See page 82 of the Record of Appeal, on 28th May 2007. All these facts belie Appellant’s contention that the 1st and 2nd Respondents’ joint reply as well as the preliminary objection had been filed out of time and, in the absence of any leave of the tribunal to file the very processes, out of time the two could not being incompetent, have been invoked by the tribunal.

At this stage the wisdom in the reference made by 1st and 2nd Respondents learned senior counsel to paragraph 12 (1) of the 1st Schedule to the Electoral Act in aid of his submission that their preliminary objection had complied with the tribunals adjectival law readily comes to the fore. The paragraph provides:-

“12(1) The respondent shall within fourteen (14) days of entering an appearance file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relied in opposition to the election petition” (underling supplied for emphasis).

1st and 2nd Respondent’s reply already held to have been filed within the time provided by the rules of the tribunal, contained the preliminary objection in addition to other facts the Respondents relied upon “in opposition to the election petition. They cannot be made to suffer for doing that required of them by the rules.

Secondly, the Appellants must be reminded, particularly in respect of their contention on the 1st and 2nd Respondents reply, that the reliefs the Appellants asked the tribunal to grant them are declaratory in nature which they must, even where admitted by the Respondents, establish in order to be entitled to the reliefs. See KWAJAFFA VS BON LTD (2004) 13 NWLR (pt 889) 146 at 172. The resort by the tribunal to the Respondent’s reply and evidence adduced on account of the reply is unnecessary since the petition in the absence of evidence from the petitioners would have failed anyway. Unless the Appellants satisfy this court that the evidence they placed before the tribunal had sufficiently established their petition, and this is a matter for our consideration under the 3rd issue for the determination of the two appeals, their plea would remain a hollow one.

Thirdly, the threshold nature of a court’s jurisdiction in the adjudication process cannot be over-emphasized. In the instant case both sides are agreed on the fact that the preliminary objection raised by the 1st and 2nd Respondents herein is a challenge to the jurisdiction of the tribunal. It is about the competence of Appellants petition and thus whether or not the tribunal had the power to adjudicate over such a petition.As submitted by learned Respondents counsel, it remains trite that any proceedings embarked upon by any court or tribunal that lacks the necessary jurisdiction is an exercise in futility and no matter how well the proceedings were conducted, same would come to naught. This fundamental nature of jurisdiction to adjudication explains why as an issue it can be raised at any time and at any stage and even for the first time on appeal. The authorities on this point are legion and include those wisely relied upon by Respondents counsel: ENENWO VS DURU (2004) 9 NWLR (pt 877) 75 and MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.

Indeed in DAVIS VS MENDES (2007) ALL FWLR (pt 348) 883, cited and relied upon by the learned counsel to the 1st and 2nd Respondents, it has been held that objection to the court’s jurisdiction can be raised in any of the following ways:-

(a) On the basis of the claim for our purpose the petition; or

(b) On the basis of evidence received,

(c) By motion supported by affidavit setting out the facts relied on

(d) On the face of the writ of summons where appropriate, as the capacity in which the action was brought or against whom the action was brought

(e) Suo motu by a tribunal or court or orally by counsel viva voce under the inherent jurisdiction of the court.

An objection to a court’s jurisdiction once raised must be determined first before further steps are taken. See also NNONYE VS ANYICHE (supra) and ARJAY VS AIRLINE MANAGEMENT SUPPORT LTD (2003) NSCQR (pt 1) 29 Also, in ANPP VS INEC (2005) ALL FWLR (pt 254) 971 at 990 it is further emphasized that the challenge to a court’s jurisdiction does not necessarily have to be formal and supported by an affidavit once sufficient materials are placed before the court to judiciously warrant a pronouncement on the objection. In the instant case the tribunals decision on 1st and 2nd Respondent’s objection reads in part as follows:-

“Abubakar Malami, Esq in his written address on behalf of the petitioners in petition No. 7 filed on the 22nd day of September, 2007 challenged the procedure adopted by the Respondents in raising the preliminary objection. We find no merit in Mr. Malami’s arguments. An attempt to challenge a preliminary objection on similar grounds was rejected by the Supreme Court in the case of Attorney General of the Federation V. ANPP & Ors 16 NSCQR 535 at 552 per Niki Tobi JSC. We agree with the submissions of the Respondents in their reply to the petitioners’ written address that the preliminary objection relates to jurisdiction which can be raised at any point in time. It could be raised with or without affidavit. If the objection is predicated on law, no affidavit is required. In short, being a matter of jurisdiction the procedure adopted is of no moment”

The tribunal is right in the foregoing when it considered the objection of the 1st and 2nd Respondents which had been raised in the manner the courts, have held in an endless body of authorities that such objections could be raised. See further, OBASANJO VS YUSUF (2004) ALL FWLR (pt 213) 1884. The first issue for determination is for the foregoing resolved against the Appellants in Appeal No. CA/S/EP/SN/6/09 to which Appeal the issue relates.

The 2nd issue for the determination of this appeal is Appellants 2nd issue in Appeal No. CA/S/EP/SN/6/09. Learned senior counsel for the Appellant in the first appeal referred to the grounds of their petition at page 3 of their record of appeal and the tribunal’s judgment at page 256 thereof and lamented on the Tribunal’s failure to determine the effect of the invalid nomination of a candidate as a disqualifying ground under Section 145 (1) (a) of the Electoral Act, 2006. Learned senior counsel Ricky Tarfa further submitted that the tribunal’s holding at page 259 of the record that a candidate’s invalid nomination rather than being a disqualifying ground under Section 145 (1) (a) is one of non-compliance with Sections 34, 36 and 38 of the Electoral Act cognizable under Section 145 (1) (b) is a serious error that has occasioned injustice. On the authority of the decision of the Court of Appeal in ANAZODO VS AUDU 1999 4 NWLR (pt. 600) 530 at 544, which binds the tribunal, invalid nomination of a candidate implies his non-qualification to contest the election. The decision, learned senior counsel argued constitutes a judicial interpretation of S. 145 (1) (a) of the Electoral Act overriding the ordinary meaning of the words which make up the section. He relied on ACME BUILDERS LTD VS KADUNA STATE WATER BOARD & ANR (1999) 2 NWLR (pt. 590) 288 and WILSON VS AG BENDEL STATE & ORS (1985) 1 NWLR (pt 4) 572 at 605. Section 84(1) a of Decree 36 of 1998 under which ANAZODO V AUDU supra was decided, senior counsel further submitted, is similar to Section 145 (1) (a) of the Electoral Act, 2006 thereby making it necessary for the Tribunal to maintain the interpretation of the earlier statute that was re-enacted in the subsequent legislation.

Learned senior counsel further argued that whereas Section 65 and Section 66 of the 1999 Constitution provide for the qualification and disqualification of persons to be elected into the National Assembly, the Constitution does not, and I quote from paragraph 4. 17 of the Appellants brief, “prescribe the conditions to be met by a person, to qualify to contest election.” In addition to the constitutional requirements, a candidate’s nomination must not be in breach of Sections 32, 34, 36 or 38 of the Electoral Act, 2006 for his election to be valid. Learned counsel further submitted that election is a process rather than the event the Tribunal held it to be. He urged us to be bound by the Supreme Court’s decision in PDP Vs INEC (1999) 11 NWLR pt 626 as well as the unreported decision of this court in Appeal No. CA/IL/EPT/GOV/2/2007 PPA & 1 OR Vs SARAKI & ORS. Learned senior counsel devoted substantial part of the Appellant’s brief in showing that 1st Respondent had in fact not been validly nominated and or substituted as the 2nd Respondent’s candidate for the election and resulting from that defect had not been duly elected. The Tribunal, he concluded, is wrong to have held otherwise. We are urged to resolve this issue in Appellants favour and allow the Appeal.

Learned Appellants counsel in Appeal No. CA/S/EP/SN/6/09 made similar submissions in this arguments under this issue. Also relying on the Supreme Court’s decision in UGWU VS ARARUME (2007) 12 NWLR (pt. 1048) 367, Mr. Malami of counsel submitted that Section 34, 36, 38 and 84 of the Electoral Act breached by the 1st Respondent in both appeals are justifiable. The Sections learned counsel argued provide the procedure which regulate the contest of election by competing political parties and their candidates and breach of the provision is fatal. Learned counsel also urged us to allow the appeal.

Chief Wole Olanipekun SAN led the team of counsel for the 1st and 2nd Respondents in the two appeals. He remains consistent in his arguments under the 2nd issue for the determination of both appeals. He submitted that issues of qualification and disqualification to contest an election are regulated strictly by the 1999 Constitution which specifically so provided in Sections 65 and 66. Section 145 (1) (a) of the Electoral Act, 2006 operates squarely on the basis of these constitutional provisions and any complaint outside the constitutional provisions is incompetent. The Appellants complaints of invalid nomination and/or substitution under Section 34, 36 and 38 of the Electoral Act 2006 cannot constitute the disqualifying ground the Appellants want to make of it. Both Section 145 (1) (a) of the Electoral Act and Section 65 (2) b of the 1999 Constitution are clear and unambiguous. The words making the two provisions must be given effect to the ground by viewing any ground in the petition that is outside the provision of Section 65 (2) b of the Constitution read along with Section 145 of the Electoral Act, 2006 must be incompetent. The grounds and facts relied in support of the two petitions, learned senior counsel submitted, are incompetent and must be struck out. He relied inter alia on INEC VS PDP (2999) (sic) 11 NWLR (pt 626) 174, SARAKI VS KOTOYE (1992) 9 NWLR (pt 261) 156, ADISA VS OYINWOLA (2000) 10 NWLR (pt.674) 116 RIMI VS INEC (2005) 6 NWLR (Pt.920) 56 and KALU VS UZOR (2004) 12 NWLR (Pt 886) 1 AT 20.

Further arguing the appeal under this issue, learned senior counsel for the 1st and 2nd Respondents submitted that Appellants were never members of the 2nd Respondent that sponsored the 1st Respondent. They cannot for that reason complain against such nomination and sponsorship and were they to have the locus, The complaint must be done prior to the conduct of the election. In support of this argument learned counsel has cited UGWU VS ARARUME supra and THOMAS VS OLUFOSAYE (1985) 1 NWLR (Pt.18) 669.

Concluding, learned senior counsel urged that the issue be resolved against the Appellants.

Yahaya Mahmood is counsel to the 3rd -5th Respondents in Appeal No. CA/S/EP/SN/5/09 and 3rd – 124th Respondents in Appeal No. CA/S/EP/SN/5/09. He also submitted that the qualification envisaged in Section 145 (1) (a) of the Electoral Act is the one provided for under Section 65 of the 1999 Constitution. The Electoral Act cannot extend, amend or alter the provisions of the Section of the Constitution. He relied on MUSA VS INEC (1989), NEPLR 20. The complaints of the Appellants under Section 34, 36 and 38 of the Electoral Act do not relate to the requirements under Section 65 of the Constitution. Relying on the Supreme Court’s decision in AMAECHI VS INEC (2008) Vol. 1 MJSCT, he contended that all the grievances of the Appellants are subject to the jurisdiction of the ordinary courts rather than the Election Tribunal they approached. He urged that the appeals be dismissed.

The grouse under the 2nd issue for the determination of both appeals relates to the tribunal’s decision on 1st and 2nd Respondents’ objection to the competence of the two petitions. What are the objections and the tribunal’s decision thereon? What are the errors in the tribunal’s ruling on the objections if any and do such errors warrant resolution of the issue as well as the appeals against the Respondents? We must recount some more facts at once.

Petition No. KB/EPT/SEN/2/2007 was brought on the grounds that:-

“(1) That the 1st Respondent was not qualified to contest the election.

(2) That the 1st Respondent was not validly nominated to contest the election into the Kebbi Central Senatorial Seat of Kebbi.

(3) That the election of the 1st Respondent was invalid by reason of non-compliance with the provision of the Electoral Act, 2006”.

The facts relied upon in support of the entire petition are as contained in paragraph 3 (a) – (i) of the petition hereunder reproduced for ease of reference:-

“(a) The 1st Respondent was at all material times a member of the All Nigeria People’s Party (ANPP) and was indeed its candidate for the same Kebbi Central Senatorial District and Kebbi State.

(b) The 1st Respondent did not serve notice of withdrawal of his candidature as the senatorial candidate for Kebbi Central Senatorial District of the All Nigeria’s Peoples party to the party as required by the provisions of the Electoral Act. The said ANPP had not withdrawn the candidature of the 1st Respondent as its candidate for the election as at the time the 2nd Petitioner nominated him for the same position at the same election.

Your petitioners shall at the hearing of the petition rely on a letter dated 9th May 2007 written by the ANPP to our Suleiman Usman, the legal adviser to the 2nd Petitioner in response to his (Suleiman’s) own letter of 2nd May 2007.

Your Petitioners shall also rely on the INEC Forms EC4B(VI), CF 001A and CF 004A filed by the 1st and 2nd Respondents for the said election.

Your petitioners further aver that the credential attached to for CF 001 by the 1st Respondent refers to another person(s) entirely and not the Plaintiff.

(c) The 2nd Respondent by letter dated 5th February 2007 addressed to the 3rd Respondent purported to substitute the 1st Respondent for its former candidate Mr. Maieka Bello Mohammed, whereupon INEC forms EC4B(v) CF001A and CF 004A were filled by the 1st and 2nd Respondents.

(d) Although the said letter was dated 5th February 2007 the real facts relied upon by the 2nd Petitioner for the alleged withdrawal and substitution of the said Maieka Bello Mohammed with 1st Respondent apparently occurred about 8th February 2007.

(e) Your Petitioners state that the 2nd Respondent in substituting the 1st Respondent for Maieka Bello Mohammed relied on an alleged merger between the People’s Democratic Party and the All Nigerian Peoples Party as contained in a document titled “MERGER AGREEMENT BETWEEN THE ALL NIGERIA PEOPLES PARTY (ANPP) KEBBI STATE CHAPTER AND THE PEOPLES DEMOCRATIC PARTY (PDP) KEBBI STATE CHAPTER HOLDEN AT THE STATE HOUSE, PRESIDENTIAL VILLA ON THURSDAY FEBRUARY 8, 2007.”

(f) Your petitioners state that the alleged substitution and withdrawal predates the purported merger of the 2nd Respondent’s and ANPP.

(g) Your petitioners state that the purported merger is invalid as it was done in gross violation of the provisions of the Electoral Act 2006 in that:

i) No notice of intention to merge was served on the 3rd Respondent by the All Nigeria Peoples Party and Peoples Democratic party six months before the election;

ii) Neither the PDP nor the ANPP held a National convention at which a special resolution approving the merger was passed;

iii) The proposed full name, acronym, constitution, manifesto symbol or logo of the emerging political party together with the address of the National office was not forwarded to the 3rd Respondent;

iv) The 3rd Respondent did not approve the purported merger,

(h) Your petitioners state that the purported merger cannot be the basis or ground for substitution of a candidate as contemplated by the Electoral Act 2006.

(i) Your petitioners said that by letter dated 19th February 2007, the National Chairman and the 2nd Respondent disclaimed the previous letters of substitution purportedly issued by the 2nd petitioner.”

Similar facts to the foregoing were averred to by the petitioners in paragraphs 3-13 of petition No. KB/EPT/SEN/7/2007 to support grounds 1 and 2 common to both petitions. In paragraph 11 of the said paragraphs it is addedly averred thus:-

“No reason was given by the 2nd Respondent to the 3rd Respondent for the substitution of the 1st Respondent with the old candidate”

Subsequent paragraphs of the petition contain facts in support of the other ground unique to petition No. KB/EPT/SEN/7/2007 only that:-

(iii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election”

The objections raised by the 1st and 2nd Respondents against the Tribunal’s exercise of jurisdiction over the two petitions, see pages 64 – 65 in the record of appeal No. CA/S/EP/NA/5/09 and pages 84 – 89 in the record of appeal No. CA/S/EP/NA/6/09, are on the grounds that:-

“(1) The petition as presented is grossly incompetent and in violation of the Electoral Act. 2006.

(1) The petition is undated and the signature of the 2nd petitioner appearing on pages 5 and 7 thereof are radically different one from the other.

(3) The subject matter or substance of the complaints of the petitioners does not fall within the jurisdiction of the tribunal.

(2) The petitioners lack the Locus Standi to question or inquire into the domestic affairs of the 2nd Respondent.

(3) The complaints of the petitioners are essentially and substantially in respect of the domestic affairs of the 2nd Respondent to which the petitioners are aliens or complete strangers.

(4) The complaints of the petitioners are completely pre-election matters over which this tribunal cannot adjudicate upon or entertain.

(7) The petition as presented is not properly constituted and same discloses no reasonable cause of action against the Respondents”

(underlining supplied for Emphasis)

In deciding the merit or otherwise of the objection the tribunal in its judgment firstly held at page 244 – 245 of the of Appeal No. CA/S/NA/5/09 as follows:-

“On issue No. I, what is material is the grounds of the petition as counsel correctly stated earlier on and not necessarily the particulars given in support of the grounds ……. it seems to us that the Respondents are under the misconception that what confers jurisdiction are the facts or particulars averred by the petitioner in proof of the stated grounds. That is not the case in our view There is a difference between the grounds of the petition and the particulars or facts supplied in support of the grounds.

The Respondents are contending that the facts in support of the grounds cannot sustain the grounds to entitle the petitioners to the reliefs they seek. We disagree. Some of the facts support the grounds. Throwing out the entire petition for lack of jurisdiction will be tantamount to throwing away the baby with the bath water.

That is why we prefer the view that if the grounds alleged are covered under section 145 of the Act as in these petitions, the tribunal ought to assume jurisdiction.

The burden is then on the petitioners to establish that the facts put forward by them support the grounds”

The tribunal proceeded to strike out ground 2 of petition NO.2 which was on invalid nomination and or substitution of the 1st Respondent as it had no jurisdiction in that regard. Again in the tribunal’s own words:-

“If this ground had been the only ground alleged in Petition NO.2, then the entire petition would have been struck out for lack of jurisdiction. The other two grounds, qualification to contest the election and non-compliance with provision of the Electoral Act, 2006 are adequate to sustain the petition and consequently confer jurisdiction on this tribunal”

Convinced it had jurisdiction to determine the issue of the qualification of the 1st Respondent as provided under Section 65 (2) (b) of the 1999 Constitution and Section 145 (1) (a) of the Electoral Act even where the facts to prove the qualification or otherwise of the 1st Respondent are as envisaged under sections 32, 34 and 38 of the Electoral Act, the Tribunal concluded its decision on the challenge to its assumption of jurisdiction as follows:-

“With respect, we do not agree with Learned Counsel for the 1st and 2nd Respondents that under Section 32 of the Electoral Act issues of invalid substitution and double nomination are pre-election matters to be determined in the regular courts before the election and not in the tribunal. Section 32 (4) of the Act allows any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false to file a suit at the High court of a State or Federal High Court. This provision, in our view does not stop a person who has the locus standi to file an election petition from raising any of those issues, where competent in the tribunal after the election Indeed while any person may go to the High Court before the election, after the election, the only court with jurisdiction to look into the matter is now the Election Tribunal. See the case of Ilobi V Uzoegwu (supra) referred to by Abubakar Malami Esq.,

Where Dongban-Mensem, JCA observed:

‘At the conclusion of the election, if the issue was still relevant then it becomes that of the Election Tribunal. See also Ejura V Idris (2006) 4 NWLR (pt. 971) 538.”

Where did the tribunal go wrong?

In OLOBA V AKEREJE (1988) 3 NWLR the Supreme Court per Oputa JSC (as he then was) has fully enunciated the procedure a court or tribunal adopts when its jurisdiction over a matter is challenged. Being a creature of statute, it resolves the objection by examining the party’s claim against the statute that confers jurisdiction on it. In determining the party’s claim, and here the authorities are legion, the court is entitled to refer to all the materials available to it. In the instant case where parties had agreed to rollover the tribunal’s ruling on 1st and 2nd Respondent’s challenge to the exercise of its jurisdiction over the two petitions into the proceedings, the tribunal was entitled to consider all the evidence received in the proceedings in its determination of the extent of the petitioners’ case and by extension the preliminary objection on the competence of the two petitions. See DAVIS V MENDES (supra).

The Electoral Act, 2006 in Section 145 and paragraph 4 (1) of its First Schedule provides for a competent election petition. 1st and 2nd Respondents’ contention is that the petitions giving rise to the instant appeals are incompetent. The drift in their argument is that the facts on which the petitioners relied in support of the reliefs being claimed against them are unavailing to the claimants. The Tribunal is incapable of granting any relief on the basis of those facts which constitute pre- election matters.

The Tribunal held otherwise tried the two petitions on the basis of those facts only to dismiss the petitions because of the petitioners’ failure to prove the facts they pleaded and relied upon.

Section 145 (1) of the Electoral Act and paragraph 4(1) (d) of its First Schedule which this court as well as the Apex court interpreted in very many cases provide:

“Section 145 (1) An election may be questioned on any of the following grounds:-

(a) That a person whose election is questioned was at the time of the election not qualified in 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 the 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.”

Paragraph 4 (1) of the Electoral Act’s First Schedule provides:-

“4(1) An election petition under this Act shall:

(a) Specify the parties interested in the Election petition.

(b) specify the right of the petitioner to present off the election petition;

(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”

(underlining supplied for emphasis).

In the two petitions to which this judgment relates, the Tribunal contrary to paragraph 4 (1)(d) supra assumed jurisdiction purely on the basis of the petitions’ two common grounds without due regard to the particulars on the basis of which the petitioners set out to sustain the grounds. Therein lies the tribunal’s error.

Firstly, the facts in support of the two common grounds in the petitions, which paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006 requires the petitioners to necessarily state, must be such that are recognized by law. The petitioners must, by paragraph 4(1) (b) of the same schedule also, have the right to seek the relief they pursue by virtue of their petitions. Both requirements which are mandatory are not new rules of practice. Karibi Whyte JSC’S concurring contribution in BELLO V AG OYO STATE (1986) 5 NWLR (pt 45) 828 at 876 alluded to by Chukwuma-Eneh JSC in HDP V INEC (2009) 8 NWLR 297 AT 331 lucidly states the rule thus:-

“the factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant.”

Paragraph 3 in petition No. KB/EPT/SN/2/01 and paragraphs 3 -13 in petition No KB/EPT/SN/1/01 are clearly averments on facts pertaining the invalid nomination and/or substitution of the 1st Respondent by the 2nd Respondent. These are clearly pre-election matters which, given the combined operation of Section 285, Section 145 and -paragraph 4 of the First Schedule to the Electoral Act, are outside the tribunal’s jurisdiction.

This court in OBOT V ETIM (2008) WRN (Vol. 29) 129 at 146 dwelt further on this same issue thus:-

“The issue of candidature as between himself and his political party is a pre-election issue or matter which is a matter within the jurisdiction of the Federal High Court. See UGWU v ARARUME (2007) 12 NWLR (pt 1048) 367. Therefore the tribunal had no jurisdiction to hear or entertain or decide any matter on nomination substitution and candidature, Any question about nomination of a candidate is not a matter for the Election Tribunals. They have no jurisdiction to entertain disputes over primary elections within the political party for selection or nomination of candidates to contest election on the platform of a political party. See EFFIONG BOB V CHIEF IME ALBERT AND ORS (supra) and AMAECHI V INEC AND ORS (2008) 6 WRN 1. The fallout from the above decision is that the tribunal had no business dealing with the issue of nomination, substitution and candidature.

These are the pre-election rights which fall squarely within the jurisdiction of the courts.

Only post election matters fall within the jurisdiction of the Election Tribunals. Section 285 (1) and (2) of the 1999 Constitution which created the Election Tribunals specifically and expressly restricted them to hear and determine among other things whether a person has been “validly elected”. This does not include issues of nomination, substitution or candidature. See DOUKPOLAGHA v. GEORGE (1992) 4 NWLR (pt 236) 444 and NEC V NRC (1993) 1 NWLR (pt 267) 120 where this court held that disputes arising from pre election matters are totally outside the jurisdiction of Election Tribunal.”

Again in KOLAWOLE v. FOLUSHO (2009) 8 NWLR (pt.1143) 338 at 389 – 390 this same Court reiterated the fact that where the substance of the complaint in an election petition are issues of alleged invalidity of the nomination, sponsorship and substitution of a candidate, the ground no matter how christened is not cognizable under Section 145 (1) (a) of the Electoral Atcs,2006. Being supported by facts which constitute pre-election matter, the tribunal lacked the vires to proceed on same. Read the Supreme Court’s approval of the principle in AMAECHI Vs INEC AND ORS supra, UGWU Vs ARARUME supra and ODEDO Vs INEC supra.

Thus, in the instant case where paragraph 3 in the one and paragraphs 3 – 13 in the other petition are dismally defective and incapable of disclosing any cause of action pursuant to Section 145 of the Electoral Act, 2006, the facts averred to in the paragraphs could not be relied upon by the petitioners in obtaining any remedy against the Respondents from the Tribunal. The petitioners had relied on factual situations which though constituting essential ingredients of an enforceable right such right is not enforceable at the Tribunal but rather at the regular court. The law remains that, being without jurisdiction, the tribunal, should have declined into the matter canvassesd on the basis of such facts. See TROWER & SONS LTD V RIPSTEN (1944) AC cited with approval by KARIBI JSC(as he then was) in his concurring contribution in BELLO V. A-G OYO STATE (supra).

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Other Citations: (2009)LCN/3442(CA)