All Nigeria Peoples Party & Anor. V. Hon. Bala Na’allah & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Bernin Kebbi, Kebbi State in petition No. KB/EPT/HR/6/07 wherein the Tribunal dismissed the Appellants’ petition on 10th October, 2007. A brief facts giving birth to this appeal are that on the 21st day of April, 2007, the 3rd Respondent (INEC) in conjunction with the 4th to 47th Respondents conducted elections into the House of Representatives in the Zuru/Danko/Wasagu/Sakabo/Fakai Federal Constituency of Kebbi State. In the said election the 1st Appellant sponsored the 2nd Appellant as its candidate in the Election. The 1st Respondent contested on the platform of the 2nd Respondent. At the end of the election, the 1st Respondent was declared winner and returned elected.

Dissatisfied with the return of the 1st Respondent by the 3rd Respondent, the Appellants as petitioners filed a petition dated 21st May, 2007 at the Lower Tribunal challenging the return of the 1st Respondent as member the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency of Kebbi State. On receipt of the petition, the 1st and 2nd Respondents filed Notice of Preliminary objection on 28th May, 2007 challenging the competence of the petition and the jurisdiction of the Court. The 1st and 2nd Respondents also filed another Notice of preliminary objection on 2nd July, 2007. The parties agreed to roll over to the trial the preliminary objection. At the end of trial, the lower Tribunal upheld the election of the 1st Respondent and dismissed the petition for lacking in merit. On the preliminary objection, the Tribunal held that the petition was competent and that it had jurisdiction to hear the petition invariably overruling the preliminary objection.

Dissatisfied with the stance of the Tribunal in dismissing their petition, the Appellants, on 30th October, 2007, filed Notice of appeal containing seven grounds of appeal and from the said grounds of appeal, the Appellants have formulated seven issues for determination. The issues are as follows:-

1. Whether the trial Tribunal was right in failing to address the Appellants’ objection to the competence of the process filed by the Respondents in response to the Appellants’ petition.
2. Whether the trial Tribunal was not bound to invoke Section 149(d) of the Evidence Act against the 3rd Respondent for failure to produce Register of voters of which they were given notice to produce.
3. Whether Exhibit P7 – P11 had not discharged the burden the documents were meant to served (sic) details ( sic) particulars having been provided thereon.
4. Whether the case before the trial Tribunal was that of sponsorship and not that of double nomination.
5. Whether the Appellants properly raised the issue that the substitution of the 1st Respondent was dependant on the merger agreement and that the withdrawal of the earlier candidate and the substitution with the 1st Respondent was not done in contravention of the Electoral Act, 2006.
6. Whether the 1st Respondent was qualified to contest the election into the House of Representatives for Zuru/Sakaba/Danko/Wasugu/Fakai Federal Constituency held on the 21st day of April, 2007.
7. Whether the judgment of the trial Tribunal was not against the weight of evidence.

The Learned Counsel for the 1st and 2nd Respondents submits that only one issue arises from the seven grounds of appeal for the determination of the appeal and it is couched thus:-

“Whether or not the Lower Tribunal was right in dismissing the petition and upholding the return of the 1st Respondent as the duly elected Member of the House of Representatives representing Zuru/Danko/Wasagu/Sakabal Fakai Federal Constituency.”

In the brief filed by the Learned Counsel for the 3rd to 47th Respondents, four issues are formulated. The issues are:-

1. Are the replies, Motions and Notices of preliminary objection filed by the Respondents before the Lower Tribunal competent?
2. Was the Lower Tribunal bound to invoke Section 149 (d) of the Evidence Act against the 3rd Respondent for its failure to produce register of voters?
3. Whether the Lower Tribunal acted properly when it refused to accord any probative value to exhibits P6 – P11 tendered by the petitioners/Appellants.
4. Whether the 1st Respondent was qualified to contest the election.

In arguing this appeal, the Appellants grouped the seven issues into three and argued them as if they were three issues. That is to say, issue one is argued separately. Issues 2, 3 and 7 are argued together while issues 4, 5 and 6 are also argued together. I intend to determine this appeal based on the three groups of issues as argued by the Appellants. Strictly speaking, the issues are three and not seven as couched by the Appellants. In other words, there are duplication of issues and this should be discouraged. One does not win a case on the number of issues but on how cogent and relevant they are to the decision of the Lower Court and the grounds of appeal See Alao Vs. Akamo (2005) 11 N.W.L.R. (Pt.935) 160. Be that as it may, I now proceed on the serious business at hand.

On the 1st issue, it was the contention of the Learned Counsel for the Appellants that the notice of preliminary objection dated 28th May, 2007 and filed on the 30th Day of May, 2007 and the one incorporated in the petition dated 11th day of June, 2007 were apparently filed in breach of the provision of section 6 (2) of the Election Tribunal and Court Practice Direction 2007 having been filed in a form other than a motion supported by an affidavit in addition to its failure to state the rule or law under which it was brought. Also that the preliminary objection was not supported by a written address in support of the reliefs sought. It was a further contention of the Appellants that the preliminary objection also filed by the 3rd – 47th Respondents were defective in that it failed to comply with Section 6(2) of the Election Tribunal and Court Practice Direction 2007. Learned Counsel cited the case of Ladipo Vs. Oduyoye & Ors (2004) 1 EPR 705 and urged this Court to dismiss the preliminary objection filed by both set of Respondents.

In his reply, the Learned Counsel for the 1st and 2nd Respondents submitted that the preliminary objection is not related to or limited by paragraph 6(2) of the Practice Direction quoted and relied upon by the Appellants.

Furthermore, that if the Appellants had averted their minds to Section 147 (3) of the Electoral Act, paragraphs 4(1), 4 (2) and 4 (6) to the 1st Schedule to the Electoral Act 2006, or the time honoured principle that the jurisdiction of the Court is a threshold issue which may be considered at any stage in the course of proceedings, they would have realized the futility of their case regarding the competence of the 1st and 2nd Respondents preliminary objection. He contended further that the Appellants misunderstood the purport of the preliminary objection and misdirected themselves on the issue of whether or not the Electoral Act or the 1st Schedule to the Electoral Act 2006 put a time limit on when a preliminary objection can be raised. The Learned Counsel for the 3rd – 47th Respondents also made a similar reply as that of the 1st and 2nd Respondents and I do not intend to repeat it here. Both Counsels for the two set of Respondents urged this Court to hold that their preliminary objections were competent.

Let me say from the out set that I do not know what the Appellants intend to achieve from this issue since the lower Tribunal resolved the preliminary objection raised by the Respondents in their favour. On page 397 of the record of appeal, the Tribunal, after considering the preliminary objection, concluded as follows:-

“The grounds the petitioners in Petition No.6 are challenging the conduct of the election as contained in paragraph D (i), (ii) and (iii) of the petition are stated hereunder even at the risk of repetition.

“1. The 1st Respondent was at the line of the election, not qualified to contest the election.

2. The election was invalid by reasons of corrupt practices and or non compliance with the mandatory provision of the Electoral Act;
3. The 1st Respondent was not duly elected by majority of lawful votes cast at the election”

All these grounds are cognizable under Section 145 (1) (a) (b) and (c) of the Electoral Act. This coupled with the fact that the Petitioners in the consolidated petitions were candidate (sic) at the election on the sponsorship of their various parties, they have the standing to bring the election petitions. ………..We therefore reject the argument of the Learned Counsel for the Respondents that they do not have the locus standi and that we do not have the jurisdiction as their compliant is based on a concluded election and relates to undue election and undue return.”

From the above decision of the Tribunal, it was to the advantage of the Appellants. The Respondents had in the preliminary objection sought to declare the Petition incompetent and that the Tribunal lacked the jurisdiction to entertain same but the Court below overruled them and held that it had the jurisdiction to hear the petition and also held the petition competent. The Appellants are now asking this Court to hold the preliminary objection incompetent and to dismiss same. This is not possible. The lower Tribunal had already done that and there is no appeal against that decision. The issue whether the preliminary objection was properly filed or not is at this stage academic and this Court will not embark on any academic exercise at the end of which will not confer any tangible benefit on any of the parties. But before leaving this issue, let me restate the time honoured legal principle that issue of jurisdiction is a thresh hold issue and is so fundamental that it can be raised at any stage of the proceedings. It can even be raised on appeal. Any of the parties can raise it or the Court can suo motu raise it. The reason is that if a Court hears a matter to conclusion when it has no jurisdiction, no matter how well conducted, the whole exercise is null and void. See Okonkwo Vs. INEC & Ors (2004) NW.L.R. (Pt. 854) 854, Amoo Vs. Alabi (2003) 2 N.W.L.R. (Pt. 835) 537, Akinbode Vs. Chief Registrar (2003) 3 N.W.L.R. (Pt. 808) 585.

The 1st issue does not merit any further consideration as it will amount to a waste of precious judicial time.

I accordingly hold the issue inappropriate as far as this appeal is concerned. The Appellants argued issues 2, 3 and 7 together as they are interrelated. I shall also treat them together. The Learned Counsel for the appellant submitted that the lower Tribunal erred in law and arrived at a wrong conclusion having regard to the facts that were pleaded by the Appellants and the evidence tendered before them. That the parties having agreed that the petition shall be determined on the basis of plethora of documents tendered by consent, the several witness statements adopted with the parties having their respective rights to cross-examine the witnesses waived, it was the duty of lower Tribunal to properly evaluate the documents to enable it come to a just determination.

He cited and relied on the case of Shamaki Vs.Baba (2000) F.W.L.R. (Pt. 26) Page 1888. It was their further contention that a document tendered by consent and admitted by the Court ought to be given full legal effect and it is the content of the document in whole and in its entirety that is in evidence. That Counsel cannot be said to have given evidence by a singular act of drawing the attention of the Court to full legal effect of a document through reviewing, evaluating, criticizing and estimating its content provided it is tendered and admitted in evidence. He relies on the cases of Sanya Olu Vs. Coker (1983) 1 S.C.N.L.R. 168, Ogunyombo Vs. Okoya (2002) 16 N.W.L.R. (Pt.193) 224, Ajiboye Vs. Ishola (2006) 13 N.W.L.R. (Pt. 998) 628 among others.

Learned Counsel for the Appellants further submitted that the Lower Tribunal failed to evaluate the evidence tendered and admitted. That where the trail Court failed to evaluate such evidence or did not properly evaluate such evidence the Court of Appeal can do what the trial Court ought to have done and set aside the findings made. He places reliance on the case of PTF Vs. WPC Ltd (2007) 47 W.R.N.186. That the Tribunal had by failure to evaluate Exhibits P6 – P11 failed to avail itself the opportunity of verifying the existence or otherwise of irregularities that the Appellants contended affected the result declared by the 3rd Respondent.

On the issue as regards Section 149 (d) of the Evidence Act, the Learned Appellants Counsel submitted that the 3rd-47th Respondents were ordered by the Tribunal on 22nd day of July, 2007 to allow the petitioners inspect and take copies of Voters’ Register and that the order was not complied with by them and that by the operation of section 149 (d) of the Evidence Act, there is a presumption that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. He cited the cases of Akinfe Vs. State (1988) 3 N.W.L.R. (Pt. 88) 729, Hyhgrade Maritime Services Ltd Vs. First Bank of Nig Ltd (1991) 1 S.C.N.J, 110 and NERDC Vs. Gonze Nig Ltd (2000) F.W.L.R (Pt. 21) 864. The Learned Counsel urged this Court to resolve these issues in favour of the Appellants. In his reply, the Learned Counsel for the 1st and 2nd Respondents submitted that the exhibits tendered by the Appellants did not prove anything or establish the case of the Appellants or in any way prove corrupt practices and or non – compliance with the Electoral Act. That it was not the duty of the Tribunal to make a case for the Appellants who after making all manner of allegations merely dumped Exhibits P7 – P11 on the Tribunal in proof of those allegations: Also that where a petitioner is challenging the accuracy of the result of the election, he is required to plead and lead evidence in respect of two sets of results, one he alleges is wrong and the other he says is the correct one to enable the trial Tribunal to compare but that the Appellants failed to do so. He cited the case of Buhari Vs. Obasanjo (2005) 13 N.W.L.R. (Pt. 941) 1.

The 1st and 2nd Respondents through their Counsel further submitted that the Appellants could not have succeeded when they failed to tender any written depositions or oral testimony in support of all the allegations made in the petition. Rather, that the Appellants relied solely on Exhibits they tendered which they literally just dumped on the Tribunal without establishing their relevance and what they expected the Tribunal to do with them. He urged this Court to hold that the Tribunal was not expected to do its own independent research on exhibits and come out with the result of its private investigation. He cited and relied on the cases of Governor, Kwara State Vs. Eyitayo (1997) 2 N.W.L.R. (Pt. 485) 118, Terab Vs. Lawan (1992) 3 N.W.L.R. (Pt. 231) 569 and Chief Joshua Alao Vs. Alfa Issa Akano & Ors. 2 N.S.C.Q.R. (Pt. 11) 864. He then urged the Court to hold that the Appellants failed to lead evidence to prove their petition.

The Learned Counsel for the 3rd to 47th Respondents submitted that since the petition of the Appellants was hinged on alleged unlawful thumb printing of ballot papers, changing of score, super – imposing scores, rewriting scores, use of election materials other than those supplied by INEC, use of indelible ink not supplied by INEC, inter changing of voters registers, over voting etc as contained in paragraphs 13, 14, 16 – 23 of the petition and no oral evidence was adducted to explain exhibits P6 – P11 dumped on the Tribunal, it was inconceivable that the Tribunal could have attached probative value to the exhibits. That it was not the sole issue of interpreting the documents that was before the Tribunal but election materials used in the numerous wards to prove the various allegations contained in the petition. Thus evidence should have been led to explain these documents, he opined. He relies on the case of Atikpepe Vs. Joe (1997) 6 N.W.L.R. (Pt. 607) 428, Ejiogu Vs. Onyeagucha (2006) All F.W.L.R. 467. He urged the Court to hold that there was no modicum of evidence adduced before the Tribunal.

On the issue that the Tribunal failed to invoke S. 149 (d) of the Evidence Act against the 3rd – 47th Respondents, Learned Counsel submitted that there is no evidence on the record that the Respondents concerned failed to produce or allow the Appellants to make copies of the Register. That mere failure to produce would not amount to withholding such evidence relying on the case of Tewogbade Vs. Akande (1968) N.M.L.R. 404 at 408. He urged the Court to hold that this issue does not avail the Appellants.

It is trite that before a judgment or decision of a Court can be reached, due appraisal and analysis of the evidence must be painstakingly undertaken. It will be a calamity and a traverse of justice for a Court to decide a case without the consideration of the evidence led by both parties. See Shamaka Vs. Baba (Supra). Again where documents form part of the evidence placed before the Court, it is the duty of the judge to ensure that such documents are considered in the interest of justice as those documents are not for decoration. See Tangale Traditional Council Vs. Fawu (2001) 17 N.W.L.R. (Pt. 742) 293, Muhammed Vs. Abdulkadir (2007) 4 W.R.N. 104, Omega Bank Nig PLC Vs. OBC Ltd (2002) 16 N.W.L.R. (Pt. 794) 483.

The Learned Counsel for the Appellants had submitted and I agree with him that where the sole issue for determination in a matter is the interpretation of a document, the parties after filing their pleadings may dispense with adducing evidence. See Section 133 of the Evidence Act and the case of Omoniyi Vs. UBA (2001) F.W.L.R. (Pt. 63) 64.

In the instant appeal, the case was determined on the basis of Exhibits P6 – P11 tendered by the Appellants and although of the parties filed witness statements, these were not made part of the evidence. All the Tribunal was expected to do was to look at the averments in the petition and the documents in order to arrive at a decision. Evaluation of evidence involves reviewing and criticizing the evidence and estimating it. Where allegations in a petition such as this are that of unlawful thumb printing of ballot papers, changing of scores, super imposing scores, rewriting scores, use of election materials other than those supplied by INEC, use of indelible ink not supplied by INEC, inter changing of voters Registers, over voting as encapsulated in paragraphs 13 – 23 of the petition, is it enough to just dump myriads of documents on the Tribunal without any explanation as to how each of the documents relate to the pleadings? I do not think so. I share the views of the Learned Counsel for the 3rd – 47th Respondents that the issue before the lower Tribunal was not so much as to the interpretation of the documents tendered by the Appellants. Rather, the issue was to determine whether the various malpractices alleged by the petitioners/Appellants were actually committed. In my humble opinion, oral evidence or witness statements as the case may be ought to have been called to explain the documents vis-a-vis the numerous allegations of malpractices contained in the petition. I need to point out here that the interpretation of these Exhibits was not the sole issue before the Court. Without oral evidence, how was the Tribunal expected to know that the Exhibits tendered carried indelible ink not supplied by INEC. Again only expert oral evidence could prove that the finger prints appearing on the Exhibits belong to one and the same person thereby leading to the unlawful thumb printing alleged.

This Court had noted long ago in Terab Vs. Lawan (1992) 3 N.W.L.R. (Pt. 231) 569 that a party relying on documents in proof of his case must specifically relate such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of tying each of a bundle of documentary Exhibits to specific aspect of the case for a party when that party did not do so. It will be an infraction of the principle of fair hearing for the Court to do so. It was the view of the apex Court in Chief Joshua Alao Vs. Alfa Issa Akamo & Ors (2005) 11 N.W.L.R. (Pt.935) 160 at 178 per Ejiwunmi JSC (of blessed memory) as follows:-

“It must also be noted that several documents were tendered pursuant to the claim. But it must be bourne in mind that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.”

See also Ejiogu Vs. Onyeagucha (2006) All F.W.L.R. 467 Atikpepe Vs. Joe (Supra). It was a most incredible thing to do in an election petition. After dumping the Exhibits on the Court and without any oral testimony, Learned Counsel for the Appellants went to town in his address trying to fix the missing ink thereby abandoning his role of addressing the Court to giving evidence which they failed to do before the address. I think it was in a bid to fast track the process that led the Learned Counsel for the Appellants to agree to do away with the witness statements which were filed but not adopted. In the process, the justice of the case was sacrificed on the alter of speedy trial of the case. I agree with the lower Tribunal that there is a fundamental missing link between the allegation of malpractices made by the appellants in their petition and the forms tendered as Exhibits.

As regards the alleged failure of the 3rd – 47th Respondents to produce the original of some documents, there is no evidence on the record to show such failure. The Appellants allege that the order on the 3rd – 47th Respondents was made on 22nd July, 2007 (See page 66 of the Appellants’ brief). However, the said order of the Court cannot be traced. I have searched the record of proceedings and there is no indication that the Tribunal sat on 22nd July, 2007. If it was made orally, there is no evidence. Again there is nothing on record to show that the 3rd – 47th Respondents failed to allow the Appellants take copies of certain documents. In the absence of any evidence to that affect, the Tribunal was right in refusing to invoke section 149 (d) of the Evidence Act against the 3rd – 47th Respondents.

As it stands, issues 2, 3 and 7 which were argued and resolved together are not in favour of the Appellants. Accordingly they are hereby resolved against the appellants. The Learned Counsel for the Appellants argued issues 4, 5 and 6 together and pointed out that Exhibits P1 – P5 tendered by the Appellants were to sustain the aspects of the petition which issues 4, 5 and 6 are meant to address. He submitted that from the state of the pleadings and unchallenged documentary evidence, the 1st Respondent was at all material times a member of the ANPP and was indeed its candidate for the House of Representative seat in Zuru/Sakaba/Fakai/Danko/Wasagu Federal Constituency.

That the logical inference drawable from Exhibit P5, the purported merger agreement is that the 2nd Respondent relied on it as being the reason for fielding the 1st Respondent as a candidate for the Election. Further submits that this cannot qualify as cogent and verifiable reasons within the intent of Section 34 of the Electoral Act as the purported merger not having been validly consumated in line with the requirements of Section 84 of the Electoral Act cannot constitute cogent and verifiable reasons.

On issue of qualification, the Learned Counsel for the Appellants submitted that it will be out of place to conclude that the provision of section 34 and 36 of the Electoral Act are inconsistent with the Constitution particularly having regard to the fact that the provisions have driven their legitimacy from the Constitution as foundational base by virtue of section 4(1) and (2) of the Constitution. That section 65 and 66 of the Constitution are by no means intended to have exhausted the – issues that relate to the conduct of the election particularly having regard to the fact that the sections do not by any implication insinuate finality and exhaustion of the items that relate to the conduct of election. Quite surprisingly, learned Counsel submits further on page 86 of their brief that “The Electoral Act provisions relating to nomination, withdrawal and substitution can therefore not be adjudged to have added up to or subtract from the Constitutional provision.

They are two distinct and separate things that by all intent and purpose address different issues. Constitutional qualification relates to the personality of the candidate while the Electoral Act provisions relate to the conduct of the contest. ”

Learned Counsel contended further that meeting the Constitutional requirement of qualification as enshrined in section 65 and 66 of the Constitution in disregard of the provision of sections 32, 34, 36, 38 and 40 of the Electoral Act 2006 is not enough to entitle a candidate a ticket to contest election. He cited the case of Ugwu Vs. Ararume (2007) 12 N.W.L.R. (Pt. 1043) 367.

Finally, that the Tribunal misinterpreted section 145(1)(a) of the Electoral Act as being applicable to the issue of nomination and substitution. That the sub – section encompasses the valid nomination to contest, failing which the election of the candidate wrongly nominated will be liable to be nullified. He urged this Court to resolve the issues in favour of the Appellants.

In his reply, the Learned Counsel for the 1st and 2nd Respondents submitted that the Appellants’ contention is not the true position of the law. That once the Constitution has made provisions regarding the qualification (Section 65) and disqualification (Section 66), no provision of the Electoral Act can introduce a new set of criteria for qualification or disqualification. That qualification and disqualification are Constitutional issues which the Electoral Act cannot enlarge, add to, expand, amend or even explain. He relies on the cases of INEC Vs. Musa (2003) 3 N.W.L.R. (Pt. 806) 72, Attorney General Abia State Vs. Attorney General Federation (2002) 6 N.W.L.R. (Pt. 763) 264.

It was his further submission that the contention of the Appellants to the effect that even though the 1st Respondent was Constitutionally qualified to contest election, and that he was not in anyway disqualified under section 66 of the Constitution, the alleged non compliance with sections 34, 36 and 38 of the Electoral Act had disqualified him from contesting the election cannot stand as it does not represent the true legal position. He relies on PDP Vs. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.

He opinioned that contrary to the contention of the Appellant, the qualification of the 1st Respondent cannot be validly questioned under section 145(1)(a) of the Electoral Act on the basis of non compliance with sections 34, 36 and 38 of the Electoral Act 2006. That a petitioner can therefore succeed in a complaint founded on section 145(1)(a) where he alleges facts amounting to Constitutional bar as the provisions of the Constitution are superior to every provision in any Act or law. He cited the cases of Ojukwu Vs. Obasanjo (2004) 12 N.W.L.R. (Pt. 886) 169, Nuhu Vs. Ogele, (2003) 16 N.S.C.Q.R. 390.

The Respondent further submitted that matters complained about by the Appellants which relate to sections 34, 36 and 38 of the Electoral Act are pre – election matters which by section 32 of the Electoral Act ought to have been challenged at the High Court or Federal High Court. He relies on the case of Amaechi Vs. INEC & Ors (2008) 5 N.W.L.R. (Pt. 1080) page 227.

Learned Counsel for the 1st and 2nd Respondents submitted finally that by a community reading of sections 65, 66 and 285(2) of the Constitution of the Federal Republic of Nigeria 1999 together with section 145(1)(a) of the Electoral Act, the 1st Respondent was qualified to contest the election held on the 21st of April, 2007 as candidate of the 2ndRespondent.

The Learned Counsel for the 3rd – 47th Respondents in his brief adopted the argument of the 1st and 2nd Respondents on these three issues.

Now, of the three issues argued together in this segment, only one issue, that is, issue No 6 relating to Qualification of the 1st Respondent is worth considering. Issues 4 and 5 are issues which do not have any bearing with the judgment of the Lower Tribunal. For instance, issue No. 4 which states “Whether the case before the trial Tribunal was that of sponsorship and not that of double nomination” is not related to either the issues ventilated before the Lower Tribunal or an issue pronounced upon by the said Tribunal. I have carefully perused the record of appeal particularly the petition and reply filed by the parties and I have not seen where the parties joined issues on the matter. And because issues were not joined, evidence not led, then the Lower Court did not make any pronouncement on it. For me, the issue at this stage serves no useful purpose. Again, issue No 5 which seeks to be resolved whether or not the Appellant properly raised the issue of substitution is not borne out of the judgment of the Lower Court. Moreso, the issue was never canvassed before the Court below. As I see it, there was and there is still no dispute as to whether the issue was properly raised or not. Therefore, issue five is not worth considering also.

It is now trite that issues for determination should not be framed in the abstract but in concrete terms arising from and related to the grounds of appeal filed which represent the questions in controversy in the particular appeal. See Okpala & Anor Vs. Ibeme & Ors (1989) 2 N.W.L.R. (Pt. 102) 208, Ehot Vs. The State (1993) 4 N.W.L.R. (Pt. 290) 644. Tobi: The Brief system in Nigerian Courts (1st Edition) at Page 104. A proper issue must show in all clarity and precision the point or points in dispute awaiting for the decision of an appellate Court. The emphasis is that the issue must relate to the dispute. Any issue which imports a new matter not canvassed and decided upon at the trial Court cannot be allowed to stand.

In the instant appeal, it was never canvassed and decided upon on whether or not the case before the trial tribunal was that of sponsorship or that of double nomination. This Court cannot at this stage take on that issue. Again, it was not the case before the Lower Tribunal whether or not issue of substitution was properly raised. This is a new issue which cannot be taken without the leave of this Court. Be that as it may and without going into the argument on the two issues, the Lower Tribunal held that an incident which took place on the 5th of February, 2007 (substitution) cannot, without more be said to be dependent on another incident subsequently on 8th February, 2007, (merger.) Again the petition clearly states that the 2nd Appellant was a candidate of the 1st Appellant at the election while the 1st Respondent was that of the 2nd Respondent. Learned Counsel had argued that the 1st Respondent was the candidate of both the 1st Appellant and 2nd Respondent. I do not think this is correct. The argument is self contradictory and serves no useful purpose. There is no argument to support issues 4 and 5 and the Tribunals’ decision on the two issues was never pointed out. Accordingly, issues 4 and 5 are hereby struck out.

The grouse of the Appellants in issue No 6 is that the 1st Respondent was not qualified to contest election into the House of representations for the Zuru/Sakaba/Danko/wasagu/Fakai Federal Constituency held on the 21st day of April, 2007. The arguments for and against this issue are well summarized above. In any election year, before any person decides to put himself forward for nomination to contest an election into any office whatsoever, he has to ask himself one searching question and that is “Am I qualified to contest the election” To get an answer, he has to consult the relevant laws to satisfy himself that he has the requisite qualification to contest the election before putting himself forward to seek the party’s nomination to contest the election. And as regards election into the House of Representatives of the Federal Republic of Nigeria, it is only the Constitution of the Federal Republic of Nigeria 1999 which makes provision for the qualification and / or disqualification of a person seeking to contest for that office. Both the Learned Counsel for the Appellants and the Respondents agree that issue of qualification or otherwise are contained in Sections 65 and 66 of the 1999 Constitution. They also agree that the Electoral Act 2006 does not make specific provision for the qualification or disqualification of any candidate. Both Counsel however part ways when it comes to whether Sections 34, 36 and 38 of the Electoral Act 2006 are part of qualification and disqualification provision or that these Sections address other matters apart from qualification. Whereas the Learned Counsel for the Appellants opine that a candidate must satisfy both the Constitutional and statutory requirements before he is said to have been qualified, the Learned Counsel for the Respondents strongly feel that issue of nomination and substitution are distinct from issue of qualification.

As I said earlier, conditions relating to qualification and disqualification are provided for in Sections 65 and 66 of the 1999 Constitution respectively. Section 65 thereof provides:-

“65(1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of –

(a) ……….

(b) The House of Representatives, if he is a citizen of Nigeria and has attained the age of thirty years.

(2) A person shall be qualified for election under subsection (1) of this Section if –

(a) he has been educated up to at least School certificate level or its equivalent and

(b) he is a member of a political party and is sponsored by that party.”

Section 66 is a bit lengthy and I do not intend to reproduce it here. No other statute, not even the Electoral Act has any provision for qualification or other wise to contest election into the House of Representatives of Nigeria. I mean qualification simpliciter. Needless to reiterate the axiomatic fact that by virtue of Section 11 of the 1999 Constitution the provisions of the Constitution are superior to every provision made in any Act or Law and are binding on and must be observed and respected by all persons and authorities in Nigeria. All other legislations, as it were, take their hierarchy from the provision of the Constitution. It is significant that both Counsel have agreed that the Electoral Act 2006 or any other legislation for that matter cannot re-enact, abridge, modify, expand, amend or even explain the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the House of Representatives of Nigeria. See Attorney General, Abia State Vs. Attorney General, Federal (2002) 6 N.W.L.R. (Pt. 763) 264. It is well settled and admits of no controversy that where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way directly or indirectly, unless the Constitution itself as an attribute of its supremacy expressly so authorises. See INEC Vs. Musa (2003) 3 N.W.L.R. (Pt. 806) 72 at 157 para. D – G. The Learned Counsel for the Appellants had argued that even though the 1st Respondent was constitutionally qualified to contest the election and that even though he was not in any way disqualified under Section 66 of the Constitution, his alleged non compliance with Sections 34, 36 and 38 of the Electoral Act has disqualified him from contesting the election. The Learned Counsel for the 1st and 2nd Respondents think otherwise. Now what is the relationship between Sections 65 and 66 of the 1999 Constitution on one hand and Section 34, 36 and 38 of the Electoral Act 2006 on the other hand?

Since I had set out the Sections of the Constitution relevant to this issue, let me also bring to the fore relevant sections of the Electoral Act for ease of reference as follows:-

Section 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 referred to in subsection (1) of this Section.

36(1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political party that nominated him for the election and the Political Party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election.

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

(38) Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one Constituency his nomination shall be void.”

There is no doubt that Sections 34, 36 and 38 of the Electoral Act 2006 provide for issues of nomination, withdrawal and substitution of candidates by political parties in an election. It is a cardinal principle of interpretation of statute that where the words used in the legislation are clear and unambiguous, the Court should give it its ordinary meaning. See CBN Vs. Adedeji (2004) 13 N.W.L.R. (Pt. 890) 226, Ndoma – Egba Vs. Chukwuegor (2004) 6 N.W.L.R. (Pt. 869), Egbe Vs. Belgore (2004) 8 N.W.L.R. (Pt. 875) 336. The provisions in sections 34, 36 and 38 of the Electoral Act are very clear and need no splitting of hair as to what meaning they convey. At least nobody has said that they are ambiguous. It is my strong view that sections 65 and 66 of the Constitution of Nigeria provide for qualification and/or disqualification of a candidate seeking to contest election into the House of Representatives of the National Assembly. I also strongly hold that apart from the Constitutional provisions for qualification and disqualification, no other law can add to, amend or even explain those Constitutional provisions. Sections 34, 36 and 38 of the Electoral Act are therefore procedural as to nomination, substitution and withdrawal of candidates by political parties. Therefore, whereas sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria state conditions for the qualification or disqualification of a candidate seeking election into the House of Representatives, sections 34, 36 and 38 of the Electoral Act 2006 regulate the nomination, substitution and withdrawal of candidates in the election.

What I am trying to say, perhaps imperfectly, is that there is obviously a distinction between qualification and procedure for nomination albeit narrow. Qualification is a Constitutional issue whereas nomination and/or substitution are issues regulated by the Electoral Act 2006. See PDP Vs. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.

The point where the issue of qualification under the Constitution and the issues of nomination, withdrawal and substitution under the Electoral Act meet relate to the fact that although a person may be Constitutionally qualified to contest election into the National Assembly, if he does not satisfy the procedure for his placement on the ballot, even if he is elected, his election can be challenged in the appropriate Court or Tribunal for breach of the provisions of the Electoral Act. This brings me to section 145 of the Electoral Act, 2006. The section states:-

“145(1) An election may be questioned on any of the following grounds, that is to say:

(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 unlawfully excluded from the election.”

It was the contention of the Learned Counsel for the Appellants that the Lower Tribunal misinterpreted section 145(1) (a) of the Electoral Act, 2006 as being limited to Constitutional provision of qualification to be elected. That the subsection encompasses the valid nomination to contest, failing which the election of the candidate wrongly nominated will be liable to be nullified. With due respect, I find it difficult to pitch my tent with this argument.

I rather hold the view that whenever a petitioner intends to ventilate his grievance on the ground that the Respondent was not qualified to contest election, it is under section 145(1)(a) of the Electoral Act that the petition should be brought. Where however the ground for questioning the election is on a breach to sections of the Electoral Act, as in the instant case, it should be ventilated under section 145(1)(b) of the Act. Section 145(1)(a) has to do with qualification whereas section 145(1) (b) relates to non compliance with provisions of the Electoral Act, 2006. Since the complaint of the Appellants at the Lower Tribunal was on the bases of non compliance with sections 34, 36 and 38 of the Electoral Act, 2006, they ought to have come under section 145(1)(b) and not section 145(1)(a) of the Act.

The Learned Counsel for the 1st and 2nd Respondents had submitted that the matters complained about by the Appellants in this wise are pre – election matters which by the provision of section 32 of the Electoral Act, ought to have been challenged at the High Court or Federal High Court. It is not in doubt that issues relating to nomination, withdrawal and substitution are clearly pre – election matters and by section 32 of the Electoral Act, 2006, pre – election matters are to be ventilated either in the High Court of a State or Federal High Court.

Election Tribunals are set up under section 285(1) of the 1999 Constitution and their jurisdiction is also prescribed by the same section. Nothing in that section suggests that pre-election matters relating to nomination, substitution and withdrawal can be ventilated at the Election Petition Tribunal. In the recent case of Charles Chinedo Vs. Independent National Electoral Commission & 21 Drs in suit No S.C.208/2007 (Unreported) delivered on 11th July, 2008, the Supreme Court per Tobi, JSC held on page 21 as follows:-

“It is not my understanding of section 285(1)(a) of the Constitution that the sub – paragraph can accommodate pre – election matters. It is rather my understanding that the sub – paragraph provides for the determination whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub – paragraph provides for election matters which give rise to post election and not pre-election proceedings. As the reliefs sought by the appellants are pre – election matters, section 285(1)(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 ……………….”

See also Amaechi Vs. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227 Ugwu Vs. Ararume (2007) 6 S.C. (Pt. 1) 88, (2007) 9 N.W.L.R. (Pt. 1038) 137.

The Learned Counsel for the Appellants placed reliance on the cases of Ararume and Amaechi (Supra). I think these two cases do not support the Appellants case. The two cases were commenced at the High Court and not before the Election petition Tribunal. Secondly, the two cases are intra party disputes that were decided within the con of section 34(2) of the Electoral Act 2006 and thirdly, the cases were instituted by persons directly affected by the action of their parties which substituted them. This is not the case in the instant appeal.

On the whole, I am of the view that as there is nothing to show that the 1st Respondent suffered any form of Constitutional disability as enumerated in section 66 of the Constitution, he was qualified to contest the Election into the House of Representatives in the election held on 21st April, 2007, thus affirming the decision of the Lower Tribunal on the issue.

This appeal lacks merit and is accordingly dismissed. I affirm the judgment of the Lower Tribunal and order the appellants to pay N30,000.00 costs in favour of the Respondents.

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Other Citations: (2008)LCN/2969(CA)