All Progressive Grand Alliance V. Ikedi Ohakim & 2 Ors. (2008)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Imo State in Petition No.EPT/G/IM/94/2007 -ALL PROGRESSIVE GRAND ALLIANCE (APGA) V CHIEF IKEDI G. OHAKIM & ORS. and judgment delivered on 13th September, 2007 wherein the lower Tribunal declared and rendered the petition against the election of the 14th April, 2007 incompetent.

Being dissatisfied with the said decision the appellant took out notice of appeal dated 2nd and filed 3rd October, 2007 wherein eight grounds of appeal were filed therein.

At the lower tribunal, the petitioner/appellant took out its petition on the 28th May, 2007 wherein it claims the following from the respondents on record as following:

“1. Declaration that the 2nd and 3rd Respondents have no statutory powers to cancel or nullify the result of the Governorship election held in Imo State on 14/4/07.

2. Declaration that the 2nd and 3rd Respondents acted ultra vires their powers when they cancelled or nullified the result of the gubernatorial election held in Imo State on 14/4/07.
3. Declaration that the cancellation or nullification by the 2nd and 3rd Respondents of the result of the Governorship election held in Imo State on the 14/4/07 was invalid, wrongful, unlawful, null and void and of no effect.
4. Declaration that the petitioners candidate Martin Agbaso, is deemed to have been elected the Governor of Imo State in the Governorship election held on 14/4/07, having won majority of lawful votes cast in the election and at least 1/4 of the votes cast in at least 2/3 of the Local Government Areas of Imo State on 14/4/07.
5. Declaration that the 3rd Respondent ought to have returned the Petitioner’s candidate Martin Agbaso as the winner of the Governorship election held in Imo State on 14/4/07.
6. An order of the Tribunal directing the 2nd and 3rd Respondents to issue the petitioner’s candidate, Martin Agbaso, with the certificate of Return as the elected Governor of Imo State in the Governorship election held on 14/4/07.
7. ALTERNATIVELY an order of the Tribunal directing the 2nd Respondent to conduct fresh election in the 9 Local Government Areas where allegation of irregularity was made by the 3rd Respondent in the Governorship election on 14/4/07.
8. Declaration that the 2nd and 3rd Respondents cannot postpone a scheduled election except in accordance with the provisions of the Electoral Act.
9. Declaration that the postponement of the Governorship election for Imo State by the 2nd and 3rd Respondents to 28/4/2007, is wrongful, unlawful, null and void and of no effect.
10. Declaration that the Governorship election in Imo State on 28/4/2007 is wrongful, unlawful, null and void and of no effect.
11. Declaration that the purported return of the 1st Respondent by the 2nd and 3rd respondents as the winner of the purported Governorship election held on 28/4/07 is wrongful, unlawful, null and void and of no effect.
12. An order of the Tribunal setting aside the purported Governorship election held in Imo State on 28/4/2007.

The above were based on the following grounds:

(a) That the cancellation or nullification of the result of the Governorship election held in Imo State on 14/4/07 by INEC is invalid by reason of non compliance with the provisions of the Electoral Act.

(b) That 1st Respondent was not lawfully elected by a majority of lawful votes cast at the purported election held on 28/4/2007.

(c) That election conducted 28/4/2007 is invalid by reason of non-compliance with the Electoral Act and the constitution of the Federal Republic of Nigeria.”

The 1st Respondent filed a reply dated 18th June, 2007 and raised the following preliminary objections, namely-

“a. There is no return of any person or any declaration of return in favour of any candidate and accordingly there is nothing upon which the jurisdiction of the honourable Tribunal can be predicated in respect of the 14/4/07 inconclusive election.

b. No facts are pleaded in the petition in support of the relief dealing with 28/4/2007 election of the 1st Respondent.

c. The petition is an abuse of the process of the court having regard to the petition in EPT/G/IM/01/2007: MARTIN AGBASO V. IKEDI OHAKIM & 2 ORS commenced by the governorship candidate of the petitioner herein which petition seeks the same reliefs.”

1st Respondent further filed a “Notice of Preliminary Objection” on 21st July, 2007, and contended as follows:-

“(a) The petition as formulated is incompetent because it is directed at an inconclusive election from which no returns were made and consequently does not question or challenge the undue return or election of any person.

(b) The major objective of the petition is to compel the Independent National Electoral Commission to renounce the cancellation of an election which it had duly and officially cancelled. The Tribunal does not have the jurisdiction to do so.

(c) The principal reliefs which the petitioner seeks are outside the purviews of what an election tribunal can grant pursuant to its powers under the Electoral Act, 2006 and the 1999 Constitution.

(d) The particulars of facts upon which the petitioners rely in support of the petition are inconsistent with and unrelated to the Grounds upon which the petition was presented.

(e) The Petitioner having taken part in the 28th April, 2007 Governorship election in Imo State is estopped from insisting on the validity of the 14th April, 2007 cancelled election.

(f) The election petition filed by the petitioner is statute barred and most of the averments in the petition relate to the inconclusive election of 14/4/07.”

On 15th August, 2007 when the Notice of Preliminary Objection came up for hearing learned Senior Counsel for the 1st Respondent adopted the 1st Respondent’s written address while learned counsel representing the 2nd and 3rd Respondents associated himself with the presentation in urging the Tribunal to dismiss the petition.

Appellant’s Counsel equally adopted the Appellant’s written address in contending that the settled pleadings presented issues, of fact which ought to be submitted for adjudication based on evidence.

The Tribunal held that Appellant’s prayers 1, 2, 3, 4, 5, 6, 7 relate to the election of 14/4/07, and the fact that the Appellant failed to State the scores of the election of 14/4/07 “rendered the petition against the election of 14/4/07 incompetent.”

With respect to the election of 28/4/07 the Tribunal held that reliefs 8 to 12, which relate to that election, were not claimed in the alternative and accordingly by, they were consequential to reliefs 1 to 7 and depended on their success. The Tribunal concluded that the reliefs on the petition depended on the upholding of the election of 14/4/07 of which no result was furnished by the Appellant.

The Tribunal further acknowledged that the Appellant pleaded the holding of the election of 28/4/07, the person declared winner of the name of the candidates and their scores further they stated:

“That paragraphs 2(c), 2(d), 27, 28(a) and 28(b) of the petition which related to the election of 28/4/07 although could sustain the petition, cannot in this circumstance avail the Appellant as they all “depended on the election of 14/4/07 being good, which we have already in this ruling held was bad; reliefs Nos. 8 – 12 must necessarily fail and are hereby equally dismissed.”

The Tribunal accordingly dismissed the petition in its entirety.

It is against this decision of the lower tribunal that the appellant has now appealed to this court and filed seven grounds of appeal. In accordance with the rules of court, all parties filed brief of arguments which were duly adopted and relied upon by their respective counsel on the 18th February, 2008 when the appeal was called up for hearing.

In his submission before us the learned senior counsel Dr. Onyechi Ikpeazu (SAN) on behalf of the appellant adopted and copiously relied in their brief though undated was however filed on the 7th December, 2007. Further adoption and reliance was also made on the appellant’s reply brief separately filed in response to the 1st respondents as well as the 2nd and 3rd respondents’ joint briefs of argument both dated 4th and filed on the 7th February 2008 respectively. The senior therefore urged us to allow the appeal and set aside the decision of the lower tribunal.

On behalf of the 1st respondent the learned senior counsel Mr. Bon Nwakanma (SAN) in the same vein also adopted and relied on the 1st respondent’s brief dated 24th and filed 28th January, 2008. Counsel on their behalf urged that the appeal which is devoid of merit should be dismissed.

Supporting and aligning himself with the 1st respondent’s senior counsel, Mr. Livy Uzoukwu, SAN, also adopted and relied on the 2nd and 3rd respondents brief of arguments dated 25th but filed on the 28th January,2008. The learned senior urged us to also dismiss the appeal.

The learned senior counsel Dr. Ikpeazu representing the appellants did not further wish to address the court and the appeal was therefore reserved for judgment with a further order that parties and their respective counsel be put on notice.

I wish to point out at this juncture that the appellant’s counsel at page 9 of his brief at the opening paragraph to his formulation of issues states that the issues were derived from the notice of appeal filed on the 16th August, 2007.

It is apparent on the appeal before us that the only notice of appeal on the record is that dated 2nd and filed on 3rd October 2007. This is evidenced at pages 212 – 219 of the record of appeal.

I am therefore convinced that the appeal and the brief thereof are in respect of the notice of appeal filed 3rd October, 2007 and consequent to which the indication of the date 16/8/07 appears to be the devils slip and which does not put into question which relevant notice of appeal is at hand. I do not therefore consider that slip to be detrimental to the notice of appeal. From the eight grounds of appeal raised, the appellant’s senior counsel distilled three issues for determination and are as follows:-

“(i) Whether the Appellant’s petition before the election tribunal was competent having due regard to the provisions of section 285(2) of the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006.

(ii) Whether the tribunal was right in holding that the tribunal was not vested with jurisdiction on the matter of cancellation of a schedule election.

(iii) Whether the tribunal was right in applying the decision of EMEKA V. EMORDI (2004) 16 NWLR (Pt.900) 433 to the facts of this case.”

It is also pertinent to restate that the appellant’s senior counsel in his brief of arguments related issue (i) to grounds I, II, and III of the notice of appeal; issue (ii) was related to ground v while issue (iii) was finally related to ground VI. With the three issues having been distilled from grounds 1, 2, 3, 5 and 6 of the notice of appeal therefore, the consequential effect is that grounds of appeal nos. 4, 7 and 8 are abandoned and same are accordingly struck out.

On the one hand the 1st respondent’s senior counsel in response to the appellants brief formulated four issues and with the appellant having abandoned grounds 4, 7 and 8 as stated supra, the 1st respondent’s issues (c) and (d) which are predicated on grounds 4 and 8 having been struck out cannot also be sustained. Furthermore, it is also apparent that the 1st respondents issue (b) again appears to be defective. This I say because issue (b) was distilled from grounds 6 and 7. While the former is a subsisting ground, the latter, that is ground 7 had been abandoned along with others which were all struck out.

In the case of Kadzi Int’l Ltd. v. Kano Tannery Co. Ltd. (2004) 4 NWLR (Pt.864) 545 on the competency of issue formulated from both competent and incompetent grounds of appeal, Salami JCA at page 563 had this to say:-

“Issues not deriving from a competent ground of appeal must be struck out. Both the ground and the issue deriving from it are struck out. See Tukur v Governor of Taraba State (1997) 6 NWLR (Pt.510) 549, 569. Ceekay Traders Ltd. v General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) 132.

:………The appellant, having related to an issue viz issue 3 a competent ground and an incompetent ground, and argued them together renders the other ground incompetent. It is not the duty of the court to separate argument in respect of the good ground from those of the bad one. See Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718; Bereyin v Gbobo (1989) 1 NWLR (Pt.97) 372, 380, Korede v Adedokun (2001) 15 NWLR (Pt.736) 483.”

It is trite law therefore that there cannot be a competent issue distilled from both competent and a non existent ground of appeal. There is therefore only one live issue by the 1st respondent which same is:-

(a) “Whether the Tribunal rightly held that the averments and the reliefs in the petition relating to 14/4/2007 election were incompetent.”

On the other hand, the 2nd – 3rd respondent’s senior counsel formulated a lone issue by posing a question thus:-

“Whether the petition was competent?”

The 1st issue raised by the appellant is whether his petition before the Election. Tribunal was competent having due regard to the provisions of section 285(2) of the constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006.

In his submission the learned senior counsel outlined the gravemen of the decision of the Tribunal wherein it held the petition as incompetent having regard to the provisions of the Constitution and the Electoral Act, 2006.The learned senior in capitulations reproduced the declarations sought for by the appellant on his prayers at paragraph 26(b)(i), (ii), (iii), (iv) and (v) of his petitions. That by stating the only declared result which was that following the election of 28th April, 2007, the appellant had by his paragraph 27 of the petition put that election in issue as well as the return made thereto. That having regard to section 285(2) of the Constitution of the Federal Republic of Nigeria 1999 the jurisdiction of the Tribunal was therefore properly invoked as the petition in its entirety seeks a determination as to whether the 1st Respondent was properly elected at the election which commenced on 14th April, 2007, but resulted in a return on 28th April, 2007. That the challenge of the return made based on the event of 28th April, 2007 was clearly the focus of the entire body of the petition as well as the reliefs sought. That it is therefore most inappropriate to contend as the Tribunal did, that the events of 14th April, 2007 mere pre-election events.

That there could not have been an election conducted on 25th April, 2007 if the election scheduled for 14th April, 2007, was not purportedly cancelled. Counsel therefore poised that the justification for the alleged cancellation which must accord efficacy to the rescheduled election is a part of the election as much as the event of 28th April, 2007.

That the term pre-election matters clearly relate to matters dealing with nomination and sponsorship of a candidate over which the Tribunal would ordinarily have no jurisdiction.

That the appellant was clearly entitled to rely on the events of the 14th April, 2007 in contending that the election of 28th April, 2007 on which the return was made undue together with its return. Learned senior copiously supported his submission and relied on the provision of section 140(1) Electoral Act 2006; further reliance was also made to the authority in the case of Nzeobi v Nzeka (1999) 1 NWLR (Pt.98) 478 at 486 for the definition of the terms ”undue election” and “undue return”.

That it is the appellant’s case viewed without the shroud of a myopia, that the election and return of the 1st respondent made by the 2nd and 3rd respondents at the election of 28th April, 2007 was unmerited, improper, not rightful, undeserved, and inappropriate.

That the reason being that the election which took place on 14th April, 2007 produced results on which a declaration ought to have been made. That the questioned election whose scores must be disclosed is therefore the one of 28th April, 2007 which counsel said is challenged as being undue and the return unmerited. That with reference to paragraph 4(i)(c) of the first schedule to the Electoral Act 2006, the appellant did not contend that he or any person for that matter was returned at the election of 14th April, 2007. That it was common ground that nobody was thus returned at the election which was cancelled. That the appellant could not have been under a statutory duty to state that which did not transpire or conjure a result outside was one declared by the Electoral Commission.

That the use of the term of the word “and” in paragraph 4(i)(c) of the 1st schedule to the Act, conjunctive as it usually connotes in the interpretation of Statutes. That this being the case, the use of the term “scores” of candidates in conjunction with the words “person returned as winner of the election,” must necessarily relate to an election from which a winner emerged as declared by the Electoral Commission. That the appellant was therefore obligated to only state the scores at the election held on 28th April, 2007.

Cited in support are the authorities of Eriobuna v Obiora (1999) 8 NWLR (Pt.616) 622 at 638 and 639; Ojong v Duke (2003) 14 NWLR (Pt.841) 581 at 611; Mudiaga-Erhueh v INEC (1999) 12 NWLR (Pt.630) 288 and Effiong v. Ikpeme (1999) 6 NWLR (Pt.606) 260. That the appellant duly complied with paragraph 4(i)(c) of the first schedule to the Electoral Act, 2006 when in paragraph 8 of the petition he pleaded that on 28th April,2007, 1st respondent conducted an “undue, wrongful and unlawful election and declared 1st respondent as the duly elected candidate.

Further reliance and an analogy was drawn to the case of Ngige v Obi (2006) 14 NWLR (Pt.999) 1, wherein though the appellant was propounding his own results which saw him as a winner, the scores and result which he was obligated to plead in the petition was that which was officially declared by INEC.

That the principle guiding interpretation of words in a statute and its subordinate regulations is clear as expounded in the case of Ezeugwa v. Adimorah (1993) 1 NWLR (Pt.271) 620 at 626, also Uhunmwangho v Okojie (1989) 5 NWLR (Pt.122) 471 at 490 – 491.

That paragraph 4(i)(c) of the First Schedule to the Electoral Act, 2006 must therefore be read in conjunction with section 140(1) of the Act which stipulates that only an undue election or undue return can form the basis of an election petition. That the appellant cannot possibly question and did not infact question the election of 14th April, 2007, nor any non existent return at the election. That he indeed relied on both results produced at the election, which had actually been collated to a stage, in contending that its cancellation was improper. That the only option the appellant had under the law and which he exercised was to challenge the undue election and return made on the 28th April, 2007. That for the Tribunal to require otherwise, will amount to reading into the Electoral Act 2006, that which was not there.

The learned senior emphatically submitted that it is immaterial to contend as the Tribunal did, that the appellant, who was seeking to be returned, did not plead the scores on which he sought a return. That the failure to state the scores on which the appellant sought declaration as the winner of the election of 14th April, 2007 cannot be fatal to the petition when all the law required was a statement of the official result and scores as announced by INEC. That the rationale of the Tribunal in this case is therefore untenable. The learned senior counsel has therefore called on this court to hold that the tribunal’s decision requiring the appellant to state the scores of the parties with respect to the election on 14th April, 2007 for reliefs (1)(2)(3)(4)(5)(6) and (7) is not supported by either the constitution of the Federal Republic of Nigeria 1999, or the Electoral Act, 2006 on which the tribunal sought reliance.

Further more that for the tribunal to contend that paragraph V of prayers 8 to 12 cannot be sustained for the reason that they were dependent upon the election of 14th April, 2007, is a gross misconception of the appellant’s case. That, besides providing the grounds for presentation of an Election petition, the Electoral Act, 2006, did not specify the facts on which the grounds can be sustained. That the tribunal therefore cannot just with a wave of the hand, dismiss the Appellant’s petition on the basis that it was based on the contention that the election of 14th April, 2007 was a good election

That there is no rule of law to the effect that the right of the Electoral Commission to cancel an election arises automatically whenever the result of the election has not been declared. That this will misconceive the import of Banda v Dadi (1998) 11 NWLR (Pt.572) 140. That it must be borne in mind that voting takes place at the booths and not at the collation centers. Thus where votes necessary for the emergence of a candidate were received, it cannot be said that the candidate is bereft of a right to sustain his petition with them. That this was exactly what the petitioner did in Ngige v Obi supra.

That at paragraph 9(a) of the petition, the appellant additionally relied on the ground that the election of 28th April, 2007 was invalidated by reason of non-compliance with the Electoral Act 2006. That non-compliance can be a matter of law as well as facts. That the stage had not yet reached for the appellant to establish the case of non-compliance, which can only be done when the case is set down for hearing and not before. That if it is based on facts, then certainly evidence ought to first be led. If on law, certainly the issue of law must on application be set down for hearing. That in either, case, an allegation of non-compliance made by the petitioner cannot be adjudicated upon at the stage of a preliminary objection.

That issues had been sufficiently joined on the reason for the cancellation of the election of 14th April, 2007. That it then behooved the Tribunal to enquire into the assertion with a view to determining the veracity of the divergent accounts and not to truncate the case of the appellant the way it did, as if pleadings comprised evidence on which the Tribunal could properly act.

That considering the same an issue of jurisdiction makes the matter more precarious, for the reason that as observed by this court in Nigerite Ltd. v Dalami (Nig.) Ltd. (1992) 7 NWLR (Pt.253) 288 at 296, it was held that:-

“The issue of jurisdiction of a court is not a matter of law per se but it is of mixed law and fact.”

That the examination of the relief sought on paragraphs 8 to 12 will further emphasize the error which the Tribunal fell into. Learned counsel classically outlined the said reliefs as per the paragraphs. That the appellant in prayers 8 to 12 relied exclusively on non-compliance with the Electoral Act which squarely fell within a legally recognized ground for challenging an election. That the appellant needed not to have presented the claim in the alternative. That the contention of the Tribunal that reliefs 8 to 12 are consequential to 1 to 7 totally flows the commitment of the Tribunal to neutrality. That if the tribunal was so concerned that non disclosure of the result of the election of 14/4/07 was fatal to the relief related thereto, then the logical thing it could have done was to strike out the related reliefs; but that with respect to the election of 28/4/07, the Tribunal clearly could not have justified its argument that scores of the parties were not stated as they were indeed stated and the reason which all the reliefs relating thereto cannot be infested with any anomaly which the tribunal appeared to find in the non statement of the result of the election of 14/4/07.

That it is totally wrong to defeat the legal efficacy of reliefs properly founded by a mere conclusion that it was dependent on the reliefs which the Tribunal concluded was improperly founded. That upon statement of the result of the questioned election, all reliefs tied thereto became appropriate for all .purposes. That the facts upon which they will be established is a matter of evidence and that the Electoral Act made no prescription for the facts on which a validly founded petition must be established.

That even if the tribunal was right in striking out reliefs 1 to 7 for the reason of non disclosure of a non existing result, which is not conceded, certainly it is a grave error tainting reliefs 8 to 12 with this presumed anomaly. The learned senior counsel urged us to so hold.

The second issue is whether the tribunal was right in holding that it was not vested with the jurisdiction on the matter of cancellation of a scheduled election. The learned senior counsel submitted in respect that the determination of the issue in the negative would completely determine the petition in that, the subsequent election of 28/4/07 which was only possible by the cancellation of the election of 14/4/07 would be a nullity and an undue election. That the Nigerian jurisprudence is saturated with decided cases where the Tribunal by virtue of the Electoral Act exercised jurisdiction with respect to issues relating to cancellation of a election. That the cases referred to by the Tribunal namely Balonwu v Ikpeazu (2005) NWLR (Pt.942) and Abana v Obi (2004) 10 NWLR (Pt.881) 319 are ample authorities against the statement of the Tribunal in that regard. That cancellation of an election, though is not a pre-election matter but a matter forming part of the election process comes within the exclusive jurisdiction of the Tribunal and not the regular court. Further more that a court in the interpretation of a statute is not permitted to import the provision of another statute into itself. Reference to substantiate is made to the case of Obasanjo v Yusufu (2004) 9 NWLR (Pt.877) 144 at 210. That the cases of Sowemimo v Awobanjo, (1999) NWLR (Pt.602) and Anonodoka v. Ajo (1999) NWLR (Pt.20) cited by the election Tribunal are nor relevant as they interpreted the provisions of section 92(2) of the Local Government (Basic Constitutional and Transitional Provision) Decree No. 36 of 1998 and section 94 of the State Government (Basic constitutional and Transitional Provision) Decree No.3 of 1999 respectively.

Furthermore that the powers of the 2nd Respondent as stipulated in paragraph 15 of part 1 of the Third Schedule do not include the power to cancel election in circumstances in which the INEC purportedly did in the instant case. That the electoral Act 2006 does not confer power on the 2nd respondent to cancel election in such circumstances. That in the absence of express powers under the constitution and the Electoral Act, the 2nd and 3rd respondents could not validly cancel the election of 14/4/07 for the office of Imo State governor. Consequently, it therefore means that the legislature did not intend the 2nd respondent to have that power. That this court has the duty to uphold the intention of the law maker. Cited in support is the case of KLM Airlines v Kumzhi (2004) 8 NWLR (Pt.875) 23 at 257. That cancellation or nullification of an election is a judicial exercise which by section 285 of the Constitution is exclusively vested in election tribunals and not a matter of exercise of jurisdiction by the regular courts. That the Tribunal was therefore in error when it held that the 2nd respondent has powers to cancel elections which have started but before conclusion and substantially flawed by an intervention cause which it had in any case held was outside the purview of its determination.

The learned senior counsel therefore urged us to resolve issue II in appellant’s favour and to hold that the 2nd respondent has no powers to cancel election conducted under the Electoral Act 2006 in the manner done in the instant case. Learned counsel further submitted that once the court resolves this issue in favour of the appellant the court will therefore have the powers under section 15 of the court of Appeal Act to make the following consequential orders:-

(i) that the election of 28/4/07 that was a product of the cancellation of the election of 14/4/07 was an undue election.

(ii) An order directing the 2nd and 3rd Respondents to announce the results of the election of 14/4/07 which had been collated from all but few of the local government areas in Imo State.

That the law is settled that a court in hearing an interlocutory application should not decide the substantive issues in the matter before it. See the cases Elutoye v. Halilu (1993) 6 NWLR (Pt.30) 570 at 596; Alexander Amrine Mgt. v. Odoa Intl. (1999) 1 NWLR (Pt.585) 40 at 53 – 54; Onogoruwa v Inspector General of Police (1991) 5 NWLR (Pt.193) 593 at 640; Mobil Oil Nigeria Plc & 2 Ors v. Kena Energy Petroleum Ltd. (2001) 1 NWLR (Pt.695) p.555 at 564 and Orji v Zaria Industries Ltd. & Anor. (1992) 1 NWLR (Pt.216) P.124 at 141. That the conclusion of the Tribunal without hearing the petition on the merit is undoubtedly a nullity. That the approach has therefore occasioned a miscarriage of justice in that the appellant was denied the basic right of fair hearing in the determination of his rights and obligation.

The senior counsel urged that the appeal be allowed in terms of the following:-

(1) The appellant’s petition before the election Tribunal was competent having due regard to the provisions of section 285(2) of the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006.

(2) The Tribunal had jurisdiction to inquire into the cancellation of the election of 14/4/2007 and the 2nd and 3rd respondents do not have the constitutional and statutory powers to cancel an election conducted under the Electoral Act, 2006.

With the striking out of the 1st respondent’s issues b, c, and d for incompetence, supra, it would appear as if the only issue subsisting is the first being (a). However, from the response and arguments garnered by the senior counsel J.T.U. Nnodum (SAN) at paragraph 4.01 at pages 3 and 4 of the 1st respondent’s brief of argument, the said issue (a) had been merged with issue (b) and in respect of which arguments were jointly advanced on their behalf at pages 4 – 15 of the brief. This in law is not acceptable. In other words with issue (b) being incompetent and therefore struck out, the same cannot be sustained and be merged with issue (a). I am afraid that the same plague affecting issue (b) has also infected issue (a) following the merger. It is unfortunate that the learned senior counsel had failed to carefully scrutinize his issues in relating them to the appellant’s grounds of appeal. The consequential effect sadly to say is that all issues formulated on behalf of the 1st respondent are bad and incompetent. Same and the arguments advanced thereon are hereby struck out. There is therefore no existing issue or response on behalf of the 1st respondent, which I so hold.

The 2nd – 3rd respondents lone issue was, whether the petition was competent?

Their senior counsel Livy Uzoukwu SAN on their joint brief of argument anchored and re-iterated their preliminary objection before the lower Tribunal and further submitted that out of the 33 paragraphs petition, only 2(c), 2(d), 27, 28(a) and 28(b) related to the election of 28th April, 2007. The appellant’s claim vide the reliefs sought were all enumerated as per the reproduction supra. That only reliefs 9 – 12 relate to the election of 28th April, 2007 and which are all consequential reliefs which counsel argued derives strength and validity from a principal relief or reliefs. Learned senior cited a number of authorities in support of the settled law that pleadings are the foundation of success or failure of a case. That the appellant unequivocally showed on the face of his petition that it relates to “the election into the office of the Governor of Imo State held on April 14, 2007 and April 28, 2007.”

That the appellant in other words had demonstrated that his petition was concerned with two elections, one of which he predicated on the other. That the tribunal therefore rightly accepted his petition as such and considered the preliminary objections along that line.

The learned senior counsel in summary argued that the tribunal’s gravemen of their decision was that the petition was incompetent having regard to the provisions of the 1999 Constitution and the Electoral Act 2006. The learned senior counsel in substantiating their arguments copiously cited and expounded at gear length the provisions of section 285(2) of the 1999 Constitution of the Federal Republic of Nigeria, as well as section 140(1) read along with 141 of the Electoral Act 2006. That by the very fact of the appellant’s averments at paragraphs 6(a), 14(b) and 23(a) he has conceded and implicated himself on the questionable nature of the election of 14th April, 2007. Cited in support are the cases of Anonodoaka v Ajo (1999) 5 NWLR (Pt.602) 206 at 225 and Igodo v Owulo (1999) 5 NWLR (Pt.601) at 70. That by the appellant’s pleading, it is clear that there was no “collation of result at the various designated collation centers and declaration of results.” Further authority in support was the case of Ezeobi v Nzeka. That at page 489 of Ezeobi’s case supra, the law is settled that an election petition is meant to question or challenge the election of a candidate returned as victor. That the petition must unequivocally establish that fact.

That under paragraph 4(1)(c) of the first schedule to the Electoral Act, 2006, a petition must inter alia state “the person returned as the winner of the election.” That there was none for the election of 14th April, 2007 and the fact which counsel argued the appellant also alluded to. That the petition at hand is incompetent, it is void and that the honourable tribunal was right in declining jurisdiction to entertain it. Again the case cited in point is Ezeobi v. Nzeka (supra). Further reference was also made to Ukpe v. Ndon (1991) 6 NWLR (Pt.606) 292 which learned senior opined was on all fours with the case at hand. That the appellant decided to launch an attack on the election of 28th April, 2008 through a plat form which he unequivocally predicated and anchored on the shores of the cancelled election of 14th April, 2007.

Furthermore that since the appellant made the election of 14 April, 2007 the basis or substratum or fulcrum of his petition, he has to therefore accept the fate of the petitioners in similar situation in Ezeobi v. Nzeka and Ukpe v. Udon supra. That by taking paragraphs 18 and 15 of the petition, in other words, the averment of cancellation and the pleading of scores arising from a purported “careful collation and computation of results received by the petitioner………”, the pleading of same learned senior argued that the appellant claimed to have done the collation and computation. The said scores and results he reiterated are unofficial and which do not exist as far as the 2nd – 3rd respondents are concerned. That the tribunal made impeccable findings on the issue of non-leading of scores and results in respect of the inconclusive election of 14th April, 2007. Further submission was that the electoral processes of 14 April, 2007 and 28 April, 2007 are entirely two different processes with one leading to an inconclusive election and another leading to a conclusive one. That the fulcrum of the petition was the inconclusive election 14 April, 2007. That the vents of that election as far as the election of 28 April, 2007 was concerned are pre-election events. That the appellant, learned senior continued, is oscillating like a pendulum, that while in one breath he argued that the election of 28 April, 2007 is void in that the inconclusive election of 14 April, 2007 was unlawfully cancelled, in another breath, he would want to treat the election of 28 April, 2007 separately. That he thus ended up making inconsistent submissions. That the appellant also rightly submitted paragraph 4.23 of their brief that the scores and result which a party is under obligation to plead in the petition is one which was officially declared by INEC. That the approach adopted by the Tribunal in its ruling cannot either on authorities be faulted or by the appellant himself. That the reliance made on the case of Ngige v. Obi supra, counsel argued, the issues canvassed therein are of no moment and also not relevant to the issues hereof. That in that case, the election was conclusive, results were computed and collated returning the PDP candidate as the winner of the election. That all those facts were duly pleaded and there was no preliminary objections challenging the petition on the ground inter alia that the election was inconclusive or that no return was made or that no results were declared.

Similarly the same submission was advanced for the case of Adun v. Osunde (2003) 16 NWLR (Pt.847) 643. That the appellant erroneously criticized the Tribunal for misconceiving the import of the case of Banda v. Dadi (1998) 11 NWLR (Pt.572) 140. On the contrary that it was the appellant who misconceived not only the said case but also its analysis thereof by the Tribunal.

That paragraph 9(a) of the appellant’s petition which contends the cancellation or nullification of the result of the governorship of 14 April, 2007 is invalid by reason of non-competence is strange and runs counter to the provision of section 145(1)(b) of the Electoral Act, 2006. That the said section presupposes that there was a return made at the questioned election, the invalidity of which a petitioner is challenging based in the instant case, on the alleged ground that there was non-compliance. That a successful challenge based on the said section 145(1)(b) of the Electoral Act would lead to the nullification of the questioned election. The appellant therefore has no right whatsoever in going outside the said provision in drafting a ground upon which to base his petition. The learned senior urged us to hold that the ground contained in paragraph 9(a) of the petition is invalid and void.

That the success of the petition against the election of 28 April 2007 was squarely made to be dependent on the election of 14 April, 2007. Reliance was made on the various pronouncements held by the lower Tribunal and reproduction made of same thereof and which there had been no faulting by the appellant hereof. That having anchored the challenge of the election of 28 April, 2007, the failure of the former challenge guarantees the failure of the latter. That Results 8 and 9 sought declaration in respect of alleged postponement of election. That there is no pleading dealing with the postponement of election; the pleadings dwelt on cancellation of election. That it is clear that reliefs 8 – 12 are crafted in such a way that they do not have any independent life outside reliefs 1 – 7. That the former are consequential upon the grant of reliefs 1 – 7 as rightly found by the Tribunal. That the tribunal went on to use as an analogy, the case of Emeka v. Emordi supra. Learned senior emphatically stressed that with or without reference to the said authority, the finding of the Tribunal is unassailable, as it is justified by the Electoral Act, 2006. Further submissions is that the appellant having fully participated in the election of 28 April 2007, he is estopped from contending that it is invalid on the ground that the inconclusive election of 14 April 2007 is the one that is validly cited in support is the case of Sowemimo v Awobajo (1999) 7 NWLR (Pt.610) 335 at 354.

That the appellant used the terms cancellation of election and cancellation of result inter-changeably as if they have the same meaning and connotation. Reference was made to paragraphs 20 and 22 of the petition. That in view of the foregoing, the appellant misconceived the purport of the cases of Balowu v. Ikpeazu and Abana v Obi which dealt with the issue of the lawfulness of the cancellation by INEC of a return duly made by a Returning Officer. That the cases have nothing to do with the issue of the power of INEC to cancel an election. That the tribunal in citing the two cases rightly drew attention to what they decided. That the issue of cancellation or nullification of an election does not fall within the rubric of the provisions of section 140(1) of the Electoral Act, 2006 and Section 285(2) of the 1999 Constitution. That the power to cancel an election, was submitted to be incidental, ancillary, collateral or auxiliary to the power to organize, undertake and supervise an election.

Learned senior cited the authority of N.B.C.I. v. Kumbo Furniture Co. Nig. Ltd. (2004) 17 NWLR (Pt.903) 572 at 592 wherein the word incidental is defined thus:-

“as a thing that follows naturally, appertains, to or as a matter of course from the primary matter or depends upon the primary matter.”

That “ancillary”‘ is also defined as:-

“Aiding; attendant upon; describing a proceeding attendant upon or which aids another proceeding considered as principal; auxiliary or subordinate.”

The learned senior urged us to hold that the 2nd respondent has the power to cancel an election that is substantially flawed before its conclusion. That the appellant on his submission appears to have overlooked a fundamental issue, that is, the provision of section 179(1)(a)(b) of the 1999 constitution. In other words that it does not admit of any controversy that no candidate can be returned as duly elected as a Governor declared as such unless the candidate complies with that constitutional requirement. That before a determination of due compliance with the aforestated constitutional provision, the votes cast in each of the 27 local Government Areas in Imo State must be pleaded and established in evidence. That there is no such pleading anywhere in the petition.

Further more that the appellant’s submission, that holding by the Tribunal that INEC has power to cancel an election, has completely determined the substantive issue in the petition. The second is that the decision of the Tribunal on the issue has compromised the Appellant’s right to fair hearing. That the two issues canvassed are not borne out of the grounds of appeal. That the appellant has also not shown why this court should interfere with the findings made by the Tribunal. Learned senior urged that the lone issue be resolved in the negative and against the appellant. The senior counsel on the totality had urged that the appeal be dismissed.

With the striking out of the 1st respondent’s brief of argument, the appellant’s reply brief to same has no foundation and it therefore stands to suffer the same fate. However, the appellant’s reply brief in response to the 2nd and 3rd respondent’s brief of argument is dated 4th and filed on the 7th February, 2008. The reply brief even though has no origin in the practice Direction No. 2 of 2007, it can safely lean on paragraph 51 to the first schedule to the Electoral Act 2006 wherein such could be filed under the Rules of this court.

On the fatal nature of the effect of non-disclosure of the scores of the candidates in the election of 14/4/2007 learned senior counsel argued that the rigid requirement has since been greatly watered down by recent authorities wherein each petition must be decided on the facts and circumstances of the case; cited in support is the case of Ogbegbor v Danjuma (2003) 15 NWLR (Pt.843) 403 at 425. That the failure to plead the scores of the candidates in the election of 14/4/2007 is not fatal to the petition filed by the appellant; the case of Owuru v. INEC (1999) 10 NWLR (Pt.622) 210 was cited in support. That in Enemuo v Duru (2004) 9 NWLR (Pt.877) 75, it was duly held that it is the facts and circumstances of the case that determines whether the non-disclosure of the scores of the candidates in the election is fatal. That what is crucial is the undue election or undue return of the 1st respondent initiated by the undue election or undue return of the 1st respondent in the election of 28/4/2007 following the purported cancellation of the election of 14/4/2007 when INEC (the 2nd and 3rd respondents have no power to cancel the election.)

That none of the 2nd and 3rd respondents can take the benefit of their own wrong or omission not to collate and announce the winner of the election of 14/4/2007. A number of authorities were cited in support. That it is certainly not the law that results collated, announced and entered in the polling units cannot be used to establish that the appellant won the election of 14/4/2007. That the reasons for the cancellation can only be justified at the trial of the petition and it is a matter that must be adjudicated by the election petition tribunal. That the question of merger of two elections in one petition as the respondents argued does not arise; because it is one cause of action. That it is at best a decision based on technicalities, which sacked the appellant from the seat of justice. Learned senior to buttress his submission cited the case of Jim Nwobodo v. Onoh (1984) 1 SCNLR 1 at 195. Counsel urged us to hold that the lower tribunal was wrong in the circumstances to have upheld the preliminary objection without hearing the parties on the merit.

The learned appellant’s senior counsel in the said reply brief attempted to reply on two issues. While the first covers pages 1 – 8, the second issue covers 9 – 12. With reference to the 2nd – 3rd respondent’s brief of argument only a lone issue was jointly formulated on their behalf and same which posed a question “whether the petition was competent?.” From all indicators they reply brief in respect of issue 2 does not therefore arise from any brief of argument by the said respondents. The reply having no foundation is hereby struck out.

The two issues raised by the appellant would be treated together as they are both intertwined and which same also cover the lone issue raised by the 2nd – 3rd respondents with those of the 1st respondent all having been struck out as being incompetent.

The issue whether a court or tribunal is competent to adjudicate a matter is very paramount to a valid given determination of any given case. Where a court/tribunal is incompetent, the proceedings before it no matter how eloquently and well conducted, could be anything else but certainly lacking in legal effect and would have no force of law. A court or tribunal must be competent and this cannot in any way be compromised.

A court is competent when the case comes before it is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the case of Okonkwo v INEC (2004) 1 NWLR (Pt.854) 242. In that decision, reliance was made on the locus classical case of Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 in spelling out the competence of a court. At page 293 of Okonkwo’s case therefore their Lordships had this to say:-

“A court is competent when:

(1) It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction’”

It is trite law that the relief sought by a claimant or plaintiff serves to determine the jurisdiction of the court. See the cases of C.G.G. (Nigeria) Ltd. v. Ogu (2005) 8 NWLR (Pt.927) 366 at 381 – 2; Adeyemi v. Opeyori (1976) 9 & 10 S.C at 51 – 52. At page 10 of the record before us, the reliefs sought by the petitioner/appellant have been exhaustively and graphically outlined as reproduced supra.

From the deductive summary of the reliefs sought, it is apparent that prayers (i) – (viii) relate to the election of 14 April, 2007 wherein the appellant asserted a number of deductions as follows: that an election took place on the 14th April, 2007, and the result of the said election was declared or announced; consequent to the announcement, the 2nd and 3rd respondents cancelled or nullified the result; that the appellant’s candidate won a majority of lawful votes cast at the election and that he should therefore be returned as elected. In the alternative therefore the relief adjudicated for a fresh election to be conducted in nine local government areas.

Following the preliminary objections raised by the respondents, as restated earlier the lower Tribunal arrived at a number of conclusions which pendulum is constructive at pages 207 – 209 wherein the lower tribunal made the following pronouncements amongst others:-

“The shore we have finally arrived at is that all the pleadings contained in the petition relating to the election of 14/4/07 which produced no result and no returns are incompetent and are accordingly struck out. Reliefs 1 – 7 thereon wh8cih relate directly to the said election of 14/4/07 are hereby dismissed…………

Now to the election of 28/4/07. A study of thc reliefs show that reliefs No.8 – 12 relating to that election were not claimed as alternatives to the claims relating to the election of 14/4/07. Thc only alternative claim (No.7) relates to the election of 14/4/07 and not the election of 28/4/07. Properly called, reliefs 8 – 12 are consequential to reliefs 1 – 7 because they depend on the success of reliefs 1 – 7. All the reliefs on the petition therefore depend on the upholding of the election of 14/4/07…………..

……In the instant case, since they all depend on the election of 14/4/07 being good which we have already in this ruling held was bad; reliefs No. 8 – 12 must necessarily fail and hereby equally dismissed.

From the generality of the petition before us, it is apparent from the heading, pleadings, grounds and reliefs sought that there are two different elections in question, that is to say the one held on 14/4/07 and another held on the 28/4/07. The two have both been fused and concentrated into one.

The grouse of the petitioner’s complains was that he should have been declared elected based on the first election held on the 14/4/07 and consequence to which the run off election held on the 28/4/07 should be declared null and void. The two fold joint live issues encompassing those of the appellant and the 2nd – 3rd respondent calling for determination are:-

“(a) the propriety and competence of the appellant’s petition having due regard to the provisions of section 285(2) of the constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006; and

(b) whether the tribunal was right in declining jurisdiction on the matter of cancellation of schedule election.”

Relevant to the consideration of these issues are sections 285(2) of the Constitution of the Federal Republic of Nigeria, 1999, 140(1) of the Electoral Act, 2006 as well as the provisions of paragraph 4(i)(c) of the first schedule to the same Act, herein and the reproduction of same would be paramount.

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

“140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected is returned is joined as a party.”

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

(a) …………….

(b) …………….

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election.”

It is expedient to restate that the jurisdiction of a court or tribunal is not inferred or imagined but statutory. The above constitutional and statutory provisions therefore explicitly delineate the power and jurisdiction of the Tribunal. In other words, section 285(2) of the constitution of the Federal Republic of Nigeria, 1999 vests the Tribunal with the jurisdiction to the exclusion of any other court. whilst the constitution therefore provides that the Tribunal has original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor, the Electoral Act stipulates that in order to validly present a petition it must be in respect of an election and a return. The complaint of an undue election or return must have been arisen out of the allegations enumerated in section 145(1) of the Electoral Act as follows:

“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 to contest the election;

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

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

(d) that the petitioner or its candidate was validly nominated but was unlawful excluded from the election.”

The issue at hand relates to cancellation or nullification of an election and which does not fall within the ambit of section 145(1) of the Act relating the four grounds upon which an elect may be questioned. It rather stands outside the compartmentalization envisaged by the sub-section.

The learned appellant’s senior counsel cited and relied on the case of Ezeobi v. Nzeka where the term “undue election” and “undue return” were defined.

At page 486 of the report for instance it was held that:-

“For an election of a person to be undue or for his return to be undue, it must of necessity be unmerited improper; not rightful, undeserved, or inappropriate because of a variety of reasons.”

Also at page 487 of the said same authority, this court per Ikwechegh JCA amongst others said:-

“I consider it imperative that a respondent whose election is challenged in an election petition must first of all be elected and returned as a member of the council as a result of voting at the polls. All the grounds in (a), (b) and (c) in section 34(1) of the Decree show that the election must be completed first and returns known and announced before a petition may be filed to question the election.”

Also at page 489 his Lordship further said:-

“An election petition is meant to question the election of a candidate returned as victor. The petition must show this fact. And then the petitioner shows the grounds for questioning and challenging such election or return. This is not mere technical issue.” (underlining is for emphasis.)

It is clear from the foregoing authority that as a mandatory prerequisite, the petition must question or challenge the election of a candidate re turned as victor. This fact must be clearly and unequivocally be established on the petition. In the absence of a returned victor there can therefore be no petition. This to me appears to be the interpretational implication of the case. The same interpretation is to be deduced from the import of paragraph 4(4)(c) of the first schedule to the Electoral Act, 2006 and reproduced supra where the use of the word shall makes it mandatory that a petition must state certain requirements to wit:- (1) holding of the election (2) scores of the candidate and (3) the person returned as the winner of the election. The authority in point is Khalil v Yar’Adua (2003) 16 NWLR (Pt.847) 466, also Ezeobi v Nzeka under reference supra. As rightly argued and submitted by the learned senior counsel for the 2nd – 3rd respondents, without stating the result in the petition, or the scores of the candidates which approximate to the result as officially declared, there would be nothing upon which the Tribunal would exercise its jurisdiction. The court does not act in a vacuum. The authority of Ezeobi v Nzeka relied upon by the learned appellant’s senior counsel is not, with all respect in support of his arguments. The authority presupposes that the petitioner ought to show that the purported election and return was void as a result of an undue election or undue return. There cannot be an election and return without result. The complaint would then be the undue election or return which gave rise to the purported result sought to be voided.

It is conceded by the appellant himself that no result was declared on the election which took place on 14th April, 2007. At paragraph 4.16 for instance the appellants learned senior counsel said:-

“Indeed, it was common ground that at the election which was cancelled, nobody was thus returned.”

It is a confirmation therefore that no result was declared in respect of the inconclusive election of 14th April, 2007.

The learned senior sought to interpret the scores of candidate and the person returned as “winner” in paragraph 4(1)(c) to necessarily relate to an election from which a winner emerged as declared by the Electoral Commission. That, the duty imposed on the appellant therefore is that which relate to the election held 28th April, 2007 being an election with a declared result. The appellant therefore circumscribed his averment at paragraph 8 of the petition and submitted due compliance having been made to paragraph 4(1)(c) of the 1st schedule and thus covering the erection of 28 April, 2007.

It is obvious and as rightly submitted by the learned senior for 2nd – 3rd respondents that the Electoral processes of 14 April, 2007 and 28 April, 2007 are entirely two distinct and different processes – The one former, leading to an inconclusive election while the other latter, leading to a conclusive election. Having regard to the nature of the petition filed by the appellant, it has left no one in doubt that the main purport of the petition can easily be surmised from the reliefs sought by the appellant. That is to say in challenging the cancellation or nullification of the result of the election held 14/4/2007 and thereby seeking that the petitioner’s candidate Martin Agbaso be issued a Certificate of Return as the elected Governor of Imo state in the Governorship election held on 14/4/2007. This is clearly borne out at reliefs 1 – 6 of the petition. The subsequent challenge by the appellant of the 28 April, 2007 was predicated on the election held on the 14th April, 2007. This conclusion is obvious especially where the appellant presumed the validity of the cancelled inconclusive election of 14 April, 2007 based on the assumed invalidity of the election held on 28 April, 2007. The appellant cannot at the same time be allowed to approbate and reprobate. The two elections are inseparable but intertwined wherein the fate of one determines the other as rightly argued and submitted by the learned senior for the 2nd – 3rd respondents.

It is an expected and a legal duty incumbent upon the appellant therefore to state the scores of the candidates as declared by INEC, the 2nd Respondent. This conclusion is consistent with the law and rightly also arrived at by the learned Tribunal.

In the case of Ukpe v Ndon supra, the facts were on fours with the case at hand wherein the declaration of a winner and a return were not made and thus rendering the election as inconclusive. In a run-off election subsequently held, the petitioner claimed to have upon the majority of the lawful votes at the inconclusive election. He therefore sought that the runoff election be declared wrongful, null and void and that the return of the 1st respondent at such an election be also declared null and void. This court held that in so far as no winner was declared or returned, the petition was incompetent and void. At page 302 of the report their Lordships per Obadina JCA said:-

“In the circumstances, the petition was incompetent and void and the tribunal lacked jurisdiction to hear and determine the petition. See Madukolu v. Nkemdilim (1962) 1 All NLR 587… See also Salati v. Shehu (1986) 1 NWLR (Pt.15) 198.”

Also and on the same principle of law in the case of Eriobina & Ors. v. Obiorah (1999) 8 NWLR (Pt.616) 622 at 638 this court again held inter alia that a petitioner must among others plead:-

“The scores of the candidates who contested the election. Here, the petitioner is under a legal duty to indicate the official scores of INEC and not what he thinks or thought should be the scores. He can reserve what he thinks or thought should be the scores to any subsequent paragraph or paragraphs in the petition. All that paragraph 5(1)(c) requires is the raw official figures of INEC. The person returned as the winner of the election. Again, all that the petitioner is expected to state is the person officially declared by INEC as the winner of the election. In other words, paragraph 5(1)(c) enjoins the petitioner to name the candidate who won the election as declared by INEC. Again, he can contest the result of INEC in any subsequent paragraph or paragraphs in the petition to the effect that he was in law the winner of the election.”

In recapitulating the findings of the learned Tribunal at pages 207-208 amongst others it held thus:-

“All the reliefs on the petition therefore depend on the upholding of the election of 14/4/07, yet we have not been furnished with the result of that election.”

Reliefs 8-12 of the petition alleged that INEC cannot postpone a rescheduled election except in accordance with the Electoral Act. Following at paragraph 27 the petitioner for instance averred and said:-

“Your petitioner states that the election held on 28/4/07 is invalid, wrongful, unlawful, null and void and of no effect as the 2nd and 3rd respondents have no power to cancel or nullity the election of 14/4/07 and reschedule same………”

The corollary interpretational focus clearly hangs on the Tribunal upholding the election of 14/4/07. This out come was very crucial for the purpose of giving a foundational status to the subsequent election of 28/4/07, which was sought out for cancellation. With the inconclusive nature of the earlier election, the dependent of the subsequent thereon cannot hold as it also lacks a foundation.

The appellant repeatedly relied and hold supreme to the decision in the case of Ngige v Obi supra. With all due respect to the appellant’s senior counsel the case under reference is very much distinguishable with the one in point. This I say because while in that case the election was conclusive, results were computed and collated thus returning the PDP candidate as the winner of the election, the same is not with the case at hand wherein the election was inconclusive, without any return or result and thus occasioning the preliminary objection raised. As rightly submitted and argued by the 2nd – 3rd respondents senior counsel, therefore, the issues canvassed in the case under reference, are of no moment and relevance to the issues herein.

Further more and by the very nature of section 145(1)(B) of the Electoral Act 2006 supra, any petition predicated challenges the invalidity of the questioned election by reason of corrupt practices or non-compliance.

From the totality of the appeal before us therefore, it is my considered humble opinion that with the inconclusive nature of the election held on 14th April, 2007, the reliefs sought subsequent tot eh election held on the 28th April, 2007 could not herewith rightly be dependent thereon the former. In other words, the trial tribunal was rightly bereft of jurisdictional powers to entertain the petition. It is trite law that where a court or tribunal lacks the jurisdiction the proceedings before it ought to be struck out.

The authority in the case of Olutola v Unilorin (2004) 18 NWLR (Pt.905) 416 is very apt and in point on proper order to be made by the Court of Appeal where trial court lacked jurisdiction to hear a matter ab initio. At page 459 of the report for instance, Ejiwunmi JSC had this to say:-

“Since the trial court lacked the competence to adjudicate upon the matter, the court below was right to have struck out the case. As the appeal against that judgment is devoid of any merit, this appeal must be dismissed and the judgment of the court below striking out the case is hereby affirmed.”

In the final result, I therefore make an order affirming the decision of the lower tribunal to the extent that it lacked the requisite jurisdiction to entertain the petition before it. I would also substitute the dismissal order made with an order striking out the petition.

The appeal on the totality lacks merit and same is dismissed with costs of N30,000 to each set of respondents.

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Other Citations: (2008)LCN/2733(CA)