Charles Chiwendu Odedo V. Independent National Electoral Commission & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is another political matter involving substitution; a new trend in Nigerian politics where the game is changed midstream. It affects the political party of the Peoples Democratic Party, the 2nd respondent. The quarrel looks more of an in house affair; the inclusion of the 1st respondent notwithstanding. We have done a few in the past; we are asked to do this also. We must. The matter involves so much of the interpretation of the Electoral Act, 2006. What are the facts What gave rise to the substitution

Charles Chiwendu Odedo, the appellant, a member of the Peoples Democratic Party bearing the acronym, PDP, contested the primary elections, along with ten others. That was on 24th November, 2006. It was for the Idemili North and South Federal Constituency in Anambra State. He won. Following the result of the election, the PDP submitted his name to the Independent National Electoral Commission INEC), the 1st respondent. That was on 20th December, 2006. INEC duly published the name of the appellant as a person who was cleared to contest the election. The necessary documentation was completed by INEC and the appellant thought the coast was free or clear for him to contest the election with other political parties. But that was not to be. He had a surprise. I think he also had a shock.

On or about 2nd February, 2007, appellant got information that his name was substituted with that of Obinna Chidioka who appears in this appeal as party to be heard. I must confess that this is quite a new one to me. I have never come across such a party in our law of procedure. We learn everyday. I will not go there because the parties do not seem to have Joined issue on it. And so let Obinna Chidioka remain as party to be heard and we must hear him. We will not hear him alone; we must hear all the other parties, though they are not styled as parties to be heard. As I said, we learn everyday.

Aggrieved, appellant went to the Federal High Court. He did not file the usual action. He filed an unusual one. It was an application for judicial review of the action of the respondents in relation to the substitution of his name with that of Obinna Chidioka. The process is at page 39 of the Record. It reads in part:

“Take notice that pursuant to leave of the Federal High Court Enugu, granted on the 13th day Of March 2007, ,the Federal High Court will be moved on Monday the 19th day of March 2007 at the hour of 9 o clock in the forenoon or so soon, thereafter as the Applicant or counsel on his behalf may be heard praying the honorable court for an order for judicial review of the act of independent national electoral commission for the reliefs set out in the statement in support of the application and on the grounds set out in both the statement and the verifying affidavit in support of the application and the Exhibits therein referred to, used in the application for leave, copies of which affidavit and Exhibits are served herewith.”

The appellant sought four reliefs. They are:

1. A declaration that the 2nd respondent having submitted a list of PDP candidates, it proposes, to sponsor at the 2007 elections into the House of Representatives for Anambra State Federal Constituencies to the 1st respondent. Pursuant to section 32 of the Electoral Act 2006, a substitution of the Applicants name on the said list with that of Obinna Chidioka after the 20th Feb, 2007, is unconstitutional, null and void, the same not being in compliance with sections 34 (1), (2) and (3) of the Electoral Act, 2006.
2. An order of prohibition restraining the 1st respondent from using the substituted list of PDP candidates for elections into the Federal House of Representatives in Idemili North and South Federal Constituency.
3. An order of prohibition restraining the first Respondent from publishing the said substituted list which was published after the 20th of Feb, 2007, or any other substituted list bearing the name of Obinna Chidioka or any other name in place of the Applicants name as the PDP candidate for Idemili North and South Federal Constituency pursuant to Section 35 of the Electoral Act 2006.
4. An order of mandamus directing the 1st Respondent to publish a statement of the full names of PDP candidates standing nominated for elections into the Federal House of Representatives for the Federal Constituencies in Anambra State as submitted to it by the 2nd Respondent on 23rd December 2006 in accordance with section 30 of the Electoral Act, 2006.

The grounds upon which the reliefs were sought are at pages 42 to 44 of the Record. They number 21. The affidavit in support of the application for leave to apply for judicial review is at pages 45 to 46 of the Record. There are five paragraphs.

The learned trial judge, Faji, J, did not see his way clear in granting the reliefs sought by the appellant. He refused them. In the concluding paragraph of his judgment, the trial Judge said at page 314 of the Record:

“To my mind, this constitutes a cogent reason. It is also verifiable as per plaintiff’s exhibit 5 which at all material times was in the custody of the 1st Defendant. I therefore find that the plaintiffs action lacks merit. The substitution was carried out in line with section 34 of the Electoral Act. The reliefs in the motion cannot therefore be granted. They are accordingly dismissed.”

Dissatisfied, the appellant went to the Court of Appeal. There was a split decision of the panel of Mikailu, Denton West and Bada, JJ.CA. While Mikailu and Bada, JJ.CA struck out the appeal on the ground that it was a mere academic exercise, Denton-West, JCA parted ways with her learned brothers. She allowed the appeal and struck out the cross appeal.

In his conclusion Mikailu, JCA said at page 562 of the Record:

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

In her lone voice, Denton- West, JCA said at page 610 of the Record:

“Finally in the interest of justice, equity, fair play and upon the totality of my above reasoning and conclusions, I hereby find the appeal as not lacking in merit and it succeeds. The cross appeal is lacking in merit and is accordingly struck out”

Still dissatisfied, the appellant has come to this court. Briefs were filed and duly exchanged. Appellant also filed a Reply Brief. The Appellant formulated the following issues for determination:

“1. Whether the Court of Appeal in its majority judgment was right in holding that the Appellants appeal in these circumstances was a mere academic exercise.

2. Whether the Appellant is not entitled to judgment on the merits of the case.
3. Whether in the circumstances of this appeal, this is not a proper case in which the Supreme Court should exercise its powers under section 22 of the Supreme Court Act to hear the case on its merit in view of the failure of the Court of Appeal to do so in its majority judgment.”

The 15t Respondent formulated the following issues for determination:

“I. Whether the Court of Appeal in its majority ruling was right in holding that the Appellants appeal in the circumstances was a mere academic exercise.

2. Whether the Court of Appeal ought to have proceeded to determine the merit of the appeal and cross appeal after holding that the appeal had become a mere academic exercise.
3. Whether this is a proper situation for the exercise of the Supreme Courts powers as contained in section 22 of the Supreme Court Act.
4. Whether the trial court was correct in holding that the substitution of the appellants name was done in accordance with section 34(1), (2) and (3) and whether the dissenting justice was right in his assessment of the onus of .proof in respect of issues which arose in the trial court.”

The 2nd Respondent formulated the following issues for determination:

“1. Whether the Court of Appeal in its majority judgment was right in holding that the Appellants appeal in these circumstances was a mere academic exercise.

2. Whether the Appellant is not entitled to judgment on the merits of the case
3. Whether the circumstances of this appeal, this is not a proper ease in which the Supreme Court

should exercise its powers under section 22 of the Supreme Court Act to hear this case on its merit in view of the failure of the Court of Appeal to do so in its majority judgment.”

The Party to be heard formulated the following issues for determination:

“1. Whether the Court of Appeal in its majority judgment was right in holding that the Appellants appeal in these circumstances was a mere academic exercise.

2. Whether the Appellant is not entitled to judgment on the merits of the case.
3. Whether in the circumstances of this appeal, this is not a proper case in which the Supreme Court should exercise its powers under section 22 of-the Supreme Court Act to hear this case on its merit in view of the failure of the Court of Appeal to do so in its majority judgment.
4. Has the Appellant the locus standi to institute this action in the first instance”

Learned Senior Advocate for the appellant, Chief (Mrs) A. J. Offiah submitted that the issues raised in the appellants appeal are still live and throbbing. Citing Dike v. Nzeka (1986) 2 NWLR (pt.34) 144 on what constitutes an academic exercise, learned Senior Advocate submitted that the reliefs sought are live. Relying on section 32 of the Electoral Act, 2006, learned Senior Advocate contended that the declaration sought, if made before the holding of the election would have confirmed the right of the appellant to contest the election as the rightful-candidate for the 2nd respondent; and the declaration if made after the holding of the election would still confirm his right to challenge the e1ection as a candidate unlawfully excluded from contesting the election by reason of the unlawful substitution. She cited section 285 (1) to (4) of the 1999 Constitution, section 144 (1) (a), (b) and 145 (d) of the 2006. Ibrahim v. INEC (1999) 8 NWLR (pt.614) 334; Sanyaolu v. INEC (1999) 7 NWLR (Pt.612) 600; Adebiyi v. Babalola (1993) I NWLR (Pt.267) I; N.E.C V. N.R.C (1993) I NWLR (pt.267) 120; Doukpolagha v. George (1992) 4 NWLR (Pt.236) 444 and Maikori v. Lere (1992) 3 NWLR (Pt.23 I) 525.

Learned Senior Advocate submitted that when the issue is pre-electoral, as in the present case, where the appellant complains of an unlawful substitution after having been validly nominated, the proper court vested with jurisdiction is determined by a consideration of the relevant statute, the parties, the plaintiffs claim and the reliefs sought. She cited Amaechi v INEC SC.74/2007. Akinfolarin v Akinnola (1994) 3 NWLR (pt.335) 659; N.E.C v N.R.C, (supra); Doukpolagha v. George, (supra). She submitted that this Court will not be groping in the dark or deciding academic issue by pronouncing on the right of the appellant. This action having been commenced by way of judicial review, questions essentially the legality of the acts carried out by the 1st Respondent on the instruction (if any) of the 2nd respondent, counsel argued. Citing F.A.T.B Ltd. v. Ezegbu (1993) 6 NWLR (Pt.291) 25; Daniel v. Ferguson (1891) 2 Ch.D. 27 and Jones v. Security and Exchange Commission 80 (1935) L.E.D., learned Senior Advocate submitted that the processes of the court should not be treated with disdain or levity; this is essentially so when the respondents were fully aware of the pendency of the suit.

Learned Senior Advocate submitted on Issues 2 and 3 that this is a proper case for this court to exercise its powers under section 22 of the Supreme Court Act to hear the case on its merit in view of the failure of the Court of Appeal to do so in its majority judgment. Relying on the statement in support of the grounds upon which Application was made, affidavits, counter-affidavit, the Electoral Guidelines of PDP and the cases of Magaji v. Salami (1998) 7 NWLTR (pt.557) 299;Ehimica v. National Oil and Chemical Marketing Company Ltd (1995) 5 NWLR (Pt.398) 642; Yusuf v. Eboda (1994), 3 NWLR (Pt.334) 568; Lawai v. Ejidike (1997) 2 NWLR (Pt. 487) 319; Jegede v. Citicon Nig Ltd. (2001) 4 NWLR (Pt.702) 112; Ozigbo v. COP (1979) 10; NSCC. 124; (1961) SCNLR 296 at 298; Longjohn v. Chief Iboroma (1998) 6 NWLR (Pt.555) 524; Okpalaeke v. NEPA (2The Queen v. Wilcox003) 14 NWLR (Pt.840) 583; Onwumechili v. Akintemi (1985) 3 NWLR (Pt.l3) 504; LPDC v. Fawehinmi (1985), 2 NWLR (Pt.7) 300; Yusuf v. Obasanjo (2003) 16 ,NWLR (Pt.847) 554; Emskip Ltd v. Exquisite Ind. Ltd (2003) 4 NWLR (Pt. -809) 88 and CG.S. (Nig) Ltd v. Ogu (2005) 8 NWLR (Pt.927) 336, learned Senior Advocate urged the Court to hear the merits of the matter and give judgment to the appellant.

Learned counsel for the 1st respondent Mr. Emonye Adekwu raised preliminary objection as follows:

“The Respondent prays the. Honourable Court for an order that Issues 2 and 3 raised and argued together in the Appellants Brief of Arguments be struck out for being incompetent. Grounds for the preliminary objection:

(i) Only two (2) grounds of appeal are contained and disclosed in the Notice of Appeal,

(ii) Three (3) Issues were however submitted for determination.

(iii) Issue I which was obviously distilled from Ground 1 was argued alone

(iv) Issues 2 and 3 were argued together.”

Arguing the preliminary objection, learned counsel submitted that Issues 2 and 3 argued together in the appellants brief are incompetent and should be struck out as they were not based on competent ground or grounds -of appeal. In other words, it is the argument of learned counsel that the issues are not distilled from any ground of appeal. He cited Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 and Ugo v. Obiekwe (1989) I NWLR (Pt.99) 566. Counsel also contended that the joint argument of Issues 2 and 3 has entirely corrupted the issues however framed or distilled and therefore should be struck out. Taking the merits of the appeal, learned counsel submitted, on Issue No.1, that the appellants appeal in the circumstances was a mere academic exercise.

Relying on Dike v. Nzeka, (supra), learned counsel said that a proceedings becomes academic or hypothetical in nature if it has no bearing with live issues or its determination would be an exercise in futility. As the appellant was unable to present an election petition based on the outcome of Appeal No.CA/E/97/2007, it is now an academic proceedings. He argued that the reliefs sought by the appellant are incapable of enforcement even if they had been granted by the Court of Appeal. He did not agree with learned Senior Advocate that the respondents by their action intended to render the proceedings and the judgment of the court pyric. Counsel did not therefore see the applicability of FATB v. Ezegbu (supra).

Learned Counsel submitted on Issue NO.2 that the Court of Appeal was right in terminating the proceedings in Appeal No. CA/E/97/2007 immediately the court held that the proceedings amounted to an academic exercise. He relied on section 6(6) (b) of the 1999 Constitution. On Issue.No.3, learned counsel submitted that this is not a proper case for the exercise of the power of the court under section 22 of the Supreme Court Act because the conditions precedent and qualification to such exercise of power are not available. He pointed out that the provision of section 22 does not empower the Supreme Court to hear a substantive appeal for the ruling of the High Court no matter the exigencies or the formalities or vexatious nature of the appeal as the provision cannot override the exclusive jurisdiction of the Court of Appeal to hear appeals from the High Court as codified by sections 240 and 241 of the 1999 Constitution. He cited Attorney General Anambra State v. Okafor (1992) 2 NWLR (Pt.396) without the page; and Harriman v. Harriman (1987) 3 NWLR 244. To learned counsel, this court cannot exceed its jurisdiction by its power under section 22, as that will violate sections 233 and 240 of the 1999 Constitution. Counsel however conceded that this court can exercise its section 22 power on the question whether or not Appeal NO.CA/E/97/2007 had become academic in the circumstances. He cited Ejowhomo v. Edok Her Mandilas Ltd (1986) I NSCL 1184. If this court holds that the appeal is not academic, the Court of Appeal will be the only forum where the substance of the appeal would be best considered on its merits, counsel argued.

On Issue NQA, learned counsel submitted that the onus of proof is on the appellant who seeks a declaration that the substitution was not done in accordance with section 34 (I) of the Electoral Act, 2006. Citing SCC (Nig) Ltd. v. Elemedu (2005) 7 NWLR (pt.923) 28; F.B.N. v. A.C.B. (2006) 1 NWLR 438; counsel submitted that the appellant has not proved his allegation and this court must dismiss his case. He so urged the court.

Learned counsel for the 2nd respondent, Mr. Arthur Okafor submitted on Issue NO.1 that the election having taken place, it is clear that the Court of Appeal cannot grant relief as to grant such relief will amount to make an order in vain or amounting to nothing other than engaging in mere academic exercise. He cited Nwobosi v A.C.B. (1995) 6 NWLR.(PtA04) 658;Oyeneye v. Odugbesan (1972) 4 SC. 244 Mamman v. Salaudeen (2005) 18-NWLR (pt.958). 478. Arguing that a court of law cannot grant in vain injunctive reliefs, counsel cited Attorney General Abia State v. Attorney General of the Federation (2005) 12 NWLR (Pt.940) 452; and Obeya Memorial Hospital v. Attorney General of the Federation (1987) 3 NWLR (Pt.60) 325.

Citing sections 119 (a) (i), 285 (1) (a) of the 1999 Constitution and sections 69 and 140 of the Electoral Act, 2006, counsel submitted that the cause of action has inured to the election tribunal and therefore the matter should not further proceed in the regular court. He did not agree with the argument that the appellant cannot approach the election tribunal. As the action of the appellant is on non-compliance, he can only go to election tribunal, counsel submitted. He argued that the case of Arnechi v. INEC (supra), is not applicable.

On Issue No.2, learned counsel submitted that the appellant is not entitled to judgment on the merits of the case Learned counsel contended that the substitution letter, Exhibit B, was never produced as the copy was in the custody of the 1st respondent, and therefore the absence ‘E2’80″of INEC receiving stamp and date on same is not an anomaly by any stretch of imagination. Counsel argued that the party to be heard was duly bound to establish not just that a letter of substitution was written, but that such letter was duly delivered in satisfaction of-the stringent requirements of section 34 (2) of the Electoral Act, 2006 and in such a situation only a certified true copy of the letter of substitution will be admissible secondary evidence in proof thereof by a combined effort of sections 109, 111(1), 97 (I)(e) and (f) (2) (c) of the Evidence Act. He cited Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Alataha v. Asiri (1999) 5 NWLR (Pt.601) 33. To learned counsel, the party to be heard cannot be penalized by virtue of the fact that he produced- a certified true copy of the letter of substitution which is clearly distinct from the copy privately delivered to him. He pointed out that the document captured Affidavit of Applicant was not signed by the Commissioner for Oaths according to law and therefore void as the absence of the signature .is not a mere defect. He cited Agusiobo v. Onyekwelu (2003) 14 NWLR (Pt.839) 34. He also dealt with the duty of the court to form an opinion as to the authority of a question of handwriting or a signature.

Learned counsel submitted that if commission of a crime by a party to any proceeding is directly an issue, it must be established beyond reasonable doubt. He cited section 138 (1) of the Evidence Act, and Famuroti v. Agbeke (1991) 5 NWLR (Pt.l89); Jules v. Ajani (1980) All NLR 170. Citing Niger gate Ltd v. Niger State Government (2005) I NWLR (Pt.907) 342, learned counsel submitted that where an allegation of commission of a crime is made in an affidavit, the mere fact that it was not denied in a counter affidavit does not negate the requirement that such allegation be proved beyond reasonable doubt. Counsel did not agree that the learned trial Judge placed any burden of proof on the appellant in respect of the cogency of the reason for the substitution. Learned counsel thereafter suddenly attacked the grounds of appeal. I do not know whether he was raising a preliminary objection mid-stream. I will comment on this in the judgment. For now, I should continue with my summary of the Brief.

On Issue No.3, learned counsel submitted that this is not a proper case for this court to exercise its powers under section 22 of the Supreme Court Act. He cited Obi v. INEC (2007) II NWLR (Pt.l046) 565. Counsel urged the court to dismiss the appeal.

Learned counsel for the party to be heard, Mr. Amobi Nzelu contended that a suit is said to be lifeless or an academic exercise where a decision reached in the matter will not enure any right or confer any benefit on the successful litigant. He cited Ogbonna v. President FRCN (1997) 5 NWLR (pt.504) 281; Nwobishi v. A.C.B. (1995) 6 NWLR (ptA04) 658; Ndulue v. Ibezim (2002) 12 NWLR (pt.780) 139 and Tanimola v. Mapping Godatta Ltd (1995) -6 NWLR (Pt.403) 617. He argued that Reliefs (2) (3) and (4) which border on prohibitive and injunctive remedies are of no moment and cannot be granted at this stage since they have been overtaken by events. He also argued that section 285 of the 1999 Constitution which donated powers to the Election Petition Tribunals never gave them the jurisdiction to determine pre-election issues. He contended that section 32, 33 and 34 of the Electoral Act 2006 made elaborate provisions on submission of list of candidates challenging nomination and substitution of candidates. Submitting that a party can only be entitled to what he claims and that parties are bound by their pleadings, counsel cited Achiakpa v. Nduka (2001) 14 NWLR (Pt.734) 623; Basil v. Fajebe (2001) 11 NWLR (Pt.725) 592; Onamade v. Esiri (1997) I NWLR (PtA80) 123 and U.B.N. PLC v. Ishola (2001) 15NWLR (pt.735) 47.

Learned counsel submitted that in the light of Exhibit B, the letter of substitution, the issue as to time frame within which the substitution was made was laid to rest, as the exhibit speaks for itself as the substitution was done within the time permissible by the Electoral Act 2006 which is sixty days to the election. As the substitution was done within the prescribed time, the appellant goes without any remedy because that is the ground upon which he sought to set aside the substitution.

Taking section 34 of the Electoral Act, counsel submitted that if the Act intended to make not giving cogent and verifiable reason a ground for rejection of nomination from a political party, it should have stated so. He argued that not giving cogent and verifiable reasons is not enough to refuse a candidate who has been lawfully nominated and sponsored by a political party from participating in the election as the breach of section 34 has no sanction. Citing Action Congress v. INEC (2007) 12 NWLR (Pt.l048) 222, learned counsel reminded the courts of their primary function to interprete the law and not to prescribe sanction. In response to the submission of learned Senior Advocate for the appellant in respect of the knowledge of the pendency of the matter on the part of the respondents, learned counsel submitted that there is a distinction between pendency of a suit, and the trial court refusing to grant the order sought. If processes are served on a party without any pronouncement from the court, what the party does upon becoming aware of the pendency of the suit is at his/her peril. But where a court has categorically refused to make an order being sought, the aggrieved party is precluded from hiding under the canopy that the other party is aware of the pending suit to service the court, counsel argued.

Counsel contended that the reason given for the substitution is verifiable. To counsel, the issue of reason given being cogent and verifiable is purely subjective. He argued that as the Electoral Act, 2006 did not prescribe any format as guide that will assist in determining whether any reason given is cogent and verifiable, that must have informed why section 34 (3) made reference to only section 34 (1) of the Act.

Taking Issues 2 and 3 together, learned counsel contended that there was no time the appellant sought any relief predicated upon the letter of substitution not signed by the Chairman of the 2nd respondent He pointed out that no signature expert was called upon to look at the documents in contention. He called in aid the affidavit of the 1st respondent and that of the party to be heard. The contention that the letter of substitution was not signed raises the offence of forgery which is a crime and must be proved in accordance with section 138(1) of the Evidence Act, counsel argued. He cited Nweke v. State (2001) 4 NWLR (Pt.704) 588; Odu v State (2001) 10 NWLR {Pt.722) 669; Ikoku v. Oli (1962) 1 All NLR 194; Nwankwere v. Adewunmi (1966) 1 All NLR 129; Vulcan Gas Ltd v. G. F. Ind, A. G, (2001) 9 NWLR (Pt.719) 610. Counsel pointed out that the minority judgment of the court which is heavily relied upon by the appellant is not the judgment of the court; but the majority judgment is.

Learned counsel suddenly moved to section 108 (1) of the Evidence Act in paragraph 4.3.17 and cited Attorney General of the Federation and Attorney General of Abia State (2001) 11 NWLR (Pt.725) 689, Emokpae v. University of Benin (2002) 17 NWLR (Pt.795) 139; Ohanaka v. Achugwo (1998) 9 NWLR (Pt.564) 37 on the interpretation of may in a statute. He thereafter took Exhibits B, FAA and ANI in paragraph 4.3.19 and Exhibits 4, l0A, 11 and 14 in paragraph 4.3.20. I am thoroughly confused and the more I take the paragraphs following I get more confused. I do hope I will have my bearing straight.

I thought counsel had finished with the issue of substitution in Issue NO.1 but I was wrong. The issue raised its head once again. In paragraph 4.4.4 counsel dealt with documentary evidence where they exist and referred to three cases he had earlier cited. Let me stop here on Issues 2 and 3. I will return to them later.

I go to Issue 4. It is on jurisdiction. Counsel submitted that jurisdiction is the spinal cord of every litigation and once raised must be dealt with before further steps can be taken in the matter, and jurisdiction can be raised at any stage of the proceedings including this court. He cited a large number of cases at pages 36 and 37 which I have lost count. I will save my energy not to reproduce them here as they are legion. I should however say that the submission counsel made is valid. It is a most elementary principle on jurisdiction.

Learned counsel submitted that as the appellant did not secure 50% of the total votes cast in the primary election, he has no locus standi to institute the action. He cited again, quite a number of cases. I think I can count them this time, as they are fewer than the ones on jurisdiction. They number about 8. He submitted that the trial court had no jurisdiction to hear the matter in the first instance, as he lacked locus standi to institute the action. He urged the court to dismiss the appeal.

Learned Senior Advocate for-the Appellant made two Reply Briefs: one is in reply to respondents and co-respondents Briefs of argument and the other is to the Brief of 2nd respondent I will take them seriatim.

In reply to the 1st respondents and co-respondents Brief of argument, learned Senior Advocate submitted that the preliminary objection is totally misconceived and purely diversionary as the same is novel to the law and practice regulating appeals and cannot be farther from the truth. Counsel contended that Issue NO.2 was directly distilled from ground 2 of the Notice of Appeal. He reproduced the ground and relied on Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718, Fabiyi v. Adeniyi (2000) 6 NWLR (Pt 662) without the page; Dantata v. Mohammed (2000) 7 NWLR (Pt.664) 176, Okoye v. Santi! (1990)2 NWLR (Pt.13I) 172; Rotimi v. Amechi (supra), Ladoja v INEC (2007) All FWLR (Pt.377) 934; Inakaju v. Adeleke (2007) All FWLR (Pt.353) 3. Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 289 and Esin v Idika (1987) 4 NWLR (Pt.l66) 503.

Taking the merits of the Brief, learned Senior Advocate submitted that this court can invoke its powers under section 22 even when the lower court has made no pronouncement on the substantive issues but is seized of all the proceedings in order to do what the lower court ought to have done in the circumstance. She cited once again Ladoja v INEC, (supra) and the minority judgment of Denton-West, JCA. Replying to Issue No.4 of the 1st respondents Brief learned Senior Advocate submitted that as neither a cross appeal nor an appeal nor a respondents notice was filed by the respondents/co-respondent in respect of the dissenting judgment of the Denton-West, JCA, this court should discountenance the issue. She cited Okuno1a v. Oduola (1987) 4 NWLR (Pt.64) 141; Eke v. Oghonda (2007) 1 MISC 160, Nzekwu v. Nzekwu (1989) 2 NWLR (pt.104) 373 and Kuusu v. Udsu (1990) 1 NWLR (Pt.127) 421.

In reply to the Brief of co-respondent, learned Senior Advocate pointed out that nowhere in the whole gamut of the proceedings in the trial court or in the Court of Appeal did the appellant allege fraud or crime, neither did he give particulars of same. She said that the appellant simply stated that the signature was not that of the National Chairman. She argued that when fraud is alleged in any suit it must be pleaded and distinctly proved and it is not allowable to leave fraud to be inferred from the facts. She cited Usenfowokan v Idowu (1969) 1 All NLR 125 George v. Dominion Flour Mills (1963) 1 All NLR 71 Oluwo v. Adehowale (1964) 1 All NLR 74; Okunola v. Odulo (supra). I do not seem to follow the arguments in paragraphs 4.03 to 4.06. I will therefore not touch them.

In her Reply to the 2nd respondents Brief, learned Senior Advocate urged the court to discountenance the two Briefs filed for the 2nd respondent by Mr. Arthur Okafor and strike out the same for being incompetent. Narrating the events leading to the filing of the three Briefs, learned Senior Advocate submitted that the three Briefs cannot be validly filed for the same party and by different chambers all in one appeal. She contended that the two subsequent Briefs are not regular before the court. Replying on NBN Ltd v P.B. Olatunde and Co. Ltd; Adehi v Atega (1995) 5 NWLR (pt.396) 656 and Onifade v. Olayiwola (1990) 7 NWLR (Pt.161 130, learned Senior Advocate submitted that a party cannot (except the court so directs) file more than one Brief and that only the appellant has the right to file a second Brief in reply to issue of law arising in a Respondents Brief.

In the unlikely event of the court not upholding the. above argument, learned Senior Advocate adopted the arguments in the Reply Brief dated 2nd February, 2008. She contended that in paragraphs 4.01, 4.23, 5.10 and 6.01, the 2nd respondent assiduously engaged itself in a deliberate distortion of the true facts of the case. She submitted that counsel cannot misrepresent facts to the court. She relied on Abacha v. State (2002) II NWLR (Pt.779) 466 and Adehi v. Atega (supra). She contended that the Brief contained arguments on issues, which did not arise from the appellants grounds of appeal or from any of the issues distilled from the grounds. She referred to paragraphs 6.11, 6.12, 6.22, 6.23, 6.28, 7.00 to 7.04 and to Ibator v Barakuro (2007) 9 NWLR (pt.l040) 475; Adeleke v. Ogbonda (2007) I MISe 160; Nzekwu v. Nzekwu (1989) 2 NWR (Pt.l04) 373; Kuusu v. Udom (1990) I NWLR (Pt.127) 401; Dada v. Dosumu (2006) 142 LRCN 2240.

Learned Senior Advocate argued that as the Court of Appeal agreed with the respondents in its majority judgment that the entire suit including the appeal and cross appeal had become academic it was no longer open to the respondents to urge this court to remit the case to the Court of Appeal for determination, as urged in their Brief. She repeated her arguments on the invocation of section 22 of the Supreme Court Act and relied on Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565; Wil1iam v. Akintunde (1995) 3 NWLR (pt.381) 101 and Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506.

There are quite some preliminary matters -to deal with in this appeal. I should take them first. It appears that the 2nd respondent his raised a preliminary objection on Ground 3 of the Notice of Appeal. That is not the way a preliminary objection is raised in a Brief. Learned counsel for the 2nd respondent, suddenly said in paragraph 6.25 that grounds of appeal must arise from the judgment of the court and cannot be based on just the impression of the appellant on what the court might have held. He thereafter submitted in paragraph 6.28 that since Ground 3 raised at the court below did not arise from the judgment of the trial court the issue distilled therefrom as well

as the argument which ensued is incompetent and should be discontinued and struck out.

A preliminary objection cannot be raised in that subtle and uneventful way. Learned Senior Advocate for the appellant is correct when she submitted in her Reply Brief that the preliminary objection was improperly raised. The practice, and the accepted practice for that matter, is that preliminary objection in a Brief is raised in a conspicuous title in the name and style of “preliminary objection”. Thereafter the grounds and the arguments of or for the objection are stated and argued in the Brief.

There is yet another slight thing worth mentioning at page 18 of the Brief. It is in respect of the case of State v. Onagoruwa which appears in the Brief as follows: State vs Onagoruwa(….) NWLR (pt…)…… Learned counsel did not give the full citation. He did not cite the year the case was heard; the volume of the Law Report, the part of the law report or the page. I do not think counsel expects this court to provide the missing information. As I cannot speculate or guess the year of the law report, I decided to ignore the case. I expect counsel to be more careful in citing cases to the court.

Although counsel did not properly raise the preliminary objection, I shall not ignore it in the way I have ignored the case in view of the fact that I know the content of the objection. It is that the ground of appeal did not arise from the judgment of the High Court.

That as “there was no appeal by the 2nd respondent on the issue raised in the court below neither did he cross appeal in this court”, the preliminary objection should fail. I do not want to go that way. It looks complicated to me. There is a more straightforward way of killing the preliminary objection and it is this. This court has no jurisdiction to hear an appeal straight from the High Court. As the ground of appeal complained of is on the judgment of the High Court and not on the judgment of the Court of Appeal, this court cannot go into it. The preliminary objection therefore fails.

Learned counsel for the 1st respondent tried to fault the procedure Where the learned Senior Advocate for the appellant argued Issues 2 and 3 together. To learned counsel, the two issues are not distilled from any ground of appeal. I entirely agree with learned Senior Advocate for the appellant that Issue NO.2 is distilled from Ground 2.

Issue No.3 which urges this court to exercise its power under section 22 of the Supreme Court Act cannot be formulated as a ground of appeal. By the section, this court is empowered to make any order necessary for the determination of the real question in controversy in the appeal as if the matter is prosecuted in the Supreme Court as a court of first instance. By the section, this court can make or give an order that the courts below can make without sending the case back to them for a retrial or rehearing. There cannot be a ground of appeal on the section. The section can only be invoked if the proceedings in the court below justify its invocation. And relevantly in this appeal, if this court agrees with the appellant on Issues 1 and 2, then it can grant Issue 3 as a matter of course. I realize that learned Senior Advocate dealt with only Issue No.2 as it relates to Ground 2 but did not take Issue 3 which was also a subject of the preliminary objection. As it is a matter of law, I have dealt with it.

Now that I have finished with the preliminary objection of the respondents, I should go to those of the appellant. Contrary to the submission of learned Senior Advocate for the appellant, I see in the case file only one Brief filed by Mr. Arthur Okafor for the 2nd respondent; not two. Although there is some confusion in the filing of the Briefs as they relate to Mr. Emonye Adekwu and Mr. Arthur Okafor, the confusion is not enough to strike out the brief as submitted by learned Senior Advocate. If her submission that there are three briefs is correct the only reasonable thing to do is to strike out the irrelevant one and make use of the actual or proper brief. The answer is not to strike out all the briefs. That is clear injustice and this court will not be a party to it.

I now go to-the merits of the appeal and that takes me to what is an academic matter. In Plateau State v Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346, I said at page 419:

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

An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. See Tanimola v Mapping Godatta Limited (1995) 6 NWLR (PtA03) 617; Nwoboshi v A.C.B. (1995) 6 NWLR (PtA04) 658; Ogbonna v President F.R.N. (1997) 5 NWLR (Pt.504) 281 and Ndulue v Ibezim (2002) 12NWLR (pt.780) 139.

Is the matter before the Federal High Court one of mere academic exercise That is the crux of the appeal. The Court of Appeal in a majority judgment held that it is one of mere academic exercise. Delivering the majority judgment of the Court, Mikailu, JCA said at page 561-562 of the Record:

“In our case all the reliefs being sought are in respect of an election which has already taken place… In short, the reliefs 2-4 are in respect of prohibition and mandamus in respect of which election had already taken place. There is no prayer asking this court or any court, to nullify the election which has already taken place. In short, the relief sought under reliefs (2) and (3) are for prohibition of acts which had already taken place. Also the mandamus sought under (4) was for an act which had already taken place. . . .In the final conclusion it is clear in view of the above that the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an election tribunal which is the appropriate venue, having been set up. Consequently the appeal is-struck out as mere academic exercise”.

In her dissenting judgment Denton-West, JCA relied on the judgment of this court in Amaechi v INEC and held that the case was not one of mere academic exercise. She based her decision on the fact that the matter before the court is a pre election matter. She said at page 569 of the Record:

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

Who is correct: Mikailu, JCA or Denton-West, JCA That is the relevant question.- Mikailu, JCA in his judgment from Rages 559 to 562, with the greatest respect, did not go into the details of the matter. Denton-West JCA in her judgment from pages 565 to 610, did exactly what Mikailu, JCA failed to do, which he ought to have done. Most importantly, Mikailu, JCA did not consider the decision of this court in Amaechi v !NEC which was obviously cited by counsel for the appellant. I expected him to consider the decision before taking a position one way or the other. It is sad that he did not do so. In Amaechi this court dichotomized between a pre-election matter and an election matter for purposes of determining whether a suit is merely an academic exercise. Denton West, JCA took the pains to analyse the judgment of this court and in the true tradition of precedent and the principles of stare decisis followed that judgment. I was not in the panel in Amaechi but I entirely agree with my brothers decision that a pre-election matter cannot be said to be one of mere academic exercise. On the contrary it is a live issue.

Mikailu JCA in his judgment at page 561. of the Record agreed with the submission of counsel for the 1st respondent that by section 285(1) (a) of the 1999 Constitution, the National Assembly Election Tribunals set up can exercise exclusive original jurisdiction in respect of issues concerning the election into the National Assembly. That same argument was made by Mr. Nzelu in his brief. He argued that section 285 of the 1999 Constitution never gave Election Tribunals the jurisdiction to determine pre-election issues and that the appropriate court to approach on such issues is the High court, either of the States or Federal.

It is not my understanding of section 285 (1) (a) of the Constitution that the sub-paragraph can accommodate pre-election matter. 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 subparagraph provides for election matters which give rise to post election and not pre-election proceedings. As the reliefs sought by the appellant are on 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 what the majority decision of the Court of Appeal ignored. I should point out that the appellant did exactly what Mr. Nzelu submitted in paragraph 4.2-5 of the Brief of the party to be heard. It is because the matter or dispute involved pre-election issues that the action was filed at the Federal High Court. And so, why the furore or storm, I ask

Mr. Okafor, after taking section 285 (1) (a) of the Constitution referred the court to section 69 (c) of the Electoral Act, 2006 and submitted that the subsection applied to the case. With respect, the subsection which provides for the power of the Returning Officer to declare scores of candidates after election, does not apply to this case because the appellant did not contest votes at the election but is contesting the primaries. Counsel also relied on section 146 (2) of the Electoral Act. Again the subsection does not apply as it deals with election and return conducted under the Electoral Act. I therefore do not agree with the submission of learned counsel that the Court of Appeal will be eroding the jurisdiction of and indeed be preempting the election tribunal by making art order which may have effect of making a determination within the tribunals jurisdiction. The reliefs sought by the appellant are clearly outside the jurisdiction of the Election Tribunals, as they are predicated on pre-election matters. I seem to be repeating myself. Mr. Okafor also relied on section 145 (1) (a) to (d) of the Electoral Act, 2006. Again, the subsection does not apply because it provides for instances or grounds when an election may be questioned.

Mr. Adekwu submitted that the reliefs sought by the appellant, even if granted by the Court of Appeal, are incapable of enforcement. With respect, I do not agree with him. The reliefs are not only capable of enforcement but can be enforced. If a court of law comes to the conclusion that the substitution was not in compliance with section 34 .of the Electoral Act, 2006, it will declare it a nullity as was done in the case of Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367.

In Adeogun & other v. Fashogbon and others, CNN81IM/07 the Court of Appeal arrived at a different decision. The appellant, like as in this appeal, commenced an action at the Federal High Court Abuja against the respondents, asking for the following six reliefs:

(i) Declaration that the 2nd Defendant has no right and/or power to recommend the substitution of the Plaintiff with the 1st Defendant as candidate of the PDP for Ife Federal Constituency.

(ii) Declaration that the proposed substitution or replacement of the Plaintiff with the 1st Defendant as the candidate of Peoples Democratic Party for the Ife Federal Constituency by the 2nd and 3rd Defendants is unlawful, illegal, unconstitutional, null and void and of no effect whatsoever.

(iii) Declaration that the proposed selection of the 1st Defendant as the candidate of PDP for the

Ife Federal Constituency is fraudulent, unlawful, illegal, unconstitutional, null and void and of no effect whatsoever.

(iv) Perpetual injunction restraining the 1st Defendant from allowing himself to be substituted, or presented to the 4th Defend ant as the candidate of Peoples Democratic Party for election into Ife Federal Constituency in the 2007 general election.

(v) Perpetual injunction restraining the 2nd and 3rd Defendants from substituting, and/or presenting the 1st Defendant to the 4th Defendant as Candidate of Peoples Democratic Party for the Ife Federal Constituency in the 2007 general election.

(vi) Perpetual injunction restraining the 4th Defendant from recognizing and/or accepting the 1st Defendant as Candidate of Peoples Democratic Party for the Ife Federal Constituency in the 2007 general election.

The learned trial Judge dismissed the suit. Hon. Fashogbon went on appeal to the Court of Appeal Abuja; On 23d April, 2007, the applicants filed a motion urging the Court of Appeal to strike out the appeal on the grounds (a) that the Court no longer has jurisdiction to entertain or determine same (b) the appeal has become purely academic.

The Court of Appeal dismissed the motion. Relying on section 34(1) and (2) of the Electoral Act, 2006, Aboki, JCA said at page 30 of the Record:

“The provisions of section 34(1) and (2) of the Electoral Act, 2006 have enacted and placed an extra duty on INEC in its supervisory and monitoring roles over the conduct of the affairs of political parties. By the above provisions, cogent and verifiable reasons must be given by the political parties when substituting their candidates. To ensure fairness in this regard, the procedure engaged by the political parties and INEC can be challenged in Court for the interpretation of the provisions of the section. See the unreported Supreme Court case of Engr. Charles Ugwu v Senator Ifeanyi Ararume and 2 others. SC.63/2007 delivered on the 5th day of April, 2007. In conclusion this Court has jurisdiction to entertain this appeal on substitution of a candidate for an election which is a pre election matter. This application lacks merit and it hereby dismissed.

This decision given on 7th June, 2007 by the Abuja Division of the Court of Appeal was not followed by the Enugu Division of the same court on 12th July, 2007; a decision which was given some 35 days or so earlier. On appeal to the Supreme Court in SC.183/2007, this court dismissed the appeal on 30th May, 2008 by affirming the decision of the Court of Appeal that the appeal was not a mere academic exercise. Delivering the lead judgment of the Supreme court, Tabai, JSC, said in the last paragraph:

“On the whole, I hold that the election of the 21/4/07 notwithstanding, the propriety or otherwise of the Plaintiffs substitution with the 1st Defendant remains a live issue for determination in the judicial process. In the event, I resolve the only issue in favour of the Plaintiff/Respondent. On this issue I fully endorse the ruling of the court below”

The position of the law as stated by the Court of Appeal in Fashogbon v Chief Adeogun & others, CA/A/81/07 and the dissenting judgment of Denton-West, JCA in this appeal present the correct position of the law. With respect, the majority judgment of the court is not correct. Accordingly, Issue NO.1 in the appellants Brief succeeds.

Let me pause here to indicate the need for the Divisions of the Court of Appeal to exchange their decisions immediately they are delivered. I do not think that is the practice. If that practice is followed, the conflicting decisions in the two cases may not have arisen. I therefore suggest that immediately a decision is given in one Division, it should be sent to the other Divisions without delay.

And that takes me to Issue NO.2. The merit of the case is the substitution of the appellant, Charles Odedo, within that of the party to be heard, Obinna Chidioka It is the case of the appellant that the substitution was wrong as it violated section 34 (I) and (2) of the Electoral Act, 2006. It is the case of the respondents that the substitution was valid.

Let me quickly read section 34 (1) and (2) of the Electoral Act:

“(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.”

In Ugwu v. Ararume (supra) this court examined in great detail the above two subsections. It was held that the provisions are justiciable and that cogent and verifiable reasons were not given for the substitution of the 1st respondent. I do not think I should repeat here the detailed examination of the subsections. What I should take here is whether the PDP gave cogent and verifiable reasons for the substitution of the appellant. That should take me to the facts leading to the substitution.

On 5th February, 2007, the Chairman and the National Secretary of the PDP wrote the following letter (Exhibit B) to Professor Iwu, Chairman of INEC informing him of the substitution:

“Prof. Maurice Iwu,

Chairman,

INEC,

ABUJA

SUBSTITUTION: PDP CANDIDATE FOR IDEMILI NORTH & SOUTH FEDERAL CONSTITUENCY, ANAMBRA STATE

This is to confirm that Obinna Chidoka is the PDP Candidate for Idemili North & South Federal Constituency, Anambra State. Obinna Chidoka substitutes the earlier name for the aforementioned constituency which was submitted without enough information.

This is for your necessary action.

(Signed)

SEN (DR) AMADU ALI, GCON

NATIONAL CHAIRMAN

(Signed)

OJO MADUEKWE, CFR

NATIONAL SECRETARY”

Is it a cogent or verifiable reason that the appellant’s name was sent “without enough information” If at the time, the name was sent, the PDP did not know the reasons- for sending the name of the appellant, could the -party not have given the reasons in Exhibit B. What is the meaning of “without enough information” in Exhibit B. In my view, the letter (Exhibit B) did not comply with the provision of section 34 (1) and (2) of the Electoral Act.

I have the temptation to stop here on the issue of section 134 (1) and (2). I should proceed to the affidavit evidence whether I can place my hands on the reason or reasons for the substitution. Paragraphs 13 and 14 of the grounds upon which the appellant sought the reliefs read:

“13 The Applicant scored 397 votes at the primaries election while Obinna Chidioka scored 6 votes. Obinna Chidioka did not attend the verification exercise conducted by the 1st Respondent on 13th Jan., 2007 or on any other date.

14. Neither Obinna Chidioka nor any of other PDP aspirants for the House of Representatives for Idemili North/South Federal Constituency participated in the verification exercise conducted

by the 1st Respondent on 13th January 2007 or on any other date.”

Let me also read paragraph 4(d) of the counter affidavit of the party to be heard:

“(d) That in further answer to the said paragraph 4 of the Grounds upon which the reliefs are sought, states as follows:

(i) That for anybody in the said primary election to be declared winner/elected/nominated, the person must have secured at least 50% of the total votes cast in the said primary election;

(ii) that the total votes cast in the said primary election was 832 votes. See exhibit 3 attached to the Applicants affidavit in verification of the grounds relied upon.

(iii) That the Applicant polled 397 votes which is less than 50% of the total votes cast;

(iv) The Article 29(d) of the Electoral Guidelines for primary election 2006 of the 2nd respondent provided that a person stand nominated/elected if he has secured 50% of the total votes cast in the said primary election. A copy of the said guidelines is attached and marked as exhibit A;

(v) That 397 votes secured by the Applicant is 19 votes less than the 50% of the total votes cast.”

There is agreement in the affidavit evidence that the appellant scored 397 votes. This is what paragraph 13 of the grounds upon which the reliefs are sought and paragraph 4 (d) (iii) of the counter affidavit say. While it is said in paragraph 13 of the grounds upon which the reliefs are sought that Obinna Chidioka scored a total of 6 votes, the counter affidavit is silent on this. It should be noted that paragraph 13 was not denied by Obinna Chidioka. The big question is how can a person who scored 397 votes be substituted with a person who scored 6 votes

Election results either primary or the actual election, are announced in accordance with the person or persons who score the highest votes. What is the legal basis for Exhibit B in the light of the affidavit evidence as to the scores of Charles Odebe and Obinna Chidioka

It is deposed in the counter affidavit that by Article 29 (d) of the Electoral Guidelines for Election 2006 of the PDP provided that “a person stand nominated/elected if he has secured 50% of the total votes cast in the said primary election” I do not see that provision in Article 29 (d). What Article 29(d) provides is that each accredited delegate shall be assigned an accreditation number tag by the Electoral Officer at the venue of the Special Congress. Assuming that there is such a provision (and that is possible) did Obinna Chidioka who scored 6 votes satisfy the provision of 50% of the votes cast If not, why was he picked by the PDP Is 6 bigger than 397 numerically

In the counter affidavit, paragraph 4 (d) (ii) deposed to the total votes cast at the primary election as 832. Are the 6 votes cast for Obinna Chidioka 50% of the total votes of 832 Exhibit 3 shows the votes scored at the primaries by the candidates. It reads as follows:

SIN NAME . TOTAL NO OF VOTES SCORED

1. Charles Odebo 397
2. Obiakor 172
3. Sysvester Okokwo 75
4. Mgbemena 73
5. Emeka Onuorah 42
6. Dennis Okafor 25
7. Barr. Chukwuelue- 15
8. Okwu Chukwu Obi 12
9. Obienyi 7
10. Chidioka 6

I1. Helen Uzodimma 2

Exhibit 3 confirms paragraph 13 of the grounds upon which the reliefs were sought. I expected the counter affidavit to be sincere enough to admit that Obinna Chidioka scored 6 votes which qualified him to contest the election.

In Exhibit 3 (a) the PDP sent a letter of congratulations to the appellant. The letter reads:

“5th December, 2006

Charles Odedo,

PDP bearer for

Idemili North & South Federal Constituency

Sir,

Congratulations on your Victory at Our Primary Elections

On behalf of the State electoral panel, I heartily congratulate you on your well deserved victory at our primary elections wherein you were elected as the Party’s Candidate for Idemili North & South Federal Constituency.

As our Party’s flag bearer, I strongly urge you to multiply your efforts in mobilizing people to ensure PDP’s victory at the 2007 general elections.

Once more, Congratulations.

Yours faithfully,

Comrade Tony Nwoye,

PDP Chairman Anambra State.”

In-Exhibit 4 Chief Tunde Osurinde,. Chairman PDP Electoral Panel, Anambra State, named the appellant as candidate of the party in ldemili North and South Federal Constituency. Of the ten candidates, his name came first as follows:

“IDEMILI NORTH AND SOUTH FEDERAL CONSTITUENCY

1. Charles Odebo Elected candidate
2. Obiakor

3.Sylvester okokwo

4. Mgbemena
5. Emeka Onuorah
6. Dennis Okafor
7. Barr. Chukwuelue
8. Okwu Chukwu Obi
9. Obienyi
10. Chidioka
11. Helen Uzodimma”

I have taken the pains to reproduce Exhibits 3a and 4 to make a point and it is this. If the PDP Guidelines provide for 50% win of the total votes cast at the primaries, it is my view that by Exhibits 3(a) and 4, the particular guideline has been waived. This is because Exhibit 3a congratulated the appellant and Exhibit 4 named him as the candidate. Equity will not allow the respondents to hold the appellant to ransom. Waiver, a very loud principle of equity will certainly come to the rescue of the appellant.

Mr. Okafor made submission on Exhibit B in paragraph 6.04 of his brief which I must confess I find it difficult to understand. I have the impression that he is arguing against the admissibility of Exhibit B. (the letter of substitution), on the ground that the copy was not stamped by INEC If that is his argument, I will dismiss it right away as abstract and technical. Counsel did not cite any section of the Evidence Act that Exhibit B has violated. I have seen the exhibit. It is at page 123 of the Record. It is signed by Sen. (Dr.) Amadu Ali as National Chairman and Chief Ojo Maduekwe as National Secretary. The signatures are not in dispute and I do not think we should be going to the little issue of absence of INEC receiving stamp, particularly where there is no dispute as to whether INEC received the letter. If INEC did not receive Exhibit B why was it acted upon by it

Let me take here the submission of Mr. Nzelu that non-compliance with section 34 does not attract any punishment. The submission, in my understanding clearly stands on the head of the decision of this court in Ugwu v Ararume, (supra). The submission of Mr. Nzelu is, with respect, strange and unknown to the tenets of legal drafting and the art of the draftsman. While the draftsman of penal legislation or statute specifically provides for sanction at the end of the provision for an offence, that is not always the practice in non penal legislation or statute.

Where a law such as the Electoral Act, 2006 provides for A and a party does B, a court is entitled to hold that the party has not complied with the law, and the court has the jurisdiction to decide on the consequences of the non compliance by the party. This is clearly demonstrated in the interpretative jurisdiction of the court, and no counsel, not even Mr. Nzelu, can deprive the court of the exercise of that jurisdiction. It is not the practice of the draftsman to provide specifically a clause of sanction in every non penal legislation or statute in the way Mr. Nzelu argues. And what is more, the submission of Mr. Nzelu underrates the time tested, time honoured and time proved principle of construction of statute by drawing the cleavage or dichotomy between the words “shall” and “may” as construing a mandate, obligation or command and permissiveness or discretion respectively. I should mention that the two subsections provide for the peremptory “shall”. The courts will not wait for Mr. Nzelus provision of punishment to construe the consequence of non compliance with the section. Unfortunately for Mr. Nzelu and his client, this court will follow its earlier decision in Ugwu v Ararume, (supra) and hold that section 34 (1) and (2) of the Electoral Act, 2006 was not complied with and the consequence of non compliance as in Ugwu v Ararume automatically follows. And that takes me to Issue No.3 where learned Senior Advocate has urged this court to exercise its section 22 powers. The section provides as follows:

“The Supreme Court may, from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the court below to inquire into and certify its finding on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case In accordance with the powers of that court.”

The Supreme court can, under the section exercise full jurisdiction over a case and deal with it in the same way a trial Judge would have done. See Ediagbonvua v. Dumex (Nig) Ltd. (1986) 3 NWLR (pt.31) 753. In determining whether the conditions surrounding an appeal before the Supreme court are conducive to the exercise of its general power under section 22 of the Supreme Court act as if the proceedings had been instituted and prosecuted before it as a court of first instance, the court will consider the followings: (a) The Availability before it of all the necessary materials on which to consider the request of the party. (b) The length of time between the disposal of the action in the court below and the hearing of the appeal at the Supreme Court. (c) The interest of justice to eliminate further delay in the hearing of the matter and minimize the hardship of the party. See Adeyemi v Y.R.S. Ike-Oluwa and Sons Limited (1993) 8 NWLR (Pt.309) 27.

By section 22, the Supreme Court has the power to determine the real issue in controversy and that in this appeal is, whether section 34 (1) and (2) of the Electoral Act, 2006 was complied with in the substitution of the appellant with Mr. Obinna Chidioka. A rehearing on the part of the Supreme Court means a rehearing on the Record as if the proceedings had been instituted in the court. If any set or category of case needs the application or invocation of section 22 power of the Supreme Court, it is election cases, because of the fact that they are very much liable to time in the sense that time is their very essence. Mr. Okafor has urged us not to exercise our section 22 powers on the two grounds (a) the intended cross appeal by the 2nd respondent on jurisdiction and (b) the need to benefit from the decision of the Court of Appeal. I do not think the two grounds will change the position in favour of the 2nd respondent. The issue of jurisdiction is so clear. Section 285 of the 1999 Constitution which provides for jurisdiction of Election Tribunal does not apply in this appeal as it deals with pre-election matter of substitution of candidates. I do not know which benefit is left that this court will derive from the decision of the Court of Appeal. The position of the Court of Appeal is clear and known.

In the light of the fact that Obinna Chidioka is enjoying a term in the House of Representatives and the appellant is languishing at home, it will meet the justice of this case by invoking its section 22 power, and that is what I want to do now, particularly when there are enough materials to do so. If I have come to the conclusion in this judgment that the substitution was not in compliance with section 34 (1) and (2) of the Electoral Act, 2006. And the consequence of the non compliance is a nullification of the purported election of Obinna Chidioka to the House of Representatives. The purported election based on a primary in which Obinna Chidioka scored only 6 votes is hereby nullified. In his place, the appellant who scored the highest votes of 397 is declared competent to contest the election in the constituency. And I declare the appellant to contest the election on the platform of the PDP in respect of the Idemili North and South Federal Constituency, Anambra State. This is a consequential order flowing from the reliefs sought by the appellant. I award N50,000.00 costs in favour of the appellant.

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SC.208/2007