Congress For Progressive Change & Anor V. Hon. Emmanuel David Ombugadu & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal arose from the dispute as to who, the 2nd Appellant or the 1st Respondent, was the duly nominated and sponsored candidate of the 1st Appellant, the Congress for Progressive Change and elected in the April, 2011 general election to represent the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the lower chamber of the National Assembly.

In the Amended Originating Summons filed on 10/5/2011 in the Lafia Judicial Division of the Federal High Court, the Plaintiffs/Appellants raised the following questions for determination:

“1. Having regard to the clear and unambiguous provision of Section 87 of the Electoral Act, 2010 as well as the provision of Article 25 of the 1st Plaintiff’s Constitution, particularly judicial pronouncement on the supremacy of a political party’s decision in respect of nomination of candidates; whether the Court or any other authority at all can compel a party to nominate or dictate a particular candidate it must sponsor for an election.

2. Considering the elaborate provision of Section 83(1)(4)(c)(ii) of the Electoral Act, 2010, as amended as well as the provision of the 1st Plaintiff’s Manual and Guidelines for Primaries, whether the 2nd Plaintiff was not validly nominated and sponsored as the candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State for the April 2011 General Election.
3. Having regard to the clear provision of the Electoral Act, 2010 as amended, particularly Section 87 and the provision of the 1st plaintiff’s Constitution with regard to holding of primaries, whether the 1st defendant can recognize the name of a person who did not win his party’s primaries as a candidate in the election and who was not sponsored by his political party as its candidate for the elective position.
4. Considering the facts and circumstances of this case especially the supremacy of political party’s decision on sponsorship of candidates and the fact that the 2nd Plaintiff had acquired a vested interest in the election, whether his candidature can be voided, cancelled or nullified by the 1st defendant.”

In anticipation of answers favourable to the Plaintiffs/Appellants, they prayed the Court for the following:

“1. A declaration that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law.

2. A declaration that the 1st Defendant has no vires or statutory power to reject the name of any candidate including the 2nd Plaintiff sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election.
3. A declaration that the 1st Defendant has no statutory power to recognize or accept as candidate the name of any person not submitted or sponsored by his political party.
4. A declaration that the 2nd Plaintiff having won the primaries of the 1st Plaintiff pursuant to which his name has been submitted to the 1st Defendant as the sponsored candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State, is the 1st Plaintiff’s candidate for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general elections.
5. A declaration that under the provisions of the Electoral Act, 2011 the only way the 1st Defendant can change, reject or substitute a duly sponsored/nominated candidate of a political party is through a Court order.
6. An order of the Honourable Court compelling/directing the 1st Defendant to recognize and accept the 2nd Plaintiff as the duly nominated/sponsored candidate of the 1st Plaintiff for the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
7. An order of this Honourable Court that the 2nd Defendant having lost in the primary election of the 1st Plaintiff conducted on 15th January, 2011 and not having been sponsored by the 1st Plaintiff to be its candidate in the April, 2011 general election into the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State cannot be recognized by the 1st defendant as the 1st Plaintiff’s candidate for aforesaid election.
8. An order of this Honourable Court that the sponsorship/nomination of the 2nd Plaintiff by the 1st Plaintiff having been done in accordance with the law cannot be invalidated in law.
9. An order declaring the 2nd Plaintiff as the sponsored candidate of the 1st Plaintiff for the House of Representatives election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
10. An order of perpetual injunction restraining the 1st Defendant, its agents, servants or privies from recognizing the 2nd Defendant as the sponsored candidate of the 1st Plaintiff for House of Representative election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State.”

(See pages 307 to 309 of the transcripts).

A 46-paragraph affidavit in support of the originating process was also filed on 10/5/2011 along with a written address.

On the same date, 10/5/2011, the 2nd Defendant/Respondent filed a Notice of Preliminary Objection predicated on five grounds. A 21-paragraph affidavit in support of the notice of preliminary objection was filed on 9/5/2011. A written address in support of same was filed on 10/5/2011. The 2nd Defendant’s/Respondent’s 42-paragraph counter-affidavit in opposition to the affidavit in support of the Originating Summons was filed, within the time extended for same by the trial Court, on 10/5/2011.

The 2nd Defendant/Respondent also filed his written address opposing the Originating Summons on 10/5/2011. On 20/5/2011, the Plaintiffs/Appellants filed a written address in opposition to the 2nd Defendant’s/Respondent’s preliminary objection. They filed a 3-paragraph further affidavit in support of their Originating Summons on 25/5/2011. On the same date (25/5/2011) they filed a written address “in support of further and better affidavit to the Originating Summons”.

A search in the two volumes of the records and one volume of supplementary record shows that the only process filed by the 1st Defendant/Respondent in the proceedings in the trial Court is a written address on point of law to the Originating Summons. (See pages 740 – 744 of the record).

On 10/6/2011, learned Counsel for the parties adopted and relied on their written addresses in the preliminary objection and their briefs in the Originating Summons. At the conclusion of the proceedings for the day (10/6/2011), the record showed:

“Court: Ruling on the preliminary objection is reserved till the 4th of July, 2011 while judgment in the substantive suit is reserved till 2pm of the same date.” (See page 748 of the record).

On the preliminary objection, the trial Court had held:

“In the circumstances, I hold that the action was properly commenced by Originating Summons. The sum total of all I have been saying is that this Court has jurisdiction to entertain and determine this action and hereby assumes same. The preliminary objection dated and filed on 10/5/2011 lacks merit, fails and is therefore hereby dismissed. There shall be no order as to costs. That is the ruling of this Court.” (See page 837 of the record).

In its judgment running from page 250 to page 286 of the record, the trial Court concluded and ordered as follows:

“In the eyes of the law, Mr. Emmanuel David Ombugadu was never a candidate in the election much less the winner. It is therefore hereby ordered that the 1st defendant returns the 2nd Plaintiff as the winner of the April 9, 2011. National Assembly Election into the House of Representatives of the Federal Republic of Nigeria, representing Akwanga/Wamba/Nasarawa-Eggon Federal Constituency. Prayers/reliefs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 as contained in the body of the amended Originating Summons are hereby granted as prayed. I shall make no order as to costs. That is the judgment of this Court.” (See page 786 of the record).

Aggrieved by the judgment of the trial Court, 1st Appellant appealed to the Court of Appeal, Makurdi Judicial Division on five (5) grounds. The lower Court, in its judgment of 25/5/2012 allowed the appeal and struck out Suit No. FHC/LF/CS/13/2011 for want of jurisdiction. (See page 1248 of the record).

Not satisfied with the judgment of the lower Court, appellant filed a notice of appeal subsequently amended, containing 21 grounds on 29/1/2013. Learned Counsel for the parties filed and exchanged briefs of arguments in accordance with the rules of this Court.

In the Appellants’ brief of argument filed on 29/1/2013, the following seven (7) issues were distilled for determination:

“(i) Were the learned Justices right in law in holding that the trial Court has no jurisdiction to entertain Appellants’ case and make the consequential orders made in this case (Based on Grounds 1, 2 and 6).

(ii) Issue No. 2 – Were the learned Justices right to entertain and determine issues No. 3 and 4 in the appeal before them when Ground 5 held to be incompetent was argued under issue No. 3 and together with issue No. 4 (is based on Ground 4).

(iii) Were the learned Justices right in law in admitting as fresh evidence on appeal, Exhibit CA1 and ascribing probative value to it and or using Exhibit CA1 for the view that the learned trial Judge did not evaluate the evidence before him correctly or at all (Based on Grounds 7, 8, 9 and 15).

(iv) Were the learned Justices right in law in embarking on fresh evaluation of evidence and interfering with the definite findings of fact made by the learned trial Judge or put in another way, had the learned Justices valid legal basis for interfering with the trial Judge’s findings of fact (Based on original grounds 10 and 18).

(v) Were the learned Justices right in their view that 1st respondent’s name was submitted to INEC having regard to:

A: Their Lordships’ affirmation of the findings of the learned trial Judge as to 1st Appellant’s primary elections of 11th and 15th January, 2011;

B: The affidavit evidence and the relevant exhibits in Court and the findings of the learned trial Judge (Based on Ground 11 and 13).

(vi) Were the learned Justices right in interfering with the finding of the trial Judge on Exhibit F, O, G and G1 and affidavit evidence of Appellants on the basis of Exhibits OM5 and or CA1 as credible documentary evidence proving that 2nd Respondent was the candidate CPC submitted to INEC (Based on Grounds 14 and 21).

(vii) Were the learned Justices right in law in holding that the issue in the case was one of substitution of candidate by 1st Appellant even after affirming in the judgment, the issue identified by the trial Judge and in themselves stating the correct issue in the same judgment (Based on original Grounds 16, 19 and 20).

In the 1st Respondent’s brief filed on 26/3/2013, the following five issues were identified and slated for determination:

“1. Whether from the nature of the claim extant position of the law and evidence adduced, the trial Court had jurisdiction to entertain the matter (Grounds 1 and 2 of the notice of appeal).

2. Whether the learned Justices of the Court below were in error when they granted leave to the 1st Respondent to adduce fresh evidence and to have admitted and ascribed probative value to Exhibit CA1 (Grounds 7, 8, 9 and 14 of the notice of appeal).
3. Whether the learned Justices of the Court below erred in law in their review and re-evaluation of the evidence adduced before the trial Court before setting aside the judgment
4. Whether from the facts and circumstances of this case the lower Court was in error to hold that the case was one of attempt to substitute (Grounds 5, 6, 11, 14, 15, 16, 19 and 20 of the notice of appeal).
5. Whether the learned Justices of the lower Court actually entertained issues 3 and 4 in the lower Court when Ground 5 was struck out

On its own part, the 2nd Respondent submitted the following three issues for the Court to resolve:

“1. Whether having regard to the entire circumstances of this case the lower Court was right in its decision that the trial Court lacked jurisdiction to hear and determine the matter (Ground 1, 2 and 3).

2. Whether the lower Court was right in receiving, admitting and ascribing probative value to Exhibit CAL. (Grounds 7, 8, 9 and 14).
3. Whether the lower Court was right when it re-evaluated the evidence adduced before the trial Court and concluded that the name of the 1st Respondent was submitted to the 2nd Respondent and that the case of the Appellants was one of an attempted substitution of candidate. (Grounds 10-13 and 15-201).”

In his argument in issue one in his brief, learned Counsel for the Appellant said that Grounds 1, 2 and 6 of his Grounds of Appeal from which issue one is framed has to do with the conclusion of the lower Court that:

“I hold that neither the trial Court nor this Court has the jurisdiction to entertain the matter in dispute. Again by virtue of Section 141 of the Act, the Courts cannot make the consequential orders made by the Court below.” (See page 1248 of the record).

Learned Counsel for the Appellant impugned the conclusion of the lower Court, arguing that the matter submitted for adjudication and the reliefs sought are cognizable in law and are within the jurisdiction of the Court. He said that the jurisdiction of a Court to entertain a suit is determined from the Writ of Summons, the Statement of Claim and the relief claimed; adding that in the case of originating summons, jurisdiction is determined by its content, the reliefs claimed therein and the supporting affidavit which serve as the Plaintiff’s pleading. He relied on PDP & Anor v. Timipere Sylva & Ors (2012) 13 NWLR (Pt. 1316) at page 127; XS (Nig) Ltd v. Taisei (WA) Ltd (2006) 13 NWLR (Pt. 1003) ;page 535; Metal Construction (WA) Ltd v Aboderin (1998) 8 NWLR (Pt.563) page 538.

Learned Counsel referred to the claim in the Originating Summons and the affidavit in support and said that the complaint of the Appellants is that the CPC successfully conducted its primary election of 15th January, 2012 and that the 2nd Appellant having won the primary election his name was submitted to INEC by the party CPC as its sponsored candidate for the election to the Lower Chambers of the National Assembly for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State. He further stated that rather than publish the name of the 2nd Appellant as the party’s sponsored candidate for the election, INEC published the name of the 1st Respondent who did not win the party’s primary election of 15/1/2011 and whose name the party, CPC never sent to INEC. This, learned Counsel said, is the fundamental issue in dispute. He referred to and relied on paragraphs 6 to 25 of the supporting affidavit at pages 312 to 315 of the further affidavit in support of the originating summons at page 539 of Volume 1 of the record.

Learned Counsel emphasized that INEC against whom the substantive claims were made did not file any counter-affidavit and did not controvert the factual situation constituting the cause of action as deposed by the Appellants. He said that the uncontroverted facts deposed to by the Appellants constitute a cause of action and that the case made by Appellants shows (a) A challenge of the validity of executive or administrative action or decision of INEC, an agency of the Federal Government, and (b) A valid legal justiceable dispute within the ambit of Sections 31(1)(3) and 87(4)(c)(i) and (ii) of the Electoral Act 2010 as amended.

He referred to and relied on Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and contended that under the said provision, the Federal High Court has jurisdiction to hear and determine the dispute. He relied on NEPA v Edegbero (2002) 18 NWLR (Pt.798) 19; Abdulraheem v. Oduleye (2005) 8 NWLR (Pt 928) 144 at 129. He argued that the judgment of the lower Court was given without due consideration of Section 251(1)(r) of the Constitution (supra).

He relied on Chief Daniel Awodele Oloba v. Isaac Olubokun Akereja (1988) 3 NWLR (Pt.84) 509 at page 520 on the need to examine the many facts of jurisdiction and pronounce upon same by the Court faced with the issue of jurisdiction to determine a matter before it. He said that the failure of the Court to consider the issue of jurisdiction under the Constitution was the reason for the wrong decision that the Court has no jurisdiction in the matter. He referred to the finding of fact by the trial Judge at page 784 of the record that:

“I am of the view that sufficient materials have been placed before this Court to the effect that the primary election held on 11/1/2011 was inconclusive and came to the conclusion that the authentic primary election of the 1st plaintiff for the.. House of Representative.. was held on 15/1/2011” and said that there was no appeal against the said finding by the trial Court.

He referred to page 1240 of the record and said that the finding of the trial Court was affirmed by the lower Court when it held:

“established at the trial is the fact that CPC conducted two primaries for the selection or nomination of its candidates for the House of Representative (sic) for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency. See the finding of the trial Court at page 780 of the record. The finding of the learned trial Judge was not appealed against. There was therefore no dispute that there were two primaries by CPC for the seat under reference.”

Learned Counsel contended that based on the finding of the trial Court against which there was no appeal and the affirmation of same by the lower Court, the issue as to who emerged from the conclusive party primary of 15/1/2011 is resolved and the issue of the CPC submitting the name of the 1st Respondent who admitted he did not take part in the primary of 15/1/2011 and the question of any dispute between two contestants did not arise.

Learned Counsel said that the CPC through its Nasarawa State Chairman and Secretary deposed that the primary election was inconclusive and did not produce a winner and that the secondary primary election of 15/1/2011 did produce a winner in the person of the 2nd Appellant for which he relied on paragraphs 8, 9, 10 and 11, 17, 22, 34 and 35 of their affidavit in support of the Originating Summons and Exhibits F, G, G1 and N1 at pages 381, 415 of the record, respectively.

He said that the facts of this case and the circumstances are different from the facts that formed the basis of this Court’s decision in Garba Lado & Ors. v. CPC & Ors. (2011) 18 NWLR (Pt.1278) 18. He said that an inconclusive primary election as in Lado’s case is in law not a valid primary election and that there was only one valid primary election held on 15/1/2011 and that there was no parallel party primaries as was the case in Lado’s case.

He argued that in Lado’s case, there were claims and counter-claims and the reliefs were directed against the CPC. He referred to this Court’s decision in Emeka v. Okadigbo (2012) 7 SC (Pt.1) 1 and said that the lower Court was wrong in applying Lado’s case to the present case. He relied in Babatunde v. PAS & TA Ltd. (2007) 13 NWLR (Pt.1050) 112 at 157 and Okafor and Nnaife (1987) 4 NWLR (Pt.64) 129 in his argument that the lower Court erred to go outside the facts of the case to decide the issue in dispute. He urged the Court to resolve issue one in favour of the Appellants.

In issue 2, learned Counsel referred to page 1207 of the records where the lower Court held:

“As for Ground 5 of the grounds of appeal, I had earlier in the course of determining this preliminary objection analyzed it. I will simply add that I agree with the 1st and 2nd Respondents that the ground is not appealable not being a ratio of the case. I also hold that ground 5 of the Appellant’s ground of appeal is incompetent. It is hereby struck out.”

He referred to page 1235 of the record and said that issues 2 and 3 were argued together and considered by the lower Court. He referred to page 1067 of the record and said issue 3 which was argued together with issue 2 was distilled from grounds 3-9 which included ground 5 already struck out by the lower Court. He contended that an issue distilled from a number of grounds of appeal, one of which is incompetent, is incompetent.

He relied on Khali v. Yar’adua (2003) 16 NWLR (Pt.847) 446 AT 481; Chief Bereyin v. Gbodo (1989) 1 NWLR (Pt.97) 372 at 380; Anyalogu v. Agu (1998) 11 NWLR (Pt.532) 129; Honika Saw-Mill (Nigeria Limited) v. Hary Okojie (1994) 2 NWLR (Pt.326) 252 at 262; Nwadike v. Ibekwe (1989) 4 NWLR (Pt.67) 718. He urged the Court to resolve the issue in favour of the Appellants and allow the appeal.

Issue 3 is on the lower Court’s admission of fresh evidence, Exhibit CA1, on appeal. Learned Counsel referred to page 1091 of the record for the 2nd Respondent’s motion to admit as fresh evidence on appeal a letter written by INEC, 60 days after the trial Court delivered its judgment, and page 1100 for the Appellant’s counter-affidavit opposing the application.

He referred to the ruling at page 1152 which he said was delivered on the same day the judgment on the appeal was delivered and where the lower Court held:

“In all, I hold that the Applicant has satisfied the conditions for this Court to grant this application. Application is therefore granted. I make order granting leave to the Appellant/Applicant to adduce and tender fresh documentary evidence which was not tendered at the trial Court, to wit: A letter from the Office of the Chairman, Independent National Electoral Commission (INEC) to the Inspector-General of Police (IGP), Nigeria Police Force”

Learned Counsel said that the judgment of the trial Court was delivered on 18th July, 2011 and the letter was written on 8th September, 2011, 60 days after the judgment of the trial Court. He concluded from the above that Exhibit CA1 admitted as fresh evidence on appeal was not in existence at any time before the trial Court delivered its judgment on 18/7/2011.

He argued that INEC as a party cannot, by its own letter written after the judgment was delivered, set aside of alter the judgment of the Court. He referred to Order 4 of the Court of Appeal Rules and contended that the said order did not contemplate manufacturing evidence after judgment had been delivered as “further evidence”.

He referred to Ladd v. Marshall (1954) 3 All ER 745-748 where Denning, LJ (as he then was) set three conditions for admission of facts on appeal as:

(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at trial;

(2) The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive, and

(3) The evidence must be such as is presumably to be believed or in other words, it must be apparently credible, although it need not be incontrovertible.

He relied on Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 301; UBA Plc. v. Btl Ind. Ltd. (2005) 10 NWLR (Pt.933) 356 at 371; Braitwaite v. M.S.A. (1999) 12 NWLR (Pt 636) 611 at 617 and contended that the evidence envisaged by law and the rules of evidence is evidence of what is or was in existence at the time of the trial which the party could not reasonably obtain from one at the trial.

He referred to page 1160 of the record and said it was unfortunate that the lower Court held it did not have to examine the document sought to be admitted as fresh evidence to ascertain its probative value before granting leave to adduce it as fresh evidence. He said the lower Court violated the principle in Ladd. v. Marshall (supra). He relied also on Hip Foong Hong. v. Neotia & Co. (1918) AC 888. He submitted that Exhibit CA1 did not satisfy the conditions for its being adduced as fresh evidence on appeal.

He relied on Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.108) 250 and Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 at pages 108 – 109 and argued that appeal is regarded as continuation of the original suit rather than initiation of a new suit and what was not in existence during the time of trial and judgment cannot be adduced as fresh evidence on appeal. He relied on Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) and Section 91(3) of the Evidence Act and argued that Exhibit CA1, having been made by INEC, a party during the pendency of the appeal, is inadmissible in evidence.

Contrary to the decision of the lower Court page 1234 of the record that Exhibit CA1 has probative value and weight, learned Counsel argued that asking for investigation of allegation of forgery is no proof of any offence. He relied on Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 414. He urged the Court to resolve the issue in favour of the Appellants.

Issues 4, 5 and 6 were argued together in the Appellants’ brief. Issue 4 questions the legal basis for the lower Court to interfere with the findings of facts of the trial Court. Issue 5 questions the view of the lower Court that the 1st Respondent’s name was submitted to INEC and Issue 6 questions the lower Court’s interference with the findings of the trial Court on Exhibits F, O, G and G1 and affidavit evidence of the Appellants on the basis of Exhibit OM5 and/or CA1 to prove that the 1st Respondent’s name was submitted by the CPC to INEC.

Learned Counsel argued that the learned Justices of the Court Appeal were in error when they embarked on re-evaluation of evidence and substituted their views on the evidence for the view of the learned trial Judge. He said that the case in the originating summons was mostly complaints as to what INEC did or did not do and that the Appellants’ case remained unchallenged in so far as INEC filed no counter-affidavit, adding that INEC is deemed to have admitted the facts which Appellants deposed in their affidavit in support of the originating summons.

He relied on Ajomale v. Yaduat (1991) 5 NWLR (Pt. 191) 257 at 283-3. He referred to the case of each party before the trial Court and the following three issues formulated and resolved by the learned trial Judge:

“1. Whether the 2nd Plaintiff was eligible to contest as an aspirant in the 1st Plaintiff’s primary election

2. When was the authentic primary election held
3. Who amongst the two contestants (i.e. 2nd Plaintiff and 2nd Respondent) won the primary election”

He referred to page 1206 of the record and said that the lower Court agreed that the judgment of the trial Court was based on the three issues above. Learned Counsel referred to pages 772 to 782 of the record and contended that the trial Court resolved the issue of eligibility of the 2nd Appellant on which the 2nd Respondent predicated his case against the 2nd Respondent in favour of the 2nd Appellant.

He said that none of the seven grounds of appeal filed by the 1st Defendant in the Court below complained against any of the following specific findings of the trial Court:

“(i) 2nd Appellant was eligible to seek CPC’s sponsorship and nomination for the election;

(ii) that Exhibit E proved conclusively that 2nd Appellant’s name was duly submitted to INEC and; that

(iii) 1st Respondent’s case was not predicated on an alleged attempted substitution of candidate.”

He referred to Ebbah v. Ogodo (1984) NSCC Vol.15 at 255 and argued that the Court of Appeal erred by revisiting findings of the trial Court against which there was no appeal. He referred to page 1239 of the record where the lower Court held:

“There is no dispute from the records that 2nd respondent was an aspirant.”

It was for this reason that their Lordships held that 2nd Respondent as an aspirant of the CPC can maintain an action for redress under Section 87(9) of the Electoral Act.

He argued that having arrived at the above conclusion, the lower Court ought to have rested the matter. He said that the trial Court found that the authentic primary election was the one held on 15/1/2011 and that there was no appeal against the said finding. With reference to pages 1240-1241 of the record, he argued that the Court of Appeal affirmed that there were two primaries conducted by the CPC for the elections, and that the Court of Appeal also affirmed the finding of the trial Court that the primary election of 15/1/2011 which produced the 2nd Appellant was the authentic one.

He contended that having affirmed the findings of fact made by the trial Court, there was no reason for the lower Court to re-evaluate the evidence upon which the findings were made. He said that the lower Court was in grave error in their view at page 1211 of the record that “on party’s nomination and substitution of a candidate, it is immaterial that the primary is inconclusive.” He urged the Court to resolve the issues in favour of the appellants.

Issue 7 is on whether or not the lower Court was right in its view that the issue in the case was one of substitution of candidate by the 1st Appellant. He impugned this view of the lower Court in the light of the fact that the same Court affirmed the findings of the trial Curt in the resolution of the three issues identified by the trial Court in the resolution of the three issues identified by the trial Court. He said that the question of attempted substitution brought up by the lower Court did not arise from any of the three issues identified and resolved by the trial Court and with which the lower Court agreed.

Relying on Emefuma v. Ngwuomhaike (1993) 3 NWLR (Pt.283) 612 at 620 para. A-G, he said that the lower Court had no business raising issue outside the grounds of appeal in absence of cross-action or cross-appeal. He referred to and relied on Dr. Yesuf Nagogo v. CPC (Unreported) Suit No. SC. 55/2012 of 6th July, 2012 which he said is a sister case to this appeal. He urged the Court to resolve the issue in favour of the Appellants. Having summarized his argument learned Senior Counsel submitted that the appeal be allowed.

In his issue 1 on whether the trial Court had jurisdiction to entertain the matter, learned Senior Counsel for the 1st Respondent relied on Madukolu v. Nkemdilim (1962) NSCC 734, Emeka v. Okadigbo&4 Ors. (2012) 7 SC 1 in his submission that any proceeding conducted without jurisdiction is a nullity. He contended that the issue of jurisdiction can be raised at any stage of the proceedings and even on appeal with or without leave. He cited the case of Fundale Engineering Limited v. McArthur & 4 Ors. (1995 – 1996) All NLR 157. He contended that Exhibit OM3 presented to the 1st Respondent after he won the primaries of 11/1/2011 and which the 1st Respondent filed on the same day 14/1/2011 established the conclusiveness of the primary election of 11/1/2011.

He said that there was evidence that the 1st Appellant after submitting the name of the 1st Respondent to 2nd Respondent made unsuccessful attempt to substitute the 1st Respondent. He referred to paragraphs 26, 27, 28 29 and 39 of the 1st Respondent’s counter-affidavit to the affidavit in support of the Appellants’ originating summons.

Learned Senior Counsel contended that having submitted the name of the 1st Respondent to INEC as its candidate in compliance with the requirement of the law, the 1st Appellant is stopped from asserting that the primary election of 11/1/2011 was inconclusive. Relying on estopel by conduct, he cited the case of A.G. Nasarawa State v. A.G. Plateau State (2012) NWLR (Pt.1309) 419 at 470 and Chukwuma v. Ifeloye (2008) 18 NWLR (Pt.1118) 204 at 237 – 238 paras E – B.

The 2nd Appellant, learned Senior Counsel argued, cannot be described as an aspirant within the purview of Section 87(9) of the Electoral Act, 2010 (as amended) because he did not participate in the primaries of 11th January, 2011. He cited the case of PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85 at 126 para B – E and 148 para C. Learned Senior Counsel relied on Exhibit Q, a waiver granted the 2nd Appellant and dated 12th January, 2011 in the following terms:

“I hereby wish to notify that his application for waiver to contest under our great party has been approved.”

He said that the waiver was granted prospectively and has no retrospective effect and therefore did not relate to the primary election of the 1st Appellant of 11/1/2011. It was further submitted that the 2nd Appellant, not having obtained a waiver before 11/1/2011, cannot be said to be an aspirant and cannot litigate the alleged inconclusiveness of primary election conducted by the 1st Appellant on 11/1/2011 a day prior to the waiver Exhibit Q.