Dr. Alphonsus Ojo V. Independent National Electoral Commission (INEC) & Anor (2008)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.

This appeal emanated from the ruling of the Governorship & Legislative Houses election Tribunal of Delta State, delivered on 7/9/2007 by which the Petition of the appellant was struck out on the Ground that it was incompetent following the preliminary objection of the Respondents in that petition. The appellant had filed an election petition at the said tribunal challenging the Conduct of the 1st Respondent for presenting a Certificate of Return to the 2nd Respondent in respect of the election into the State House of Assembly for the Ukwuani Constituency on the ground that he, and not the Second Respondent, was the validly nominated Candidate of PDP that Contested that election and won and therefore ought to have been issued with a Certificate of Return having Scored the highest number of votes cast at the election.

Before then the appellant had sued the 1st Respondent and PDP at the Federal High Court Abuja in Suit NO.FHC/ABJ/CS/207/2007 for Certain declaratory and injunctive reliefs challenging the Substitution of the 2nd Respondent in this appeal for his name by the 1st Respondent at the prodding of PDP. That Suit was determined in favour of the appellant which declared that the appellant was the lawful candidate of PDP for that election.

Not withstanding this declaration, the 1st Respondent in total defiance of the Judgment of the aforesaid Federal High Court, proceeded to issue a Certificate of Return to the 2nd Respondent hence the appellant’s petition to the lower Tribunal.

Dissatisfied with the Ruling of the Election Tribunal Strucking out his petition, the appellant filed a notice of appeal on Twelve Grounds; Those Grounds of appeal without their particulars are as follows:

GROUNDS

1. The Tribunal erred in law when it held that the Appellant in his petition did not disclose the Locus Standi to maintain his petition before the Tribunal upon preliminary objections filed by the Respondent.
2. The Tribunal erred in law when it held that the petition of the petitioner did not disclose the scores of the candidates at the election which is the subject matter of the petition.
3. The Tribunal erred in law when it held that the petitioner did not disclose the person returned as the winner of the election and same was therefore liable to be struck out.
4. The Tribunal erred in law when it held that the non-joinder of the Peoples Democratic Party was fatal to the competence of the petition.
5. The Tribunal erred in law in reviewing and “departing” from the judgment of the Federal High Court sitting at Abuja.
6. The Tribunal erred in law in granting the motions of the 1st Respondent in its entirety.
7. The Tribunal erred in law when it held that the grounds on which the petition of the Appellant was based were not known to law.
8. The Tribunal erred in Law when being a Court manned by more than one Judge delivered a unilateral ruling striking out the petition of the Appellant.
9. The Tribunal erred in law when it held that the petitioner related solely and entirely to nomination.
10. The Tribunal erred in law when it held that the applications of the Respondents challenging the competence of a petition could be brought at anytime.
11. The Tribunal erred in law when it held that a winner of an election cannot present an election petition.
12. The Tribunal erred in law when it resolved preliminary objections and challenge to competence of a petition by resorting to extraneous evidence/materials and not the petition itself.
13. The Tribunal erred in law in entertaining the applications of both respondents to strike out the petition of the petitioner in limine.

Before this Court, the Respondents have also raised Preliminary objections on the Competence of the appeal. The 1st Respondent on the ground that the Grounds of appeal are invalid in that an appeal does not lie as of right against a decision striking out an election petition; that the Petition did not Comply with the provisions of the electoral Act 2006 and that the petition was not determined on the merits; For the 2nd Respondent, his objection was that the Notice of appeal was not Served on him.

Let me first dispose of the two Preliminary objections:

A Summary of the preliminary objection as presented by the 1st & 2nd Respondents are as follows:

For the 1st Respondent, they argued that appeal does not lie as of right against a decision of an election Tribunal by which an Election Petition was struck out. Secondly that the appeal is against an order of the Tribunal striking out the Election Petition on the grounds of non-Compliance with the mandatory provisions of the Electoral Act 2006, and thirdly that the petition was not determined on the merit. Alternatively, the 1st Respondent argued that Grounds of appeal as contained in the appellant’s notice of appeal are not valid grounds and are liable to be struck out. He cited Section 246 (1) (b) of the 1999 Constitution.

For the 2nd Respondent, his objection was based on the fact that non-service of notice of appeal is fatal to this appeal and as such this appeal is incompetent. He referred to paragraph 51 of the 1st Schedule to the Electoral Act, 2006 and order 2 Rule 6 of the Court of appeal Rules, 2007 and argued that Service of notice of appeal is a condition precedent in initiating an appeal. He referred to the case of ODOFIN V. AGU (1992) 3 NWLR PT. 229,350 ratio 6 at 356.

He contended that what the appellant did was to serve on the 2nd Respondent his appellant’s brief and the records of appeal.

In answer to the preliminary objection raised by the 1st Respondent, it is important to point out that the case of ORUBU V. NEC and other Cases cited by learned counsel for the 1st Respondent in his argument on the preliminary objection were decisions made before the 1999 Constitution with Decree NO.37 of 1987 in mind.

My humble view is that post 1999 Constitution appeals lie from any decision of an election petition Tribunal to the Court of Appeal. Any doubt as to this has been laid to rest by the Supreme Court in the Case of AWUSE V. ODILI (2003) 18 NWLR (Pt.851) Page 116 at 154. In Awuse v. Odili, the Supreme Court stated in very clear terms that interlocutory decisions in election petitions could be appealed in the Court of Appeal.

Besides, forfeiture of a right of appeal has been settled in the Case of BENDEL ENGINEERING CORP. V. EFFICIENT PETROLEUM LTD. (2001) FWLR (Pt. 47) 1188. R.4, where this court held;

“Forfeiture of the right of appeal is a serious matter beyond the mere gambit of a Preliminary objection as a daunting ploy Calculated to stun an Opponent, as the right of appeal is a Constitutional matter”.

In the instant case, the rights of the parties were determined by the dismissal of the petition by the lower Tribunal. The effect therefore was that there were no more petitions by the Appellant against the Respondents before the lower Tribunal. It therefore had the effect of a final decision.

Since it was a final decision of the tribunal though not on merit, but which determined the rights of parties, the Appellant was not obliged to seek leave to appeal as he could appeal as of right.

On the objection of the 2nd Respondent on non-Service of the notice of appeal on the 2nd Respondent, I agree with learned counsel for the 2nd Respondent that notice of appeal is the foundation of appeal and that if non-Service of the notice of appeal is proved, it goes to the root of the appeal, and robs the court or tribunal its jurisdiction. See the Case of OBIMONIVE V. ERINOSHO (1966) 1 All NLR page 250 at 252. In the instant case, the said 2nd Respondent has on his own stated and admitted that he was served with the record of appeal. In Paragraph 3.5 at page 3 of the 2nd Respondent’s amended brief he stated;

“What the Appellant did was to serve on the 2nd Respondent/Applicant his Appellant brief and the records of appeal. The proof of service of processes Served in this suit attached therein lay emphasis on this fact”.

Having conceded to the Service on him of the records of appeal, a look at the said records of appeal at page 245 clearly shows that it contains the said notice of appeal Complained of by the 2nd Respondent.

Again, having filed his brief and even amended his brief, and having taken part in all the proceedings in this appeal, the 2nd Respondent is deemed to have conceded and or waived his right.

I am therefore convinced that by virtue of page 245 of the records of appeal which the 2nd Respondent admitted was served on him, that he received the notice and Grounds of appeal at the appropriate time.

The Preliminary objection of the 1st & 2nd Respondents in the circumstances of this appeal, lack merit and same is accordingly dismissed.

Having disposed of the preliminary objections let me now go into the merits of the appeal. The Appellant in his brief has distilled ten issues from the Grounds of appeal as follows:

1. WHETHER THE RULING OF THE TRIBUNAL WHICH IS THE SUBJECT OF THIS APPEAL WAS NOT DELIVERED IN BREACH OF THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999, AND WHERE IT IS SO DELIVERED, WHETHER SAME IS NOT VOID. (GROUND 8).
2. WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT A CANDIDATE CLAIMING TO BE THE WINNER OF AN ELECTION CANNOT PRESENT AN ELECTION PETITION. (GROUND 11).
3. WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PETITION OF THE PETITIONER/APPELLANT RELATED TO PREELECTION ISSUES OR NOMINATION. WHEN IT WAS CLEAR THAT THE FEDERAL HIGH COURT SITTING IN ABUJA IN SUIT NO. FHC/ABJ/CS/207/2007 HAD EFFECTIVELY RESOLVED THOSE ISSUES. (GROUND 9).
4. WHETHER THE TRIBUNAL WAS RIGHT IN STRIKING OUT THE PETITION OF THE PETITIONER ON GROUNDS OF NON-COMPLIANCE WITH PARAGRAPH 4 (1) (C) OF SCHEDULE 1 TO THE ELECTORAL ACT 2006 WHEN THE PETITION DID NOT PUT THE VOTES CAST IN ISSUE AND THE PETITION COMPLIED SUBSTANTIALLY WITH THE REQUIREMENT OF THE LAW. (GROUNDS 2 & 3).
5. WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PETITIONER DID NOT DISCLOSE THE NECESSARY LOCUS STANDI TO MAINTAIN THE PETITION ESPECIALLY IN VIEW OF THE PLEADING IN PARAGRAPH 2 OF THE PETITION. (GROUND 1).
6. WHETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE GROUNDS OF THE PETITIONER’S PETITION ARE ALIEN TO THE LAW OF THE FEDERAL REPUBLIC OF NIGERIA IN VIEW OF THE PROVISIONS OF THE CONSTITUTION. (GROUND 7).
7. WHETHER THE TRIBUNAL WAS RIGHT IN RESOLVING THE PRELIMINARY OBJECTION BY RESORTING TO EXTRANEOUS EVIDENCE WHEN IT WAS OBVIOUS THAT THE ISSUES RAISED COULD NOT BE RESOLVED WITHOUT A TRIAL. (GROUND 12).
8. WHETHER THE TRIBUNAL WAS RIGHT IN UPHOLDING THE MOTION OF THE 1ST RESPONDENT ON ALL GROUNDS AFTER STRIKING OUT A SUBSTANTIAL PART OF THE AFFIDAVIT SUPPORTING THE MOTION. (GROUND 6).
9. WHETHER THE TRIBUNAL WAS RIGHT IN NOT GIVING EFFECT TO THE JUDGMENT OF THE FEDERAL HIGH COURT OR

WHETHER THE TRIBUNAL WAS RIGHT IN DEPARTING FROM THE JUDGMENT OF THE FEDERAL HIGH COURT. (GROUND 5).

10. WHETHER THE APPLICATIONS OF THE RESPONDENTS WERE COMPETENT BEFORE THE TRIBUNAL. (GROUNDS 10 & 13).

The Respondents have also adopted the foregoing issues.

In my view, from the Grounds of appeal, the issues identified above can be compressed into Four major issues. Issues Nos. 2, 4, 5 & 6 can be grouped together and compressed as, follows:

Whether the petition in the form it was presented and the petitioner himself falls within the requirements of the provisions of the Electoral Act 2006.

This becomes issue NO.3.

Issues Nos. 7, 8 & 10 can also be compressed thus:

Whether the preliminary objections rose by the Respondents at the lower Tribunal were Competent, and if so, whether the tribunal was right in the manner it disposed of them. This becomes issue No.4.

Issues Nos.1 and 9 can stand in the manner they were phrased.

On issue NO.1, which relates to Ground 8, Learned Counsel for the Appellant had argued that the Ruling of the lower tribunal delivered on the 7/9/07 does not represent the opinion of the five Judges that made up the Panel for the reason that the said “Ruling” merely indicated the names of the five Judges at the end. That the said ruling did not indicate any lead, dissenting or Concurring decision He argued that the ruling was contrary to Section 294 (3) of the 1999 Constitution. He cited the case of UKACHUKWU V. UBA (2006) ALL FWLR. (PT.300) 1736.

In reply to the foregoing arguments on this issue, the Respondents contended that with particular reference to election tribunal, the members are not required to write Separate Judgments, and it is valid for a member of the tribunal to be appointed to write and authenticate the judgment of the tribunal. They Cited BALONWU V. IKPEAZU (2005) 13 NWLR (PT.942) Page 479 at Page 530. A.G. IMO STATE V. A.G. RIVERS STATE (1983) 8 SC Page 10. SHITTABEY V. A.G. OF THE FEDERATION (1998) 10 NWLR (PT.570) at Page 392.

Paragraph 26 (1) & (2) of the First Schedule of the Electoral Act 2006. OGBORU V. IBORI (2005) 13 NWLR (PT.942) Page 319 at 335. NGIGE V. OBI (2006) 13 NWLR (PT.999) page 182-183.

In my humble view the Contention of the Appellant that because each of the Judges at the lower tribunal did not give a separate and distinct written opinion on the preliminary objections the ruling therein became void is preposterous. To underscore the point here, the relevant portion of Section 294 of the 1999 Constitution of the Federal Republic of Nigeria which heavy reliance was placed on by the Appellant for his Contention on this issue are set out herein. The relevant provisions are 294 (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria. They read:

“294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his Opinion in writing, or may state in writing that he adopts the Opinion of any other Justice who delivers a written Opinion: provided …

(3) A decision of a Court Consisting of more than one judge shall be determined by the opinion of majority, of its members”

Thus an analytical reading of the foregoing provisions would show that it is only the Supreme Court and the Court of Appeal that each Justice is required to express an opinion in writing, either in support of the opinion of another Justice, or in dissent to that opinion. This is very clear from the said Section 294 (2).

In the case of any other court of tribunal, consisting of more than one Judge, no such requirement of a separate written Opinion is necessary as can be distilled from the Clear wordings of Sub Section (3). What is necessary is that the Judgment or Ruling of such a Court or Tribunal is a Common or joint Opinion of the court or tribunal except where any of the Judges give a dissenting Opinion.

In the instant Case, it is clear from the Ruling of the lower tribunal on appeal before us that ruling represents the joint and concurrent opinion of the entire membership of the panel. For example the word Tribunal appeared in several portions of the ruling to underscore the point that the ruling is the ruling of each and every member of the tribunal. See for example page 233 lines 8-22; Page 234 lines 6-34; Page 237 lines 22-26 Page 238 lines 16-28; page 239 lines 4-7, and 33-34; page 240 lines 11-17; and lines 26-28; page 242 lines 20-34 and finally page 243, lines 10-14.

In addition, the fact that all the Judges of the tribunal signed the ruling as shown at pages 243-244 of the records of appeal not only signifies that the ruling is that of each and every one of them, but also that each and every one of them Concurred to it. The argument of the appellant on this issue is therefore floored. That issue is resolved against the Appellant Ground 8 therefore fails.

On issues 2, 4, 5 & 6 which have been compressed into the 2nd issue set out by me in this Judgment, and which I propose to take together in this appeal, learned counsel for the Appellant had contended in relation to issue No.2 that the lower tribunal was in serious error to have held that the winner of an election does not have the standing to present an election petition. He argued that there is no where in the statute books where it is stated that a person who won an election or claiming to be winner of an election cannot present an election petition to the tribunal. He Cited ENEMUO V. DURU (2006) ALL FWLR (Pt.304) page 508, decided by this Court.

On the 4th issue, it was the submission of counsel that the lower tribunal erred when it held that Compliance with Paragraph 4 (1)(C) of the 1st Schedule to the Electoral Act 2006 was mandatory in all circumstances, when the Appellant was not challenging the scores recorded in the election, or undue return or even irregularities. The petition of the appellant at the lower Tribunal was that he was the Candidate at or in the election and that the 2nd respondent cannot be declared the winner of the election in his place when the said 2nd Respondent did not and never contested an election. He Cited OGBEIDE V. OSULA (2004) ALL FWLR (Pt.191) 1609 at 1612. OLAOSUN V. OGUNSEMI (2004) ALL FWLR (Pt.214) Page 49 and also ENEMUO V. DURU Supra.

On Appellant’s issue NO.5, Counsel for the Appellant contended that the Tribunal was wrong when it held that the Appellant as Petitioner in the lower Tribunal lacked the locus standi to present a petition. He argued that once a petitioner indicates in a Petition that he was a Candidate that is enough to Vest him the locus standi to sue. He Cited the Case of NNAMANI V. NNAJI (1997) 7 NWLR (Pt.610) 313 at 329.

In relation to the Sixth issue, counsel submitted that Section 145 (1) (a) (b) of the Electoral Act 2006, are by no means exhaustive of the grounds on which an election petition may be based. He then argued that the lower Tribunal erred when it held that the grounds of the petition of the Appellant before the tribunal below were unknown to the Electoral Act and the laws of the Federal Republic of Nigeria.

He Cited YUSUF V. OBASANJO (2006) 2 EPR. 30 at 49.

In reply to the foregoing argument on these issues, the Respondents contended on issue NO.2 that by virtue of Section 144 (1) of the 2006 Electoral Act, only a candidate at an election and a political party which participated in the election can present a petition. That the lower tribunal was therefore right in holding that the Appellant lacked the requisite locus standi to present the petition when the Appellant was not a candidate at the disputed elections. They argued that the Case of ENEMUO V. DURU was therefore not available to the Appellant as the present petition are the exact opposite of the facts in ENEMUO V. DURU. Also the case of NNAMANI V. NNAJI was also cited in support. They argued further that the failure of the Appellant to state Scores of Candidates in his Petition in line with paragraph 4(1) (C) of the 1st Schedule to the Electoral Act 2006 was fatal to his petition at the lower tribunal, therefore the lower tribunal was within the law when it struck out the said Petition in its ruling at page 242 of the records.

On the issue that the petition is alien to the laws of the Federal Republic of Nigeria, the Respondents Contended that the lower tribunal was right in arriving at that decision in view of Section 145(1) of the Electoral Act 2006 which stated grounds for questioning an election, and since the Appellant did not come under any of the grounds stated in the said Section 145(1), the lower Tribunal was within the law. This issue in essence, more or less, deals with the Competence of the Petition. It must be noted that the appellant Claims to be the candidate of PDP who stood for and won the election subject of the petition and this appeal as against the Second Respondent who also claimed to be the Candidate of the party. It is not in doubt that the issue of who was the Candidate of the party was the Subject matter of litigation at the Federal High Court Abuja in Suit NO.FHC/ABJ/CS/207/2007. It is also not in doubt that that suit was determined in favour of the Appellant where it was declared in unmistakable terms, inter alia, that the appellant was the Candidate of the PDP for that election. It is not in doubt that the candidate of the PDP scored majority of the votes cast at that election and according to the electoral Act 2006, a candidate who scored majority of lawful votes ought to be declared the winner and issued with a Certificate of Return by the 1st Respondent. It is also common ground that in spite of the Judgment of the Federal high Court aforesaid, the 1st Respondent issued the 2nd Respondent with a Certificate of Return with the implication that the 2nd Respondent and not the appellant won the election. In effect the complaint of the appellant is that he was deprived by the conduct of the 1st Respondent of his victory at that election in favour of the 2nd Respondent wrongly. In my view he can agitate this Claim of victory at an election tribunal to seek the enforcement of his victory. Therefore he had the necessary locus under the electoral Act to bring the petition.

In this regard, paragraphs 2, 4, 5, 12 & 13 of the amended petition are relevant, they read.

“2. Your Petitioner’ DR. ALPHONSUS OJO is a person registered to vote, who voted and was a candidate at the above election and claims to have a right to be returned at the above election and your petitioner states that the election was held on the 29th day of April, 2007 where Chukwunedum Samuel Ochei (DPP) Hon. Paul Eni Okpue (AC) Azubuike Dominic Cardinal (ANPP) Dr. Alphonsus Ojo (PDP) were candidates.

4. That 2nd Respondent was purportedly used to substitute the Petitioner as a candidate for the PDP.
5. Your Petitioner states that he was the validly nominated candidate of PDP and relies on the Federal High Court, Abuja judgment of Hon. Justice Abimbola Ogie in the case of Dr. Alphonsus Ojo .v. PDP & INEC (unreported) in suit No. FHC/ABJ/CS/207/2007 and which judgment would be relied upon at the trial and is hereby annexed as “Exhibit 1″.
6. That the 2nd Respondent whose name appears on the result sheet as the candidate for the PDP was not validly nominated as the Federal High Court, Abuja has held that the Petitioner is the validly nominated candidate.
7. That much to the surprise of the Petitioner, the 2nd Respondent was presented with a Certificate of Return by the 1st Respondent even after the said judgment.”

These paragraphs clearly indicate the locus of the Petitioner and Compliance with the necessary provisions of the electoral Act, and any other relevant laws on the Subject. In an election petition under the current Electoral Act the requirements of a valid petition are clearly set out.

A reading of the entire Petition as a whole reveals Compliance with the Electoral Act. The lower Tribunal therefore erred when it held that the Petitioner having Claimed to be a winner could riot present a petition; that the Petition was faulty for non-Compliance with the Electoral Act and therefore alien to the relevant Laws of the Land and that the Petitioner lacks the necessary Locus to present the petition. This Compressed issue NO.2 (Covering issues 2, 4, 5 & 6 formulated by the appellant and adopted by the Respondents) is resolved in favour of the appellant against the Respondents Grounds 1, 2, 3, 7 and 11 therefore succeed.

On the 3rd issue, learned Counsel for the Appellant submitted that the Judgment of the Federal High Court delivered on the 30/4/07 in suit No. FHC/ABJ/CS/207 /2007 settled all pre-election issues relating to nomination. He argued that by declaring the act of the removal of the name of the Appellant as null and void, the effect was that up till the point of the election, the Appellant remained the Candidate of the PDP for the election which was the subject matter of the petition before the Tribunal below. He cited the Cases of OSAKWE V. INEC (2005) ALL FWLR (PT.261) 325 at 349. ROSSEK V. S.A.C.B. (1993) 8 NWLR (PT.312) at 382.

Counsel argued further that the Appellant never raised any question relating to nomination at the lower Tribunal, same having been laid to rest by the Federal High Court Abuja, but rather the Appellant raised the issue as to whether the 1st Respondent (INEC) can hand over the victory of a candidate at an election to another person who did not Contest the election thereby bringing the Case of the Appellant within the purview of the case of ENEMUO V. DURU supra WIKE V. ICHEONWO (1994) 4 NWLR (pt.600) AT 618 and UGWU V. ARARUME (2007) ALL FWLR (PT.377) at 807.

In their reply to the above arguments on this issue, Learned Counsel for the Respondents Contended that what the Appellant filed in his amended Petition at the tribunal below was a Pre-election matter in as much as it glaringly raised and called for the determination by the tribunal of the propriety or other wise of the substitution of the 2nd Respondent as a Candidate of the PDP by the PDP at the election in question. The Respondents cited the Case of JANG V. INEC (2004) 12 NWLR (PT.886) at 46.

As stated (earlier, the petitioner took the matter of the Candidacy of the PDP to the Federal High Court Abuja which Court resolved same in his favour, thus making him the authentic Candidate of that party.

In its Judgment, dated 30/4/07 that Court made the following declarations;

“1. A DECLARATION that there are no cogent and verifiable reasons for the Defendants to change, substitute, or entertain the change of the name of the Plaintiff as candidate of the Peoples Democratic Party (PDP) for Ukwuani Constituency of the Delta State House of Assembly Elections due in April 2007.

2. A DECLARATION that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Ukwuani Constituency of the Delta State House of Assembly, the time for so doing having expired.
3. DECLARATION that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Ukwuani Constituency of Delta State House of Assembly candidate of the 1st Defendant after the Plaintiff had been duly nominated by the 1st Defendant as its candidate and after 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in accordance with Section 32(3) of the Electoral Act until the High Court or a Court of competent jurisdiction disqualifies the Plaintiff and/or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.”

By the foregoing declaration the issue as to who was the Candidate of the PDP for that election was resolved in favour of the appellant; with this resolution the petition was no longer a pre-election matter, since the issue raised therein was no longer an intra party affair. See the Case of AMAECH V. INEC (2008) 5 NWLR (PT.1080).

The tribunal was therefore wrong in holding that the petition related to pre-election issue. Issue NO.3 is therefore resolved in favour of the appellant against the Respondents. Ground 9 succeeds.

On Compressed issue No.4, which comprises of appellant’s issues Nos. 7, 8 and 10.

The appellant on the 7th issue contended that where the application before a Court or Tribunal is challenging the competence of the Petition, the Tribunal was bound to consider the petition of the petitioner. He referred us to the Case of BOOTHIA MARITIME INC. V. FAREAST MERCH CO. LTD. (2001) FWLR. (PT.50) Page 1713. BRAWAL SHIPPING (NIC.) LTD. V. ONWADIKE (2000) FWLR (PT.23) at 1254. EJIOGU V. ONYEAGUOCHA (2004) ALL FWLR (PT.204) Page 26. A.N.P.P. V. P.D.P; (2004) ALL FWLR (PT.221) 1513 at 1522 – 1523.

On issue NO.8, Learned Counsel for the Appellant submitted that since the application of the 1st Respondent before the lower Tribunal was a motion on notice supported by an affidavit, that having struck out paragraphs 3, 4, 8, 9 and 10 of the said affidavit for offending the provisions of the evidence Act, the only option left for the lower tribunal was to call oral evidence. That the conclusion of the lower Tribunal that the striking out of those paragraphs did not affect the prayers or reliefs Sought by the motion was totally unfounded. He Cited MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU (2001) ALL FWLR (PT.50) 1779.

On the 10th issue, learned counsel for the Appellant contended that the application before the lower tribunal that led to the Ruling appealed against was incompetent before the Tribunal. That after the pre-hearing Sessions, every application before the tribunal must be with leave of the Tribunal, but that in the instant petition no such leave was granted.

He Cited Paragraph 49(2) of the 1st Schedule to the Electoral Act 2006.

In their reaction to the above issues, learned Counsel for the Respondents submitted that the applications of the Respondents were competent before the lower tribunal since a preliminary objection challenging the jurisdiction of the tribunal or court can be raised at any time and in any manner, even orally and once raised, it must be taken by the court before any further step is taken. They Contended that a, preliminary objection need not be supported by an affidavit as long as enough material is placed before the court. They cited ANPP V. INEC (2004) 7 NWLR (PT.871) Page 16. JANG V. INEC supra at Page 46.

On resolving the preliminary objection by resorting to extraneous evidence, learned counsel for the respondents argued that the objections raised by the 1st & 2nd Respondents were based on the Appellant’s petition since they touch on the issue of Competence of the petition. They Contended that no where in the said ruling of the lower tribunal did it state that it resorted to materials outside the petition to arrive at its decision. The Respondents referred to the Cases cited by the Appellant in support of the above issue, and submitted that they were Maritime cases decided before the front loading under the new Federal High Court Civil Procedure Rules.

On upholding the motion of the 1st Respondent after striking out substantial part of the affidavit in support of the motion, Learned Counsel for the Respondents argued that the preliminary objection raised by the 1st Respondent in its motion on notice was based on the petition which Constitute sufficient material for the Tribunal to base its decision. They argued that the objection could still have succeeded without an affidavit, and cited ANPP V. INEC (2004) 7 NWLR (PT.871) Page 35. OBIEKWE V. OBI (2005) 10 NWLR (PT.932) Page 65.

I will straight away say that a party to a suit can challenge the suit on grounds of incompetence which touches on jurisdiction. An Election petition is a suit and therefore is not excluded from such a challenge on matter of jurisdiction.

The incompetence of a suit affects the Competence of a court to try it, and lack of competence in a court affects the jurisdiction of the Court. A Court has jurisdiction to try a matter when the subject is within its jurisdiction, when the suit is initiated by due process and there is no feature therein which robs the court of its jurisdiction, and all the Conditions precedent to the exercise of jurisdiction has been fulfilled. See MADUKOLU V. NKEMDILIM (1962) All NWLR (PT.2) Page 581 at 583.

It is trite that the issue of jurisdiction is so fundamental to trial proceedings that it can be raised at any time during the proceedings and even for the first time on appeal. So until a case is finally disposed of at various stages including appeal, the issue of jurisdiction can be raised. Whether the challenge succeeds or not is a different Consideration which is for the Courts to determine. The Respondents were therefore well within their rights to challenge the petition and to that extent their preliminary objection was Competent. But whether the tribunal was right in upholding them becomes a different matter. On this therefore, having regard to the Judgment of the Federal High Court already referred to above, the lower Tribunal was wrong to have upheld the preliminary objections and struck out the Petition as it did.

In the Circumstances, the first limb of the 4th issue is resolved in favour of the Respondents against the appellant, while the second limb of the same issue is resolved in favour of the appellant against the Respondents. Therefore Grounds 10 & 13 fail, while Grounds 6 & 12 succeed.

On the 9th issue which is issue NO.5 and the Respondents 10th issue, learned counsel for the Appellant submitted that the lower tribunal had no powers to review and depart from the Judgment of the Federal High Court which has not been reversed by any other court superior to the Federal High Court. He argued that when an act is declared null and void, the position is that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed.

He Cited the Case of ADEFULU V. OKULAJA (1996) 9 NWLR (PT.475) 668 at 693.

RE WOMBWELL’S SETTLEMENT (1922) 2 CD 298.

Counsel further Submitted that it was contemptuous of the Federal High Court for the 1st Respondent to have gone ahead with the election, and after being aware of the Judgment of the said Federal High Court to still proceed to hand over the Certificate of Return to the 2nd Respondent.

He cited the Case of OBI V. INEC & ORS. (2007) ALL FWLR (PT.378) 1116 at 1173.

Reacting to the above issue, learned Counsel for the Respondents contended that the election in question took place on the 29/4/07, while the Judgment of the Federal High Court was delivered on the 30/4/07, therefore the Judgment of the Federal High Court was an academic exercise. They argued that since the election took place on the 29/4/07, the court ought to have realized that it had lost jurisdiction over the matter. He cited the Case of YUSUF V. OBASANJO (2003) 16 NWLR (PT.847) Page 554 at 558.

They argued further that since reliefs 4, 5 & 6 were not granted by the said Federal High Court, there was nothing for the Tribunal to enforce.

I am not unmindful of the fact that the 2nd Respondent was not a party in the suit at Federal High Court, but the 1st Respondent INEC was a party. I am also aware of the fact that while the said Federal High Court granted reliefs 1 – 3, that it did not grant the injunctive reliefs. By pronouncing the Appellant the rightful Candidate of the PDP for the election of 29/4/07, and in view of the fact that the 1st Respondent INEC participated fully in the suit at the Federal High Court, being aware that the Judgment in respect of the matter being challenged by the Appellant was fixed for 30/4/07, INEC had no business Conducting the election on the 29/4/07 if INEC was truly independent. It was therefore the lawlessness exhibited by INEC by conducting the election in the first leg, and going further to issue the 2nd Respondent with a Certificate of Return despite the judgment of the 30/4/07 that further compounded and confounded the already messy and confused situation. The first relief granted by the said Federal High Court by declaring the Appellant the Candidate of PDP for the election into the Delta State House of Assembly for Ukwuani Constituency, subsumed every other relief. In the eye of the law therefore the fact of the 2nd Respondent participated in the election of the 29/4/07 never took place. It is not only deleted, it was erased from human memory and deemed never to have taken place at all. This was the view of the Supreme Court in AMAECHI V. INEC supra.

A Judgment of a Court of competent jurisdiction is valid, subsisting and binding until set aside on appeal. See the Case of OSAKWE V. INEC (2005) ALL FWLR (PT. 261) Page.325 at 349.

Therefore the Judgment of the Federal High Court which determined who the Candidate of PDP for that election was, in this case the appellant, is valid, subsisting and binding on the 1st Respondent (INEC) which was bound to give effect to it. The tribunal was also enjoined to recognize it, respect it and give effect to it.

The three declarations made in favour of the appellant in the Judgment of the Federal High Court settled the issue of the Candidacy of PDP and the lower Tribunal was bound to give effect to that Judgment. See Amaechi v. INEC supra.

The lower Tribunal was therefore in error to have ignored the effect of that Judgment when it held at page 232 – 233 of the record of appeal as follows:

“The judgment of the Federal High Court in question on its face clearly shows that the name of the petitioner had been substituted by the PDP with the name of another person – Ochor Christopher Ochor (i.e. the 2nd respondent) as the candidate of the PDP for the April, 2007 election as at the time the action was filed by the petitioner herein. Indeed it was the substitution of the name of the petitioner with that of Ochor Christopher Ochor by the PDP that gave the petitioner his cause of action in the said Suit No.FHC/ABJ/CS/207/2007 against both the PDP and INEC sued as defendants therein. What the said case therefore shows most clearly is that at all material times prior to the delivery of the judgment in the case under reference on 30th April, 2007 and particularly as at 29th April, 2007 when the election in question was held, the petitioner had been substituted with another person by the PDP as its candidate in the election of the said 29th April, 2007.

This issue is therefore resolved in favour of the Appellant against the Respondents. Ground 5 therefore succeeds. In the final result, this appeal succeeds in its entirety.

The Ruling of the lower Tribunal delivered on 7/9/07 striking out the petition is hereby set aside.

Rather than send this petition to the tribunal below for retrial, this court will invoke its powers under Section 15 of the Court of Appeal Act 2004.

Accordingly, it is hereby ordered.

1. That the Appellant Dr. Alphonsus Ojo being the validly nominated Candidate of the Peoples Democratic Party (PDP) be issued with a Certificate of Return for the Ukwuani Constituency for the Delta State House of Assembly having Scored the highest number of votes cast at the Elections.
2. That the Appellant be declared validly elected and Returned, his Political party having polled the highest number of lawful votes Cast at the election.
3. That INEC issues the Appellant Dr. Alphonsus Ojo a Certificate of Return, the appellant having been duly sponsored by a political party (PDP) and having contested and won the elections for Ukwuani Constituency for the Delta State House of Assembly General elections.
4. That the Certificate of Return issued to the 2nd Respondent OCHOR CHRISTOPHER OCHOR is hereby nullified.
5. That OCHOR CHRISTOPHER OCHOR is hereby restrained from parading himself as a member of the Delta State House of Assembly for the Ukwuani Constituency.
6. That the Clerk of the Delta State House of Assembly should take steps to ensure that the Appellant Dr. Alphonsus Ojo is immediately inaugurated as member of the Delta State House of Assembly for Ukwuani Constituency.

I make no order as to costs.

---

Other Citations: (2008)LCN/2900(CA)