Hon. Dr. Michael Ohia V. Matthew Omegara & Ors (2008)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The present appeal is against the judgment of the Governorship and Legislative House Election petition Tribunal holden at Owerri, Imo State, delivered on 30/10/07 in petition No. EPT/NA/IM/17/2007.
It is pertinent that on 21/4/07 the 2nd – 3rd Respondent conducted election for the Okigwe North Federal Constituency of the House of Representatives of the Federal Republic of Nigeria. The 1st Appellant allegedly contested the said election under the platform of the 2nd Appellant (Peoples Democratic Party). The other candidates that contested the election include; BARRISTER IHUOMA UDEAGHA, UZUKWU PATRICK EZE GEORGE CHIMEZE MADUEWESI, COMRADE MADUKA FIDELIS and DR. UHCE OYEME, who were allegedly sponsored by the Action Congress (AC), National Democratic Party (NDP) Labour Party (LP). All Nigerian Peoples Party, and All Progress grand Alliance (APGA) respectively. At the conclusion of the election in question, the 1st Respondent was however declared and returned as the winner thereof.
Dissatisfied with the declaration and return of the 1st Respondent as the winner of the election, the Appellant filed a petition (No. EPT/NA/IM/17/2007) in the lower tribunal on 21/5/07 on the following grounds:
(a) That the 1st Respondent did not win the majority of the lawful votes cast at the election.
(b) that the 1st petitioner was validly nominated by the 2nd petitioner as its candidate but he was unlawfully excluded from the election.
The Appellant had by the said petition prayed for the following reliefs.
That it be determined that the 1st petitioner won majority of the lawful votes cast of the said election and ought to be returned as duty elected.
ALTERNATIVELY
(i) That it be determined that the 1st Respondent was not validly elected or that his return or his election was void.
(ii) That the questioned election be nullified.
iii) That the 3rd-4th Respondents conduct a fresh election for the seat of the Okigwe North Federal Constituency Imo state with the name of the 7th petitioner as the candidate of the 2nd Petitioner.
At the commencement of the hearing of the petition, the Appellant testified for himself, but called no any other witness. The 1st and 2nd Respondents called one witness each. At the end of the trial, the learned counsel adopted their respective written addresses. The lower tribunal eventually delivered its judgment on 30/10/07 thereby dismissing the Petition.
Not unnaturally, the Appellant being dissatisfied with the said judgment filed a Notice of appeal on 14/11/07 in the lower tribunal’s registry on a total of five grounds of appeal. It is instructive, that parties have filed and served their respective briefs of argument, which they adopted on 15/5/08, when appeal lost come up for hearing. The Appellants’ brief was filed on 11/4/08, but deemed properly filed and served on 23/4/08. The 1st respondent further Amended brief was filed on 13/5/08, but deemed properly filed on 15/5/08. The 2nd – 4th Respondents brief was filed on 28/4/08. The 5th Respondents brief was equally filed on 28/4/08.
The Appellant has formulated four issues in the brief thereof for determination, to wit:
2.02 Whether in view of the law and the circumstances of this petition the learned Trial Tribunal was right to have struck out the name of the 2nd petitioner from the petition based upon an oral application of counsel. This is derived from ground 2.
2.03 Whether or not the learned Tribunal formulation of a different issue for the petitioner and its decision based on same did not occasion a miscarriage of justice in this matter? This issue is derived from grounds one and 3 (sic).
2.04 Whether in the tight of the later decision of this court in the case of ADEBUSUYI v. ODUYOYE (SUPRA), the learned trial tribunal was right in holding that a candidate who was validity nominated but was wrongfully excluded can not file a petition challenging the election? This issue is derived from ground 4.
2.05 Whether in the light of the evidence before the trial Tribunal and the circumstances of this case, the learned trial Tribunal was right to have dismissed this Petition?
On his own part, the 1st Respondent apart from raising a preliminary objection, has formulated a sole issue for the determination of the appeal, viz:
“Whether the 1st Respondent is the validly elected candidate of the Peoples Democratic Party (PDP) in that election held in the 21st day of April, 2007 for the Okigwe North Federal Constituency or is it the Appellant?”
The 2nd – 4th Respondents have equally adopted the sole issue raised by the 1st Respondent in the respective brief thereof. The Appellant has on 05/5/08 filed a reply to the 2nd – 4th Respondents brief.
I will first and foremost deal with the preliminary objection raised in the 1st Respondent brief. The said preliminary objection is aimed at ground 2 of the grounds of appeal. The ground was alleged to be a complaint against the interlocutory decision of the lower tribunal dated 24/9/07, against which no appeal was filed within time, and for which the peoples Democratic party (PDP) has not complained. It was argued that the decision was an interlocutory one, in that it did not finally and conclusively decide the right of the Appellant against the respondents. That, the time within which an interlocutory decision can be appealed against is 14 days or not later than 21 days, being a decision pertaining to an election petition.
it was contended that the decision was final, since no leave and extension of time was sought to appeal against the decision. See BAKARE v. NRC (2007) 17 NWLR (Pt.1064) 606 at 638 paragraph F-G; SARAKI v. KOTOYE (1992) 9 NWLR (Pt.26) at 184; IKWEKI v. EBELE (2005) 2 SC (Pt.11) 96 at 106 – 110; EGBE v. ALHAJI (1990) 1 NWLR (Pt.128) 546 at 590, respectively.
According to the learned counsel, there were at least 36 days between 24/9/07, when the name of PDP was struck out, and 30/10/07.
When the judgment appealed against was delivered. That, whether or not the name of PDP was struck out no longer a live issue on 30/10/08 when the judgment was delivered. Nor was it a live issue on 14/11/07, when the Notice of Appeal was filed. See SPDC v. X M FEDERAL LTD (2006) 7 SC (Pt.11) 27 at paragraphs 31- 33; ABIOLA v. OLAWOYE (2006) 13 NWLR (pt.996) 1 at 18 – 19 paragraphs G-A. the court has been urged upon to accordingly strike out ground 2.
The 1st Respondent has equally urged on the court to strike out issue No.2 on the ground that it was nominated or distilled from ground 2 which allegedly is not valid. See SOSANYA v. ONADEKO (2005) 2 SC (Pt.11) 13 at 14; IDIKA v. ERISI (1998) 2 NWLR (pt.78) 563. The court was urged to accordingly strike out the said issue No.2 as well.
The objection on the ground that the record of appeal has no index was however abandoned by the 1st Respondent, and same is hereby, with out much ado, struck out.
It has become rather obvious, that the Appellant’s reply is only regarding the 2nd – 3rd Respondent’s brief. He has not thus filed any reply to the 1st respondent’s brief alluded to above. And it’s a well settled doctrine that where an Appellant fails to file a reply (brief) to respond or react to the fresh points raised on the respondent’s brief, he (Appellant) is deemed to have conceded to those points. Thus, in the instant case, the Appellant ought to and is hereby deemed to have conceded to the 1st Respondent’s objection to the competence of both ground 2 of the grounds of appeal and issue No. 1 raised in the brief thereof, for his failure to respond thereto in a reply brief. See Okongwu v. NNPC (1989) 4 NWLR (pt.115) 296; Olowu v. Abolore (1993) 5 NWLR (pt.293) 255; Fregene v. UAC (Nig) Ltd (1997) 3 NWLR (pt.493) 359; Akanbi v. Alatede (2000) 1 NWLR (pt.639) 125; Obkew Int. Ltd v. A.T.S. Ltd (2005) 15 NWLR (pt.948) 362; Nepa v. Arobieke (2006) 7 NWLR (pt.979) 245; R.T.F. G.C.N. v. Okafor (2007) 13 NWLR (PT.1052) 471 at 482 Paragraph A-D, respectively.
It is evident from the records of the lower tribunal at pages 200 and 201 thereof that on 24/9/07 CC. Azara if counsel to the erstwhile 2nd petitioner had orally applied to the lower tribunal thus:
“Azara:- I have the instructions of the 2nd petitioner and his leading counsel to withdraw for the petition i.e to have the 2nd petitioner’s name struck out from these proceedings’ ”
Notwithstanding the vehement objection to the application by LIVY UZOUKWU SAN, the 1st Appellants counsel, the lower tribunal ruled thus:
Now that the issue of representation of 2nd petitioner has been resolved and Mr. Azara has emerged as the counsel representing the 2nd petitioner, he is at liberty to apply that the name of his client who does not wish or who no more wishes, to continue with the prosecution of this matter be struck out. A party can not be compelled to maintain an section against any body. This is all the more so in this case where the 2nd petitioner has from 9/8/07 maintained then the 2nd petitioner herein instructed the institution of this petition. The is therefore grant and the name of the 2nd petitioner is hereby struck out.
That was on 24/9/07. The trial of the petition proceeded culminating in the delivery of the judgment in question by the lower tribunal on 9/10/07. There after on 14/11/07, the Appellant filed his Notice and Grounds of Appeal against the said judgment Ground 2 of the said grounds of Appeal is to the following effect:
GROUND TWO
The learned tribunal erred in law which error occasioned a miscarriage of justice when it struck out the 2nd petitioner’s name from the petition on the basis of the oral application made by its counsel, contrary to the mandatory provision of paragraph 6 (2) of the Election tribunal and court Practice Directions 2007 and paragraph 28 of the First Schedule to electoral Act, 2006.
PARTICULARS OF ERROR
(a) On the 24th day of September, 2007 the name of the 2nd Petitioner Respondent was struck out by the Learned Tribunal upon the ORAL application of Barrister C.C. Azara in spite of the objection raised by counsel to the 1st Petitioner and in clear breach of the mandatory provisions of paragraph 6(2) of the Election Tribunal and court Practice Directions 2007 which required every application to Tribunal to be by way of a motion.
b. That the purport of striking out its name from the Petition is id the second Petitioner was withdrawing its Petition without complying with the mandatory requirement of paragraph 28 of the first schedule to the Electoral Act 2006.
The pertinent question is whether or not the order of the lower Tribunal striking out the name of the 2nd petitioner (PDP) was on Interlocutory order. I think, the answer to that pertinent question is not for fetched. The word interlocutory used adjunctively, denotes, interim, or temporary; not constituting a final resolution of the whole controversy or dispute. Thus, on Interlocutory order, as the term goes, means on order that relates to some intermediate matter in the case; any order other than a final order. It is also sometime referred to as interlocutory decision; interim order; intermediate order; etc. Contrariwise the term final judgment denotes a courts last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs and enforcement of the judgment itself. Its also termed final appeal judgment; decision; final decree; definitive judgment; determinative judgment, final appealable order. See BLACK’S LAW DICTIONARY 7TH EDITION AT 847 & 1123, respectively. Final order on the other hand, means an order that is dispositive of the entire case.
Thus, in the light of the above definitions of the terms interlocutory order, final order, etc vis-a-vis the provision of section 24(2) of the Court of Appeal Act (2006), it has become obvious that the order of the lower Tribunal made on 24/9/07, striking out the name of the 2nd petitioner (PDP) has neither settled for determinate) the rights of the parties nor disposed of all he issues in the controversy (petition). That being the case therefore, the said order is essentially an interlocutory order within the contemplation of section 24(2) of the Court of Appeal Act (supra).The Appellant in the instant case had only fourteen days to appeal against the of the lower tribunal mode on 24/9/07. It is trite that under the court of appeal Rules, the periods for the giving or filing of notice of appeal or of application for leave to appeal are as follows:
(a) In on appeal in a civil cause or matter, fourteen (14) days where the appeal is against an interlocutory decision and three(3) months where the appeal is against a final decision.
See section 24(2) of Court of Appeal Act, 2006. He had failed to appeal within the stipulated 14 days time limit. He had not also filed any application seeking leave to appeal out of time. It is a well settled trite principle, that where as in the instant case, on aggrieved person or party who requires leave for an extension of time to appeal fails to obtain such leave before firing the appeal, the appeal so titled is rendered incompetent and ought to thus be struck out. See IKWEKI v. EBELE (2005) 2 SCNJ 242 at 255.
In view of the above reasoning, I have no hesitation in upholding the submission of the 1st Respondent counsel, to the effect that Ground 2 of the Grounds of Appeal is incompetent due to the fact that the Appellant failed to seek the leave of the court before filing some.
A fortiori, issue No.1 is also incompetent on the ground that it was distilled from the incompetent ground 2 of the grounds of appeal. The well established general principle is that the formulation of issues for determination of appeal must be consistently predicated upon the grounds of appeal filed along with the Notice of Appeal, See AG ANAMBRA STATE VS ONUSELOGU ENT. LTD (1987) 4 NWLR (pt 66) 547; ONIAH VS ONYIA (1989) 1 NWLR (pt 99) 514; OSINUPEBI Vs SAIBU (1989) 7 SC 104; WESTERN STEET WORKS LTD VS IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 49) 304; UGO VS OBIEKWE (1989) 1 NWLR (pt 99) 566; OKPALA Vs IBEME (1989)2 NWLR (pt.102) 208; EGBE v. ALHAJI (1990) 1 NWLR (pt 128) 546 at 589- 590 paragraphs H – A.
For the above reasons the 1st Respondents preliminary objection is hereby upheld, Both ground No. 2 of the Grounds of Appeal and issue No, 1 of the Appellants brief to which it was related are hereby struck out for being incompetent. Having upheld the preliminary objection raised in the 1st Respondents brief, I can now proceed to determine me appeal on the basis of issues 2, 3 and 4, mutatis mutandi, raised in the Appellants brief of argument.
ISSUE NO 2.
Issue No.2 raises the question of whether the lower tribunal’s formulation of a different issues for the Appellant and the decision cased thereon did not occasion a miscarriage of justice in this matter, the issue was stated to have been predicated upon ground 1 & 3 of the grounds of appeal. Its submitted that its a trite principle, that in the determination of the issue of locus standi to file a suit, the courts are generally required to confine their inquiry to the Plaintiffs claim and nothing else. see DANIYAN VS IYAGIN (2002) FWLR (pt.120) 1826 paragraphs G – H. Reference was mode to the two grounds of the petition at page 3 of the record, and the lower tribunal’s “report”. It was contained that the Appellant gave evidence which was adopted as that of the erstwhile 2nd petitioner in line with the petition. That, the tribunal was obliged to either find for the petitioner in term of his petition as presented, or dismiss some if it felt that he did not prove his claim, That, unfortunately, the lower tribunal formulated a completely deferent case for the petitioner and proceeded to give its verdict on that basis, thereby leading to a miscarriage of justice, see ATOLAGBE VS SHORUN (1985) NWLR 360; 373 paragraph A; EDEM VS CANON BALLS LTD (2005) (Pt.276) 693 at 706 paragraph C’
It was further argued, that the petitioner never requested the lower tribunal to determine as between the Appellant and 1st Respondent who was the nominated candidate of the 2nd petitioner, otherwise, the 2nd petitioner would not have consented to the filing of the petition.
It was reiterated that the petition was filed by Mr. A. S. Kolowole of Livy Uzoukwu SAN & Co’s law firm on behalf of both petitioners. That, from the case as pleaded by the petitioner and evidence of the witnesses thereof, there was a clear evidence of unlawful exclusion. In line with their pleading. The court has been urged to resolve the second issue inquestion in favour of the Appellants.
The 1st Respondent learned counsel’s submission on this issue is to the effect, inter alia, that the duty of o court to do justice can not be performed unless the trial court is able to identify the correct issues for trial. That, the germane issue from the pleadings is whether or not the appellant was-the legitimate candidate of PDP in that election. That, the lower tribunal duly identified and decided the opt issue in the petition.
The 2nd – 4th Respondents, submission is to the effect, inter alia, that the Appellant did not dispute the result of the election for any other reason than that the 99, 715 winning votes of PDP ought to have been earned by him and not the 1st Respondent. That, it therefore become important to determine who between the contending parties was the true candidate of PDP. It was argued, that all the issues which the Appellant has propped up in grounds 1, 2, 3, 4 and 5 go to nothing unless the Appellant was able to demonstrate how the judgment of the lower tribunal occasioned o miscarriage of justice. See ONOJOBI VS OLANIPETUN (185) 44 SC (part 2) 156 at 163; AREMU Vs THE STATE (1991) 7 SCNJ (pt.11) 96 at 310; IWAMUO VS OKORO (2006) 11 NWLR (pt. 990) 41 at 58 paragraphs F – H; WILLIAMS vs. GUNDIPE (2006) 11 NWLR (pt.990) 157 at 170 – 171; OLAIYA VS OLAIYA (2002) 52 (pt.1) 122 at 132 lines 1-5, respectively.
It was finally argued, that the tribunal below was right when it identified the substance of the petition as a pre-election intra party dispute. The Court was urged to accordingly decide the issue against the Appellant.
As evident from record, the brief filed on behalf of the Appellant is contained at pages 166A – 166N and 167 – 182, respectively. At page 166C and 170 of the record the Appellant had formulated two issues for determination, to wit:
“(a) Whether the petition is complete?
(b) Whether the petition should succeed?”
I have accorded a critical, but rather dispassionate consideration upon the submissions of the learned counsel in their respective brief of argument, and the entire record of proceedings of the lower tribunal. It is rather evident, that the lower tribunal has alluded at page 208 of the record thus:
We would now proceed to consider the evidence generated in this petition vis-a-vis the two grounds in light of the position of the law. We would start with ground 2, dealing with the nomination of the petitioner. The issue of contention in this petition revolves ground the question whether it was the petitioner or the 7th Respondent who was nominated to represent PDP In the election.
In the course of the summation of the submissions of the respective learned counsel, the lower tribunal held, inter alia, of pages 210 – 211 of the records thus:
On 24/9/07, PDP as 2nd petitioner, applied to this Tribunal to have its name struck out. PDF was consequently struck out.
From there PDP ceased to be a petitioner herein. The Dispute as to who between the petitioner and 1st Respondent was the validly nominated candidates of the PDP re-
Such a dispute a pre-election matter which this tribunal has no power to consider. See section 285 (2) of the Constitution. We believe this was what informed the decision of the petitioner to go to the Federal High Court before coming to this court.
In view of the above, we hold that ground 2 of this petition is not worthy or consideration being o pre-election issue.
Ground 2 is hereby struck out for being incompetent.
It is rather instructive, that the jurisdiction of the lower tribunal is traceable to the constitution of the Federal Republic of Nigeria, 1999. By the provisions of section 285 (2) of the said constitution, the lower tribunal has original jurisdiction, to the exclusion of any other court or tribunal, to hear and determine election petitions regarding whether any person has been validly elected to the office of Governor or Deputy Governor, as a member of a State or National Legislative House. Thus, in view of the provision of the said section 282 (2) of the 1999 Constitution, it has become rather obvious that any issue relating to pre-election matters is beyond the scope of the jurisdictional powers conferred upon the lower tribunal. The lower tribunal was right in holding, as it did, that it had no power to consider the issue in question on the ground that it was a pre-election matter.
It is trite that where a court finds that issues formulated by parties are not concise or elucidative enough, it has the discretion to formulate such issues that it believes are not mutually exclusive with the ones raised by the parties. The formulation of the issues by the lower tribunal has not in any way occasioned a miscarriage of justice to the Appellant. Most undoubtedly, the lower tribunal nay any court or tribunal for that matter, has the discretion in special circumstances, as in the instant case, to formulate issues from the grounds of appeal where its so obvious raised by the Appellant in the brief thereof are found, as in the instant case, to be either insufficient or grossly detective, see DADA VS DOSUNMU (2006) 18 NWLR (pt. 1010) 134 at 156 paragraph F – G wherein the Supreme Court aptly held, inter alia, per Onnoghen, JSC thus:
“I am a firm believer in the principles of substantial justice at the expense of justice accordingly to technicalities or formalities’”
In certain appropriate cases, the courts can and in fact do formulate issues from the grounds of appeal where the issues formulated by the Appellant are found to be either inadequate or grossly or fundamentally defective.
In that regard, I am not unaware of the decision of this court in the case of FEDERAL REPUBLIC OF NIGERIA v. BARRISTER I.M. OBEMOLU & 3 ORS (2006) 18 NWLR (pt.1010)188 at 230 paragraph D-G, per RHODES- VIVOUR, JCA thus:
A court has no jurisdiction to raise suo motu and make out a case for one of the parties but where a court raises on issue suo motu it must give opportunity to the parties or their counsel to be hard before pronouncing the issue so raised.
It is rather obvious that in view of the authoritative decision of the Supreme Court per Onnoghen, JSC; in DADA VS DOSUNMU (supra), the above observation by my learned brother Rhodes-vivour, JCA; in FRN v. OBEGOLU & 3 ORS (supra), was, in my opinion, mode per in curium with utmost respect to his Lordship. In the circumstance, the said issue No.2 is accordingly hereby resolved in favour of the Respondents.
ISSUE NO.3
Issue No.3 was distilled from ground 4 of the Grounds of Appeal. It raise the question of whether in the light of the decision of this court in ADEBUSUYI v. ODUYOYE (2004) 1 NWLR (pt.854) 406, the lower tribunal was right in holding that a candidate who was validly nominated, but wrongfully excluded, con not file o petition challenging the election,. It was submitted on this issue, that a careful perusal of the evidence of the petitioners only witness would show that the Appellants complaint was that he was validly nominated by the erstwhile 2nd petitioner, but was clearly excluded by the 2nd Respondent as the candidate for the position of member of House of Representatives for Okigwe North Federal Constituency.
It was further submitted that the lower tribunal followed her earlier decision of this court in OKON VS BOB (2004) 1 NWLR (part 854) 378, and held that its only the political party that can sue on the issue. Thus, in effect holding that the Appellant had no locus standing to bring this action, since the 2nd Appellant was struck out. That, the lower tribunal had ignored the case of ADEBUSUYI VS ODUYOYE (supra), earlier cited by the Appellants counsel. That, based on the principles of stare decisis, the lower tribunal ought to have followed ADEBUSUYI’S case which was delivered on 04/8/03 later thon OKON’s case delivered on 31/7/03. See OJUBELE VS LAMIDI (1999) 10 NWLR (pt 621) 167 at 171 Paragraph E. It was argued that in OKON v. BOB (supra), it was held that only a political party whose candidate was excluded can file a petition complaining about exclusion. While in ADEBUSIYI VS ODUYOYE’S case (supra) it was held that the candidate so excluded can maintain a petition, as in this case, That, the lower tribunal’s failure to follow ODUYOYE’S case (supra) has led to o miscarriage of justice, as the petition was wrongly dismissed based on the wrong principle of law.
On issue No.3 the Respondent’s learned counsel conceded to the proposition that a candidate who was validly nominated but wrongly excluded is a competent petitioner against the election in which he was excluded. It was however argued that in the instant case, the Appellant was neither validly nominated, nor wrongfully excluded. It was thus urged that the issue be decided against the Appellant.
The Appellants deposition could be found of pages 12 – 15 of the record. The deposition consists of a total of 29 paragraphs.
Paragraphs 1 and 2 of the deposition are to the effect thus:
- I was a candidate in the said election for the seat of the Okigwe North Federal Constituency’. I am a member of the PDP.
- I was the candidate duly nominated and sponsored by the PDP for the questioned election.
- The 7th Respondent was the person returned at the questioned election as a purported candidates of the PDP.
- The 2nd, 3rd and 4th Respondents conducted the questioned election.
- I was duly nominated and sponsored by the PDP as a substitute or replacement for the 7th Respondent by a letter at the PDP dated 5th February 2007 to the INEC.
- On 19 April 2007, the Abuja Federal High Court struck out the originating process for want of jurisdiction. In so doing, court held:
I adopt the decision of the court of Appeal in the case of Okon Vs Bob as mine. In fact by the doctrine of stare decisis I am bound by the said decision and HOLD THAT THE PDP FORWARD (SIC) PLANTIFF’S NAME TO INEC 1ST DEFENDANT AS CANDIDATE….
Under cross examination by the 1st Respondents counsel, on 21/8/07 the Appellant stated inter alia, as follows:
I filed a suit the Federal High Court. Nomination of candidate is done by a political party by sending his name to INEC. I know that initially the name of the 7th Respondent was sent to INEC by the PDP. I went to the Federal High Court after INEC verified my name but published the name of the 1st Respondent PDP after they cancelled the primaries replaced 1st Respondents name with my name…. Party primaries were conducted 3 times and all cancelled..
However, it is rather evident when later the DW 2 Oweke Emmanuel Chukwudi on INEC’s witness testified at page 198 of the record, he inter alia, stated thus:
It is true that the only candidate submitted by the PDP for the election is the 7th Respondent. The INEC never substituted the name of the 7th Respondent with any other name at all.
The Appellant had not deemed it fit or expedient to subpoena any official of the erstwhile 2nd Appellant to contradict the testimony of the Respondents alluded to above. Not surprisingly, right from the out set of the trial of the petition, no official of PDP was listed to be called as a witness in the petition. It is not in doubt that the validity of one election may be questioned where the petitioner was validly nominated but was unlawfully excluded from contesting the said election, The ground for questioning on election due to unlawful exclusion has been provided for under section 145 (1)(d) of the Electoral Act 2006 (supra) thus 145(1) An election may be questioned on any of the following grounds:
(a) ……..
(b)……..
(c) …….
(d) that the petitioner or its candidates was validly nominated but was unlawfully excluded from the election.
It is pertinent that the Electoral Act 2006 (supra) has made adequate provisions for compilation and submission of candidates by the political parties to INEC not later than 120 days before the date fixed for an election. See section 32, most especially subsection (1), (2) and (3) of the Electoral Act (supra) thus:
32(1) Every party shall not later 120 days before the date appointed for general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the election.
(2) The list shall be accompanied by a (sic) Affidavit sworn to by each candidate at the High Court of a State, indication that he has fulfilled oil the constitutional requirements for election into that office.
(3) The commission shall within 7 days of the receipt of the personal particulars of the candidate publish same in the constituency where the candidate intends to contest the election.
In the some vein, the Act has also provided for the procedure of changing of candidates nominated by parties, publication of names of candidates nominated the withdrawal thereof etc, see sections 34 (1), 35 and 36 (1) of the Act (supra) thus:
34.(1) A political party intending to change 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) The list shall be accompanied by a (sic) Affidavit sworn to by each candidate at the High Court of a State, and indicating that he has fulfilled all the constitutional requirements for election into that office.
35.(1) The commission shall at least thirty (30) days before the day of the election publish by displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and such other places as it deems fit’ a statement of the full names of all candidates standing nominated.
36.(1) A candidate may withdraw his candidature by in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission and which shall only be allowed not later than 70 days to the election.
In the notorious case if Chibuike Rotimi Amaechi v. INEC & 2 Ors (2007) 18 NWLR (pt1065) 170, this court had the cause to rule on most especially the provisions of section 34 (1) & (2) (supra)to the effect, inter alia, thus:
The position of the Court of Appeal in the interpretation of the provision, of section 34(1) & (2) of the Electoral Act 2096 remains unshakeable and undounted and by way of recapitulation and emphasis ore as follows:-
(a) that section 34 of the Electoral Act is justiciable and section 34 (2) must be under judicial surveillance;
(b) for the implementation for cogent and verifiable reasons under section 34 (2) of the Electoral Act, 2006;
(c) That cogent and verifiable reasons ore subject to the discretion of the party substituting and INEC;
(d) Section 34 must be interpreted to ensure fairness and justice in the circumstance of any particular case;
(e) the issue of nomination, sponsorship and substitution of candidates precedes election and are thereby pre-election issue. No party member has a legal right to the nomination, and there is no corresponding obligation on the political party so as to pave way for the powers of the court to be invoked under section 6 of the constitution. In effect the court of law has no jurisdiction over issue of determination of intra party political matters’ the issue of primaries’ selection and substitution of candidates to contest in on elective office is the exclusive preserve of the political parties out side the competence of courts;
(f) Section 34 (1) & (2) of the Electoral Act has created and place an extra duty on INEC in its role over the affairs of a political party in the area of substitution that the provision of the law is not side tracked. Per Adekeye, JCA at 202 – 203 paragraph F – D.
Resultantly, the court come to the following conclusion: In the final analysis the main appeal lacks merit and is dismissed the judgment of the lower court is affirmed, while the cross – appeal succeeds in part. No order as to costs.
However, its trite the above decision was set aide by the Supreme Court in the appeal No, SC, 252/2007 reported in (2008) 5 NWIR (pt. 1080) 227: AMAECHI v. INEC 7 ORS on 18/01/08. With particular regard to section 34 (2) of the Electoral Act (supra), the Supreme Court held, inter alia, thus:
It is manifest that the requirement under section 34(2) of 20 of Act that cogent and verifiable reason be given in order to effect a change of candidates was a deliberate and poignant attempt to revise the 2002 Act which led to a situation where disputes arose even after elections had been concluded as to which particular candidates had been put up by parties to stand elections.
in the light of this the expression ‘cogent and verifiable reason’ can only mean a reason self demonstrating of its truth and which can be checked and found to be true…..
…The reason given by PDP as ‘error’ for substituting Omehia for Amaechi did not meet the requirement of section 34 of the Electoral Act. (Ugwu v. Ararume (2007) 12 NWLR (pt. 1048) 365 referred to and applied).
Consequently, the apex court in a unanimous decision come to the following conclusion:
Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was candidate of the PDP for whom the party campaigned in the April 2007 elections not Omehia and since PDP was declared to have won the said election, Amaechi must be deemed the candidate that won the election for the PDP. In the eyes of the law, Omehio was never a candidate in the election much less the winner. It is for this reason that on 25/10/2007 allowed Amaechi’s appeal and dismissed the cross-appeals. I accordingly declared Amaechi the person entitled to be the Governor of Rivers State. I did not nullify the election of 14/04/2007 as I never had cause to do so for the reasons earlier given in this Judgment. I make no order as to costs. Per Oguntode, JSC at 325 paragraphs A – C.
See Also OGWU VS ARARUME (2007) 12 NWLR (pt 1048) 365.
It should be reiterated at this stage, for the avoidance of doubt, that in the light of the for reaching decisions of the supreme court in both UGWU vs ARARUME (supra) and AMAECHI VS INEC & 2 ORS (supra), the vexed issue of whether or not an aggrieved candidate who was validly nominated but unlawfully excluded from contesting an election has the locus standi to file an election petition ought to have by now been put to rest. Thus, the lower tribunal was undoubtedly in error when it held that the Appellant had no locus standi to file the petition on the ground that-
The dispute as to who between the petitioner and 1st Respondent was the validly nominated, candidate of the PDP readers such o dispute a pre-election matter which this Tribunal has no power to consider. See section 285 (2) of the constitution.
Never less, I have critically considered the nature and circumstances surrounding the petition, the evidence adduced by the parties vis-a-vis the record of appeal as a whole. It was the evidence of the Appellant under cross examination at pages 193 to 194 of the record to the effect that he was aware that the PDP won the election in dispute with party Logo. He conceded to the fact that-
“initially the name of the 1st respondent was sent to INEC by PDP.”
According to the Appellant:
A party primaries were conducted 3 times and all cancelled, 1st was on 25/11/06 at Onuimo Okwelle but cancelled because my opponent brought thus, 2nd on 4/12/06 at Owerri, 3rd on 5/12/06 and the scores were 1st Respondent 799, Ho. N. Jasper 462 and petitioner 133 voles. After the 3rd primaries no other primaries were conducted…
On the other hand, one Oweter Emmanuel Chukwudi called by INEC testified as DW2, His testimony as recorded at page 198 of the record paragraph thereof is to the effect, inter alia, thus:
It is true that the only candidate submitted by the PDP for the election is the 1st Respondent. The INEC never substituted the name of the 7th respondent with any other name at all.
it is instructive, that the Appellant did not call any PDP official to contradict the evidence of the Respondents, In short, the Appellant had woefully failed to discharge the onerous onus of proof placed thereupon, In the circumstances, the Appellant having come third with only 133 votes against the 462 and 799 votes recorded for Jasper and the 1st respondents to come second and 1st positions, respectively, his claim that he was the one that PDP sent his name to INEC as a substitute to the 1st Respondent is rather inconceivable, to say the least.
In the instant case, there is a failure on the part of the Appellant to prove that he and not the 1st Respondent was actually the one nominated and recommended to INEC as the candidate of the PDP.
Thus, I am unable to appreciate, let alone uphold, the Appellants contention that the lower tribunal’s failure to follow the decision in ADEBUSUYI V. ODUYOUE (supra) had caused a miscarriage of justice thereto. See ONOJOBI V. OLANIPEKUN (1985) 44 SC (PT.2) 156 AT 163; AREMU V. STATE (1991) 7 SCNJ (PT.11) 96 AT 310.
In the result thereof, the issue No.3 ought to be, and some is hereby, resolved in favour of the Respondents’
ISSUE No.4
issue No.4 raises the question of whether the lower tribunal was right in dismissing the Appellants petition. This issue, unlike the other preceding issues, was not distilled from, or related to any of the grounds of appeal, Undoubtedly, the issue is at large. The Appellant’s learned counsel has in the brief thereof alluded thus:
“6.01 The grounds of this petition and reliefs sought by the petitioner have been clearly slated at the beginning of this brief. We hereby adopt the in verbatim for the proper appreciation of this issue.”
The above issue No.4 is no doubt incompetent for the obvious reasons alluded to above, It is a well trite doctrine that issues for determination are framed or distilled from competent grounds of appeal, Thus, any issue not framed, formulated or distilled from the ground of appeal, as in the instant case issue No. 4, goes to no issue and ought to be struck out by the court, see IDIKA V. ERISI (1988) 2 NWLR (PT.78) 563; ANIMASHAUN V. UCH (1996) 10 NWLR (PT.476) 65; KARI V. GANARAM (1997) 2 NWLR (PT.488) 380; OSWCPEBI V. SAIBU 91982) 7 SC 104; GOVT. OF GOGOLA STATE V. TUKUR (1987) 2 NWLR (PT.56) 308; WESTERN STEEL WORKS LTD V. IRON & STEEL WORKERS UNION (NO.2) (1987) 1 NWLR (PT.49) 284; DADA V. DOSUNMU (SUPRA) AT 165 – 166 PARAGRAPHS C-C; 156 – 157 PARAGRAPHS G-H wherein the apex court held per Onnoghen, JSC thus:
“Every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from the ground of appeal is incompetent.”
What’s more, determining the issue (No.4) inquestion will tantamount to a sneer academic and thus wasteful exercise in view of the fact that the question raised therein has been extensively dealt with in the previous issues, especially issue No.2. Resultantly, the said issue No.4 hereby struck out for being incompetent. In the light of the foregoing postulations, there is every reason for me to hold that the instant appeal is grossly unmeritorious and ought to thus be dismissed by this court. Contrary to the highly misplaced assertion of the Appellant, there is no sufficient ground to believe that the judgment of the lower tribunal had resulted in a miscarriage of justice to the Appellant to warrant this court to set same aside. See OLAIYA V. OLAIYA (2002) 52 (PT.1) 122 AT 132 LINES 1-5; WILLIAMS V. OGUNDIPE (2006) 11 NWLR (PT.990) 157) 157 AT 179 – 171; NWAMUO V. OKORO (2006) 11 NWLR (PT.990) 41 AT 58 PARAGRAPHS F-H
We have been urged upon to exercise our discretionary power under section 6 of the Court of Appeal Act (supra), to make on order returning the Appellant as the winner of the election into the Okigwe North Federal Constituency seat in the April 21, 2007 election. It was asserted that doing so would be well in line with the decision of the Supreme Court in the notorious case of AMAECHI VS INEC & ORS (supra) and OMEHIA v. PDP case No. SC.252/2007 doted 25/10/07.
Ironically however, unlike AMAECHI VS INEC’S case (supra), in the instant there is no satisfactory and unequivocal evidence to prove that the Appellant, rather than the 1st Respondent, was the candidate that was nominated and recommended to INEC as the candidate of the PDP in the election inquestion. It is an element and fundamental principle of the law of evidence that he who asserts or alleges a fact has the onorous burden of proving that fact, See sections 135 (l ) & (2) and 136 of the Evidence Act; DADA VS DOSUNMU (supra) at 171 paragraphs G – H; AWUSE VS ODILI (2005) ALL FWLR (pt.261) 248; OLUFOSOYE VS FAKOREDE (1993) NWLR (pt.20) 66.
In conclusion, I hereby hold, without any further hesitation, that the instant appeal is unmeritorious, and its accordingly dismissed by me.
The judgment of the lower tribunal delivered on 30/10/07 is hereby affirmed, The 1st Respondent shall be entitled to the costs of N30,000.00 against the Appellant.
Other Citations: (2008)LCN/2892(CA)
