Martin Agbaso V. Ikedi Ohakim & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J. C. A.

This appeal emanated from the Governorship and Legislative Houses Election Petition Tribunal sitting in Imo State of Nigeria delivered on 26/07/2007. The appellant was the petitioner before the tribunal. The Petitioner, hereinafter referred to as the Appellant, was a candidate at the Governorship election that say, 2007 had claimed as follows:–

(i) A declaration of the Honourable Tribunal that the 2nd and 3rd Respondents have no power or jurisdiction to cancel or nullify the result of the governorship election held in Imo State on 14th April, 2007 and fix another election for 28th April, 2007.

(ii) A declaration of the Honourable Tribunal that the cancellation by the 2nd and 3rd respondents of the result of the Governorship election held in Imo State on 14th April, 2007 is unlawful, illegal null and void and the subsequent fixing and holding of another election for the same Governorship section 28th April, 2007 is unlawful, illegal, null and void.

(iii) A declaration of the Honourable Tribunal that the Petitioner is the elected Governor of Imo State having won the majority of the lawful votes cast at the election of 14th April, 2007 and ought to be returned by the 3rd Respondent.

(iv) A declaration that the cancellation of the gubernatorial election held in Imo State on 14th April, 2007 and the fixing and holding of another Gubernatorial election for Imo State on 28th April, 2007 were invalid and not in compliance with the provisions of Electoral Act 2006.

(v) An order of the Honourable Tribunal setting aside the election of 28th April, 2007 into the office of Governor of Imo State and the return of the 1st Respondent thereby made.

(iv) An order of the Honourable Tribunal that the Petitioner has fulfilled all the Constitutional requirements for the election into the office of

Governor of Imo State and has been indeed so elected on 14th, April, 2007.”

Upon being served with the petition, the 1st Respondent filed an answer thereto on the 9th June, 2007 in which he raised preliminary objection inta alia to the competence of the petition and the Honourable Tribunal to entertain the petition on the following grounds:-

“(a) The petition is not complaining of undue election or undue return of any person.

(b) The facts and relief in the petition rerate to the inconclusive election of 14th April, 2007 and not the Election into the office of Governor of Imo State held on 28th April, 2007.

(c) The reliefs sought in the petition are not cognizable in an election petition.

(d) The petition is not in accordance with the provisions of the First Schedule to the Electoral Act in that the grounds on which the petition is based are inconsistent with and unrelated to the reliefs sought by the petitioner and facts of the election petition and the grounds on which the petition is based are unrelated and or inconsistent.”

The 2nd and 3rd Respondents on the receipt of the petition also filed a reply on the 5th June, 2007 in which they raised preliminary objection also challenging the competence of the petition and the Jurisdiction of the Honourable Tribunal to hear the petition on the following grounds:-

“(a) there was no return of any person or any declaration of result at the inconclusive Governorship election of14th April, 2007 wherein the petitioner claimed the right to be returned. The petition is not therefore complaining of any undue election of 14th April, 2007.

(b) The petition is not predicated on a challenge as to whether or not any person has been validly elected at the said election.

(c) The reliefs sought in the petition are not cognizable on an election petition.

(d) The grounds of the petition are inconsistent with the reliefs sought.

(e) The petition did not disclose any cause of action.”

To the preliminary objection of the two groups of respondents to the petition’ the Appellant responded by firing written addresses on the 10th July, 2007 and 6th July, 2007 respectively.

After due exchange of processes on the preliminary objection, the tribunal took argument and in its ruling delivered on 26th July, 2007 upheld the objections and dismissed the petition in its entirety.

Dissatisfied with the ruling of the tribunal, the appellant filed a Notice of Appeal to this Court on 9th August, 2007. The Notice of Appeal contains eight (8) grounds of Appeal. Subsequently on 16th August, 2007, the appellant filed a 2nd Notice of Appeal upon which he later based his argument of the appeal. The second of appeal has nine (9) Grounds of Appeal as follows:-

GROUNDS OF APPEAL

GROUND ONE

(a) The Tribunal erred in law when it inferred that “As the instant petition stands therefore, it does not state the scores/result of the election of as declared/announced by the INEC. This clearly offends paragraph 4 of the 1st schedule to the Electoral Act and in itself would render the petition against the election of 14/2/07 incompetent.

PARTICULARS OF ERROR

i. The Appellant in his petition before the tribunal did not challenge the election of 14/4/07.

ii. The Appellant challenged the election of 28/4/07 on the ground that it was an undue election as a result of the unlawful cancellation of the election of 14/4/07 by the 2nd Respondent.

iii. The content of the petitioner’s petition ex facie is a challenge of the 28/4/07 and not the 14/4/07.

iv. The content of the petitioner’s petition is in conformity with the requirements of paragraph 4 of the First Schedule of the Electoral Act, 2006.

v. In spite of A (ii) – A (iv) hereof, the Tribunal adjudged at the interlocutory stage of that this matter the petition is incompetent.

GROUND TWO

(b) The Tribunal erred in law when it determined the substantive issue in the petition in a preliminary, and thereby denied the Appellant fair hearing of his petition.

PARTICULARS OF ERROR

i. the Appellant’s petition was predicated on the ground that the wrongful cancellation of the election of 14/4/07 rendered the election of 28/4/07 an undue election.

ii. the respondents brought separate applications by way of notice of preliminary objection challenge the competence of the petition.

iii. the Tribunal, without hearing the petition, proceeded and adjudged that the cancellation of the l4/4/07 election was not unlawful.

GROUND THREE

(c) The tribunal erred in law when it inferred that all the pleadings in the petition relating to the election of 14/4/07 which produced no result and no return are incompetent and dismissed same.

PARTICULARS OF ERROR

i. by paragraph 4 of the First Schedule to the Electoral Act dealing with the contents of a petition,

a petition shall state the grounds of the petition as well as the facts in support of the grounds.

ii. The Appellant’s ground for challenging the election is in conformity with Section 145(1)b and Section 145(1)c of the Electoral Act 2006.

iii. There is no provision in the Electoral Act 2006 that limits the scope and facts in support of the grounds of the petition.

iv. The Appellant’s petition contains two grounds which are consistent with the Electoral Act, 2006.

v. Notwithstanding C (ii)-C (iii) hereof the Tribunal proceeded and adjudged Appellant’s petition incompetent.

GROUND FOUR

The Tribunal erred in law by failing to consider that the Appellant’s petition is predicated on the breach of the Electoral Act 2006.

PARTICULARS OF ERROR

i. Electoral Act 2006 clearly stipulates that an election may be questioned by any of the grounds provided for in Section 145(i) a – 145(i) d of the legislation.

ii. The Appellant’s petition is predicated on non-compliance with the provisions of the Electoral Act.

iii. The grounds for challenging the Election by the Appellant is clearly set out in paragraph 8 of the Appellant’s petition and canvassed in the written address of the Appellant.

iv. Notwithstanding that the ground for challenging the election was based on Section 145(i) b of the Electoral Act, the Tribunal adjudged’ that the Appellant’s petition is incompetent.

GROUND FIVE

(e) The Tribunal erred in law by inferring Appellant’s petition that the Appellant petition is incompetent and dismissed same.

PARTICULARS OF ERROR

(i) The respondents raised preliminary objection that the Appellant’s petition is Incompetent;

(ii) One of the grounds for questioning the election of the 1st Respondent in the Appellant’s petition is based on noncompliance with the provisions of the Electoral Act.

(iii) The ground specified in E (ii) hereof is consistent with the provisions of section 145(i) b of the Electoral Act 2006.

(iv) In spite of E (ii), E (iii) and E (iv) hereof, the Tribunal dismissed the Appellant’s petition on the 26/7/2007 as being incompetent.

GROUND SIX

(f) The Tribunal erred in law by the application of wrong criteria to adjudge that the 2nd Respondent has the power to cancel an election.

PARTICULARS OF ERROR

i. Neither the Constitution of the Federal Republic of Nigeria 1999 nor the Electoral Act 2006 vests the 2nd Respondent with the power to cancel an election.

ii. Non of the cases relied upon by the Tribunal namely ‘SOWEMIMO V. AWOBAJO (1999) NWLR part 610, AONODOAKA V. AJO (1999) NWLR Part 602, BALONWU V. IKPEAZU (2005) NWLR part 942, ABANA V. OBI (2004) NWLR Part 881” was predicated on the Electoral Act 2006.

iii. The fact of the cases stated in C (iii) hereof are dissimilar are to the facts of this petition.

iv. In spite of the fact that there is neither a Constitutional, nor Statutory power vested on the 2nd Respondent to cancel elections, the Tribunal adjudged that “it looks settled that INEC has power, to cancel elections which have started but before conclusion and are substantially flawed by an intervening cause.”

GROUND SEVEN (g) The tribunal erred in law when it inferred that only admissible evidence of the result of an election conducted in accordance with the Electoral Act 2006 is the one from INEC i.e. the 2nd Respondent.

PARTICULARS OF ERROR

i. Neither paragraph 15 of First Schedule of 1999 Constitution nor Section 29(2) of the Electoral Act stipulated that the only admissible evidence of results of an election is the one from the 2nd Respondent.

ii. The BUHARI Vs. OBASANJO (2005) NWLR (PT 941) relied upon by the Tribunal in not inference was not based under the Electoral Act 2006.

iii. The content of the Appellant petition challenging the 28/4/07 Governorship Election in Imo State is in conformity with paragraph 4 of the Electoral Act.

iv. Notwithstanding D(iii) hereof, the Tribunal adjudged at the interlocutory stage that there was no collation and announcement of the result of the election on the 14/4/07.

GROUND EIGHT

(h) The Tribunal erred in law when it inferred that there were no pleadings as to how the Appellant intended to show why the election should be set aside.

PARTICULARS OF ERROR

i. The Appellant’s petition contained two valid grounds of Petition.

ii. The petition also contained pleadings of facts in support of the grounds of petition.

iii. Notwithstanding (i) and (ii) hereof the tribunal held that there were no pleadings as to how the Appellant intended to show why the election should be set aside.

GROUND NINE

(l) The Tribunal applied a wrong criterion to strike out the reliefs sought in the Appellant’s Petition.

PARTICULARS OF ERROR.

(i) The Electoral Act 2006 does not limit the Appellant to any form of relief to be sought for in an Election Petition.

(ii) The Appellant’s petition questioned that the election of the 28/4/07 was an undue election hence the 1st Respondent’s Return on his 28/4/07 as undue.

(iii) The Tribunal has the jurisdiction to entertain and determine I (ii) hereof i.e. whether or not the 1st Respondent was validly elected under Section 285 of the Constitution of the Federal Republic of Nigeria 1999.

(iv) Notwithstanding I (ii) – I (iii) the Tribunal adjudged in favour of the Respondents at the interlocutory stage of the petition and dismissed the Appellant’s petition thereby deprived the Appellant the right to reliefs sought in the petition.”

The appeal is seeking the following reliefs from this Court.

“(i) to allow this appeal, set aside the ruling of the Tribunal dated 26th July, 2007 dismissing the

Appellant’s petition and remitting the petition ‘ back for hearing and determination before another panel.

(ii) Or in the ALTTRNATIVE for this Honourable Court to pronounce on the legal effect of cancellation of 14/4/07 Imo State Governorship Election by the 2nd and 3rd Respondents in the absence of any vested power by the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006.

From the Ground of Appeal contained in the Notice of Appeal filed on 16th August, 2007 the Appellant formulated the following issues for determination of the appeal.

ISSUES FOR DETERMINATION

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

(ii) Whether it was proper for the Election Tribunal to determine the substantive issues in Appellant’s petition in a preliminary objection

(iii) Whether the 2nd and 3rd Respondents have the Constitutional and statutory powers to cancel an election conducted under the electoral Act, 2006.”

Upon receipt of the Appellant’s brief of argument, the 1st Respondent filed his own brief of argument dated 6th December, 2007 on 10th December, 2007. In his brief of argument, the 1st Respondent formulated three (3) issues from the nine (9) Grounds of Appeal contained in the Appellant’s Notice of Appear. The said issues are determinations are as follows:-

“(a) whether the lower tribunal was right in holding that the petition was incompetent having regard to the provisions of the Electoral Act, 2006. (Ground 1, 3, 4, 5, 7 & 8).

(b) whether the lower tribunal denied the Appellant a fair hearing (Ground 2).

(c) whether the tower tribunal rightly held that the 2nd Respondent, had the power to cancel an election (Ground 6).”

After being served with the Appellant’s brief of argument, the 2nd and 3rd Respondent also fired their joint brief of argument dated 10th December, 2007 0n the same date. In the said brief of argument and from the nine (9) grounds of appeal filed by the Appellant, the 2nd and 3rd Respondents distilled two (2) issues for determination of the appeal as follows:-

“(i) whether the Appellant’s petition was competent.

(ii) whether the Appellant was given a fair hearing by the Election Tribunal.”

On 23rd January, 2008 the Appellant’s reply briefs to the briefs of argument of the 1st, 2nd, & 3rd Respondents respectively were deemed by the Court to be properly filed and served on the Respondents.

On the l8th February, 2008 when this appeal came up for hearing Dr. Onyechi Ikeazu, learned Senior Counsel to the Appellant referred to the Appellant’s brief of argument and the respective reply to the respondents’ briefs of argument. He adopted and relied on the said briefs.

Learned Senior Counsel to the Appellant gave the following two additional decided cases he believed are relevant to the issues for determination of this appeal. They are P.P.A. V. SARAKI (2007) 17 N.W.L.R. (Pt.1064) 453 at 497 paras a – f and INEC & ANOR VS. RAY & ANOR (2004) 14 N.W.L.R. (Pt.892) 92 at 130 – 131. He finally urged the Court to allow the appeal, set aside the decision of the tribunal and allow the Petitioner fair hearing before a new tribunal for trial.

Chief Bon Nwakamma, learned Senior Counsel for the 1st Respondent also referred to the brief of argument of the 1st Respondent dated 6th December, 2007 but filed on 10th December, 2007. He adopted and relied on the said brief of arguments. He urged the court to dismiss the appeal.

Dr. Livy Uzoukwu, learned Senior Counsel to the 2nd and 3rd Respondents referred to the joint brief of argument of the 2nd & 3rd Respondents dated and filed on 10th December, 2007. He adopted and relied on same. He referred to the two issues they had formulated for determination of the appeal in their brief of argument, He submitted that the Appellant has abandoned or is deemed to have abandoned ground 9 of the grounds of appeal’ He referred to the Appellant’s brief of argument on the grounds upon which the issues were predicated. He finally urged the Court to dismiss the appeal.

In his reply on the point of law, Dr. Ikpeazu, learned Senior Counsel to the Appellant referred to ground 9 of the grounds of appeal and submitted that although not clearly stated to be attached to it, Issue No: 1 is argued on ground 9. He finally urged the court to allow the appeal.

In arguing the appeal in the appellant’s brief of argument, the three issues formulated were taken seriatim.

ISSUE NO.1

The first issue – whether the Appellant’s petition before the Election tribunal was competent having due regard to the provisions of Section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006 is based on grounds 1,3,4,5,7 and B of the grounds of appeal.

On this, appellant referred to paragraph 26(b) (i), (ii), (iii), (iv) and (v) of the petition which the tribunal said was incompetent because it relates to election of 14/4/07. Learned Counsel contented that the petition itself was captioned as follows:-

“The election into the office of the Governor Imo State held on 28th April, 2007.”

He again referred to prayers (i), (ii) and (iv) and contended that the election of 28th April, 2007 was specifically mentioned and the Appellant had said the election was undue as it ought not to have been held. He referred to prayer (vi) and contended that it is predicated on the success of other prayers (i), (ii), (iv) and (v) which specifically sought a determination that the election of 29th April, 2007 was an undue erection and the return thereby made an undue return.

He referred to section 285(2) of the 1999 Constitution and submitted that it vests the Tribunal with the jurisdiction, to the exclusion of any other court or tribunal, to hear and determine petitions as to whether any person has been validly elected to the office of Governor. The jurisdiction of the tribunal was therefore properly invoked as the petition in its entirety seeks a determination as to whether the 1st Respondent was properly elected at the election which commenced on 14th April, 2007, but resulted in a return on 28th April, 2007. He cited ANPP Vs. Returning Officer, Abia State (2007) 11 N.W.L.R. (Pt 1045) 431.

Learned Senior Counsel to the appellant referred to Section 140 (1) of Electoral Act, 2006 and the case of Ezeobi Vs. Nzeka (1999) 1 N.W.L.R. (Pt.98) 478 at 486 on the terms “undue election” and “undue return” and concluded that it was the appellant’s case that the election and return of the 1st Respondent made by the 2nd and 3rd Respondents at the election of 28th April, 2008 was unmerited, improper, not rightful, undeserved and inappropriate. , He gave the reason that the election which took place on 14th April, 2007 produced results on which a declaration ought to have been made. He further contended that the questioned election whose scores must be disclosed is therefore the one of 28th April, 2007 which is challenged as being undue and the return unmerited.

Learned Senior Counsel further referred to paragraph 4(i) of the 1st Schedule to the Electoral Act, 2006 on the requirement of petitioner stating the holding of an election, the scores of the candidates and the person returned as the winner of the election and submitted that appellant did not say that he or any other person was returned at the election of 14th April, 2007. Therefore he could not have been duty bound to state the results of an election which was cancelled or conjure a result outside that which was declared by the Electoral Commission. He cited, P.P.A. Vs. Saraki (2007) 17 N.W.L.R. (Pt 1064) 453 at 497 para a – f .

Learned Senior Counsel submitted that the only election in which a declaration was made was the one held on 28th April. 2007 and the appellant was only statutorily obligated to state the scores at the said election as declared. He submitted that the Appellant in his paragraph 7 of the petition complied with the requirement of paragraph a (i)(c) of the 1st schedule to the Electoral Act, 2006.

Learned Senior counsel contended that failure of Appellant to state the scores on which the Appellant sought declaration as the winner of the election of 14th April, 2007 cannot be fatal to the petition when all that the raw required him to do was to state the official result and scores as announced by INEC.

Reference was made to paragraph 8 (ii) of the petition where appellant relied, in addition, on the ground that the election of April, 2009 was invalidated by reason of non-compliance with Electoral Act 2006. Learned senior counsel submitted that non compliance can be a matter of raw as we, as facts and the stage had not been reached for the Appellant to establish his case of non-compliance. He stated further that this can only be done when the case is set down for hearing and not before. He referred, as an instance, to Section 27 of the Electoral Act, 2006 which stipulates the conditions for the postponement of election and contended that section 27(ii) empowered the INEC to postpone an erection for the reasons provided, but not to cancel it, He submitted that the Appellant is entitled to lead evidence or present argument on whether or not subsections (2), (3), (a) and (5) of Section 27 were complied with.

Learned Senior Counsel contended that, the Tribunal having held that the Appellant did not comply with paragraph 4 of the first schedule in respect of the election of 14th April, 2007 proceeded to hold that the proceedings in respect of the election of 14th April, 2007 were incompetent and struck same out. He submitted that as none of the Respondents in their notice of preliminary objection sought an order of the Election Tribunal to strike out portions of the Appellant’s pleadings contained in his petition, the tribunal had no jurisdiction to grant the relief not sought by the Respondents, not being Father Christmas. He cited Onvekwelunnee Vs. Ndulue (1997) 6 N.W.L.R. (Pt 512) 250 at 276.

Learned Senior Counsel referred to Section 140 of the Electoral Act, 2006 which stipulates the grounds of a petition and contended that there is no provision in the Electoral Act, 2006, the 1st Schedule of the Electoral Act or the Constitution of the Federal Republic of Nigeria 1999 that stipulates the scope of the facts of an election petition or the reliefs to be sought in an election. He submitted that while the ground of a petition must fall within the scope of section 145 of the Electoral Act, a petitioner is at liberty to plead such facts as are necessary to sustain the grounds of his petition. In other words’ a petitioner is not limited in the facts which he can plead in support of his petition or the reliefs which ne can seek from an Election tribunal provided the reliefs are within the powers of the Tribunal, he concluded. Appellant urged the court to resolve Issue No.1 in his favour. See p. 15 e.g.

Issue No.2

The second Issue is, “whether it was proper for the Election Tribunal to determine the substantive issue in the Appellant’s petition on a preliminary objection,” and this was based on ground 2 of the grounds of appear. Learned Senior counsel submitted that a court in hearing an interlocutory application should not decide the substantive issues in the matter before the Court, He cited. Elufioye Vs. Hatitu U (1993) 6 N.W.L.R. (pt.301) 570 at 596. Alexande Amire Magt v. Odoa Intl. Ltd. (1999) 1 N.W.L.R. (pt 585) 40 at 53 – 54, Onagoruwa Vs IGP (1999) 5 N.W.L.R. 593 at 640.

Learned Senior counsel contended that the Appellant’s petition before the election Tribunal was predicated on the unlawfulness of the cancellation of the Imo state Governorship election conducted on 14th April, 2007. Therefore the issue before the Tribunal, it was further contended, was whether the erection of 28th April, 2007 was undue because of the unlawful cancellation of the erection of 14th April, 2007.

Learned Counsel contended that the issue of cancellation of the 14th April, 2007 election by the 3rd Respondent was the substantive issue in the Appellant’s petition which the Tribunal decided on the determination of the Respondents preliminary objection. He therefore submitted that the tribunal was in error to have so determined the issue in the substantive petition without affording the Appellant an opportunity to adduce evidence on the issue. He cited: Mobil Oil Nigeria Plc & Ors v. Kena Energy Petroleum Limited (2001) 1 N.W.L.R. (Pt.695) 555 at p.564, Orji v. Zaria Industries Ltd. & Anor (1992) 1 N.W.L.R. (PT. 216) 124 AT 141. He submitted further that the matter should be present panel having denied the Appellant fair hearing.

The Appellant urged the Court to resolve the second issue in his favour.

ISSUE NO.3

The third issue, “whether the 2nd and 3rd Respondents have Constitutional or Statutory power to cancel an election conducted under the Electoral Act, 2006” is based on Ground 6 of the Grounds of Appeal.

Learned Senior counsel contended, that the main issue arising from the Appellant’s petition before the Election Tribunal was whether the 2nd and 3rd Respondents had the powers to cancer the election of 14th April, 2007. He submitted that the determination of this issue in the negative would completely determine the petition in that the subsequent election of 28the April, 2007 which was only possible by the cancellation of election of 14th April, 2007 would be a nullity and amount to an undue election.

Learned Senior Counsel referred to the decision of the tribunal on the cancellation of the election and the enabling Acts of the 2nd and 3rd Respondents and submitted that the powers of the 2nd and 3rd Respondents in the conduct of the elections of 14th April, 2007 and 28th April, 2007 can only be determined with reference to the 1999 constitution of the Federal Republic of Nigeria and Electoral Act, 2006. Therefore the cases cited and relied upon by the tribunal, which were decided on previous Electoral Laws, are not applicable, he concluded. He cited Obasanjo V. Yusuf (2004) 9 N.W.L.R. (Pt 877) 1444 at 210. He submitted further that the power of the 2nd Respondent under the Electoral Law, in particular, paragraph 15 of part 1 of the 3rd schedule do not include the power to cancel election. Therefore the 2nd and 3rd Respondents could not validly and wholly cancer the election of 14th April, 2007 for the office of Imo State Governor.

Learned Senior Counsel contended that cancellation of an Election amounts to nullification of the election. He cited: Onoh Vs. Okey (1999) 5 N.W.L.R. (pt 602) 240 at 246 and submitted that cancellation or nullification of an election is a judicial exercise which by Section 285 0f the constitution is exclusively vested in erection tribunals. He concluded that the 2nd Respondent lacks both the constitutional and statutory powers to cancer the Imo state Governorship election held on 14th April, 2007. The Appellant urged the court to resolve the third issue in his favour and hold that the 2nd Respondent has no powers to cancel election conducted under Electoral Act, 2006.

Learned Senior Counsel finally submitted that once the Court resolves the third issue in favour of the Appellant it has the power under Section 15 of the Court of Appeal Act to make the following consequential orders:-

(i) That the election of 28th April, 2007 which was a product of the cancellation of the election of

14/4/07 was an undue election.

(ii) an order directing the 2nd & 3rd Respondents to announce the results of the election of 14th April,2007 which had been collated from all but three of the Local Government Areas in Imo State.

He finally urged the Court to allow the appeal.

As I stated earlier, upon being served with the Appellant’s brief of argument, the 1st Respondent filed his brief of argument dated 6th December, 2007 on 10th December, 2007. Brief Bon Nwakamma, Senior Counsel to 1st Respondent adopted and relied on the said brief. He specifically referred to cases No.9 and 20 on the list of authorities filed by the 1st Respondent and submitted that the cases are in at fours with the instant case. He finally urged the court to dismiss the appeal.

In the 1st Respondent’s brief of argument, reference was made to the 9 grounds of appeal in the notice of appeal filed by the Appellant on 16/9/07, and it was contended that no mention was made of ground g as forming part of the issues for determination formulated by the Appellant in his brief of argument. It was therefore submitted that the said ground is deemed to have been abandoned. He cited: Atunrase v. Philip (1996) 1 N.W.L.R. (Pt. 427) 637 at 648 – 649, Atungwu v. Ochekwu (2004) 17 N.W.L.R (Pt 901)18 at 27.

However, the 1st Respondent formulated the following issues from the eight (8) remaining grounds of appeal for determination of this appeal.

“(i) whether the lower tribunal was right in holding that the petition was incompetent having regard to the provisions of the Electoral Act, 2006. (Grounds 1,3,4,5,7 and 8).

(ii) Whether the lower tribunal denied the Appellant a fair hearing. (Ground 2).

(iii) Whether the lower tribunal rightly held that the 2nd Respondent had the power to cancel an election (Grounds 6)”

The 1st Respondent in the brief of argument took the issues for determination seriatim. On issue No.1, “whether the lower tribunal was right in holding that the petition was right in holding that the petition was incompetent having regard to the provisions of the Electoral Act, 2006,” he referred to the reliefs the Appellant had sought in his petition before the Election petition Tribunal. He submitted that it is the law that the relief sought by the claimant determines the jurisdiction, of the Court. He cited C.G.G. (NIG) LTD. V. OGU (2005) 8 N.W.L.R. (pt 927) 381-382, Adeyemi V. Opeyori (1976) 9 & 10 S.C. 31 at 51 – 52.

Learned Senior Counsel to the 1st Respondent contended that notwithstanding the title of the petition which is referable to the election held on 28th April, 2007, it is clear that reliefs (i), (i), (iii), (iv) and (vi) or the petition rerate to the erection of 14/4/07. Reference was made to reliefs (iii) and (vi) of the petition where the petitioner had sought a return as the elected Governor of Imo State based on 14/4/07 election. Learned Senior Council contended that the relief suggested that an election had been herd and a return of a wrong person made. It was, therefore the duty of the lower tribunal having regard to the objections of the Respondents, to ascertain whether there were cognizable facts and grounds in support of the said reliefs. ‘

The inquiry of the tribunal however revealed that almost all the paragraphs of the petition (that is, accepting paragraphs 7 and 25) were related to the election of 14/4/07. The Respondents had earlier contended before the Election tribunal that the scores of the candidates and/or the result of the election of 14/4/07 were nor pleaded, having regard to paragraph 4 of the 1st Schedule to the Electoral Act, 2006. He submitted that compliance with the above provisions is mandatory, and cited: Khalil V. Yar’adua (2003) 16 N.W.L.R. (Pt 847) 446 at 486-487, Ezeobi Vs. Nzeka (1989) 1 N.W.L.R. (pt 98) 478 at 487, 489-490. He submitted that it is the authentic scores of the candidates at the election, as pleaded that would enable a tribunal at the trial, to determine whether the petitioner could be returned as elected.

The 1st Respondent referred to Section 28(2)(9) of the Electoral Act, 2006 which empowers the Resident Electoral commissioner of the state as the Returning officer to announce the result of an erection and declares the winner of the election, which declaration should be based on the scores of the candidates as announced by him. He contended that from the Appellant’s petition, it is clear that the scores of the governorship election were not collated or announced and that no person was returned as the winner of the election. He therefore urged this Court to hold that the mandatory requirement of pleading the result and the winner of the election of 14/4/07 as declared by the returning officer was not met by the Appellant and the lower tribunal was right to hold that the omission was fatal and the pleadings and reliefs relating to the said election were Incompetent. He cited: Ojong V. Duke (2003) 14 N.W.L.R. (Pt 841) 581 at 617 & 618, Ukpe Vs. Ndon (1991) 6 N.W.L.R. (Pt 606) 292 at 302.

Learned Senior Counsel submitted that it is axiomatic that a petitioner who seeks a return in the manner sought in the instant case, especially reliefs (iii) and (vi) must plead the result of the election upon which the return shall be based. Therefore, failure to do so renders the relief and the facts or grounds purporting to support same ineffectual and liable to be struck out. He cited: Eriobuna V. Obiora (1999) 8 N.W.L.R. (Pt 616) 622 at 638.

He further submitted that the 1st Issue should be resolved in the affirmative and urged the court to hold that the lower tribunal was right in holding that the petition was incompetent having regard to the provisions of the Electoral Act, 2006.

The second Issue, whether the lower tribunal denied the Appellant a fair hearing is hinged on ground 2 of the grounds of appeal contained in the Notice of Appeal filed by the Appellant.

The 1s Respondent referred copiously to the contentions of the Appellant and the Respondents response to his case as stated in the petition and written addresses respectively. He contended that the tribunal was never requested in the notice of preliminary objection to examine the 2nd Respondent’s power to cancel an election. Indeed, in his reply to the petitioner’s objection to the preliminary objection the 1st Respondent has stated that his objection has nothing to do with whether or not INEC has the powers to cancel an election. In the same vein, the 2nd and 3rd Respondents also in their written reply on points of law in supporting their preliminary objection stated that no aspect of the objection dealt with the issue whether INEC has authority to cancel the election of 14/4/07. The tribunal was never invited to consider the Issue as it never arose from the preliminary objection. It was submitted that it was the Appellant himself that brought up the issue of whether or not 2nd Respondent could cancel the election of 14/4/07.

The 1st respondent submitted ‘that the decision of the lower tribunal that the petition was incompetent was not based on the issue of power of the 2nd Respondent to cancel the election.

On the contention of the Appellant that the tribunal adjudged on the merits of his petition at the interlocutory stage in this context, the 1st Respondent stated there was a misconception. He submitted that the aim of raising objection on point of law is to strike down a petition or a portion of a petition. He finally urged the Court to resolve the 2nd Issue in favour of the 1n Respondent that the Appellant had fair hearing at the tribunal.

The third Issue is “whether the rower tribunal rightly held that the 2nd Respondent had the power to cancel an election.” This the 1st Respondent formulated from ground 6 of the grounds of appeal. He referred to the portion of the decision of the tribunal which is about the cancellation of the election of 14/4/07 and contended that the tribunal did not base its decision on the obiter dictum. He further contended that the contention of the Appellant on the consequential orders sought is based on wrong assumption. Firstly, it is based on the false premise that his petition was valid. Until and unless the hurdle of invalidity of the petition is scared, there would be no basis for the invocation of the general powers of the court of Appeal.

Secondly, as rightly observed by the tribunal, there was no jurisdiction in the tribunal to determine the propriety of the cancellation of 14/4/07 election. That being so, he concluded, the condition precedent for the exercise of the general powers of this Court neither does nor exist.

The 1st Respondent referred to the 3rd & 6th reliefs in the petition and contended that the reliefs suggest that the election of 14/4/07 had been fully conducted and a result declared but the request of the Appellant in his brief of argument indicates that collation of results had been concluded. He cited, INEC v. Ray (2004) 14 N.W.L.R. (pt 892) 92 at 123 on what the word “election” denotes.

On the power of the 2nd Respondent to cancer an election learned senior counsel referred to the comment made by the lower tribunal based on decided cases to the effect that the Respondent could cancel elections which have started but before conclusions and are substantially flawed by an intervening cause; but it has no power to cancel elections after the result has been announced. He submitted that the ratter comment remains unassailable. He referred to section 15(a) of part 1 of the 3rd schedule to the constitution which sets down the power of the 2nd Respondent in this regard. He submitted that the lower tribunal was right when it commented that the 2nd Respondent has the power to cancel an election which has started but not concluded owing to a substantial flaw by an intervening cause. He urged the court to reject the contention of the Appellant and resolve the third issue for determination in the affirmative; that is, that the lower tribunal rightly held that the 2nd Respondent had the power to cancel an election which has commenced but not concluded because of a substantial flaw caused by an intervening factor.

He finally urged the court to dismiss the appeal.

From the brief of argument filed by the 2nd & 3rd respondents, the following Two Issues were formulated from the grounds of appeal filed by the appellant as having arisen for determination of the appeal.

(i) Whether the petition was competent.

(ii) Whether the Appellant was given hearing a fair by the Election Tribunal.

The Learned Senior Counsel to the 2nd & 3rd Respondents, Dr. Livy Uzoukwu, SAN in the brief of argument took the issues seriatim. Issue No.1 is said to relate to grounds 1, 3, 4, 5, 7 and 8 of the Notice of Appeal.

He referred to the preliminary Objection jointly filed by the 2nd & 3rd Respondents wherein they contended as follows:-

(a) That there was no return of any person or any declaration of result at the inconclusive Governorship election of 14th April, 2007 wherein the Appellant claimed the right to be returned.

(b) That the petition is not complaining of any undue election or undue return at the election of 14th April, 2007.

(c) That the petition did not disclose any cause of action.

He referred to the petition that has 26 paragraph, out of which he contended only paragraphs 7 and 25 relate to the election of 28th April, 2007. He referred to the reliefs claimed in the petition by the Appellant and contended that only relief (v) rerate to the election of 28th April, 2007 and it is a consequential order. Whereas reliefs (i), (ii), (iii), (iv), & (vi) are predicated directly on the election of 14th April, 2007.

Learned Senior Counsel further contended that no where in his Petition did the Appellant allege that any person was erected as the Governor of Imo State on 14/4/2007 and of whose election he was challenging the validity and asking the person’s stead. He referred to Section 285(1) of the 1999 Constitution, Sections 140(1) and 141 of the Electoral Act and submitted that to have a valid petition and for the Election Tribunal to exercise its jurisdiction, the following conditions must exist.

(a) There must be an election or a return wherein Petitioner is complaining that the election was “undue” or that the return was “undue”

(b) The result of the election must have been declared.

(c) There must be a person elected or returned.

Learned senior Counsel referred to paragraph 6 of the petition wherein he contended the Appellant conceded as follows:-

(a) There was no collation of results;

(b) There was no announcement of results;

(c) The election was indeed cancelled; and

(d) The cancellation was announced on 15/4/2007.

From the above, the Respondents concluded that the election of 14/4/07 was inconclusive and no result was declared electing or returning any person at the election. He cited, Aondoakaa V. Ajo (1999) 5 NWLR (Pt 602) 206 at 225 Paragraph a-b; Igodo V. Owulo (1999) 5 NWLR (pt 601) 70; Ezeaobi V. Nzeka (1989) 1 NWLR (pt 98) 478 at 486.

Learned senior Counsel submitted, that an erection must first be completed, return known and result announced before a petition may be filed to question the election.

He referred to paragraph 4(1)(c) of the 1st schedule to the Electoral Act, 2006 under which a petition, inter alia, is required to state the person returned as the winner of the election and submitted that there was no person returned for the election of 14/4/07 and the Appellant stated none in his petition. He submitted further that the petition is in utter breach of the 1999 constitution; Electoral Act, 2006 and in particular, paragraph 4(1) (c) of the 1st Schedule to the Electoral Act, 2006.

Learned Senior Counsel submitted that having in the election of 28/4/07, the Appellant is stopped from contending that it is invalid on the ground that the inconclusive election of 14/4/07 is the one that is valid. He cited; Sowemimo v. Awoboji (1999) 7 NWLR (PT 610) 335 at 354. He then urged the court to resolve Issue No. 1 in favour of the Respondent but against the Appellant.

Issue two, “whether the Appellant was given a fair hearing by the Election Tribunal” is said to relate to grounds 2 and 6 of the Grounds of Appeal. Learned Senior counsel contended that the Petition was incompetent and urged the court to so hold. Therefore having so held by the court, the Issue of fair hearing becomes mere academic and irrelevant.

The Respondents contended that the appellant’s complaint of lack of fair hearing is predicated on the allegation that the Tribunal decided the Issue of the power of the INEC to cancel an election which is a substantive Issue in an interlocutory application. The Respondents gave the premise upon which the Tribunal based its decision on the incompetence of the petition and contended that the tribunal’s decision was not based on the Issue of whether or not INEC has the power to cancel the election of 14/4/07. They however referred to paragraph 15 of the Third Schedule, part 1 to the 1999 Constitution which confer on INEC the power to “organize, undertake and supervise a, elections” and submitted that the power to cancer an erection is incidental, ancillary, collateral or auxiliary to the power to organize, undertake and supervise an erection. They cited; in support, N.B.C.I. Vs. Kumbo Furniture Co. Ng. (2004) 17 NWLR (pt 903) 572 at 592, Akapo v. Habeeb (1992) 6 NWLR (pt 217) 266 at 297 and Adewunmi Vs. Plastex (Nig) Ltd. (1986) 3 NWLR (pt37) 767.

The Respondents urged the Court to hold that the 2nd Respondent has the power to cancer an erection and to further hold that the Appellant was not denied fair hearing by the Tribunal.

The Respondents referred to paragraph 10(f) of the Appellant’s petition to the effect that the results of the election of 14/4/07 was admitted to be incomplete. They urged the court to resolve their 2nd Issue in the negative and against the appellant. They finally urged the Court to dismiss the appeal.

Sometime on 23/01/08, the appellant’s Reply brief of argument was deemed by this court as having been properly filed and served on each of the two groups of Respondents, sequel to the application so brought on 17/07/08. The points taken in the said replies will be dealt with at the appropriate time in this judgment, if necessary.

Before I proceed to consider the Issues for this determination in appeal, I consider it pertinent to state the following facts clearly shown on the record of proceedings and the respective brief of argument of the parties in this case as not being in dispute. They are:

i. There were two elections, in particular, to the Imo State Governorship Office. The one of 14/4/07 and the other of 28/4/07 respectively.

ii. The election of 14/4/07 was not conclusive having been cancelled by the 2nd, & 3rd Respondents but that of 28/4/07 was conclusive and concluded.

iii. The 1st Respondent was returned by 3rd Respondents as the winner of the 28/4/07.

iv. On 14/5/07 the Appellant filed the petition against the return of the 1st Respondent as the winner of the Imo State Governorship office.

v. The 1st, 2nd and 3rd Respondents filed their respective reply to the appellant’s petition and in their replies raised preliminary objections to the competence of the petition and the election tribunal.

vi. Written addresses were duly filed by learned counsel to each of the two groups of Respondents and the appellant’s learned counsel replied.

vii. The lower tribunal in its considered ruling on the preliminary objection allowed the objection, and finally dismissed the appellant’s petition, which decision has led to this appeal.

Now to the appeal. As shown earlier, each of the parties to this appeal formulated Issues they considered are meant for the determination of this appeal arising from the grounds of appeal filed by the Appellant.

As required by the Rules of this Court, the Appellant formulates three (3) Issues for determination of this appeal, as shown earlier and the Issues were said to have been formulated from the nine grounds of appeal. However, no Issue was formulated from ground nine of the grounds of Appeal. It is trite that any ground of appeal from which no Issue is formulated by the appellant is deemed to have been abandoned and shall no longer be relevant in the determination of the appeal in question. It is liable to be struck out. See, Tukur v. Government of Taraba State (1997) 6 NWLR (Pt 510) 549, Newswatch Communication Ltd. V. Atta (2000) 2 NWLR (Pt 646) 592, Bendel Feed & Floor Mill Ltd v. Nigeria Intercontinental Merchant Bank Ltd. (2000) 5 NWLR (Pt 655) 29, Emespo J. Continental Ltd. Vs. Corona Shifah-Rtsquesettschatt & Ors. (2006) 8 SCM 149 at 161, (2008) 3 NWLR (pt 1075) 610 at 624.

In the circumstance, as no issue was formulated from ground 9 of the grounds of appeal, it is deemed to nave been abandoned and liable to be struck out. Accordingly, it is hereby struck out.

Although each of the parties to this appeal formulated in their respective brief of argument, Issues for determination of this appeal, they seem to be saying the same thing in different ways as couched. Therefore, I propose to rely on the Issues formulated by the Appellant to determine this appeal.

Issue No.1 is whether the Appellant’s petition before the Election Tribunal was competent having due regard to the provisions of section 285(2) of the constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006.

As expected, the appellant’s petition before the Governorship and Legislative Houses Election on 14/5/07 was filed pursuant to the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006.

Generally, the source of the authority of the Election Tribunal which is its enabling law, in the instant case, is

Section 285 (2) of the 1999 Constitution. It reads;

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

The manner by which an election and a return at an election shall be questioned is provided by the Electoral Act, 2006. Section 140(1) states thus:

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

The question now is; was the Appellant’s petition filed on 14/5/07 in accordance with the provisions of the Constitution and Electoral Act, 2006?

In law, an election may be questioned on any of the following grounds, that is to say;

“(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

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

(c) That the respondent was not duly elected by majority lawful votes cast at the election; or

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

See; Section 145 of the Electoral Act, 2006.

From the petitioner/Appellant’s petition filed before the lower tribunal, the election being relied upon was the election of that 14/4/2007. Salient paragraphs of the said petition inter alia, read thus:-

“1. Your Petitioner, Martin Agbaso, was a candidate at the Governorship election and claims to have right to be returned at the said election as the Election Governor of Imo State.

…………

…………

4. Your Petitioner states that the said election was held on 14th day of April, 2007 for the election of the Governor of Imo State during which election your Petitioner, Martin Agbaso and the 1st respondent, Ikedi Ohakim, were candidates for All Progressive Grand Alliance and Progressive People Alliance respectively. Some other Political Parties fielded candidates as follows:-

…………..

…………..

…………..

5. At the end of the election, (of 14/4/07) the results from the various Polling Stations in Imo State were collated and recorded in the relevant Forms EC8A (i). The said in result were thereafter carefully and correctly collated by the Ward returning officers in the various Wards in Imo State in Forms EC8B meant for the said election of 14/4/07. The results so collated were further collated at the various Local Government Collation centers in all the 27 Local Government Area in Imo State by the various Local Government Collation Officer and same entered in the respective Forms EC8C meant for the election. The results stages of collation and were submitted by the various officers to the 3rd respondent.
6. These results, on careful, correct and rightful computation showed that the petitioner won the election by a majority of Lawful votes cast at the said election of 14/4/07. But the 3rd respondent in-stead of performing his lawful duties of collating and announcing the results submitted to it decided to cancel the election and indeed cancelled the election on the flimsy excuse that the election was marred by violence in 9 out of 27 Local Government area of Imo State. On that note the 3rd respondent purportedly rescheduled the election for the 28th day of April, 1007. The said cancellation was announced on 15/4/07.

…………….

……………

27. From the results shown at paragraph 10 (e) here above; Your Petitioner not only polled the majority of the lawful votes cast at the said election of 14/4/07 but also scored 1/4 of the votes cast in more than 2/3 of the Local Government Area in Imo State.
28. Having not legally and lawfully cancelled the election of 14/4/07, your petitioner shall contend at the trial of this petition that the fixing of and holding of the purported election of 28th April, 2007 are illegal, invalid, null and void.
29. Your petitioner shall at the hearing of this petition contend that no election was held for the election of any person into office of Governor of Imo State on 28/4/07 because as at the time of said election the Petitioner had already been elected to the office of Governor of Imo State on 14/4/07.
30. your petitioner shall also contend at the hearing of this petition that from the result shown here above your petitioner not only polled the highest number of votes cast at the said election of 14/4/07 but also scored 1/4 of the votes cast in more than 2/3 of the Local Government Area in Imo State and should have been declared the winner of the election by the 3rd respondent.

(Underlining’s’ and brackets are mine).

As I stated earlier, it is clear from the above that the election being relied on by the petitioner/Appellant before the tribunal was the election of 14/4/2007. In the said election he had claimed to have won and ought to have been declared winner. It is trite law that parties are bound by the case they put forward to the Court. In an appeal therefore parties are normally confined to the case earlier pleaded and canvassed in the court of first instance. See; Horizon Fibres (Nig) plc. Vs. MV. Baco Liner (2002) 8 N.WL.R. (pt 769) 466; Jumbo Vs. Bryanko Int Ltd (1995) 6 N.W.L.R. (pt 403) 545,First Bank of Nigeria Plc. v. Akparabong comm. Bank Ltd. & 1 Or. (2006) 1 N.W.L.R. (pt 962) 438 at 475.

As shown above in the appellant’s petition before the lower tribunal, the complaint was on the cancellation of the election of 14/4/07 and the entire declaratory orders of the tribunal sought were directed at the cancellation of election of 14/4/07. It is also clear from the petition that the appellant categorically stated that there was no erection and that there could not have been any election on 28/4/07, according to him in the petition, because he had won the election of 14/4/07 and ought to have been so declared the winner. But as can be clearly seen in the petition, the following facts are admitted by the Appellant and therefore no longer need to be resolved again. That is, that the election of 14/4/07 upon which the petition was based was not conclusive and was not concluded. The result and scores of the contestants were not announced as they should be announced if the election had not been cancelled. That no one was announced as the winner of the said inconclusive election of 14/4/07.

There is no doubt that the Constitution, by Section 285(2) of 1999 is very clear as to the jurisdiction of an erection tribunal. It is with the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly erected to the office of Governor or Deputy, Governor etc. A careful look at the reliefs sought by the Appellant at the lower tribunal in reliefs”(i), (ii), (iii), (iv) are declaratory as they concern the election of 14/4/07 and its cancellation. And there is no doubt that the 1st Respondent was not elected and declared winner of the election of 14/4/07 as no one was so declared. He was declared winner of election of 28/4/07 which was not challenged, as the Appellant categorically stated that there was indeed no election on 28/4/07. He therefore could not have challenged the election. Generally, a plaintiff or petitioner’s case must come within the competence of a court or tribunal to enable the court or tribunals have Jurisdiction to entertain the claims. To know whether a court or tribunal has jurisdiction to entertain a matter, it is the plaintiff petitioner’s claim or petition that must be considered. The defendant or Respondent does not come in at all at this stage. Where it is clear that the subject matter or claim in the case is not within the jurisdiction of the court of tribunal, it will not have competence to entertain the matter. See; peter Obi V. INEC & 6 Or. (2007) 31 NSCQR 734 at 777, Balogun v. Ode (2002) 2 SCNJ 118, Abudulhamid v. Akar V. Anor. (2006) 8-9 SCM 1. It has been held that a court is competent when;

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

(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case comes before the court Initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided, because the defect is extrinsic to the adjudication. See; Madukotu Vs. Nkemdilim (1962) 2 SCNLR 341, Mark & Anor v. Eke (1997) 11 NWLR (pt 52) 501, (2004) 1 SCM 141 at 165.

As I stated earlier, the claims or reliefs sought by the Appellant in his petition before the lower tribunal were declaratory in nature, which are discretionary. It is a form of relief or claim which should be granted only when the Court is satisfied that the party seeking it is’ when at facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour. See; peter Obi v. INEC & 6 Ors. (Supra) at p.778.

There is no doubt that an Election tribunal is unlike regular courts’ Indeed an Erection tribunal has been held not to be and a, purposes court that can entertain all sorts of claims or reliefs. It is created purely for election matters alone. See; peter Obi Vs. INEC & Ors. (Supra) at p. 782.

I am not in the slightest doubt therefore that declaratory reliefs on cancellation of an election is not to a subject related to whether or nor any person has been validly elected to the office of Governor or Deputy Governor in yet another erection. See; section 285(2) of 1999 Constitution (Supra).

It is noted that the learned Counsel to appellant vigorously argued that the election being challenged by appellant in his petition was election of 28/4/07. Indeed he referred to the caption of the petition as follows:-

“The election into the office of the Governor Imo State held on 28th April, 2007.”

However, learned appellant’s counsel has forgotten that no amount of diligence and erudition of counsel can change the plaintiff’s claim before the trial court when the case eventually proceeds to appellate Court. A party cannot canvass a case on appeal different from what he had put before the trial Court and which was decided on. Parties are bound by their claim and grounds of Appeal based on the decision of the Trial court in the matter. See; Owners of M/V Gongola Hope & Anor. V. Smurfit cases Nig. Ltd & Anor. (2007) 30 NSCQR 534. The general rule is that an appellant will not be allowed or permitted to raise on question which was not raised or tried or considered by court. Although where the question involves a substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decisions, the court of Appeal will allow the question to be raised and the point taken to prevent an obvious miscarriage of justice. See, Akpene V. Barclays Bank of Nig. Ltd. (1977) L SC 47.

However, where an appellant seeks to raise a case different from that agitated in the lower Court, leave so to do will be refused. The reason being that to allow such a case would amount to allowing a litigant to commence a new case before the Appear court as if it were a trial Court. See; Ejiofodomi Vs. Okonkwo (1982) 11S.C. 74 Attorney General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 N.W.L.R. (pt 92) 1, Engineer G. Agbi & 1 Ors. Vs. Chief A. Ogbe & Ors. (2004) 3 SCM 1 at 49-50.

As earlier shown, the Appellant had at the tribunal canvassed in his petition that there was no erection and there

could nor have been any other election on 28/4/07 as he had been erected having polled the highest votes and should have been declared winner of the election of 14/4/07.

The issue of “undue election” and “undue return” which were canvassed in the argument of Counsel in the brief filed for the appellant were not made issues in the petition and the reliefs sought. The cases cited are therefore not relevant to the instant case.

In the circumstance and without any further ado I hold that Issue No.1 is to be resolved and is hereby resolved against the appellant in that the Appellant’s petition before the tribunal was incompetent having due regard to the provisions of Section 285(2) of the 1999 Constitution of Nigeria and the Electoral Act, 2006.

Issue No.2 is whether it was proper for the Election tribunal to determine the substantive issue in the Appellant’s petition on a preliminary objection.

It is pertinent to state clearly here and now that what the appellant considered as the substantive issue in the Appellant’s petition but which was dealt with on a preliminary objection by the tribunal has to do with the competence of the petition and whether the tribunal itself had jurisdiction to entertain the petition having regard to the necessary enabling provisions of the 1999 Constitution and the Electoral Act, 2006. The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. Therefore it can be raised at any stage of the High court or lower tribunal of first instance or in the Appeal Courts, even in the Supreme Court and by any of the parties or by the Court itself Suo Motu. Oloriode V. Oyebi (1984) 5 SC 260 at 282, (1984) 1 SCNLR 390, Bronik Motors v. Wema Bank (1983) 1 SCNLR 296, (1983) 6 SC 158, Senate President v. Nzeribe (2004) 41 WRN 39 at 60.

It has been held that it is the duty of the Judge or Justices, as the case may be, where there are sufficient facts- ex facie on records establishing a want of competence or jurisdiction in the court or tribunal to raise the issue suo motu if the parties fair to draw the court’s attention to it. And where the point is raised by preliminary objection, the issue must be dealt with once and for all first and before taking any further- step in the case. See; Odiase V. Agbo (1972) 1 All NLR 9 pt. 1) 170, Senate president Vs. Nzeribe (Supra) at 57. The issue of competence or jurisdiction of Court goes to the root of an action to sustain or nullify same. See; Cotecna International Ltd v. Ivory Merchant Bank Ltd. & ors. (2006) 5 SCM 17.

It is trite law that where the cause of action or subject matter of an action does not fall within the matters statutorily assigned to a Court or tribunal, proceedings embarked upon and concluded with the decision given without jurisdiction are nullity ab initio. See; Ekulo Farms Ltd & Amor. V. Union Bank of Nigeria Plc. (2006) 6 SCM 78 at 91-92

To say that it was improper for the tribunal to have dealt with the objection the way it did, will amount to a misconception of the duty of Courts. In West Ministers Bank Ltd Vs. Edwards (1942) AC 529 at 536 Lord Wright stated as follows:-

“Now it is clear that a Court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so of its own initiative even though the parties have consented to the irregularity.”

Learned Counsel to the Appellant had submitted and I believe rightly too that a court in hearing an interlocutory application should not decide the substantive issues in the matter before the Court. That is the law. But as earlier shown in this judgment, the issue touching on jurisdiction of court affects the competence of the court to entertain the matter and therefore it is more than ordinary interlocutory issue such as objection to admissibility of a document or improper joinder of a party. it has been held that sometime question of jurisdiction is latent and once raised by any of the parties it must be addressed first by the Court because if a Court should embark on a trial without jurisdiction its exercise will be a nullity. See; Onyema Vs. Oputa (1987) 3 NWLR (pt. 60 259, State Vs. Onagoruwa (1992) 2 SCNJ 1 at 8-9.

Still on this Issue No.2, learned Counsel to the appellant had rightly contended that the appellant’s petition before the tribunal was predicated on the unlawfulness of the cancellation of the Imo State Governorship election conducted on 14th April, 2007. But he however erroneously further contended that the Issue before the tribunal was whether the election of 28th April, 2007 was undue because of the unlawful cancellation of the election of 14th April, 2007.

It is clear from the enabling laws that established the Election tribunal that, issue of unlawfulness or otherwise of cancellation of election before it is concluded and a winner declared is not within the competence of the tribunal. Jurisdiction to entertain such issue lies in yet another body but not Election tribunal.

In the circumstance, the 2nd Issue is also resolved against the Appellant as the tribunal was right in dealing with the preliminary objection which touched on its competence and went to the root of the case.

The third Issue is whether the 2nd and 3rd Respondents have Constitutional or Statutory power to cancel an election conducted under the Electoral Act, 2006. This is said to be based on ground 6 of the Grounds of Appeal. This ground as earlier stated is that “the tribunal erred in law by the application of wrong criteria to adjudge that the 2nd Respondent has the power to cancel an election.”

Learned appellant’s counsel had contended that the main issue arising from the Appellant’s petition before the tribunal was whether the 2nd & 3rd Respondents had the power to cancel the election of 14/4/07. He submitted that the power of the 2nd Respondent under the Electoral Law, in particular, paragraph 15 of part 1 of the 3rd Schedule do not include the power to cancer election. The appellant in his brief quoted what the lower tribunal said on the issue of cancellation of election of 14/4/07. In my view, the tribunal appeared to have been quoted out of context by the Appellant in his brief.

After holding in its ruling that for an election petition to be competent for the tribunal to have jurisdiction to entertain it, the petition must be against the outcome of the election and that a winner must have been declared and returned, but the situation is not the same in the appellant’s petition on election of 14/4/07. The tribunal therefore went ahead to merely comment on the issue of cancellation of the election. The comment goes thus:-

“Although, both objectors submitted that they were not questioning the authority of INEC to cancel the election held on 14/4/07, however, that question arises from the case of the Petitioner. We may therefore take liberty to comment on it. Ordinarily, a court of record should be able, under its general inherent powers to look into the issue whether or not the election of 14/4/07 was cancelled in accordance with the law. However, that jurisdiction cannot be extended to this tribunal which has its jurisdiction clearly circumscribed by relevant legislations, including the Constitution which has limited the jurisdiction of this tribunal to listening to persons questioning the result and returns of elections only. Cancellation of elections is a post election issue and rescheduling a fresh election is a pre-election issue as it relates to the rescheduled election over which this tribunal has no jurisdiction.

Upon the state of legal authorities, it looks settled that INEC has power to cancel elections which have started but before conclusion and are substantially flawed by an intervening cause. See; Sowemimo V. Awobajo (1999) NWLR (Pt. 610); Aonodoaka Vs. Ajo (1999) NWLR (Pt. 602).

It is also clear INEC has no power to cancel elections after the result has been announced. See; Balnonwu V. Ikpeazu (2005) NWLR (Pt.942) Abana vs. obi (2004) NWLR (pt.881). The shore we have finally arrived at it (sic) that all the pleadings contained in the petition relating to the election of 14/4/07 which produced no result and no return are incompetent and are accordingly struck out. Reliefs I, II, III, IV & VI thereon which relate to the said election are hereby dismissed.”

I have quoted so extensively from the ruling of the tribunal on the preliminary objection to the competence of the Appellant’s petition to show that the Tribunal did not base its decision to decline jurisdiction on whether or not the 2nd Respondent has jurisdiction to cancel an election under the Electoral Act, 2006. In other words, the above comment of the tribunal on the cancellation of an election by INEC remains only comment and an abiter dictum. It is therefore in my view not proper and not appropriate for the Appellant to challenge the mere comments of the tribunal which was not the basis used to arrive at its decision.

It is indeed rather elementary law and it has been so held by the Supreme Court that a ground of appeal must arise from or relate to the judgment of the Court. It must directly emanate from the judgment of the court where judgment is being appealed against.

The complaint must be against the ratio decidendi of the case but not the arbiter dictum. See; Co operative & Commerce Bank Plc. & Ior. Vs. Jonah Dan Okoro Ekperi (2007) 29 NSCQR 175 at 195, thief Peter Amadi Nwankwo & Anor. Vs. Ecumenical Development Cooperative Society (EDCS) U.A. (2007) 29 NSCQR 73 at 88.

As earlier shown, Ground No.6 is complaining that the lower tribunal held that the 2nd Respondent had Constitutional power to cancel election. Hence, the 3rd Issue was couched. Having shown above from the judgment of the lower tribunal that the decision of the tribunal was not based on whether or not the 2nd Respondent rightly or wrongly cancelled the election of 14/4/07, the comments or remarks of the tribunal on the lawfulness or otherwise of the 2nd Respondent’s cancellation of the election becomes mere obiter dictum but not ratio decidendi. Therefore the ground of appeal No 6 becomes incompetent. The reason being that the ground does not flow from the ratio decidendi of the judgment being appealed against. It follows therefore that Issue No.3 of the Issues for determination of the appeal not flowing from the judgment appealed against is also incompetent and is liable to be struck out. It is trite that issues for determination formulated in any appeal must be related to or arise not only from the grounds of appeal but also must be traced to the judgment or decision being appealed against. See; Western Steel Works Vs. Iron & Steel Workers Union (1989) 1 NWLR (Pt.49) 248 at 304, Onyesoh Vs. Nnebedum (1992) 3 NWLR (Pt.229) 315, Alhaji Lasisi Asatu & Ors. Vs. Fatai- Sule Dakan & Ors. (2006) 8 SCM 86 at 92.

In the circumstance, Issue No.3 being incompetent is irrelevant to the determination of this appeal, accordingly, it is struck cut. I am in agreement however with the learned Counsel to the 1st Respondent and this is clear from the records that the tribunal based its decision on the ground of incompetency o” the petition in view of the way the reliefs and facts are couched. The tribunal was therefore ordinarily robbed of the competence to adjudicate on the petition and so it held. The preliminary objection was accordingly upheld. Issue No.3 is hereby resolved against the appellant in that the issue whether or not the 2nd & 3rd Respondents have Constitutional and Statutory power to cancel an election conducted under the Electoral Act, 2006 did not arise as it were, from the basis of the decision of the tribunal.

In the circumstance having resolved all the three Issues formulated for determination of the appeal against the Appellant, it is clear that the appeal lacks merit, and is hereby dismissed.

Accordingly, the decision of the election petition Tribunal PETITION NO.EPT/G/IM/01/2007 on Governorship & Legislative Houses sitting in Imo State of Nigeria, delivered on 26/07/2007 by which the tribunal upheld the preliminary objections of the respondents to the competence of the petition and the Tribunal is hereby affirmed.

As costs follow events there shall be N30, 000 to each of the two groups of Respondents, that is the 1st Respondent and 2nd & 3rd Respondents respectively.

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Other Citations: (2008)LCN/2731(CA)