Njideka Ezeigwe V. Chief Benson Chuks Nwawulu & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

S. ONNOGHEN, J.S.C.

The appeal is against the judgment of the Court of Appeal, Holden at Enugu in appeal No. CA/E/406/2007 delivered on the 10th day of July 2008 in which the court reversed the decision of the Federal High Court, Holden at Enugu in suit No. FHC/EN/CS/79/2007 to the effect that the court had no jurisdiction to entertain the matter as constituted. The ruling of the trial court giving rise to the appeal before the lower court was rendered on the 2nd day of April, 2007; the facts for the case are largely undisputed.

On the 23rd day of March 2007 the 1st respondent, as plaintiff caused to be issued an originating summons against the 2nd defendant therein for the determination of the following questions:-

“1. Whether the Defendant’s statutory power to substitute a nominated candidate of a political party, under section 34 of the Electoral Act 2006, is qualified or absolute

2. Whether the Defendant has power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead
3. Whether the Defendant can substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons
4. Whether in view of section 36 of the Constitution of the Federal, Republic of Nigeria 1999 and other rules of law relating thereto, the Defendant can fairly and constitutionally determine the cogency and validity of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate
5. Whether the legislative innovation introduced for the first time by section 34 of the Electoral Act is not aimed at deepening and strengthening democracy in Nigeria in relation to substitution of a nominated candidate in an election

In view of the answers to Questions 1, 2, 3, 4 and 5 above:

6. Whether the act of the Defendant in substituting the plaintiff, as the duly nominated candidate of Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru 1 State Constituency of Anambra State in the manner it did is not ultra vires Defendants power, undemocratic, arbitrary, unlawful; illegal, unconstitutional, null and void”

The reliefs claimed by the plaintiff are as follows:-

“1. A DECLARATION that the Defendant’s statutory power to substitute a nominated candidate of a political party under section 34 of the Electoral Act 2006, is qualified AND not absolute.

2. A DECLARATION that the Defendant has NO power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.
3. A DECLARATION that the Defendant CANNOT substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
4. A DECLARATION that in view of section 36 of the 1999 Constitution the Defendant CANNOT fairly and constitutionally determine the cogency and verifiability of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate.
5. A DECLARATION that the legislative innovation introduced by section 34 of the Electoral Act is aimed at deepening and sustaining Nigeria’s democracy in relation to substitution of a nominated candidate in an election.
6. A DECLARATION that the substitution of the plaintiff by the Defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary, unlawful, illegal, unconstitutionally null and void.
7. AN ORDER setting aside the purported substitution, same being in excess of the statutory powers of the Defendant, in abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.
8. AN ORDER OF MANDATORY INJUNCTION directing the Defendant to restore the plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State.”

The above reliefs are said to be grounded on the following:-

“1. Section 34 of the Electoral Act 2006 only empowers the Defendant to substitute nominated candidates not later than 60 days to election and upon an application giving cogent and verifiable reasons to so do.

2. The purported substitution of the plaintiff by the Defendant is illegal having been effected less than 60 days to the election, when the plaintiff is not dead.
3. Article 13(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004 guarantees the right of the plaintiff to freely participate in the government of Nigeria by voting for representatives or presenting himself to be voted for.
4. Being a decision seriously affecting the Plaintiff’s right, the Defendant acted in violation of section 36 of the Constitution of the Federal Republic of Nigeria 1999 and the duty on the Defendant to act fairly when it failed to hear the plaintiff or require an input from the plaintiff on the cogency and verifiability of his substitution.
5. The substitution of the plaintiff is arbitrary, unfair, unreasonable, procedurally and substantially ultra vires the statutory powers vested in the 1st Defendant by the Electoral Act and based on improper motive.
6. The Defendant lacks the power to proceed contrary to the provisions of the Constitution and the Electoral Act 2006 and its compliance with the requirement of cogency and verifiability of substitution of a nominated candidate is subject to judicial scrutiny, being a statutory duty.”

The originating summons was supported by a 22 paragraphed affidavit as well as an 8 paragraphed Affidavit of Urgency. There was also a further affidavit filed on 5th day of April, 2007.

By an application filed on 11/4/07, the 2nd and 3rd respondents applied to be joined in the action which application was subsequently granted resulting in another further affidavit filed by the plaintiff on 18th day of April, 2007.

On the 24th day of April, 2007 counsel for the 2nd and 3rd defendants filed a motion on notice at the trial court praying the court for “AN ORDER striking out/ dismissing this suit on the ground that this Honourable court lacks the jurisdiction to grant the reliefs which the plaintiff is seeking.”

It is the ruling on the above motion that resulted in the appeal to the lower court and subsequently the further appeal to this Court.

There are three appeals as a result of the judgment of the lower court delivered on the 10th of July, 2008 reversing the ruling of the trial court. The three defendants/respondents before the lower court have each appealed to this Court which appeal was, by an order of this Court consolidated.

The issues for determination in the first appeal, No. S.C.l261/08 as identified by the learned Senior Counsel for the appellant therein, L.O. FAGBEMI ESQ, SAN in the appellants brief of argument deemed filed on 29/6/09 are as follows:-

“1. Whether the Court of Appeal was right to have decided the matter on originating summons

(GROUND II)

2. Whether the Court of Appeal was right to have held that the 1st Respondent was wrongly substituted

(GROUND 3, 5, 6 & 9)

3. Whether the Court of Appeal relied on in-admissible on or in-reliable affidavit and documentary evidence to give judgment in favour of in reliable (sic) affidavit and documentary evidence to give judgment in favour of the 1st Respondent

(GROUNDS 4, 7 & 8)

4. Whether the Court of Appeal was right to have invoked section 15 of the Court of Appeal Act to decide this matter.

(GROUND 2)

5. Whether the Court of Appeal was right to have given judgment in favour of the 1st Respondent in view of the obvious delay or tardiness of the plaintiff in bringing the action

(GROUND 10).”

In respect of appeal No. SC/261A/08 learned Senior Counsel for the appellant, DR. O IKPEAZU, SAN, in the appellant’s brief of argument filed on 8/9/09 submitted the following four issues for determination:

“1. Whether the learned Justices of the Court of Appeal were not in breach of principle of fair hearing when they relied on section 15 of the Court of Appeal Act, 2004 to make a determination on the merit of the Originating Summons when the Appellant was not heard on that point nor did the Respondents urge them so to do. Ground II,

2. Whether the learned Justices of the Court of Appeal were wrong when they decided the matter based on originating summons proceedings when the facts as presented by the parties were irreconcilably and materially in conflict. Ground IX.
3. Whether the learned Justices of the Court of Appeal were wrong when in holding that the matter was a pre-election matter proceeded to favourably consider the 1st Respondent’s case when the 1st Respondent failed to present his case within the appropriate period. Grounds III, IV, VIII.
4. Whether the learned Justices of the Court of Appeal were correct when they held that the evidence before the court justified the Respondents contention that he was duly nominated by the Appellant who did not provide cogent and verifiable reasons for the substitution.

Grounds 1, VI, VII and X.”

The issues identified for determination in the third and final appeal No. S.C/261B/08 in the appellant’s brief prepared by GORDY UCHE ESQ and deemed filed on 23/11/09 are also four. They are as follows:-

“3.01 Whether the court below right (sic) in its interpretation of section 34(1) of the Electoral Act 2006 when the court held that “the purported substitution by the political party made on 5/2/2007 is outside the 60 days to the date of the election which took place on 14/4/2007″ (Ground 1).

3.02 Whether the court below was right in ordering the Appellant to swear in the 1st Respondent as the winner of the said election when no such relief was claimed before the said court, and without allowing parties an opportunity to address the court on such relief (Ground 2)

3.03 Was the court below right in its application of the case of Amaechi vs INEC (2008)5 NWLR (1080) 227 even when the facts of the present case were distinguishable from those in Amaechi’s case. (Ground 3).

3.04 Was the court below right in entering judgment on the merits in favour of the }1st Respondent in the face of irreconcilable and hotly contested affidavit evidence and when his suit ought not to have been commenced by way of originating summons.

(Ground 4).”

When all the issues as formulated by learned counsel for the appellants are considered closely, one cannot escape the irresistible conclusion that they are the same though differently couched or worded. In fact, having regards to the facts of this case and the judgment of the lower court, there is really no need for the three separate appeals when a single one would have resolved the issues in controversy arising from the judgment of the lower court. However, since the right of appeal is a constitutional right, one is compelled to deal with the appeals as filed but parties and counsel ought to realize that nothing is gained by wasting the time of the court with multiple appeals on the same issue when a single one would have been sufficient. It has always been said that repetition does not improve an argument, which saying, I strongly recommend to counsel.

On the other hand, learned Counsel for the 1st respondent in the three appeals formulated three identical issues for the determination of the appeals. These are as follows:-

“(i) Was the Court of Appeal right to have decided this matter on the originating summons of the 1st Respondent and by invoking the court’s power as preserved under section 15 of the Court of Appeal Act, Cap C.36 Laws of the Federation of Nigeria , 2004.

(ii) Was the substitution of the 1st Respondent by the 2nd and 3rd Respondents based on cogent and verifiable reasons and if not, is the substitution not therefore null and void.

(iii) Were there available and admissible evidence upon which the Court of Appeal proceeded to enter judgment in favour of the 1st Respondent declaring him the duly nominated and elected candidate of the PDP for the 14th April, 2007 election into the Ogbaru I Constituency seat in the Anambra State House of Assembly.”

It should be noted that the 1st respondent filed and argued a preliminary objection in respect of almost each of the appeals. In respect of appeal No. S.C/261/08, the objection relates to appellant’s issues 1 and 5 which the 1st respondent contends to be issues that have been raised for

the first time on appeal and without the leave of the court first had and obtained.

The objection in relation to S.C/261A/08 relates to issue 2 which is also contended to be a fresh issue for which the leave of the court is required and that since no leave was obtained, the court should strike same out.

It should be noted that the trial court struck out the suit of 1st respondent on the ground that it lacks the jurisdiction to entertain same. The court never went into the merits of the matter neither did it decide the issue as to the appropriateness of the commencement of the action by way of originating summons. When, however, the lower court, upon appeal on the said judgment came to the conclusion that the trial court has jurisdiction to hear and determine the matter, it proceeded under the powers conferred on it by the provisions of section 15 of the Court of Appeal Act, to determine the suit based on the affidavits on record. It is the judgment of the lower court in the circumstances that is presently on appeal before this Court. The issues being contested before this Court never existed in the decision of the trial court which was on appeal before the lower court and therefore could not have been raised before that court.

The argument of learned Counsel for the 1st Respondent is not that the issues involved facts or mixed law and fact for which the leave of court is required but that they are being raised for the first time in this court for which the leave of the court is required. In the circumstance and having regards to the fact that the issues arise from the decision of the lower court in its exercise of the powers conferred on it by section 15 of the Court of Appeal Act, thereby making it a court of first instance, the issues involved in this case cannot be said to be fresh issues being raised for the first time before this Court. It follows therefore that the appellants do not require the leave of this Court or that of the lower court to raise them in this Court. It would have been a different kettle of fish if the issues were raised and determined at the trial court but not raised and determined by the lower court before being raised, for the first time after the determination by the trial court in this Court. In such a situation, appellants must obtain the leave of this Court before raising same as such an issue would qualify as an issue being raised for the first time before this Court, after the decision of the trial court.

In the circumstance, I find no merit whatsoever in the preliminary objections which are accordingly dismissed in appeal NO. SC/261/08 and S.C/261A/08.

From the record before the Court, it is clear that the 1st respondent together with other candidates, participated in the3rd respondent/appellant (Peoples Democratic Party, PDP) primary election to nominate candidates for election into the Ogbaru I Constituency seat in Anambra State House of Assembly, which took place on 18th November, 2006 which the 1st respondent allegedly won by 184 votes as against the 23 votes allegedly scored by the appellant in S.C/261/08, which placed him second in the contest – see exhibit B.

Following exhibit B, the name of the 1st respondent was duly forwarded to the 2nd respondent/appellant,INEC, by the 3rd respondent/appellant alongside other nominated candidates of the said 3rd respondent as the candidate of the 3rd respondent/appellant for the election which was scheduled for the 14th day of April, 2007 – see exhibit C. Consequent upon the nomination, the 1st respondent complete all nomination processes with INEC as evidenced in exhibit D as a result of which his name was duly published by INEC vide exhibit E as the 3rd respondent’s/appellant’s candidate for Ogbaru I Anambra State Constituency. The 1st respondent subsequently attended screening exercise upon invitation by the 2nd respondent/appellant and was cleared by INEC to contest the said election.

However, by letters dated 5th and 13th February, 2007, the 3rd respondent/appellant wrote to INEC substituting the appellant for the 1st respondent as candidate for the said general election of 14th April, 2007. It is the substitution of the 1st respondent that resulted in the institution of the action culminating in the instant appeal, the reliefs of which I had earlier reproduced in this judgment.

On the other hand, the appellant contends that he is the duly nominated candidate of the 3rd respondent/appellant for the election in issue and that it was his name that was duly displayed for that purpose; that the primary election was not conclusive; that exhibit B is not an authentic document as it did not state the name of the electoral officer as required amongst other short comings such as absence of the names and signatures of the agents of the aspirants; that exhibits D is also not authentic. Appellant however agrees that the substitution was effected by the 3rd respondent/appellant on 5th February, 2007 “upon a proper verification of the petitions and after taking into account many factors which will improve the chances of the party at the general election …..”

One however wonders the necessity for the substitution if it was not the name of the 1st respondent but that of the appellant that was initially sent to the 2nd respondent/appellant as the candidate of the 3rd respondent/appellant for the election in question.

Haven reproduced the issues as formulated by counsel for the parties and the basic facts of the case, I am of the view that the issues common to the appellants and relevant for the determination. of the appeal are as follows:

1. Whether the Court of Appeal was right to have decided the matter on originating summons.
2. Whether the Court of Appeal was right to have held that the 1st respondent was wrongly substituted, and,
3. Whether the Court of Appeal was right to have invoked section 15 of the Court of Appeal Act to decide the matter before it when the appellants were not heard thereon.

In respect of issue 1, it is the submission of learned Counsel for the appellant in SC/261/08 that the affidavits of the parties conflicted on material facts and as such originating summons was not the proper mode of commencing the action particularly as the 1st respondent claimed that he won the primary election conducted by the 3rd respondent/appellant but stated that the said primary election was inconclusive due to various irregularities; that the name of 1st respondent never got to INEC and that the documents supporting the claim of the plaintiff/1st respondent are not genuine. Citing and relying on order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules, 2000; Ossai vs Wakwah (2006) NWLR (Pt. 969) 208 at 227-228; National Bank of Nigeria Ltd vs Alakija (1978) 9 – 10S.C 59 at 71, counsel submitted that to resolve the conflicts in the case of the parties, oral evidence is required thereby rendering originating summons inappropriate in the circumstance.

Learned Senior Counsel for the appellant in S.C/261A/08 treated the matter as his issue No. 2 and submitted that the suit in the Originating Summons is not for interpretation of statutes as required by Order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules 2000 but deals with conflicting facts which needed to be resolved at the trial; that the validity of the nomination of 1st respondent was in issue in the case which ought to have been resolved first before proceeding to determine the issue as to whether the letter of substitution complies with the provisions of section 34 of the Electoral Act, 2006; that the lower court, by evaluating the evidence on record, admits that the case presented by the parties conflict with each other and as such Originating Summons was not the right mode of commencing the action.

In respect of S.C/261B/08, learned Counsel for the appellant treated the issue in his issue No.4 and made submissions very similar to those of the other two appellants earlier summarized in this judgment.

On his part, learned Counsel for the 1st respondent SYLVA OGWEMOH ESQ. referred the court to the reliefs claimed by the 1st respondent and Order 2 Rule 2(2) supra and submitted that the cause of action of the 1st respondent is as contained in the Originating Summons and not the contents of the counter affidavit of appellants, relying on Capital Bancorp Ltd vs S.S.L. Ltd (2007) 2 NWLR (pt. 1020) 148 at 170 – 171; Tukur vs Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Okulate vs Awosanya (2000) 2 NWLR (pt. 646) 530; Emeka vs Emodi (2004) 16 NWLR (Pt. 900) 433; that the action of the 1st respondent seeks the construction of section 34 of the Electoral Act, 2006 and does not qualify as a hostile proceeding; that the case of the 1st respondent being mainly documentary can be effectively determined on affidavit evidence without recourse to oral evidence – relying on Agbakoba vs INEC (2008) 18 NWLR (Pt. 119) 489 at 538; that by the provisions of Order 3 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000, failure to comply with the form of commencement of an action is a mere irregularity which is incapable of nullifying, the proceedings or judgment or order; that a challenge of the mode of commencement of an action must be made before any party to the action takes a step in the said action or proceedings; that in instant case, appellants never raised any preliminary objection in any form.

It is settled law that Originating Summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law; or where there is likely to be no or any substantial dispute of law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy however, see National Bank of Nigeria Ltd vs. Alakija (1979) 9-10 S.C 59. In the instant case, the appellants contend that the material facts in issue in the action are in conflict and as such the proceeding is a hostile one which ought not to have been commenced by Originating Summons but by an ordinary Writ of Summons. The question is whether they are right.

When one goes through the reliefs claimed in the Originating Summons one cannot resist the conclusion that the main relief is that stated as relief No.6.

“A DECLARATION that the substitution of the plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary, unlawful, illegal, unconstitutional, null and void.”

Grounds 1 and 2 of the grounds on which the reliefs in this case are based are relevant to the consideration of the above relief. The grounds are:

“1. Section 34 of the Electoral Act 2006 only empowers the Defendant to substitute nominated candidates not later than 60 days to election and upon application giving cogent and verifiable reasons so to do.

2. The purported substitution of the plaintiffs by the Defendant is illegal having been effected less than 60 days to the election, when the plaintiff is not dead.”

Section 34 of the Electoral Act, 2006 makes provisions for the substitution of nominated candidates before the date of an election. I hold the view that an action for a declaration in terms of the relief supra is clearly one that calls for the construction of the provisions of section 34 of the Electoral Act, 2006 in order to determine whether the substitution in question was in compliance with that provision of the Act.

On the sub-issue as to whether the facts relevant to the determination of the case are in conflict thereby rendering Originating Summons an inappropriate mode of commencing the action, it is the contention of the appellants that the fact of nomination of the 1st respondent is in dispute between the parties as well as the authenticity of the documents exhibited to the affidavit in support of the Originating Summons. I do not see any conflict in relation to the relevant facts of the case. In the first place, the issue of validity of the nomination of the 1st respondent is not only irrelevant to the determination of the case but robs the courts of the jurisdiction to determine same as it is still the law that the courts are without jurisdiction to determine the issue of validity of nomination of candidates of any political party. So whether the nomination of the 1st respondent was conclusive as contended by the 1st respondent or inconclusive as contended by the appellants is clearly irrelevant. The question remains who is the candidate of the party sought to be substituted

However, the fact that is very crucial to the determination of the issue under consideration remains the issue of substitution of the 1st respondent, which fact is not disputed by the parties. Though the appellant in SC/261/08 has contended that the 1st respondent was never nominated by

the party (PDP) as its candidate for the election in question, that contention cannot be correct as one cannot talk of substitution of a candidate who was never nominated by the party. So having agreed that by a letter dated 5/2/2007 the party (PDP) sought to substitute the 1st respondent with the appellant in SC/261/08, it means that by the provisions of the Electoral Act, 2006, the 1st respondent was the duly nominated candidate of the party 120 days to the election in question hence the application for substitution. If the appellant is the nominated candidate, obviously there would be no need for substitution as his name would have been the one sent to INEC 120 days to the election.

It follows therefore that the argument of the parties on the issue of substitution narrows down the matter before the court to the issue as to whether the said substitution was done in compliance with the provisions of section 34 of the Electoral Act, 2006 and nothing more and I hold the considered view that Originating Summons procedure is the appropriate mode of commencing the action and resolve the issue against the appellants in S.C/261/08; S.C/261A/08 and S.C/261B/08.

On the second issue, Learned Senior Counsel for the appellant in S.C/261/08 submitted that the lower court was in error when it held that the substitution of the 1st respondent does not satisfy either of the conditions stated in section 34 of the Electoral Act, 2006; that if the lower court had painstakingly examined the documentary evidence before it, it would have come to a different conclusion on the matter; that the letter of 5/2/07 applying for the substitution was within 60 days to the election of 14th April, 2007 – the same applies to the letter of 13/2/07 – and that the lower court was in error when it found and held that the substitution was not done within 60 days of the election; that the reason for the lower court holding that there was no cogent and verifiable reason for the substitution is that the substitution is unfair to the 1st respondent when the concept of “fairness” is alien to the provisions of section 34 of the Electoral Act, 2006; that the lower court also misconstrued the contents of the letter of substitution; that “The letter did not say that the enquiry was inconclusive. It only states that the panel conducted extensive enquiries on the allegations but because there was a death of time to conduct fresh primaries it recommended that the appellant be nominated as a consensus candidate of the party. This we submit is cogent and also verifiable”; that primary election is not the only mode of nominating a candidate for an election as the lower court seems to have held; that it is within the province of a political party to nominate its candidate to any election and the mode of nomination includes the choosing of a consensus candidate.

In arguing the issue, Learned Senior Counsel for the appellant in S.C/261A/08 made submissions similar to that of the learned Senior Counsel for the appellants in S.C/261/08 and further submitted that “where a political party states that its primaries were beset with intimidation, unauthorized alteration of the names of delegates as compiled by the political party in its list of candidates and buying of votes, as a basis for nullification of the faulted election, the reasons are not only cogent but clearly verifiable, …”; that the lower court read into the provision of the Act the requirement that a person should be “involved or indicted” before a substitution made after due inquiry by a political party could be deemed cogent and verifiable contrary to the decision in Ladoja vs INEC (2007) 12 NWLR (Pt. 1047) 119.

It is the submission of learned Counsel for the appellant in S.C/261B/08 that the lower court was in error in its interpretation of the provisions of section 34(1) of the Electoral Act, 2006 as the substitution was made within the time stipulated by law.

On his part, Learned Counsel for the 1st respondent referred the court to the provisions of section 34 of the Electoral Act, 2006 and contents of exhibits 1 & 2 (letters of substitution) and submitted that the exhibits do not contain cogent and verifiable reasons for the substitution; that the reasons given for the substitution of the 1st respondent are similar to those given in the case of Agbakoba vs INEC supra, which this Court had held not to be cogent and verifiable.

On the sub-issue as to whether the substitution was done within 60 days of the election, learned Counsel stated that the appellants have not denied the averment in paragraph II of the supporting affidavit to the effect that the 1st respondent was substituted less than 60 days to the election as what is not denied is deemed admitted; that the date of receipt of exhibits 1& 2 are not stated thereon thereby making the letters suspect and urge the court to resolve the issue against the appellants. It is to be noted that the 1st respondent filed and argued a respondent’s notice to the effect that the court affirms the holding by the lower court that the substitution of the 1st respondent was not done within 60 days of the election on grounds other than those stated in the judgment of the lower court.

In arguing the notice, learned Counsel submitted that there are many reasons on record to show that 1st respondent’s substitution was done outside the 60 days allowed by law, which include the following:

(a) that as at 13/2/07 when 1st respondent visited the office of INEC at Abuja, the name of 1st respondent was still on the list of candidates for the election of 14/4/07, which fact was not denied by the counter affidavits.

(b) that 1st respondent’s name was removed from the list as at 22/2/07 when he went back to the offices of INEG in Abuja.

(c) that form E.G. 4B(iii) was dispatched to 1st respondent on 6/2/07 who filled and returned same to INEC on 12/2/07 as evidenced at pages 132-133 of the record.

(d) that exhibit I dated 5/2/07 could not have substituted the 1st respondent before his nomination form got to INEC.

Learned Counsel then submitted that the substitution of the 1st respondent could only have been done after the. 14th day of February, 2007; that using the 2007 calender from 14/2/07 to 14/4/07 gives 59 days and submitted that the lower court was therefore right in holding that the substitution was done outside the 60 days allowed by law.

In his reply brief filed on 28/9/09 by Learned Senior Counsel for the appellant in S.C/261/08, stated clearly that Learned Counsel for the 1st respondent cannot urge on the court to affirm the decision of the lower court on the issue as he had filed no respondent’s notice. That observation is not correct as the respondent’s notice was filed on 20/7/09. Obviously it was yet to be served on the Learned Senior Counsel for the appellant as at the time he filed the reply brief on 28/9/09.

To begin with, section 32(1) of the Electoral Act, 2006 provides as follows:-

“(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act submit to the Commission in the prescribed form the list of the candidates the party proposes to sponsor at the election.”

The above provision clearly stipulates that a political party must submit its list of candidates for any election 120 days before the date appointed by the provisions of the Electoral Act, 2006 for a general election. It means that if a political party fails to comply with the above present its list of candidates to INEC 200 days to the holding of the general election or earlier but definitely not less than 120 days before the holding of the said election. It is also clear that it is only after a political party has complied with the above provisions that it can now talk of substitution of the said nominated candidate as a political party cannot substitute a candidate for a non existent candidate. In other words, there cannot be substitution of a candidate without a nominated candidate. It is settled law that the question of who is a candidate of any political party for any election remains the exclusive preserve of the political parties and that the courts have no jurisdiction to determine the issue. It has been argued by the appellants that the documents which purportedly conveyed the nomination of the 1st respondent to the 2nd respondent/appellant are not authentic. In other words they are invalid. If that is so, it means clearly that as at the time exhibits 1 & 2 were written seeking the substitution of the appellant for the 1st respondent, the 3rd respondent/appellant had no candidate recognized by law under section 32(1) supra to be substituted particularly as exhibits 1 & 2 were written less that 120 days to the election and cannot be taken as nominating the appellant.

The present issue however, deals with substitution of a candidate by a political party after due nomination by that party as provided under section 34 of the Electoral Act, 2006. The reason why the two provisions must be kept separate becomes obvious in view of certain aspects of the submissions of Learned Counsel for appellants to be dealt with in the resolution of the issue under consideration.

Section 34 of the Electoral Act, 2006 provide as follows:-

“(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.

(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.

Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.”

It is clear from the above provisions that a political party intending to substitute a candidate for any election except, in the case of the death of the candidate to be substituted must fulfill two conditions; to wit:

(a) Inform the Commission (INEC) in writing of the change not later than 60 days to the election;

and

(b) Give cogent and verifiable reasons in the application for substitution for the intended substitution.

It follows therefore that an application for substitution of a candidate made 59 days or less to the election except where the candidate to be substituted is dead, is clearly not in compliance with the law. Secondly, where the application for substitution does not contain cogent and verifiable reasons, it must of necessity fail.

The question is whether the letters of substitution, exhibits 1 & 2, complied with the requirements of the law.

The lower court has held that exhibits 1 & 2 do not comply with the requirements of the law – that is both aspects of the provisions of section 34. Is the lower court right in so holding

To begin with, it is clear that from the 5th of February, 2007 and the 13th of February, 2007 when exhibits 1 & 2 were written to the 14th day of 29 April, 2007 when the general election was held, is within 60 days to the election in question. The law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from the reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included – see section 15(2) of the Interpretation Act and Akeredolu vs Akinremi (1985) 2NWLR (Pt. 10) 787 at 794.

Therefore having regards to the facts of this case and the law applicable thereto I hold the considered view that the lower court was in error when it held that the substitution of the 1st respondent was not done within 60 days to the election of 14th April, 2007. The above holding is notwithstanding the argument of counsel for the 1st respondent in respect of the respondent’s notice having regards to the fact that the relevant dates from which to calculate the 60 days are clearly stated on exhibits 1 & 2, and they speak for themselves. There is therefore no need or reason for the court to go outside those dates particularly as the proceedings is based on Originating Summons under which the court cannot resolve conflicting facts or evidence which would result in the court believing one deponent at the expense of the other. In the circumstance I find no merit in the 1st respondent’s notice which is consequently dismissed.

Now to the 2nd arm of the provisions of section 34 of the Electoral Act, 2006. Did the appellant assign cogent and verifiable reasons in exhibits 1 & 2 for the substitution of the 1st respondent with the appellant in S.C/261/08

I now reproduce exhibit 1 & 2 attached to the counter affidavit of 2nd and 3rd Defendants/Respondents/Appellants. They read:

“February 5, 2007

Prof Maurice Iwu

Chairman

INEC

Abuja

SUBSTITUTION: PDP CANDIDATE FOR OGBARU 1 STATE

CONSTITUENCY, ANAMBRA STATE

This is to confirm that Njideka Ezeigwe is the PDP candidate for Ogbaru 1 State Constitutency, Anambra State.

Njideka Ezeigwe substitutes the earlier name for the aforementioned constituency which was submitted without enough information.

This is for your necessary action.

OJO MADUEKWE, C.F.R

National Secretary.”

SEN. (DR) AMADU ALI, GCON

National Chairman.”

“February, 13, 2007

Prof Maurice Iwu

Chairman

INEC

Abuja

SUBSTITUTION OF PDP CANDIDATE FOR OGBARU I CONSTITUENCY, ANAMBRA STATE.

Further to our letter to you dated 5th February, 2007, over the above subject we write to intimate you that following the allegation of intimidation, unauthorized changes of delegates list, vote buying which resulted to the inconclusiveness of the party primaries of November 18, 2006, a panel was set up to conduct an extensive inquiry.

The panel after an extensive inquiry and due to want of time to conduct another primary, recommended that Hon. (Mrs) Njideka Ezeigwe be the consensus PDP candidate for the above constituency.

The purpose of this letter is to affirm that Hon (Mrs) Njideka Ezeigwe is the party candidate for Ogbaru I Constituency, Anambra State.

SEN. (DR) AMADU ALI, GCON

National Chairman.”

I hold the view that since exhibits 1 & 2 were written within 60 days to the election of 14th April, 2007 on the issue of substitution of the appellant in S.C/261/G8 for the 1st respondent, they can be treated as a single letter of application for substitution and hereby proceed to treat them as such. It is clear that the reason for the substitution as recorded in exhibit 1, is that the name of the 1st respondent “the earlier name” “was submitted without enough information “. Is that a cogent and verifiable reason as required by law The question is, enough information by whom It is the 3rd respondent/appellant that submitted the name of the 1st respondent in a list containing other names as its candidate for the said election of 14th April, 2007, 120 days to that election following a primary election conducted by it on 18th November, 2006 which was non by the 1st respondent according to the record. These facts are known to the 3rd respondent/appellant before nominating the 1st respondent as its candidate for that election. What other information does the 3rd respondent/appellant need before nominating the 1st respondent which was not available at the time of his nomination Obviously none as even the letter of 13th February, 2007, exhibits 2, has not contained the new details which would amount to “sufficient information” for the nomination of the 1st respondent or lack of it.

This Court has held in a number of cases with similar facts that to say that substitution of a candidate is sought on the ground that the nomination was without sufficient information is to give no reason at all for the application for substitution – see for instance Agbakoba vs INEC (2008) 18NWLR (Pt. 1119) 489 at 554 – 555; Ehinlanwo vs Oke (2008) 16 NWLR (Pt.1113)357.

With regards to exhibit 2, the reasons are that the primary election of November 18, 2006 was inconclusive as a result of which a panel of inquiry was constituted which conducted extensive inquiry but due to want of time to conduct another primary election, the appellant was adopted as consensus candidate. Are these cogent and verifiable reasons for the substitution The lower court held that they are not.

Having regards to the state of the law applicable to the relevant facts, it does not matter whether the primary election of the party was conclusive or inconclusive. What matters is the nomination of a candidate and submission of his name by the party to INEC 120 days to the election.

It does not matter whether the nomination is a result of a conclusive primary election or an inconclusive one. Once the name of a candidate for an election is submitted to INEC 120 days before the relevant election the political party cannot, except where the candidate dies before the election, substitute him with another candidate without giving cogent and verifiable reasons, and within 60 days to the election.

As stated by the lower court, the panel of inquiry allegedly set up by the 3rd respondent/appellant did not find the 1st respondent liable for any of the allegations in exhibit 2 otherwise exhibit 2 would have said so. It is very clear from the provisions of section 34 of the Electoral Act, 2006 that a nominated candidate acquires a justiciable right hence the requirement that before he can be substituted the political party concerned must give cogent and verifiable reasons. Exhibit 2 does not say that the 1st respondent was involved in any of the allegations of intimidation, unauthorized changes of delegate list, vote buying etc.

I therefore in the circumstances agree with the lower court that no cogent and verifiable reasons was given for the substitution of the 1st respondent in exhibits 1 & 2 and resolve the issue against the appellants in S.C/261/08; S.C/261A/08 and S.C/261B/08.

On the 3rd and final issue for determination, Learned Senior Counsel for the appellant in S.C/261/08 submitted that the lower court was in error in invoking the provisions of section 15 of the Court of Appeal Act in deciding the matter as the conditions precedent for the invocation of that power did not exist at the time the court invoked same; that the conditions are:-

(i) the lower court must have the legal power to adjudicate in the matter before the appellate court can entertain it;

(ii) the real issue raised in the claim of the appellant at the lower or trial court must be seen to be capable of being distilled from the grounds of appeal;

(iii) all necessary materials must be available to the court for consideration;

(iv) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and

(v) the injustice or hardship that will follow if the case is remitted to the court below must clearly manifest itself; relying on Obi vs INEC (2007) 11 NWLR (Pt. 1046) 565 at 639-640;

that the above conditions were not satisfied before the lower court invoked its said powers; that all the issues could not be distilled from the grounds of appeal; that all necessary materials for the determination of the case were not before the court particularly as the facts deposed to in the affidavits conflict and that the court lacked the jurisdiction to entertain the matter by way of Originating Summons; that no urgency or hardship is shown on the face of the materials to prevent the matter being sent back to the lower court for determination; that it is not the practice of the Court of Appeal to hear evidence but to correct errors in the judgment of the lower court, relying on Akad Industries Ltd vs Alhaji Lasisi Olubode (2006) 4NWLR (Pt. 862) I at 13.

In arguing the issue, Learned Senior Counsel for the appellant in S.C/261A/08 submitted that the lower court erred in proceeding to invoke the provisions of section 15 of the Court of Appeal Act when the issue before the court and the argument of the appellant thereon was limited to the issue as to whether the trial court had jurisdiction to hear and determine the suit as constituted; that haven decided that the trial court had jurisdiction to adjudicate on the matter, the lower court ought to have invited arguments from parties on the merits of the Originating Summons instead of proceeding to determine the merit of the case without hearing from the appellants; that parties were not called upon to adopt their argument in the substantive suit either at the Federal High Court or the Court of Appeal, relying on Ekiyor vs Bomor (1997) 9 NWLR (Pt. 519) 1 at 14; that the appellant was in the circumstances denied the right of fair hearing which is a constitutional right, relying on Adigun vs A-G Oyo State (1987) 1NWLR (Pt. 53) 678 at 694; INEC vs Musa (2003) 3 NWLR (Pt.806) 72. Ntukidem vs Oko (1986) 5 NWLR (Pt. 45) 909; UBN Ltd vs Nwaokolo (1995) 6NWLR (Pt. 400) 127; Ekpeto vs Wanogho (2004) 18 NWLR (Pt. 905) 394; Brifina Ltd vs Intercontinental Bank Ltd (2003) 5NWLR (Pt. 814) 540; that the 1st respondent never prayed the lower court to invoke the provisions of section 15 of the Court of Appeal Act neither did he argue the substantive case before the lower court. Finally Learned Senior Counsel urged the court to set aside the entire proceedings before the lower court or in the alternative set aside the determination made by the lower court on the substantive case which was arrived at without hearing the appellant and without the issue being placed before that court in any cognisable manner and remit the matter to the High Court for hearing.

On his part, Learned Counsel for the appellant in S.C/261B/08 submitted that the lower court was in error in ordering the appellant to swear-in the 1st respondent as no such relief was claimed by the 1st respondent neither can the relief be said to be a consequential one; that parties were also not allowed to address the court thereon. Learned Counsel also referred to the preconditions for the invocation of section 15 of the Court of Appeal Act, as laid down in Obi vs INEC supra and submitted that the conditions do not exist in the instant case.

In his response to the argument of the appellants, Learned Counsel for the 1st respondent referred to the provisions of section 15 of the Court of Appeal Act and conceded that before the lower court could act under the said section of the Act, certain pre-conditions must exist which preconditions are as stated by Learned Counsel for the appellants but submitted that the pre-conditions exist in the instant case; that the power of the Federal High Court to try the case is not in dispute as the matter before that court is a pre-election matter-relying on Obi vs INEC supra; that the real issues raised by the 1st respondent’s claim were clearly distilled from the grounds of appeal filed at the lower court, referring to the Notice of Appeal at page 176 of the record, particularly ground 1 thereof; that in the reliefs claimed at the lower court, the 1st respondent specifically urged the lower court to invoke its powers under section 15 of the Court of Appeal Act and determine the matter on merit; that there were sufficient materials for the court to deal with the case on the merit; that the case of the 1st respondent requires urgent attention particularly as the tenure of members of the State House of Assembly is fixed at four years and that a remittal of the case to the Federal High Court for determination after holding that that court has jurisdiction on the matter would not nave met the justice of the case; that the appellants were not denied fair hearing as the matter was under Originating Summons where issues raised are determined by affidavit evidence which were filed by the parties and the lower court duly considered the depositions in its judgment and urged the court to dismiss the appeals. –

Section 15 of the Court of Appeal Act, 2004 provides as follows:-

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

In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit:

(a) that the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it”,

(b) that the real issue raised by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal;

(c) that all necessary materials must be available to the court for consideration

(d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and,

(e) that the injustice or hardship that- will follow if the case is remitted to the court below must be clearly manifest.

It is not in dispute that the lower court did invoke its powers under section 15 of the Act to determine the matter on the merit. The issue is whether the court was right in so doing. There is no doubt whatsoever that the matter before the trial court as evidenced in the reliefs earlier reproduced in this judgment is a pre-election matter and as found by the lower court, the trial court has the requisite vires to deal with same. It should be noted that the attack on the jurisdiction of the trial court to entertain the suit as argued in the briefs of argument before this Court is not with regards to the holding of the lower court that the matter being a pre-election matter, the trial court has jurisdiction to hear and determine same but that in view of the conflicting affidavits of the parties the lower court/trial court has no jurisdiction in entertaining the matter under an originating summons. That leaves the finding of the lower court on the jurisdiction of the trial court intact. As regards the issue of the jurisdiction of the trial court/lower court to entertain the matter under Originating summons, I had earlier found in this judgment that the court is clothed with the requisite jurisdiction in view of the narrow issue of validity of the substitution of the 1st respondent under the provisions of section 34 of the Electoral Act, 2006. It follows therefore that whether looked at from the point of view of the holding of the lower court that the trial court has jurisdiction to entertain the matter the same being a pre-election matter, or the proper mode of commencing the action by way of Originating Summons, it is without doubt that the trial/lower court has the requisite jurisdiction as required by condition (a) supra.

On condition (b) the grounds of appeal of the 1st respondent are at pages 176-177 of the record while the relief sought from that court is as stated at page 178 of the record. From the grounds of appeal, the lower court found at pages 273 – 279 of the record that the case was a pre-election matter dealing with the nomination of the 1st respondent. The grounds of appeal are as follows:-

“GROUND ONE.

ERROR IN LAW

The learned trial judge erred in law when he held that the Federal High Court Jurisdiction to inquire into the appellant’s complaint which boarders on unlawful substitution of his name as a candidate of Peoples Democratic Party in Ogbaru 1 State constituency of Anambra State and thereby came to a wrong decision.

PARTICULARS OF ERROR

i. The case brought to the court by the appellant was unlawful substitution and not party nomination

ii. The case of unlawful substitution brought by the appellant is a pre-election matter which the Federal High Court has jurisdiction to decide on merit.

iii. The case was instituted on 23/03/07 long before the House of Assembly election which took place on 14/4/2007.

GROUND TWO

ERROR IN LAW

The learned trial judge erred in law and thereby came to a wrong decision when he held that the jurisdiction of the Federal High Court to entertain the appellant’s suit was ousted by section 285 (2) of the Constitution of the Federal Republic of Nigeria, 1999.

PARTICULARS OF ERROR

i. The appellant never sought to be declared the winner of any election

ii. The appellant only sought an interpretation of section 34 of the Electoral Act, 2006 and section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

iii. Election had not been held at the time the appellant filed his suit at the court below.

iv. The appellant’s suit at the Court below was not an election matter.

GROUND THREE

ERROR IN LAW

The learned trial judge erred in law and thereby came to a wrong decision when he struck out the appellant’s suit without hearing same on merit.

PARTICULARS OF ERROR

i. The striking out of the appellant’s suit without determining same on merit had robbed him of the right to fair hearing.

ii. The appellant’s said suit which was struck out without hearing was not an election matter.

iii. The said appellant suit was within the jurisdiction of the court below to hear and determine on merit.”

It is clear from the above that condition (b) is also fulfilled as the real issues raised by the 1st respondent’s claim were clearly distilled from the grounds of appeal.

On condition (c) from the affidavits in support and counter affidavits of the parties, the material facts for the determination of the main issue in controversy between the parties are before the court particularly exhibits 1 & 2 being the letters of substitution. By exhibits 1 & 2 the issue of the nomination of the 1st respondent as a candidate of the 3rd respondent/appellant is put beyond doubt as you cannot talk of substitution of a candidate who had not been nominated and his name submitted to INEC 120 days before the election. The question as to whether the substitution was in compliance with section 34 of the Electoral Act, 2006 can be easily determined within the four corners of exhibits 1 & 2, the authenticity of which has not been in doubt in any event.

With regard to condition (d) it is apparent on the face of the documents relevant to the determination of the suit that this is a pre-election matter where time is of the essence. The election in which the controversial substitution was effected took place on 14th April, 2007 and the members of the House of Assembly duly sworn in. If the question as to who was the proper candidate of the party at that election between the appellant in S.C/261/08 and the 1st respondent does not need expeditious disposal, I wonder what should, particularly as appellant had been duly sworn in and has been functioning in that capacity for about two years out of a term of four years!!

On the same vein, I hold the view that condition (e) is also meet as time is of the essence in matters of this nature and to remit the case to the trial court for hearing would clearly result in injustice to the 1st respondent.

On the issue of breach of the right of fair hearing of the appellants in the circumstances of this case I wish to point out that the matter was commenced by way of Originating Summons in which all the parties filed affidavits and counter affidavits as required by law. In addition to the said affidavits, Learned Counsel for the parties also filed their respective addresses on the issues arising from the claims of the plaintiff/1st respondent. The lower court merely took into consideration the facts as deposed to in the various affidavits and arguments canvassed by Learned Counsel in their written addresses filed at the trial court in coming to the conclusion it did. Does what the lower court did amount to a denial of the right of fair hearing I do not think so because what is necessary in the exercise of the right to fair hearing is the opportunity to be heard. The question usually is whether a party to an action has been given an opportunity to be heard. Where he has, then he cannot later complain of lack of fair hearing. Where he was given the opportunity but he failed or neglected or refused to utilize same, he cannot later be heard to complain of lack of fair hearing. The issue of resolution of conflicts in the affidavits by the calling of oral evidence has been dealt with in this judgment in that there is no conflict as regards the relevant facts in issues in this case, particularly the issue of the validity of the substitution of 1st respondent.

On the invocation of section 15 of the Court of Appeal Act, it is clear from the record that the court was specifically invited to do so by the appellant before it who is the 1st respondent in this Court. The lower court did not do so suo motu as it appears to be the argument of learned counsel for the appellants.

There is also a respondent’s notice in respect of S.C/261B/08 in which Learned Counsel for the 1st respondent has urged this Court to invoke its powers under section 22 of the Supreme Court Act and Order 6 Rule 6(2) of the Supreme Court Rules to vary the judgment of the Court of Appeal by making the following orders, which Learned Counsel contends will meet the justice of the case:-

“(a) That the 1st respondent is the validly nominated and elected candidate of the Peoples Democratic Party (PDP) for Ogbaru I Constituency Seat at the Anambra State House of Assembly.

(b) That the 1st Respondent be issued a Certificate of Return by the Appellant as the duty nominated and elected candidate of the PDPD for Ogbaru I Constituency Seat at the Anambra State House of Assembly.

(c) That the Speaker and or Clerk of Anambra State House of Assembly should immediately swear the 1st Respondent into office as the duly elected member of the Anambra State House of Assembly representing Ogbaru I Constituency.

(d) That Anambra State House of Assembly, its Speaker, Clerk, Accountant-General of Anambra State or any other officer of Anambra State or the House of Assembly of Anambra State designated in that behalf to pay to the 1st Respondent, his salaries allowances and entitlements from 6txh June, 2007, when the Anambra State House of Assembly was inaugurated till the date the 1st Respondent is formally restored to office as a member of the Anambra State House of Assembly representing Ogbaru I Constituency.”

Learned Counsel stated that out of a four year tenure of the House of Assembly, appellant in S.C/261/2008 had spent two years and that the justice of the case will only be served if the 1st respondent is declared the validly elected candidate of the PDP that eventually won the election in question as held in Amaechi vs INEC; Agbakoba vs INEC and other cases;

that if the 1st respondent is held to be the winner of the election in the eyes of the law, he ought to have been sworn in as a member of the House on 6th June, 2007 when the House was inaugurated and paid his salary, allowances etc relying on Amaechi vs INEC and section 221 of the Constitution of the Federal Republic of Nigeria, 1999.

It should be pointed out that there is no reply brief by Learned Counsel for the appellant in S.C/261B/08 in answer to the submission of Learned Counsel for the 1st respondent on the 1st respondent’s notice supra However, what is the decision of the lower court which Learned Counsel for the 1st respondent wants this Court to vary as stated above. At page 307 of the record, the lower court held, inter alia, as follows:-

” this Court has no doubt been graced with or given wide power to hand down any other or orders that would meet the justice of the case before it, be it consequential or one sought by a complaint.

I have closely looked at the eight reliefs sought by the plaintiff/appellant in his amended Originating Summons. All the eight reliefs mentioned therein are grantable, upon the court being convinced that the plaintiff or complainant has established his claims.

With regard to reliefs 7 and 8, I do not agree that granting them amount to usurping any power of an election tribunal or that I am in effect nullifying the election held on 14/4/2007. For the purpose of emphasis, having held that the plaintiff/appellant was unlawfully substituted, the consequence is that he is legally speaking the recognized candidate of the PDP and not the 2nd defendant, Hon. (Mrs) Njideka Ezeigwe. It goes without saying therefore that since PDP, the 3rd defendant was the winner at the election held on 14/4/2001. it was Chief (Sir) Benson Chuks Nwawulu that must be deemed the candidate of the election for the party. In actual fact and legally speaking. Hon. Mrs. Njideka Ezeigwe had never been a candidate at the said election and could not have been declared a winner of same “Emphasis supplied by me.

From the above passage from the judgment of the lower court, it is very clear that the court found that the 1st respondent was the duly nominated candidate of PDP for the election in issue and therefore won the said election for the constituency in question. In taking that decision, the lower court relied on the decision of this Court in the case of Amaechi vs INEC supra. The above decision of the lower court has been affirmed by me earlier in this judgment.

I therefore hold the view that the lower court having held that 1st respondent is, in the eyes of the law the candidate of PDP for the election in issue who won the said election, it follows that every other relief naturally flow from that decision as no other person can legally represent Ogbaru I State Constituency in Anambra State House of Assembly except the 1st respondent neither is any other person recognized by law to be paid salary, allowances etc, etc for being a member of that House representing Ogbaru I State Constituency except the 1st respondent. In effect, the variation sought by Learned Counsel for the 1st respondent, of the judgment of the lower court does not arise in view of that judgment.

As to the payment of the salary of 1st respondent from June 2007 when the Anambra State House of Assembly was inaugurated, it cannot be done in view of the provisions of section 149 of the Electoral Act, 2006. It follows therefore that the 1st respondent can only be paid salary from the date the lower court declared him the PDP candidate who, in the eyes of the law, won the election of 14/4/2007 not earlier as the State Government should not be made to pay salary for two ‘members’ for the same seat for the period in question.

In the circumstance I hold the view that the 1st respondent’s notice in S.C/261B/2008 is unnecessary in view of the decision of the lower court reproduced supra which I hereby affirm and is consequently struck out for being superfluous.

In conclusion I resolve the issue against the appellant in S.C/261/08; S.C/261A/08 and S.C.l261B/08.

Haven resolved all the relevant issues in the appeal as supra, I have come to the following conclusion

In re appeal:

(a) No. S.C/261/2008 I find no merit whatsoever in the appeal which is hereby dismissed with N50,000.00 costs in favour of the 1st respondent

(b) No. S.C./261A/2008, I find no merit in the appeal which is hereby dismissed with /N50,000. 00 costs in favour of the 1st respondent.

(c) No. S.C./261B/2008 is hereby dismissed for lack of merit with costs assessed and fixed at N50,000.00 in favour of the 1st respondent.

The judgment of the lower court in appeal No. CA/E/406/2008 delivered on the 10th day of July, 2008 is hereby affirmed.

Appeal dismissed.

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SC.261/2008