Peoples Democratic Party & Ors V. Barr. Sopuluchukwu E. Ezeonwuka & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This appeal is against judgment of the Court of Appeal, Abuja Division delivered on 26/6/2015 dismissing the appeal filed by the 1st-4th Appellants against the judgment of the Federal High Court, Abuja delivered on 20/2/2015.

The 1st Appellant, the Peoples Democratic party (PDP), conducted primaries for the purpose of nominating its candidate for the Orumba North/South Federal Constituency of Anambra State in the National Assembly Election scheduled for 28/3/2015. The 3rd and 4th appellants were the Chairman and Secretary, respectively of the PDP National Assembly Electoral Panel for the State. The 1st Respondent contested with 5 other aspirants. He asserted that he scored the highest number of votes and was publicly declared winner by the Returning Officer but that his name was not forwarded to the Independent National Electoral Commission (INEC) by the Appellants. He alleged that he got to know that there was an attempt to return someone else as the winner. He therefore filed an Originating Summons at the Federal High Court, Abuja (the trial Court) seeking inter alia, a

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declaration that he is the only qualified, authentic and duly elected, validly nominated and duly returned candidate” of the PDP to contest the National Assembly (House of Representatives) General Election into Orumba North/South Federal Constituency scheduled to hold on 14/2/2015 or any other date. None of the other aspirants was made a party to the suit.

In his supporting affidavit he exhibited the 1st Appellant’s result form showing votes said to have been cast for him and 5 other aspirants. Although, PDP filed a counter affidavit opposing the originating summons, it conceded in paragraphs 7 and 15 thereof that the Primary election was conducted in accordance with the law, Constitution and the party guidelines and that the result sheet exhibited by the 1st respondent was correct as to the fact that he scored 55 votes being the highest number of votes. In other words, it conceded the 1st respondent’s claim.

After a consideration of the various affidavits before the Court, the exhibits annexed thereto and the submissions of learned counsel, the trial Court held that 1st- 4th defendants (now appellants) failed to give any reason for not

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forwarding the plaintiff’s (1st respondent’s) name to INEC and accordingly entered judgment in his favour. The Court ordered, inter alia:

“An order is further made directing the 5th defendant (INEC) to accept the plaintiffs name as the candidate of the 1st defendant, recognized, publish and print his name in the ballot paper as the authentic candidate of the 1st defendant for the National Assembly (House of Representatives) Election for Orumba North and South Federal Constituency in the scheduled election of 14/2/2015 or any other date.”

The 1st- 4th appellants were dissatisfied with the judgment. They filed (but eventually withdrew) an application to set aside the judgment on grounds of fraud on the basis that the counsel handling the matter compromised their case by making fraudulent admissions against their interests. As the motion was withdrawn it was eventually dismissed. The appellants filed an appeal against the judgment at the lower Court. The appeal was dismissed. The Court made a consequential order that a re-run primary election should be conducted with the 1st respondent as the candidate of the PDP. The 1st – 4th Appellants are

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aggrieved by the decision and have thus appealed to this Court. One of the grounds for appealing against the judgment is that the order for the conduct of a re-run primary election was made suo motu by the Court without hearing the parties on the issue.

The 1st respondent was also dissatisfied with the part of the judgment of the lower Court ordering a re-run. He filed a separate appeal in SC.846/2016: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP & 4 Ors. As both appeals have the same substratum they were heard together on 25/1/207.

SC.521/2016

After the filing of this appeal, there was a development, which has an important bearing on the appeal. By a motion on notice filed on 23/2/2016, one Hon. Ben Nwankwo sought and was granted several reliefs including leave to appeal against the judgment of the lower Court as an interested person and an order joining him as a co-appellant in this appeal. He is currently designated in this appeal as the 5th Co-Appellant. He filed a separate Notice of Appeal on 26/10/2016.

Some of the grounds upon which the application was predicated were that Hon. Ben Nwankwo was an aspirant who participated in, contested

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and won the Peoples Democratic Party (PDP) primary election for the Orumba North/South Federal Constituency of Anambra State held on 7th December 2014. That the party forwarded his name to the 2nd respondent, (INEC), as its candidate for the said constituency for the 14th February 2015 (later rescheduled to 28th March 2015) General Election to the National Assembly. That the 2nd respondent duly published his name as the candidate of the party and that he campaigned and won the election for the aforesaid constituency. That rather than being declared the winner of the election by the Returning Officer, he was confronted with a letter dated 27/3/2015 notifying him that there was a judgment delivered in Suit No. FHC/ABJ/CS/1013/2014: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP and 4 Ors., directing INEC to include Barr. Ezeonwuka’s name as the candidate of the PDP. That he was not made a party in the suit and was not aware of its existence up to the time judgment was delivered on 20/2/2015. That Barr. Ezeonwuka’s name was never submitted to the 2nd respondent as the candidate of the party and that he was neither screened nor cleared by INEC to contest the said

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election. In his supporting affidavits he deposed to facts stating the steps he took to challenge the judgment when he became aware of it, including the filing of a similar application at the Court below for leave to be joined as an interested party and to appeal against the judgment as a co-appellant, which was not heard before final judgment was delivered.

That he received a hearing notice to the effect that the application which he filed on 18th June 2016, to be joined in the appeal as interested party at the Court below, was listed for hearing on 8th July 2015. Judgment in the appeal was however delivered on 26th June 2015. The application was therefore withdrawn when it came up for hearing on the said 8th July 2015. The application was strongly opposed by the 1st respondent.

After consideration of all the processes filed in respect of the application, including the supporting affidavits, counter affidavits and several exhibits, the Court was satisfied that the 5th co-appellant had shown sufficient interest in the subject matter of this appeal to warrant being granted the reliefs sought.

All the parties hereto consequently filed and exchanged

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their respective briefs of argument in support of and in opposition to the appeal. However, there was another twist in this matter.

NOTICE OF WITHDRAWAL OF APPEAL BY 1ST-4TH APPELLANTS

In all the proceedings in this matter up to 25th January 2017, when the appeal was heard, the 1st – 4th appellants were represented by CHIEF ARTHUR OBI OKAFOR, SAN. However, on 25/1/2017, one HON. DAVID K. IORHEMBA, of counsel, drew the Court’s attention to a notice of withdrawal of appeal filed by him on 15th December, 2016 on behalf of the 1st- 4th appellants. The Notice reads:

Notice of Withdrawal of Appeal No.SC/521/2015. Peoples Democratic Party (PDP) & Ors Vs Barr. Sopuluchukwu E. Ezeonwuka & Anor, Pursuit to Order 8 Rule 6(1), (2), (5) and (6) of Supreme Court (Amendment) Rules 2014.

The 1st-4th Appellants Peoples Democratic Party (PDP) hereby gives notice of its intention to withdraw Supreme Court Appeal No. SC/521/2015, Peoples Democratic Party (PDP) & ors Vs Barr. Sopuluchukwu E. Ezeonwuka & Anor to all the parties in the said Supreme Court Appeal No. SC/521/2015.

And consequently, the said Supreme Court Appeal No. SC.521/2015 is

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hereby accordingly withdrawn as the party has seen no wisdom in further prosecuting this appeal against a member of the party who has resoundingly won the National Assembly Election conducted on 28/3/2015 under the platform of our party, 1st Appellant (Peoples Democratic Party) to represent Orumba North and South Federal Constituency in the National Assembly (House of Representatives).

Order 8 Rule 6 (1), (2), (4), (5) and (6) of the Supreme Court Rules, as amended provides as follows:

“6. 1) An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.

(2) If all parties to the appeal consent to the withdrawal of the appeal without order of the Court the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeal by the Court, and in such event any sum lodged in Court as security for the costs of the

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appeal shall be paid out to the appellant.

(4) If all the parties do not consent to the withdrawal of the appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.

(5) An appeal which has been withdrawn under this Rule shall be deemed to have been dismissed.

(6) Any application under this Rule may be considered and determined by the Court in chambers without oral argument.”

Ordinarily, by virtue of Order 8 Rule 6 (5), the appeal of the 1st 4th appellants ought to be dismissed without further ado. However, processes were filed in support of and in opposition thereto, which require some consideration. It should be noted that at the hearing of the appeal on 25th January, 2017 both Chief Arthur Obi Okafor, SAN and Hon. David Iorhemba announced appearance for the 1st-4th appellants. In support of the notice of withdrawal, Hon. David Iorhemba in his capacity as National Legal Adviser of the National

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Caretaker Committee (NCC) of the PDP deposed to two affidavits of facts on 13/1/2017 and 16/1/2017 respectively. Vincent Ottaokpukpu Esq., an associate counsel in the law firm of Arthur Obi Okafor & Associates whose lead counsel is Chief Arthur Obi Okafor, SAN, deposed to a counter affidavit in opposition to the affidavit of facts deposed to by Hon. David Iorhemba on 13/1/2017. An affidavit of facts in opposition to all the processes filed by Hon. Iorhemba on 15/12/16, 13/1/17 and 16/1/17 was deposed to by Oluwatosin D. Soyebo Esq., a legal practitioner in the law firm of lkwueto representing the 5th co-appellant. On 24/1/2017, Hon. David Iorhemba deposed to a reply to the affidavit sworn to on behalf of the 1st respondent while the 1st – 4th appellants filed a further counter affidavit to Hon. David Iorhemba’s further affidavit of facts on the same 24/1/2017.

Essentially, the affidavit of facts in support of the notice of withdrawal is to the following effect: that by virtue of Hon. Iorhemba’s position as the National Legal Adviser of the NCC of the 1st appellant, it is his duty to engage and disengage counsel, among other responsibilities. That

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although Chief Arthur Obi Okafor, SAN was briefed by the Chairman and Secretary of the National Caretaker Committee of the PDP to appeal against the part of the judgment of the Court below ordering a re-run election for Orumba North/South Federal Constituency with the 1st respondent as the party’s candidate, and in furtherance of the said instructions did file this appeal No. SC.521/2015, the party had met and decided not only to disengage Chief Arthur Obi Okafor, SAN from further prosecuting the appeal but had also directed him (Hon. David Iorhemba) to withdraw the appeal. The reason for the withdrawal as averred in paragraphs 8,12,13,14,15 and 16 of the affidavit of facts are that the 1st respondent won the National Assembly Primary Election for the Federal Constituency in issue conducted by the National Electoral Committee (NEC) of the party on 7th December 2014 at Mbaraizo Hall, Umunze in Orumba South Local Government Area (LGA) of Anambra State. It is averred that the 3rd and 4th appellants were given ad-hoc assignments as Chairman and Secretary respectively of the 1st appellant’s National Assembly Electoral Panel for Anambra State set up by the NEC of

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the party. That the 3rd appellant, Mr. Alaye Tremie Jnr., as the Chief Returning Officer for the said primary election, deposed to an affidavit of facts on 25/10/2016 (attached as Exhibit DK3) in response to an order of the Court directing the Inspector General of Police to investigate the emergence of two result sheets emanating from the same primary election in order to determine whether any crime had been committed, to identify who is culpable and to charge such person to Court. This directive arose from conflicting result sheets relied upon by the 1st respondent and the 5th co-appellant, both allegedly emanating from the same primary, which were exhibited by the respective parties in respect of the application of the 5th co-appellant to be joined as an interested person in the present appeal.

In Exhibit DK3, the 3rd appellant, Alaye Tremie Jnr., made the following assertions:

(i) that in his capacity as Chief Returning Officer, he appointed all the Returning Officers including Evang. K.G. Enemuo and those who assisted them in the conduct of the Peoples Democratic Party National Assembly Primary Elections in the 3 Senatorial Zones and 11 Federal

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Constituencies in Anambra State (paragraphs 2 &3);

(ii) That the 1st respondent (Barr. Sopulucukwu Ezeonwuka) scored the highest number of votes cast at the primary, scoring 55 votes while the 5th co-appellant, Hon. Ben Nwankwo came second with 12 votes;

(iii) That the election was duly conducted in accordance with the PDP’s Constitution and Electoral Guidelines 2014 and the Electoral Act 2010, as amended (paragraph 7).

(iv) That the 1st respondent’s name is correctly inscribed on the result sheet being relied upon by the 1st respondent;

(v) That the 1st respondent and not the 5th co-appellant won the primary.

(vi) That all the documents bearing the name of Hon. Ben Nwankwo as the winner of the primary are not genuine;

(vii) That what gave rise to the suit at the trial Court filed by the 1st respondent was the refusal of the National Headquarters of the Party to accept the 1st respondent as the winner of the primary, as they had their own candidate;

(viii) That he was not aware of Appeal No. CA/A/179/2015 nor of the pendency of the appeal before this Court before 20/10/2016 and did not instruct Chief Arthur Obi Okafor, SAN

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to file the instant appeal or to represent him.

In the counter affidavit filed on behalf of the 1st – 4th appellants, but particularly the 1st appellant, PDP, through the Chambers of Chief Arthur Obi Okafor & Associates, apart from challenging the authority and instructions of Hon. David Iorhemba to disengage Chief Arthur Obi Okafor, SAN and to withdraw the appeal, it is averred that the same Mr. Alaye Tremie Jnr. (3rd appellant) had deposed to another affidavit of facts on 22nd April 2015 in respect of an unrelated matter wherein he attached documentary evidence to the effect that it was the 5th co-appellant who won the primary election for Orumba North/South Federal Constituency. The said affidavit of facts was attached and marked Exhibit PDP2. It was denied that any letter of disengagement was served on Chief Arthur Obi Okafor, SAN.

In his reply to the counter affidavit, Hon. David Iorhemba maintained that by virtue of Chapter 4 Part X Paragraph 33 (2) and 5 (e) of the PDP Constitution as amended in 2014 (annexed to the further affidavit of facts deposed to on 16/1/2017), he had the necessary authority as Legal Adviser of the National

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Caretaker Committee, to run and administer the affairs of the party on all legal matters including the prosecution and defence of legal actions and withdrawal of such actions like the present appeal, where necessary. He maintained that the facts deposed to in his affidavit of facts filed on 25/10/2016 (Exhibit DK3) represents the true state of affairs regarding the primary election conducted on 7/12/2014.

The 5th co-appellant in his affidavit of facts in opposition deposed to on 19/1/2017 also challenged Hon. David Iorhembas authority to represent the 1st – 4th appellants and to file the notice of withdrawal. He also exhibited the affidavit of facts deposed to by Mr. Alaye Tremie Jnr. on 22/4/2015 as Exhibit AA (same as Exhibit PDP 2 of Vincent Otaokpukpu Esq.) to which is attached the list of candidates submitted to INEC by PDP, which includes the name of Hon. Ben Nwankwo as the partys candidate for Orumba North/South Federal Constituency. It is further averred that the 3rd and 4th appellants produced the report of the PDP National Assembly Primary election of 7/12/2014 to which they attached handwritten but signed results/scores of the

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candidates, which showed that the 5th co-appellant won the primary for Orumba North/South Federal Constituency.

In reply to the counter affidavit and further affidavits of Victor Ottaokpukpu Esq., David Iorhemba Esq. maintained that he has the necessary authority to disengage Chief Arthur Obi Okafor, SAN and exhibited a letter of disengagement signed by Senator Ahmed Makarfi, CON and Senator Ben Ndi Obi, CON, Chairman and Secretary, Peoples Democratic Party National Caretaker Committee respectively, the sarne persons who briefed the learned senior counsel. He also contended that Exhibit PDP 2 (Exhibit AA) was “concocted by Vincent C. Ottaokpukpu and his cohorts.”

Hon. David Iorhemba urged the Court to dismiss the appeal on the ground that counsel cannot be imposed on the 1st – 4th appellants. That the same persons who engaged Chief Arthur Obi Okafor, SAN are the signatories to the letter of disengagement. In answer to questions put to him by the Court, he said he was unaware of the sister appeal in SC.846/2015: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP & Ors. He stated that he became aware of the order of this Court directing the Inspector General of

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Police to investigate certain aspects of the case from the affidavit of the co-appellant. He stated that he was aware that the 3rd appellant, one of the parties on whose behalf he sought to withdraw the appeal, is involved in an aspect of the matter referred to the Police for investigation.

In opposing the withdrawal of the appeal, Chief Arthur Obi Okafor, SAN relied on the counter affidavits filed. He maintained that the letter of disengagement attached to Hon. David Iorhemba’s reply was not brought to his attention earlier. He submitted that the action of learned counsel in filing a Notice of Withdrawal of Appeal on the day the appeal is fixed for hearing is not in accordance with the ethics of the profession. He noted that he had handled this matter from the High Court right up to this Court and there was never a complaint that he was unprofessional in his conduct of the case nor had his integrity been impugned.

However, having seen the letter of disengagement annexed to the reply affidavit, he was of the view that in order to preserve not only the integrity of the Court but the legal profession too, it would be unprofessional for him to be

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involved in a struggle for a legal brief. In other words, he decided not to contest the instructions of Hon. Iorhemba any further.

P.I.N. Ikwueto, SAN opposed the withdrawal of the appeal on the ground that the Notice of Withdrawal is incompetent. He submitted that since the 2nd and 4th appellants were appealing not only on their own behalf but as representing others, they could not withdraw the appeal without notifying the persons they represent. He submitted that there is only one appeal before the Court and that the 5th co-appellant is a co-appellant with the 1st-4th appellants. He also submitted that if it is found that the 3rd appellant deposed to two affidavits that are materially in conflict, this Court should hold that the offence of perjury has been committed.

Paul Erokoro, SAN, learned senior counsel for the 1st respondent and Alhassan A. Umar Esq. for the 2nd respondent left the issue to the Court’s discretion.

I had earlier reproduced the provisions of Order 8 Rule 6 (1), (2), (4), (5) and (6) of the Supreme Court Rules, as amended. I also noted that in the normal course of events, in view of the Notice of Withdrawal of Appeal filed on behalf of

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the 1st- 4th appellants, the appeal as it concerns them ought to have been deemed dismissed pursuant to Order 8 Rule 6 (5) of the Rules of this Court.

Order 8 Rule 6 (1) Supreme Court Rules as amended provides for the unilateral withdrawal of an appeal by an appellant. For the rule to apply the following conditions must co-exist:

(a) There must be an appeal by the appellant;

(b) There must be a withdrawal of the appeal in the words of Form 19 or 20 or such words indicating that there is no intention to further prosecute the appeal;

(c) The withdrawal may be at any time before the appeal is called on for hearing;

(d) Notice of the withdrawal must be served on all parties to the appeal

(e) The notice of withdrawal must be filed with the registrar.”

See: Dingyadi Vs INEC (No.2) (2011) 18 NWLR (Pt.1224) 154 @ 205 – 206 H C; Edozien Vs Edozien (1993) 1 NWLR (Pt. 272) 678 @ 699: Adeagbo Vs Yusuf (1990) 6 NWLR (Pt.158) 588.

For the Notice of Withdrawal to be competent under Rule 6 (1) above, all the parties to the appeal must consent to the withdrawal either by filing documents to that effect directly or,

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through their legal representatives in which case the appeal is deemed dismissed.

However, Rule 6 (4) provides that where all the parties do not consent to the withdrawal, it shall remain on the cause list to abide the discretion of the Court thereafter. See: Dingyadi vs INEC (No.2) (Supra) @ 206 C-E; In Re Nwude (1993) 3 NWLR (Pt.282) 492; Akuneziri vs Okenwa (2000) 15 NWLR (Pt.691) 526. The appeal shall remain on the list for the hearing of any issue as to costs or otherwise outstanding between the parties and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.

The first objection has to do with the authority of Hon. David Iorhemba to disengage Chief Arthur Obi Okafor, SAN and to issue the Notice of Withdrawal. Hon. David Iorhemba averred in paragraphs 3 & 4 of his affidavit of facts deposed to on 13/2/2017 that he is the National Legal Adviser of the National Caretaker Committee of the 1st appellant (PDP) and that by virtue of his position, in accordance with the Constitution of the Party as amended in 2014, his functions Include:

(a) To advise the party on all legal matters;<br< p=””

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(b) To conduct all litigation and prosecute and defend actions on behalf of the Party, including its organs and officials in so far as the subject of litigation affects the interest of our party; and

(c) To interpret the laws, regulations and Constitution of our party in the event of any ambiguities.”

He relied on Chapter 5 Paragraph 42 (1) (A), (B) and (C) at page 79 of the Peoples Democratic Party Constitution (as amended in 2014) attached as Exhibit DK 7 to his further affidavit of facts deposed to on 16/1/2017. He also relied on a letter of disengagement written by him and addressed to Chief Arthur Obi Okafor, SAN dated 13/12/2016 (Exhibit DK 5), said to have been served on the learned Senior Advocate by courier. The reliance by Hon. David Iorhemba on Chapter 5 Paragraph 42 (1), (A), (B) and (C) of the PDP Constitution (as amended) in 2014 was disputed by Chief Arthur Obi Okafor, SAN on the ground that there is no position in the PDP known as National Legal Adviser of the National Caretaker Committee of the party. It was averred that the functions listed in the said provisions are those of the National Legal Adviser of the Party, a position that

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has been vacant since May 2016. Service of Exhibit DK 5 was also disputed. It was contended that having received instructions from the Chairman and Secretary of the National Caretaker Committee of the Party, they are the only persons with authority to disengage him.

In his reply deposed to on 25/1/2017, Hon. David Iorhemba averred that his appointment as National Legal Adviser of the National Caretaker Committee was made by the National Convention of the Party pursuant to its powers under Part 4 Article 33 (2) (5) (e) of the Peoples Democratic Party Constitution. Also annexed to the Reply is a letter of disengagement dated 23/01/2017 addressed to Chief Arthur Obi Okafor, SAN and signed by Senator Ahmed Makarfi, CON and Senator Ben Ndi Obi, CON, chairman and secretary respectively of the PDP National Caretaker Committee, disengaging the learned Senior Advocate from handling this appeal (Exhibit DK 10).

Upon being served with the Reply of Hon. David Iorhemba and Exhibit DK 10, the learned senior counsel, Chief Arthur Obi Okafor, SAN, while deprecating the manner in which this matter has been handled by the 1st appellant and Hon. David Iorhemba in

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particular, conceded the issue of his disengagement or debriefing. It is important to note that the issue of the leadership of the PDP is sub-judice and a final decision yet to be given. However for the purpose of the withdrawal of the appeal of the 1st-4th appellants, the disengagement of Chief Arthur Obi Okafor, SAN is in order bearing in mind the fact that a litigant is entitled to counsel of his choice and is equally entitled to withdraw such brief at his discretion. I am satisfied from the affidavit evidence before the Court that having regard to Exhibits DK 5 and DK 10, Chief Arthur Obi Okafor, SAN has been duly disengaged from further participation in this appeal. I am also satisfied that Hon. David Iorhemba has the authority of the 1st – 4th appellants to withdraw the appeal filed on their behalf.

As regards the contention of the 5th co-appellant regarding the representative capacity of the 2nd and 4th appellants, I have considered the authority of Otapo Vs Sunmonu (1987) 2 NWLR (Pt.58) 587 relied on by learned senior counsel. The law as espoused in that case is as follows:

”a representative plaintiff is the sole plaintiff is

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Dominus litis until judgment. He can discontinue, compromise, submit to dismissal and other things as he decides during the Court of the proceedings.

If he falls out with any of the represented parties for any reason, the Court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ… Where several sue, they have the like power as a single representative plaintiff, but they must act together.”

@ 604 F-G per Obaseki, JSC.

In the instant appeal, the Notice of Appeal at page 661 of the record was jointly filed by the 1st – 4th appellants. The 2nd, 3rd and 4th appellants are all members of the 1st appellant. There is nothing before the Court to suggest that any of the persons represented by the 2nd and 4th appellants object to the withdrawal of the appeal. In the circumstances, I hold that the Notice of Withdrawal of appeal filed on 15/12/2016 on behalf of the 1st – 4th appellants is competent.

Before concluding this issue, it is necessary to address an issue that has arisen from some of the affidavits filed in respect of the Notice of Withdrawal.<br< p=””

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Attached to the affidavit of facts in support of the Notice of Withdrawal deposed to on 13/1/20l7 by Hon. David Iorhemba is Exhibit DK 3 with attachments thereto. Exhibit DK 3 is an affidavit deposed to on 25/10/2016 by the 3rd appellant, Mr. Alaye Tremie Jnr. It is titled:

“3rd Appellant’s/Respondent’s affidavit of facts in response to the order of the Supreme Court on 20/10/2016 directing the Inspector General of Police to cause a detailed investigation into the incidence of two result sheets in the Peoples Democratic Party (PDP) Primary Election to nominate the PDP candidate who contested and won the House of Representatives seat for Orumba North and Orumba South Federal Constituency of Anambra State held on the 7th of December 2014 at Mbaraizo Hall Umunze, Orunba South Local Government Area of Anambra State so as to determine whether any crime has been committed and who is culpable and charge same to Court for appropriate action.”

Some of the averments have been referred to earlier.

In paragraph 7 (v) and (vi) Mr. Tremie Jnr. averred as follows:

“(v) That the applicant, Ben Nwankwo did not win the said primary election conducted by

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the National Executive Committee of the 1st appellant, PDP at Mbaraizo Hall, Umunze, Orumba South Local Government Area of Anambra State on the 7th of December, 2014.

(vi) That I know that Barr. Sopuluchukwu E. Ezeonwuka (the 1st respondent) scored the highest number of votes cast at the said 1st appellant’s PDP primary election for Orumba North and Orumba South Federal Constituency of Anambra State conducted on 07/12/2014 at Mbaraizo Hall, Umumze, Orumba South Local Government Area of Anambra State by scoring 55 votes not Hon. Ben Nwankwo who came second with 12 votes followed by Barr. Handel Okoli with 10 votes Hon. Uche Obi with 9 votes and Godwin Uchime with 7 votes.”

Attached to Exhibit DK 3 is Exhibit TJ 3 – the result of the PDP National Primary Election dated 7/12/2014. Therein the 5th co-appellant, Hon. Ben Nwankwo is credited with 12 votes while the 1st respondent is credited with 55 votes.

Attached to the affidavit of Oluwatosin D. Soyebo, a legal practitioner in the firm of lkwueto, representing the co- appellant deposed to on 19/1/2017 is Exhibit AA. It is an affidavit of facts deposed to on 22/4/2015 by the same Mr. Alaye Tremie Jnr.

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before the Federal High Court Abuja. In paragraphs 22 and 24 reference is made to Exhibits D and F respectively as representing the correct state of affairs as regards the outcome of the PDP Primaries conducted on 7th December 2014.

Exhibit D is the list of PDP candidates for 2015 National Assembly Elections submitted to INEC. On page 2 of the House of Representatives Final list, the name of Hon. Ben Nwankwo appears as the 9th name under Orumba North/South Constituency. Also attached is Exhibit F – The Report of the Electoral Committee of which Mr. Alaye Tremie Jnr, was the chairman. It states inter alia that Hon. Ben Nwankwo scored 71 out of the total 78 accredited votes and emerged winner of Orumba North/South Federal Constituency. The report is signed by the 3rd and 4th appellants.

The effect of these observations is that there are two affidavits deposed to by the same person, Mr. Alaye Tremie Jnr. that are diametrically opposed to one another. Clearly the averments in one of the affidavits must be false.

The bedrock of our democratic process is the sanctity of the electoral process. It must be borne in mind at all times that the outcome of

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an election goes far beyond the individual candidates who contest for different positions. They carry on their shoulders the mandate of the electorate, which should never be tampered with for personal or political gain

In view of the conflicting averments in the affidavits deposed to by Mr. Alaye Tremie Jnr. on 26/10/2016 and 22/4/2014 respectively and the irreconcilable discrepancies in the documents attached thereto, it is hereby ordered that the Inspector General of Police shall conduct a detailed investigation into the affidavits deposed to by Mr. Alaye Tremie Jnr. in order to determine whether any crime, such as perjury, has been committed; and if so, to charge him to Court for appropriate action.

Subject to this order, the appeal of the 1st – 4th appellants is hereby dismissed pursuant to Order 8 Rule 6 (5) of the Rules of this Court, as amended.

Determination of SC.521/2016

Upon being granted leave to join in this appeal as a co-appellant and leave to appeal against judgment of the lower Court, the 5th co-appellant herein filed his Notice and Grounds of Appeal dated 26/10/2016 on the same day. The 5th co-appellant’s appeal is

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therefore subsisting and shall be determined accordingly.

As the appeal of the 1st-4th appellants has earlier been dismissed, the 5th co-appellant shall henceforth be referred to as the appellant.

In the appellant’s brief filed on 17/11/2016, adopted and relied upon by P.I.N. Ikwueto, SAN, the following 3 issues were identified for the determination of the appeal:

“(a) Whether the lower Court had the jurisdiction to deliver the judgment dated 26 June 2015 without considering and determining the pending Motion on Notice dated 18 June 2015 filed by the co-appellant and seeking for leave to appeal against the judgment of the learned trial Court as a party interested. (Distilled from Ground 1)

(b) In the light of the established jurisprudence in this country, was the Court below entitled to determine who should be the sponsored candidate of the 1st appellant (PDP); and thereby, impose the 1st respondent on the political party as its candidate. (Distilled from Grounds 2, 3, 4 and 6)

(c) Whether the lower Court was justified in upholding the decision of the learned trial Court that the PDP and INEC were the only persons entitled to be

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joined/sued by the 1st respondent in the instant suit. (Distilled from Ground 5)

The 1st respondent’s brief was deemed properly filed on 25/1/2017. Paul Erokoro, SAN adopted and relied on the said brief wherein 2 issues were formulated as follows:

(a) Did the Court of Appeal deliver its judgment when the 5th appellant’s motion for leave to appeal was pending in that Court

(Ground 1)

(b) In view of the unchallenged evidence before the trial Court and the admission of the plaintiff’s claim by the defendants, was the Court of Appeal not right to affirm the decision of the trial Court, which had found for the plaintiff (1st respondent herein)

(Grounds 2, 3, 4, 5, 6 and 6)

The 2nd respondent did not file a brief in this appeal.

It is pertinent to note that the 1st respondent raised and argued a preliminary objection at pages 3-8 of his brief. The grounds of objection are as follows:

1. The 5th appellant filed 2 Notices of Appeal when he was not appealing as of right contrary to law.
2. The 5th appellants Notice of Appeal dated 25th October 2016 and filed on the 26th October, 2016 on which he predicated his brief of

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argument contained grounds of appeal different from those on which he was granted leave to appeal by the Supreme Court.

The objection must be resolved before delving into the merit or otherwise of the appeal.

Relying on the authority of Ogembe Vs Usman (2011) 17 NWLR (Pt.1277) 639 @ 658 E – F and Section 233 (5) of the 1999 Constitution, as amended, PAUL EROKORO, SAN submitted that a party granted leave to appeal as an interested person such as the appellant herein, does not enjoy the same liberty as a party initially on record, to file several notices of appeal. Relying on the case of F.R.N. Vs Dairo & ors. (2015) 6 NWLR (Pt.1454) @ 167 B – D he submitted that the filing of two notices of appeal by the appellant is unconstitutional and that his election to rely on one of the Notices does not cure the defect.

On the second ground of objection the complaint is that the Notice of Appeal dated 25/10/2016 and filed on 26/10/2016 on which the appellant has elected to rely is different from the proposed notice of appeal attached to the appellant’s application for leave to appeal as an interested party as Exhibit A and is therefore incompetent.

He noted

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that the proposed Notice of Appeal had 6 grounds of appeal numbered consecutively while the substantive Notice of Appeal has 7 grounds not numbered consecutively, as there are two Ground 6 contrary to Order 8 Rule 2 (3) of the Supreme Court Rules. He submitted that Ground 6 in the proposed Notice of Appeal is completely different from each of the two Grounds 6 in the Notice of Appeal sought to be relied upon in this appeal. He noted that in first Ground 6 in the Notice of Appeal being relied upon, there are four particulars numbered (i) – (iv) while the second Ground 6 contains particulars (i), (ii) and (iii) whereas Ground 6 of the proposed Notice of Appeal contained only one particular numbered (iii). He argued that it is not an innocent blunder or clerical error as the particulars in the elected Notice of Appeal feature prominently in the submissions in the appellant’s brief particularly under Issue 2.

On the incompetence of a notice of appeal filed after leave to file same has been obtained, which is different from the proposed Notice of Appeal on which the Court relied to grant leave, he relied on the case of Ogambe Vs Usman (supra) at 658 – 659 G –

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C and Re: Otuedon (1985) 4 NWLR (Pt.392) 655 @ 668 A in urging the Court to strike out the appeal. He urged the Court to strike out issue 2 argued in the appellant’s brief which is predicated on several grounds of appeal including Ground 6, which is incompetent.

In reaction to the preliminary objection, P.I.N. IKWUETO, SAN submitted orally that the Notice of Appeal signed by Miss Prisca Ozoilesike upon which the appellant has elected to rely is the same, verbatirn as Exhibit A attached to the motion on notice filed on 23/2/2016 for leave to appeal as an interested person. He conceded that the appellant filed two notices of appeal but maintained that the Notice of Appeal relevant to this appeal is the one signed by Miss Prisca Ozoilesike just referred to and signed on 26/10/2016. He urged the Court to discountenance the objection.

I have carefully examined the proposed Notice of Appeal attached to the appellant’s motion filed on 23/2/2016 and compared it with the Notice of Appeal sought to be relied on in this appeal filed on 26/10/2016 and signed by Prisca Ozoilesike. It is correct that there are two Grounds 6 in the Notice of Appeal filed on

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26/10/2016 while there is only one Ground 6 in the proposed Notice of Appeal. However in the proposed Notice of Appeal Ground 6 therein is the same as the first Ground 6 in the elected Notice of Appeal. Ground 6 in the proposed Notice of Appeal has only particular (iii).

The first Ground 6 in the elected Notice of Appeal complains of the order for a re-run election made by the lower Court. The particulars (i) – (iv) thereunder expatiate on the complaint by contending that it was the appellant who was the validly nominated candidate of the party and who contested and won the election and that the 1st respondent was not nominated and did not contest the primary and general election.

The second Ground 6 on the elected Notice of Appeal complains of the order of the lower Court directing the 2nd respondent, INEC to include the 1st respondent name as the candidate of the PDP in the re-run election thereby imposing the 1st respondent on the PDP. The particulars of error thereunder refer to the right of a political party to sponsor a candidate for an election and the fact that the 1st respondent was neither sponsored nor nominated by the PDP as its candidate

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for the Orumba North/South Federal Constituency of Anambra State in the 2015 general election.

In the proposed Notice of Appeal, while Ground 6 is the same as the first ground 6 in the elected Notice of Appeal, particular (iii), which is the only particular that appears on the following page is clearly the particular (iii) relating to the 2nd Ground 6 of the elected Notice of Appeal which complains about the order to include the 1st respondent as the candidate of PDP in the re-run election.

In other words, it is clear to me that there was an error in the compilation of the proposed Notice of Appeal attached to the motion with a portion inadvertently omitted. I am unable to agree with learned senior counsel for the 1st respondent that there was a deliberate attempt to mislead the Court.

I have read the decision of this Court in Ogembe Vs Usman (supra) relied upon by learned counsel for the 1st respondent in respect of the two notices of appeal filed by the appellant. In Ogembe’s case, the appellant, after being granted leave to appeal as an interested party proceeded to file a notice of appeal that was quite different from the one attached to the

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application for leave to appeal. That is not the situation in this case where a genuine error was made.

Furthermore, the Court made the point that a party seeking leave to appeal as an interested party is not at liberty to file several notices of appeal from the final decision of a High Court or Federal High Court within 14 days or 3 months of the ruling or judgment as the case may be. Rather he is required to obtain leave to appeal within the prescribed period. The emphasis is on the need for the interested party to obtain leave within the time prescribed by the law.

In the circumstances, I hold that the objection is not well founded and cannot be sustained. It is accordingly overruled. I hold that the Notice of Appeal dated 25/10/2016 and filed on 26/10/2016 signed by Miss Prisca Ozoilesike of counsel, is competent.

I shall adopt the issues formulated by the appellant in the resolution of this appeal.

Issue 1

Whether the lower Court had the jurisdiction to deliver the judgment dated 26th June 2015 without considering and determining the pending motion, a notice dated 18 June 2015 filed by the co-appellant and

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seeking for leave to appeal against the judgment of learned trial Court as a party interested.

Learned senior counsel for the appellant, P.I.N. Ikwueto, SAN, submitted that a Court of law has a duty to hear and determine all applications before it, before delivering judgment, even where an application is filed at a time when the judgment has been prepared but yet to be delivered. He contended that the failure of the Court below to consider the application pending before it as at 18th June 2015 before delivering its judgment on 26th June 2015 amounted to a breach of the appellant’s right to fair hearing, which vitiates the entire proceedings and the proceedings ought to be set aside. On the duty to hear and determine all pending applications, he relied on several cases, including; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 12 SC (Pt.II) 50 @ 89; Mokwe vs Williams (1997) 11 NWLR (Pt.528) 309 @ 321 A; Eriobuna vs. Obiora (1999) 8 NWLR (Pt. 616) 622 @ 642. On the nullity of proceedings conducted in breach of the right to fair hearing, he cited: Afro-Continental Nig. Ltd. & Anor. Vs Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt.

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815) 303; Ovunwo vs Woko (2011) 17 NWLR (Pt.1277) 522 @ 548 A-D; Akpambgo-Okadigbo vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 @ 223 D-E.

In reaction, Paul Erokoro, SAN, noted that as admitted by the appellant, he filed two applications. That the first application for leave to appeal, as can be seen from pages 625 – 626 of the record, was struck out on 8th June 2015 on the day the appeal was heard. That by the appellant’s showing, the second application was filed after the appeal had been reserved for judgment. He submitted that in the circumstances, learned counsel for the appellant had a duty to draw the Court’s attention to the pending application. Learned senior counsel noted that in paragraph 4.3 of his brief, the appellant gave the number of the appeal in which the motion was filed as CA/179A/15 while the judgment in respect of this appeal as Appeal No. CA/179/15. He submitted that in the circumstances, the authorities cited on the duty of the Court to determine all pending applications before judgment are inapplicable. He submitted that where the appellant seeks to rely on evidence not contained in the record of appeal, he must seek leave to

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adduce fresh or additional evidence, which he failed to do. He referred to Order 2 Rule 12 of the Supreme Court Rules. He submitted further that the application has been overtaken by events, as this Court has since granted the leave sought for by the said application and he has nothing to gain by a resolution of this issue in his favour.

RESOLUTION

It is not in dispute and indeed the law is very well settled that a Court of law has a duty to dispense with all pending applications and/or processes before it, before reaching a final decision in a cause or matter. See: Akpan Vs Bob (2010) 17 NWLR (Pt.1223) 421; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 18 NWLR (Pt.852) 346; Irolo vs Uka (2002) 14 NWLR (Pt.786) 195 @ 225. Certainly the failure of a Court to do so, without a valid reason would amount to a violation of the right of the party not heard to fair hearing and as rightly submitted by Paul Erokoro, SAN, such violation would render the proceedings liable to be struck out.

I have carefully examined the record of appeal before the Court. In paragraph 4.3 of the appellant’s brief, learned senior counsel submitted that it is common

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ground that the co-appellant filed a motion on notice numbered as CA/A/179A/2015 on 18th April 2015 seeking for leave to appeal against the judgment of the learned trial Court in this suit. The said motion on notice numbered as CA/A/179A/2015 was struck out on 8th June 2015; whereupon the co-appellant filed another Motion on Notice still seeking for leave to appeal against the Judgment of the learned trial Court. This later motion was filed on 18 June 2015.

It is the motion filed on 18th June 2015 that is said to have been pending at the time judgment was delivered on 26th June 2015. As rightly observed by learned senior counsel for the 1st respondent, the proceedings of the lower Court on 8th June 2015 are at pages 625 – 626 of the record. The proceedings are in respect of Appeal No. CA/A/179/2015. There is no reference to any application filed on 18th April 2015 by the appellant herein. There is no record of the said application being struck out. This is not surprising, as the application, according to the appellant, had a different number i.e. CA/179A/2015. The record of that date i.e. 8th June 2015 however shows that the appeal No. CA/A/179/2015

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was heard and judgment reserved. The judgment of the Court was delivered on 26th June 2015. It spans pages 582- 615 of the record. At the foot of the lead judgment at page 611, the names of learned counsel involved in the appeal are endorsed. There is nothing to show that any counsel appeared on behalf of the appellant on that day or that the Court’s attention was drawn to any pending application. The application purportedly filed on 18th June 2015 with Appeal No. CA/A/179/2015 does not form part of the record of appeal before the Court. The Court is bound by its record.

The effect of the observations above is that the appellant has failed to show that there was an application pending before the Court below in respect of the appeal before it, which it failed to consider before delivering its judgment on 26th June 2015. This issue is accordingly resolved against the appellant.

Issue 2

In light of the established jurisprudence in this country, was the Court below entitled to determine who should be the sponsored candidate of the 1st appellant (PDP) and thereby impose the 1st respondent on the political party as its candidate

Relying on

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several decided authorities of this Court, including PDP Vs Sylva (2012) 13 NWLR (Pt. 1316) 85 @146; Gwede vs INEC & Ors. (2014) 10 SC 1 @ 43 and Onuoha vs Okafor (1983) 2 SCLNR 244, P.I.N Ikwueto, SAN, submitted that no Court has jurisdiction to compel a political party to sponsor or submit the name of any aspirant as its sponsored candidate. He submitted that a careful examination of the 1st respondent’s reliefs in the originating summons, particularly relief 1, would reveal that the substratum of the suit is to compel the PDP to forward the 1st respondents name to INEC as its sponsored candidate on the ground that he scored the highest number of votes at the primary election for the selection of the party’s candidate for the Orumba North/South Constituency. He submitted that beyond the fact that the Court lacks jurisdiction to grant such a relief, is the fact that the Court also lacked jurisdiction to compel a political party to sponsor a candidate outside the mandatory time limit of 60 days before the date appointed for the conduct of a general election prescribed for the submission of the partys list of candidates by virtue of Section 31 (5) of the Electoral Act. He noted that the 2015 general elections were

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originally scheduled for 14th February 2015 but later rescheduled to 28th March 2015 while the judgment of the trial Court compelling the PDP to forward the 1st respondent’s name as its candidate for the election was delivered on 20th February 2015. He noted that the 60 days had elapsed even before the suit was mentioned at the trial Court. Relying on Madukolu vs Nkemdilim (1962) 2 NSCC 374 and Western Steel Works Ltd. Vs Iron & Steel Workers Union (No.2) (1986) 3 NWLR (Pt.30) 617, he submitted that any feature of the case, which prevents the Court from exercising its jurisdiction affects not only the competence of the trial Court to adjudicate but also affects the jurisdiction of an appellate Court to entertain an appeal therefrom. He submitted that the originating summons in the instant case was inherently defective.

Learned senior counsel sought to rely on the Affidavit of Facts deposed to on behalf of PDP filed on 18/10/2016 pursuant to an order of this Court in the course of hearing the appellant’s application for leave to be joined as an interested party in the appeal on the ground that the affidavit forms part of the Court’s record, and that the

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Court is at liberty to look at and utilize documents in its file even though such document was not tendered and admitted as an exhibit at the trial in order to do substantial justice between the parties. At paragraph 4.29 of his brief he listed 8 documents attached to the said affidavit of facts which show that the PDP in fact submitted the appellant’s name to INEC as its sponsored candidate. He reiterated his earlier reliance on PDP vs Sylva (supra) to the effect that no member of a political party has the locus standi to question the partys prerogative to choose its candidates for elective office.

He submitted that a cursory look at some of the averments in the supporting affidavit and the exhibits annexed thereto revealed certain falsehoods that render the averments incapable of persuading the Court of the cogency of the 1st respondents claims. For example, he referred to contradictions in the averments in paragraphs 33 and 35 of the supporting affidavit regarding the number of accredited delegates and number of votes cast. That the total number of votes cast as per paragraph 33 is 93 while the number of accredited delegates as shown in

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Exhibit H is 108. He contended that in the circumstances the result being relied upon by the 1st respondent tells an obvious lie and is completely against his case. He submitted that where an affidavit, even though uncontradicted, tells an obvious lie, the Court ought not to rely on it. He submitted that the concurrent findings of the two lower Courts that the 1st respondent proved his claim of being the winner of the primary election is not supported by the evidence on record. He submitted that the report of the PDP National Assembly primary Election for all the Federal Constituencies in Anambra State, including Orumba North/South Federal Constituency at page 256 of the record and the primary election result sheet at page 250 of the record show the appellant as the winner of the election. He also referred to page 287 of the record, which contains an extract of the minutes of the meeting of the National Working Committee of the PDP at which the appellant’s nomination as the party’s candidate was approved. He submitted that all the documents referred to were before the Court below.

He submitted that in affirming the judgment of the trial Court, which

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directed the PDP to forward the 1st respondents name to INEC as the authentic, duly elected, validly nominated and duly returned candidate of the PDP to contest the House of Representatives election for the constituency, the lower Court had no jurisdiction to order a re-run primary election in the absence of such relief being claimed by any of the parties and particularly without hearing any of the candidates of other political parties who would be affected. He referred to: Ekpenyong Vs Nyong (1975) 2 SC (Reprint) 65 @ 73 – 74 lines 40 – 45. He submitted that such order made without jurisdiction is a nullity.

He referred to: Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (No.1) (2015) 3-4 SC (Pt. II) 48 @ 83 lines 5-33; (2015) 10 NWLR (pt.1466) 171 @ 205 D-H. He submitted that since the orders of the trial Court were made without Jurisdiction, anything proceeding therefrom would also amount to a nullity. He submitted that in the circumstances the parties ought to revert to the status quo ante bellum. He submitted that the status quo ante bellum in this case is that the appellant’s name had been

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submitted to INEC by PDP as its candidate having won the primary election. He sought other reliefs, which will be addressed if the need arises.

In reaction to the above submissions, Paul Erokoro, SAN, learned senior counsel for the 1st respondent argued that the issue before this Court is to determine whether the lower Court decided the case correctly and not to determine the appeal as if it were the Court of first instance. He submitted that this Court is only entitled to consider the evidence upon which the two lower Courts based their decisions. He submitted that the Affidavit of Facts deposed to on 18/10/2016 was in respect of an application that has been disposed of and therefore cannot be used in this appeal without the consent of the parties. He relied on Sambo vs The State (1993) 6 NWLR (Pt.300) 399; Waziri vs The State (1997) 3 NWLR (Pt. 496) 689 @ 720 B, and stated that the 1st respondent does not consent to the use of the affidavit in this appeal. He identified various aspects of the documents annexed to the 1st – 4th appellants’ application to set aside the judgment of the trial Court at pages 250 – 258 of the record and contended that they

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were concocted during the pendency of the case. He submitted that the documents attached to the Affidavit of Facts and to the affidavit in support of the application for leave to appeal as an interested party are not part of the record of appeal and that this Court cannot go outside the record before it.

He relied on: Funduk Eng. Ltd. Vs McArthur (1995) 4 NWLR (Pt.392) 640 and veepee Ind. Ltd. Vs Cocoa Ind. Ltd. (2008) 4 – 5 SC (Pt.1) 116 @ 134 line 25: (2007) 4 SCNJ 485 @ 495; that by Order 2 Rule 12 of the Rules of this Court, leave must be sought and obtained to adduce fresh evidence on appeal, which was not done in this appeal; that the averments in the said affidavits were not in the grounds of appeal considered by the lower Court and are therefore inadmissible as evidence in this appeal. He referred to Aroh vs PDP & Ors. (2013) 13 NWLR (Pt.1371) 235; that the affidavit of facts was not deposed to on behalf of all the former appellants, as the deponent averred that he had the consent of only the 1st appellant, PDP. He argued that PDP could not file a process on behalf of the present appellant, who is ably represented by a learned senior

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counsel.

He submitted that this Court having ordered the Inspector General of Police to investigate the issue of conflicting results emanating from the same primary to determine whether a crime has been committed, cannot now prefer one set of conflicting claims to the other. He noted that the appellant had the opportunity to challenge the judgment of the trial Court when he filed an application to set aside the judgment but later withdrew it. He submitted further that it is inconceivable that when served with the originating summons the former 1st – 4th appellants would not have notified the present appellant and advised him to join in the suit. He contended that by paragraph 19 of the affidavit in support of the application to set aside the judgment at page 248 of the record, it was evident that the appellant was aware of the judgment of the trial Court as at 23/2/2015 but took no steps to set it aside preferring to allow the party to pursue the matter on his behalf.

He submitted that the appellant cannot make a case before this Court different from the case made by the former co-appellants before the trial Court. He submitted that the allegation

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that the former counsel compromised their case was vigorously denied by the said counsel at pages 288 – 292 of the record. He contended further that in any event, the said counsel having full control of his client’s case was entitled to compromise same if he deemed it expedient to do so. He referred to: Ibori Vs Agbi & Ors. (2004) 6 NWLR (Pt.868) 78 @ 125 A – F.

On the alleged discrepancy between the number of accredited voters and the total number of votes cast as contained in Exhibit H attached to the supporting affidavit, he submitted that what the law requires is substantial compliance and that the fact that the number of people who voted was less than the number accredited is a common occurrence in elections and not fatal.

On whether the two lower Courts imposed a candidate on the PDP, learned senior counsel submitted that from the processes filed before the trial Court, the defendants did not deny that the appellant was an aspirant for the 2015 House of Representatives primary election for the constituency, which was held on 7/12/2014. He submitted that in the circumstances, the Court acted under Section 87 (9) of the Electoral Act 2010 (as

50

amended). He submitted that the 1st respondent, being an aggrieved aspirant, properly invoked the jurisdiction of the trial Court to entertain his claim and the Court rightly granted his reliefs. On the scope of Section 87 (9) of the Electoral Act, he referred to: Nobis-Elendu Vs INEC & Ors. (2015) LPELR- 25127 (SC); also reported in (2015) 16 NWLR (Pt. 1485) 197; Shinkafi vs Yari & Ors. (2016) LPELR-40083 (SC); also reported in (2016) 7 NWLR (Pt.1511) 340. He contended that all the grounds of appeal in the appellants notice of appeal filed on 26/10/2016 are predicated on facts which do not form part of the record of appeal but were contained in processes filed after the judgment of the trial Court, such as the former 1st – 4th appellants’ application before the trial Court to set aside the judgment on grounds of fraud and affidavits in support of the interlocutory motions before this Court. He submitted that the 1st respondent had filed an affidavit on 19/10/2016 challenging the inclusion of the application as part of the record of appeal. He noted that in any event, the trial Court dismissed the said application and there was no appeal against the decision. He referred to pages 377 – 382 of the record.

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RESOLUTION

In my considered view the appropriate starting point in determining this issue is to ascertain the nature of the 1st respondent’s claim before the trial Court. While the appellant contends that suit seeks to invite the Court to interfere in the internal affairs of a political party in determining who its candidate should be, which, on the authorities of this Court is not justiciable, it is the contention of the 1st respondent that the claim is within the purview of Section 87 (9) of the Electoral Act, 2010, as amended and within the jurisdiction of the Court to hear and determine. In arguing this issue, both learned counsel have made submissions in respect of both the competence of the suit and its merits. Certainly it must first be determined whether the suit was properly before the Court.

Section 87 (1), (4) (c) and (9) of the Electoral Act, 2010 (as amended) provides:

87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions,

(4) A political party that adopts the system of indirect primaries for the choice of its

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candidates shall adopt the procedure outlined below:

(c) in the case of nomination to the position of a candidate to the Senate House of Representatives and State House of Assembly, a political party shall, where it intends to sponsor candidates:

(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre on specific dates; and

(ii) the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirants name shall be forwarded to the commission as the candidate of the party.

(9) Notwithstanding the provisions of this Act or Rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.

It has been held in a plethora of decisions of this Court that the

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Jurisdiction of a Court to entertain a complaint under Section 87 (9) of the Electoral Act falls within a very narrow compass. The complainant must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party. see: Uwazurike vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 526 E-G; PDP vs Sylva (2012) 13 NWLR (Pt. 1316) 85 @ 148 C-D; 149 A-E; Lado vs C.P.C. (2012) All FWLR (Pt. 607) 598 @ 622-623 F-H; APGA vs Anyanwu (2014) 2 SC (Pt.1) 1. The rationale for this position is that the nomination and sponsorship of a candidate for an election is within the domestic affairs of a political party and the Courts have no jurisdiction to nominate a candidate for any party. See: PDP Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 146 A – E: Gwede vs INEC (2014) 18 NWLR (1438) 56 @ 148 – 149 H – B: Onuoha Vs Okafor (1983) 2 SCNLR 244; Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556.

In his originating summons, the 1st respondent sought 6 reliefs upon the determination of the several issues submitted for determination. For the purpose of this judgment, I reproduce

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hereunder reliefs 1, 3 & 4;

1. A DECLARATION that the plaintiff is the only qualified, authentic, duly elected, validly nominated and duly returned candidate of Peoples’ Democratic Party (PDP), the 1st defendant to contest the National Assembly General (House of Representatives Elections) Elections for Orumba North and Orumba South Federal Constituency scheduled to hold on 14/02/2015 or any other date.
2. An ORDER OF INJUNCTION restraining the 1st, 2nd, 3rd and 4th defendants from submitting to the 5th defendant any name in whatsoever manner other than the name of the plaintiff as the only qualified, authentic, duly elected, validly nominated and duly returned candidate of the 1st defendant for Orumba North and Orumba South Federal Constituency National Assembly (House of Representatives Election) Election scheduled to hold on 14/02/2015 or any other date.
3. AN ORDER of the Court restraining the 1st, 2nd, 3rd and 4th defendants from substituting and/or changing the result of the National Assembly (House of Representatives) Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze by the Returning Officer, Evan. K.G. Enemuo wherein the

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plaintiff polled the highest votes cast as declared publicly by the said Returning Officer, Evan. K.G. Enemuo on the said 07/12/2014 or supplanting or substituting and/or changing in whatsoever manner the plaintiff and/or the name of the plaintiff who is the only qualified, authentic, duly elected, validly nominated and duly returned candidate of the 1st defendant with any other name and/or person whatsoever for the National Assembly General (House of Representatives Elections) Elections for Orumba North and Orumba South Federal Constituency scheduled to hold on 14/02/2015 or any other date.”

and paragraphs 32, 33, 34, 39, 40, 42, 43, and 48 of the affidavit in support:

“32. That I am one of the aspirants who contested the said House of Representatives Primary Election at Mbaraizo Hall Umunze on 07/12/2014 and that other aspirants that contested the said primary election with me are, Mr. Godwin Uchime, Barr. Handel Okoli, Vin Okolo, Hon. Ben Nwankwo and Uche Obi who was not physically present at the venue of the said primary on 07/12/2014 at Mbaraizo Hall, Umunze but she scored votes in proxy.

33. That at the end of the voting and counting of

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votes scored by each aspirant by the Returning Officer, Evan. K.G. Enemuo, Viz; Hon. Uche Obi scored 9 votes; Mr. Godwin Uchime scored 7 votes; Barr. Handel Okoli scored 10 votes: Vin Okolo scored 15 votes; Hon, Ben Nwankwo scored 12 votes and I scored 55 votes to emerge as an aspirant that polled the highest number of votes cast at the said Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze, the Constituency Headquarters of Orumba North and Orumba South Federal Constituency.

34. That at the end of voting by the delegates and counting of the votes scored by each aspirant, the Returning Officer, Evan. K.G, Enemuo announced all the results polled by each aspirant publicly and thereafter recorded the results on the official result sheet, Form-Code PD004/NA in accordance with PART V, Paragraph 30 (a) of the 1st defendant’s Electoral Guidelines for Primary Elections, 2014.
35. That the result of the Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze as declared publicly and recorded on Form-Code PD004/NA by the Returning Officer, Evan. K.G. Enemuo is the only legitimate result that emanated from the only legitimate House of

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Representatives Primary Election conducted by the 1st defendant on 07/12/2014 at Mbaraizo Hall, Umunze.

40. That the Primary Election conducted on 7/12/2014 at Mbaraizo Hall, Umunze by the said returning officer, Evang. K.G. Enemuo complied with the provisions of the Electoral Act 2010 (As Amended) and was conducted within the dictates of the Electoral Guidelines for Primarv Elections 2014 and the Peoples’ Democratic Party (PDP), the 1st defendant on record in this suit.
41. That the Returning Officer, Evang. K.G. Enemuo, informed me at Don Ritz Hotel Udoka Housing Estate Awka, Anambra State at about 3:30pm on 07/12/2014 that the 3rd defendant, Mr. Alaye Tremie jnr refused to collect and sign Form-Code PD004/NA when he, the Returning Officer, Evan K.G. Enemuo returned Form-Code PD004/NA, the result sheet to Mr. Alaye Tremie jnr as the Chief Returning Officer and/or the Returning Officer of the National Assembly Primary Election for Anambra State who shall declare the aspirant that polled the highest votes cast nominated or elected immediately after the election, telling the Returning Officer, Evan. K.G. Enemuo, that they will not collect, sign and

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declare the result because Abuja had directed them on whom they will return as elected whereas he (Evan, K.G. Enemuo) had returned a different person contrary to Abuja directives and I verily believed him to be true.

43. That the Returning Officer, Evan. K.G. Enemuo further informed me at Don Ritz Hotel Udoka Housing Estate Awka, Anambra State at about the same 3:30pm on 07/12/2014 that the 3rd defendant, the Chairman of the National Assembly Electoral Panel for Anambra State, Mr, Alaye Tremie jnr, the 3rd defendant on record and the Secretary of the said Electoral Panel, Rodney Ambaiowei, the 4th defendant on record told him (the Returning Officer, Evan. K.G. Enemuo) that the result sheet Form-Code PD004/NA (Plaintiff’s Exhibit “H”) which they came to Anambra State with which he (Returning officer, Evan. K.G. Enemuo) used in conducting the said Primary Election is discarded and therefore will not be used, that they will be given another result sheet, Form-Code PD004/NA the moment they go back to Abuja for them to rewrite the result the way and manner Abuja people want them to rewrite the result and I verily believed him to be true.
44. That I am

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the aspirant that emerged as the winner from the only legitimate primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze by Evan. K.G. Enemuo (the Returning Officer) who conducted the said Primary Election of the 1st defendant on 07/12/2014 at the said Mbaraizo Hall, Umunze having polled the highest number of votes cast.”

(Emphasis mine)

My Lords, a careful perusal of the reliefs sought and the averments in the 1st respondents supporting affidavit above, particularly paragraph 40 thereof, indicates that the primary election conducted on 7/12/2014 “complied with the provisions of the Electoral Act 2010 (as amended) and was conducted within the dictates of the Electoral Guidelines for Primary Elections 2014 and the Peoples’ Democratic Party (PDP) the 1st defendant on record…. In other words, he is not challenging the conduct of the primary nor is he complaining of non-compliance with the provisions of the Electoral Act or the PDP Electoral guidelines. While seeking declaration that he is the ONLY qualified, authentic, duly elected, validly nominated and duly returned candidate, it was his contention that there was a move by the

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same party to substitute his name with another. It was on this basis that he sought the reliefs referred to above. It seems to me that having positively averred that there was due compliance with the provisions of the Electoral Act and the PDP guidelines in paragraph 40 of the supporting affidavit, the 1st respondent had effectively removed his claim from the purview of Section 87 (9) of the Electoral Act. The issue of substitution is a different matter altogether. This Court in PDP vs Sylva (supra) at 146 B – E per Chukwuma-Eneh, JSC held:

” … the choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiciable. See Onuoha Vs Okafor and again Dalhatu Vs Turaki (supra). Furthermore, as a legal proposition also deducible from the case of Onuoha Vs Okafor no member of a political patty has the locus standi to question the partys prerogative right on the issue of its choice of candidates for elective

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office not even in the face of breaching of its rules and regulations. I dare say, The redress available to such a member who is aggrieved and who has suffered any damage as a result of refusing him nomination and sponsorship lies in damages against the political party and subject to the provision of the party constitution, rules and regulations.”

See also: Eligwe Vs Okpokiri & Ors. (2014) 12 SC (Pt.1) 33 @ 60 line 35 – 61 lines 1 – 4. In Tukur vs Uba (2013) 4 NWLR (Pt.1343) 90 @ 134 D, this Court held that the political party is the proper body or person to know which of the aspirants it has cleared for the primaries and general election afterwards. It was further held that so long as the guidelines and constitution of the political party are not violated or breached, the Court has no power to question the choice of a partys candidate presented for election. One of the reliefs sought by the plaintiff in that case at the trial Court was: “A declaration that it is mandatory for the 1st defendant [PDP] to nominate the winner of the primary election as its flag bearer candidate for the purpose of participating and contesting in the National

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Assembly Election in Kebbi State slated for 2nd April, 2011.

In the instant case, the 1st respondents complaint is not that the partys constitution, Electoral Guidelines or the provisions of the Electoral Act had been violated but that the party had indicated an intention to sponsor a different candidate. In such circumstance, where evidence of an actual substitution was not even before the Court, I am of the view, and I do hold that the purport of the claim before the trial Court was to compel his party to sponsor him as its candidate. The trial Court had no jurisdiction to grant such a relief, which is within the internal affairs of the party.

In affirming the judgment of the trial Court, the Court below made an order directing the 2nd respondent, INEC, to conduct a re-run election for the Orumba North/South Constituency of the House of Representatives with the 1st respondent as the candidate of the PDP. I am in full agreement with learned senior counsel for the appellant that the lower Court lacked jurisdiction to make such an order. In the first place, as held above, the Court has no jurisdiction to impose a candidate on a

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political party. Secondly there was no such relief claimed by any of the parties before it. Thirdly all the parties who would have been affected by the order, including the other political parties who had already selected and nominated their candidates, were not parties in the appeal before it. The effect of an order made without jurisdiction is that it is a nullity. See: Odofin Vs Agu (1992) NWLR (Pt.229) 350: Nidocco Ltd. Vs Gbajabiamila (2013) 14 NWLR (pt.1374) 350; Ekpenyong Vs Nyong (1972) 2 SC (Reprint) 65 @ 73 – 74 lines 40 – 45. In effect, this issue is resolved in favour of the appellant.

ISSUE 3

Whether the lower Court was justified in upholding the decision of the learned trial Court that the PDP and INEC were the only persons entitled to be joined/sued by the 1st respondent in the instant suit.

Learned senior counsel referred to the observation of the learned trial Judge at page 397 of the record to the effect that the failure to submit the 1st respondents name to INEC could not be explained since there was no contention by the 1st 4th defendants (former 1st – 4th appellants herein) that they had forwarded the name of a

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different aspirant to the commission. He argued that by this observation, the trial Court appreciated that there were other aspirants who participated in the primaries. He submitted that having regard to the specific nature of the 1st respondent’s claim of being the ONLY qualified, authentic and duly elected, validly nominated and duly returned candidate, the implication was that there were other candidates who participated in the election. Learned senior counsel argued that having averred that other candidates took part in the primary election, those aspirants ought to have been joined in the suit, particularly the appellant, who, to his knowledge was the party’s sponsored candidate. He argued that the lower Court erred in upholding the finding of the trial Court on this issue.

He argued that the joinder of the other aspirants would have enabled the Court properly determine whether the appellant was the ONLY qualified candidate. He argued that if the Court below had taken into consideration the averments of the 1st respondent in his affidavit in support of the originating summons to the effect that he had been informed by the Returning Officer that the

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result sheet for the primary election given to all the aspirants was discarded, it would have concluded that the other aspirants ought to have been joined in the suit. He contended further that having regard to Section 31 (1) of the Electoral Act and the Timetable and Schedule of Activities for the General Election established by the 2nd respondent, INEC, which was attached as an exhibit to the affidavit in support of the originating summons, the learned trial Judge, as at the date of judgment on 20/2/2015 could not rightly have closed his eyes to the fact that the party would have submitted the name of its candidate. He submitted that even in the face of documents before it showing that the appellant’s name had been submitted by the party to INEC as its sponsored candidate, the lower Court glossed over it thereby rendering its judgment perverse.

Relying on the authority of Okoye Vs Nigeria Construction and Furniture Co. Ltd. (1991) 22, NSCC (Pt.II) 422 and Oloriode Vs Oyebi (1983) SCNLR 390 @ 392, he submitted that where any person against whom a right claimed exists or who claims a right for which an action is instituted is not made a party to the suit, the action will be improperly constituted and the

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Court will have no jurisdiction to entertain it in the absence of the affected party.

He submitted that the political party having submitted the appellant’s name to INEC as its sponsored candidate, he had acquired a vested right in the subject of the PDP candidate for the Orumba North/South Federal Constituency. On the meaning of “vested right”, he referred its definition in Blacks Law Dictionary, 6th edition, which was adopted with approval by this Court in Ndayako Vs Dantoro (2004) 13 NWLR (Pt.889) 187 @ 216. He urged the Court to resolve the issue in the appellants’ favour.

Learned senior counsel for the 1st respondent reacted to the above submissions in paragraph 6.18 of his brief having subsumed the appellants issues 2 & 3 in his issue 2.

He submitted that there was no law breached by the failure to join the appellant in the suit having regard to the facts contained in the originating summons. He submitted that the 1st respondent had no claim against him. That the 1st respondent’s claim was simply that he won the primary and that the 1st – 4th appellants (whose appeal has since been withdrawn and dismissed) had indicated an

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intention to alter the result and submit someone else’s name. According to learned senior counsel, the people who had wronged the 1st respondent were the original 1st – 4th appellants and were the persons properly sued. He noted further that the said appellants (as defendants) admitted that the 1st respondent won the primaries. He submitted that in view of the defendants’ admission, the trial Court was justified in not ordering the joinder of the other aspirants and there was no reason for the lower Court to disagree. He submitted that joinder of parties depends on the plaintiff’s claim and urged the Court to resolve this issue in favour of the 1st respondent.

RESOLUTlON

In resolving this issue, it is necessary to keep two legal principles in mind. The first is that election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See: Hassan vs Aliyu (2010) 17 NWLR (Pt.1223) 547; James vs INEC (2015) 12 NWLR (Pt. 1474) 538. In Orubu vs National Electoral Commission (1988) 5 NWLR (Pt.94) 323 @ 347, His Lordship Uwais, JSC (as he then was) opined thus:

”an election petition is not the

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same as ordinary civil proceedings. It is a special proceedings because of the peculiar nature of elections, which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in Court.

See also: Obasanya Vs Babafemi (2000) 15 NWLR (Pt.689) 1 @ 17 A – D per Uwais, JSC (as he then was); Abubakar Vs YarAdua (2008) ALL FWLR (Pt.404) 1409 @ 1450 E – F. Since primary elections produce the candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis.

The second legal principle is that in order to determine the competence of a suit and the jurisdiction of the Court to entertain it, it is the plaintiff’s claim in a matter begun by writ of summons or the supporting affidavit in a matter begun by originating summons that would be considered. See: Adeyemi Vs Opeyiri (1966) 10 SC 31; Amale Vs Sokoto Local Government & Ors. (2012) LPELR-7842 (SC).

I had earlier in this judgment reproduced

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some of the reliefs sought by the 1st respondent in his originating process and some of the paragraphs of the supporting affidavit. By his relief 1 he sought to be declared the ONLY qualified, authentic, duly elected, validly nominated and duly returned candidate of the PDP to contest the National Assembly (House of Representatives) Elections for Orumba North/South Federal Constituency scheduled to hold on 14/02/2015. In paragraph 48 of the supporting affidavit he averred that he emerged winner of the ONLY LEGITIMATE primary election conducted on 7/12/2014. These facts show clearly that there is at least one other aspirant who is laying claim to victory or who has been sponsored by the party. This fact is even more pertinent having regard to Section 31(1) of the Electoral Act which requires a party to submit its list of candidates not later than 60 days before the date appointed for the general election. ln this case, the election was originally scheduled for 14th February 2015 while the originating summons was filed on 15th December 2014. In paragraph 33 of the supporting affidavit (infra), he listed other aspirants, including the present appellant, Ben

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Nwankwo, who contested the Primary election with him. At the very least, it would have been necessary for those aspirants to be included in the suit, as the outcome would likely affect their interest. In other words, in the event that the appellant was successful, the outcome would be binding on every other aspirant, including the appellant and would have conclusively determined that none of them was the qualified and authentic candidate of the party.

The issue that arises is whether the suit before the trial Court was properly constituted, bearing in mind the fact that this is a pre-election matter. In the well known decision of this Court in Madukolu Vs Nkemdilim & Ors (1962) 2 ALL NLR 581 @ 589 this Court held that a Court is competent when:

“(1) 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; and

(2) 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

3) the case comes before the Court initiated by due process of law, and upon

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fulfillment of any condition precedent to the exercise of jurisdiction.”

In Okoye vs Nigerian Furniture Construction Co. Ltd. (1991) 22 NSCC (Pt.II) 422; (1991) 6 NWLR (Pt.199) 501 @ 532 B-E, this Court, relying on its decision in Madukolu vs Nkemdilim (supra) at page 596, held per Akpata, JSC, that the irregularity occasioned by the failure to join a necessary party in a suit may be so grave as to affect its fairness and the soundness of the adjudication, which may result in its being set aside on appeal. The unfairness in such circumstance infringes on the right to fair hearing of the party so excluded.

In Ikechukwu Vs Nwoye (2015) 3 NWLR (pt. 1446) 367 @ 400, this Court per Galadima, JSC held:

” … the learned counsel for the 1st respondent is saying that the appellant is not a necessary party to that suit because he could have competently prosecuted the action against the 2nd respondent herein (INEC) as the sole respondent. For learned counsel for the 1st respondent to take this stand is to lose sight of the fact that the main purpose of his [1st respondents] suit is for the Court to declare him the lawful candidate of the PDP for the

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election and for him to be accorded all the rights and privileges and entitlements due to the candidate of his party/ PDP. Is the 1st respondent now saying that while approaching the Court to be declared as the lawful candidate, his interest is not competing with that of the appellant …. The foregoing argument boils down to the fact that the 1st respondents action instituted without joining the appellant was not properly constituted.”

See also: Akpamgbo-Okadigbo Vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 @ 205 D – H. A question that arises in the circumstances of this case is what would have been the effect of a judgment in the 1st respondents favour if, by the time it was delivered another aspirant had been issued with a certificate of return, bearing in mind the 1st respondents contention that there were moves to discard the result and substitute another candidate As observed by this Court in Ikechukwu Vs Nwoye (supra) the Court would have no jurisdiction to order the 1st respondent to step into the shoes of a person who was never a party to the suit.

I had observed earlier that pre-election matters just like election

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matters are sui generis. In other words they are of a special breed. Where a party is claiming to be the only qualified, legitimate, duly elected and validly nominated candidate of the party for the primary election, the action cannot be properly constituted in the absence of the other aspirants. The 1st respondent contended that he had no grouse against the other aspirants. However, since this is a pre-election matter, there is no doubt that the interests of the other aspirants would certainly be affected by the outcome of the suit. The view of the lower Court at page 610 of the record that there was no need for the other aspirants to have been made parties to the suit because the 1st respondent had no claim against them and no particular order was made against them, with respect, cannot be correct. A declaration that the 1st respondent is the only legitimate candidate of the party has the effect of disqualifying any other aspirant whose name might actually have been submitted to INEC by the party.

In the circumstances of this case, I am of the view and I do hold that the 1st respondent’s suit was not properly constituted and this is a feature that has

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adversely affected the competence of the Court to adjudicate on it. I agree entirely with learned senior counsel for the appellant that the manner in which the suit was constituted has occasioned a grave miscarriage of justice and amounts to a breach of his right to fair hearing. This issue is accordingly resolved in favour of the appellant.

In conclusion, having resolved both issues in favour of the appellant, the appeal succeeds and is hereby allowed. The judgment of the lower Court delivered on 26/6/2016 is hereby set aside for being a nullity, having exceeded its jurisdiction by granting a relief not sought by the parties before it. Having held that the suit before the trial Court was incompetent for not being properly constituted and for lack of jurisdiction to grant the reliefs sought, it follows that the judgment of the Federal High Court, Abuja delivered on 20/2/2015 was delivered without jurisdiction and is a nullity. It is accordingly set aside. The Originating Summons filed on 15/12/2014 in FHC/ABJ/CS/1013/14 is hereby struck out.

The consequence of the above orders, as rightly submitted by learned counsel for the appellant is that the

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parties shall revert to the status quo ante i.e, the state of affairs before the suit was filed at the trial Court. In the course of determining the appellant’s application for leave to be joined in the appeal as an interested person, this Court directed Chief Arthur Obi Okafor, SAN, who was representing the then appellants to depose to an affidavit stating the position of the 1st Appellant (PDP) regarding the primary election conducted on 7/12/2014. Therein it was averred that the appellant was the candidate screened, cleared and sponsored to contest the election. The averments in that affidavit are in tandem with the affidavit in support of the motion to set aside the judgment of the trial Court dated 24/2/2015. Particular reference is made to pages 250 – 258 of the record wherein it is shown that the appellant, BEN NWANKWO, won the primary election with 71 votes, confirmed by the Report of the PDP Electoral Panel for Anambra State (at pages 251 – 256 of the record, particularly page 255) signed by Mr. Alaye Tremie Jnr. and Engr. Rodney Ambiowei (former 3rd and 4th appellants) as chairman and secretary respectively of the National Assembly Primary Election

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Panel for the State and the list of the names of candidates for the House of Representatives Election submitted to INEC by PDP. The appellant’s name appears as number 9 on the list under Orumba North/South Constituency at page 258 of the record. The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See: Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 210 @ 229 E; Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378 @ 411-412 H-C; Funduk Eng. Ltd. Vs McArthur (supra); Womiloju vs Anibire (2010) 10 NWLR (Pt. 1203) 545 @ 561 G. The inclusion of these processes in the record transmitted from the Court below presupposes that they form part of the record of proceedings before that Court.

Thus the existing position before the 1st respondent filed his suit at the trial Court was that not only was the appellant’s name submitted to INEC as its candidate representing Orumba North/South Federal Constituency in the National Assembly (House of Representatives) elections scheduled for 28th March 2015, he in fact contested and won. It was at the point of being issued with a Certificate of

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Return that he was confronted by a letter conveying the order of the trial Court per the judgment delivered on 20/2/2017.

In the circumstances it is hereby ordered:

1. That the appellant, HON. BEN NWANKWO being the candidate duly sponsored by the Peoples Democratic Party (PDP) for the National Assembly (House of Representatives) Elections representing Orumba North/South Federal Constituency of Anambra State conducted on 28th March 2015 and having duly won the said election, is entitled to be issued with a certificate of return in respect of the said election.
2. The 2nd respondent is hereby ordered to issue the said HON. BEN NWANKWO, a Certificate of Return in respect of the said National Assembly (House of Representatives) Elections held on 28th March 2015 FORTHWITH.
3. The 1st respondent is hereby ordered to vacate the seat of the Orumba North/South Federal Constituency of Anambra State in the National Assembly FORTHWITH.
4. It is further ordered that the 1st respondent, BARR. SOPULUCHUKWU E. EZEONWUKA shall refund to the National Assembly all monies collected by him by way of salary/allowances, whatsoever and however described since

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he took his seat in the said National Assembly representing Orumba North/South Federal Constituency of Anambra State, within 90 (ninety) days of this order.

Costs of N500,000.00 are awarded in favour of the appellant against the 1st respondent.

Appeal allowed.

SC.846/2016

In the introductory part of the judgment in SC.521/2015, I noted that this appeal, No. SC.846/2016 arose from the same judgment appealed against in SC.521/2015. The appeal is against the part of the judgment of the Court below ordering INEC to conduct of a re-run election for the Orumba North/South Federal Constituency of Anambra State for the House of Representatives in the National Assembly. Having set aside the judgment of the lower Court, there is no more live issue in this appeal. It is accordingly discountenanced.

The parties shall bear their respective costs in the appeal.

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SC.521/2015(CONSOLIDATED)