Senator Effiong Bob V. Chief Imeh Albert Akpan & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

The 1st and 2nd Respondents (as 1st and 2nd Plaintiffs) commenced in the Federal High Court an action by Originating Summons against (i) Independent National Electoral Commission; (ii) Prof. Maurice Iwu; and (iii) Senator Effiong Bob. The questions posed for the determination of the Federal High Court (hereinafter simply referred to as “the lower court”) are as follows: –

“1. Whether having regard to the clear provisions of Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria, 1999 the 1st plaintiff is qualified to contest election into the Senate of the Federal Republic of Nigeria.

2. Whether as a member of the Peoples Democratic Party and having contested the primaries of the said Party seeking nomination as the Party’s candidate for the April, 2007 General Elections in respect of Akwa Ibom North East Senatorial District, and having polled over 60% of the total votes cast at the said primaries which led to his being declared as the winner of the said primary election and consequently issued with a Certificate of Return by the Peoples Democratic Party with a further correspondence from the Peoples Democratic Party directing the 1st and 2nd defendants to list the 1st plaintiff as its candidate for the National Assembly Elections in respect of Akwa Ibom North East Senatorial District Constituency, the 1st defendant is at liberty not to enforce the directive of the Party to wit: listing him i.e. the 1st plaintiff as the Party’s senatorial candidate in Akwa Ibom North East for the April, 2007 General Elections, having regard to the relevant provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether in the face of the several representations/correspondences made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the name of the 1st plaintiff be placed on the list of the National Assembly candidates with the 1st defendant, as the Peoples Democratic Party’s candidate for the Akwa Ibom North East Senatorial District in the April, 2007 General Elections, the 1st defendant is at liberty to decline the enforcement of such directive, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
4. Whether in the absence of any positive explanation from the 1st defendant, having regards (sic) to the several

representations made by the Peoples Democratic Party on behalf of the 1st plaintiff to the 1st defendant demanding that the 1st plaintiff’s name be placed on the list of National Assembly candidates, the 1st defendant is at liberty to remove the name of the 1st plaintiff unilaterally after having screened him and verified his credentials, having regard to the relevant provisions of the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.

5. Whether the omission, substitution or removal of the name of the 1st plaintiff by the 1st defendant from the list of National Assembly candidates dated 15th March, 2007 to contest election into the Senate of the Federal Republic of Nigeria, particularly as representing Akwa Ibom North East Senatorial District in the April 2007 General Elections does not constitute a gross violation of the 1st plaintiff’s constitutional right to fair hearing, and by extension his right to contest election into the Senate of the Federal Republic of Nigeria as a Nigerian citizen, having regard to the clear provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. Whether in the light of the fact that the Peoples Democratic Party had submitted the name of the 1st plaintiff for substitution with the name of the 3rd defendant by several correspondences, the 1st and 2nd defendant (sic) can validly decline such substitution, having regard to the Electoral Act, 2006 and the 1999 Constitution of the Federal Republic of Nigeria.
7. Whether in view of the clear provisions of the Electoral Act, 2006, the 1st and 2nd defendants are in a position to decline to act upon the representation of a political party vis-a-vis its choice of candidate to contest for an office in the April, 2007 General Elections, more so when the candidate is not otherwise disqualified.”

The reliefs which the plaintiffs seek in the light of the answers to the questions set out hereinbefore are: –

“1. A declaration that the omission of the name of the 1st plaintiff by the 1st and 2nd defendants in the List of Candidates for the National Assembly General Election dated 15th March, 2007 particularly as it affects Akwa Ibom North East Senatorial District constitutes a gross violation of the 1st plaintiff’s constitutional rights.

2. A declaration that the refusal of the 1st defendant to comply with the several directives issued by the 1st plaintiff’s political party i.e. Peoples Democratic Party to the effect that the 1st plaintiff’s name be listed as its candidate for the Akwa Ibom North East Senatorial District in the April 2007 General Elections constitutes a wrongful and unlawful removal/substitution or exchange of a validly nominated candidate i.e. the 1st plaintiff.
3. A declaration that the inclusion of the 3rd defendant’s name as the People Democratic Party’s candidate representing Akwa Ibom North East Senatorial District in the forth-coming April, 2007 General Election is wrongful as it is against the position, wishes and aspirations of the Peoples Democratic Party.
4. An order setting aside the inclusion of the name of the 3rd defendant in the list of the National Assembly candidates for the April 2007 General Election for Akwa Ibom North East Senatorial District.
5. An order of mandatory injunction directing the 1st and 2nd defendants to forth with place the name of the 1st plaintiff on the list of candidates for the April 2007 National Assembly General Elections as the candidate representing the Peoples Democratic Party in the Akwa Ibom North East Senatorial District in the said election.
6. An order of perpetual injunction restraining the 1st and 2nd defendants from further removing the candidature of the 1st plaintiff as the candidate representing Akwa Ibom North East Senatorial District on the platform of the Peoples Democratic Party in the said election.
7. An order of perpetual injunction restraining the 1st and 2nd defendants from placing the name of the 3rd defendant on the ballot paper for the forthcoming election into the National Assembly as the candidate representing Akwa Ibom North East Constituency on the platform of the Peoples Democratic Party in the said election.”

The case of the plaintiffs (i.e. 1st and 2nd Respondents herein) having regard to the depositions in the supporting affidavit to the Originating Summons and Exhibits attached thereto, put briefly, is that the 1st Plaintiff (1st Respondent) was the rightful candidate of the Peoples Democratic Party (hereinafter simply referred to as “the PDP”) to represent Akwa Ibom North East Senatorial District in the April, 2007 General Elections. The claim of the Plaintiffs in this regard is predicated on the fact that the 1st Plaintiff not only won the party’s primaries which took place on or about the 4th – 6th December, 2006 but also that consequent to his victory at the said primaries, the PDP issued him with a Certificate of Returns and forwarded his name to the 1st Defendant (now 3rd Respondent) as its candidate for the election into the Senate. Exhibits “E”, “F” and “G” were relied upon. The Plaintiffs also claimed that at the instance of the PDP, the 1st Plaintiff was subsequently invited for screening by the 1st Defendant and that the said 1st Defendant after screening the 1st Plaintiff on 21/2/2007 advised him that his name (as the candidate representing the PDP in Akwa Ibom North East Senatorial Constituency) had been included in the list of candidates for the National Assembly elections in the April, 2007 General Elections. The Plaintiffs equally claimed that as a follow up to his Party’s letter dated 5/2/2007 the Party National Chairman personally addressed another letter to the 1st and 2nd Defendants (now 3rd and 4th Respondents) insisting that the 1st Plaintiff was the PDP’S candidate for the election and relied on Exhibit “H” in this regard. It was therefore a surprise to the Plaintiffs that the 1st and 2nd Defendants unilaterally removed the 1st Plaintiff’s name from the list of candidates for the National Assembly election and in a strange manner replaced it with the name of the 3rd Defendant.

The 3rd Defendant (now Appellant) in the counter affidavit he filed in opposition to the supporting affidavit of the Originating Summons, claimed that right from the beginning, he was and had always been the PDP’S candidate for the election into the National Assembly to represent Akwa Ibom North East Senatorial District having been so returned and his name duly forwarded to INEC. The 3rd Defendant claimed to the effect that the primaries of 4/12/2006 was marred by various acts of irregularity, violence and thuggery unleashed by the 1st Plaintiff and that upon his (i.e. 3rd Defendant’s) complaint, the PDP’S appeal machinery held the complaints proved. That the exercise was nullified and the National Chairman and National Secretary respectively refused to authenticate the outcome of the primaries and these officers returned him as the Party’s candidate for the election and forwarded his name to the 1st Defendant (i.e. 3rd Respondent) as the Party’s flag bearer at the April, 2007 elections for the Akwa Ibom North East Senatorial District together with the names of other nominated candidates from Akwa Ibom State. The 3rd Defendant relied on the full list candidates from Akwa Ibom State dated 21/12/2006 (i.e. Exhibit “EDB 1”) signed by the National Chairman and National Secretary of the PDP respectively in this regard.

The 3rd Defendant claimed that the PDP had never been equivocal about his candidature and at no time under the Electoral Act 2006, replaced or sought to replace him as the Party’s candidate. That on 14th March, 2007 the 1st Defendant (i.e. 3rd Respondent) published his name in the final list for the election in compliance with the Electoral Act, 2006 and in this regard relied on Exhibit “EDB 3”.

The Plaintiffs reacted to the counter affidavit of the 3rd Defendant by filing a further and better affidavit Sworn to on 28/3/2007. In the process, they denied the allegation of thuggery and violence which the 3rd Defendant (now Appellant) alleged caused the annulment of the primaries. They claimed that the said primaries which produced the 1st Plaintiff as the PDP Senatorial flag bearer for Akwa Ibom North East Senatorial District was free and fair and that the result was certified as the best election result where an incumbent (i.e. 3rd Defendant) was defeated at the first ballot with over 60% of the votes cast.

According to the Plaintiffs, the allegation of thuggery and violence raised by the 3rd Defendant was dismissed by the National Secretariat “constituted appeal panel” as unfounded and reliance was placed on Exhibit “J” in this regard. The Plaintiffs said that no Certificate of Returns was issued in favour of the 3rd Defendant by the PDP Akwa Ibom State electoral panel or anybody and that the 3rd Defendant smuggled his name into the list dated 21st December, 2006 by misrepresentation of facts. That when the fact that the 3rd Defendant who lost woefully at the party primaries had smuggled his name into the list was disclosed to the Party Secretariat, the party promptly informed the 1st Defendant (i.e. 3rd Respondent) to correct the anomaly and that this was done within the time “accepted” by the Electoral Act to correct such anomaly. The Plaintiffs denied the existence of a letter dated 12th February, 2007 attached to the 3rd Defendant’s counter affidavit as Exhibit EDB4. The Plaintiffs claimed that the 1st Defendant (i.e. 3rd Respondent) has no option when a party “substitutes” a candidate for cogent and verifiable reason as was the case in his situation vis-a-vis the person of the 3rd Defendant who after losing the primary election woefully smuggled his name into the list dated 21/12/2006.

The 1st and 2nd Defendants (now 3rd and 4th Respondents) in their counter affidavit in the main, denied the claim of the Plaintiffs that the name of the 1st Plaintiff was ever forwarded to INEC by the PDP as that Party’s candidate for election into the Senate to represent Akwa Ibom North East Senatorial District. They were emphatic that it was the name of the 3rd Defendant (i.e. Appellant) that was submitted by the PDP as its candidate for the Akwa Ibom North East Senatorial District in the 2007 General elections and relied in this regard on Exhibits “INEC A” and “INEC B”. While these Defendants (Le. 3rd and 4th Respondents) admitted being in receipt of Form E.C. 4B (V) – nomination form for a member of the Senate and a copy of which was attached to their counter affidavit as Exhibit “INEC C”, they not only claimed that the 1st Defendant (Le. 3rd Respondent) never accepted the substitution of the 3rd Defendant by any person whatsoever but also that the said 3rd Defendant was the authentic and validly accepted candidate of the PDP in the final list of nominated candidates released by the 1st Defendant (i.e.. 3rd Respondent). They relied on Exhibit “INEC D” attached to the counter affidavit in this regard.

The 3rd Defendant equally filed a further and better affidavit in opposition to the Originating Summons on 29/3/2007 and the Plaintiffs again filed a 2nd further and better affidavit in support of the Originating Summons in reaction to this. Parties to the suit also filed written addresses and the Plaintiffs filed a Reply to the written address of the 3rd Defendant. Parties adopted their respective written addresses on 2/4/2007 and judgment was on the day reserved till 18/4/2007. In the judgment it delivered on 18/4/2007, the lower court dwelling on the issue that the case was not commenced by “due process” held to the effect that it was, as the matter before it basically dealt with documents, to wit: “which of the correspondences is the 1st Defendant bound by” and held that the matter could be conveniently determined by Originating Summons. Furthermore the lower court having identified the two questions for determination in the suit to be: –

“(1) who amongst the 1st Plaintiffs (sic) and the 3rd Defendant is the authentic candidate for the Peoples Democratic Party for the Senatorial election in question; and

(ii) is the 1st Defendant empowered to effect any change so required by the party?” held respectively (i) that by Exhibit EDB5 filed by the 3rd Defendant the matter appeared settled that the 1st Plaintiff and not the 3rd Defendant is the party’s candidate by the wish of the party; and (ii) that the name of the 1st Plaintiff having been properly substituted in place of that of the 3rd Defendant, the 1st Defendant has only one duty and which is to comply. Accordingly the lower court directed the 1st Defendant to include the name of the 1st Plaintiff as the candidate of the party in place of that of the 3rd Defendant. Consequently the lower court declared as per Reliefs 1, 2 and 3 and ordered as per Reliefs 4, 5, 6 and 7.

The 3rd Defendant (now Appellant) being dissatisfied with the judgment of the lower court, lodged an appeal against the same by filing on 18/4/2007 a Notice of Appeal of the same date. The appeal is against the whole of the decision of the lower court and the Notice of Appeal contains two grounds of appeal. The said grounds of appeal without their particulars read thus: –

“1. The learned trial judge erred in law when he proceeded to hear and determine the suit which was commenced by way of originating summons, holding that by the provisions of order 2 rules 2 of the Federal High Court [Civil Procedure] Rules the matter was properly commenced by Originating Summons as it involved the construction of documents only.

GROUND 2

The learned trial judge erred in law in holding that the 1st plaintiff was the bonafide candidate of the Peoples

Democratic Party for the election into the National Assembly to represent Akwa Ibom North East Senatorial District when there was no proof that he was ever nominated by the party and that in compliance with the Electoral Act and the Party’s guidelines he was within the period and in the manner allowed by law substituted as the Party’s candidate.”

Aside from the 3rd Defendant (now Appellant) every other party in the suit before the lower court, save the 1st Plaintiff (now 1st Respondent) cross-appealed against the judgment of the said court. Sequel to its application in that regard, the PDP was also joined as a party in this appeal to enable it cross-appeal against the judgment of the lower court. The PDP is now the 5th Respondent/Cross-Appellant. The 2nd Plaintiff having procured the requisite leave of this Court on 12th February, 2008 lodged his Notice of Cross-Appeal against the judgment of the lower court and is now the 2ndRespondent/Cross-Appellant. In the same vein the 1st and 2nd Defendants having first procured the requisite leave of this Court on 12/3/2008 lodged their Notice of Cross- Appeal against the judgment of the lower court and are now the 3rd and 4th Respondents/Cross-Appellants.

The 2nd Plaintiff/2nd Respondent/Cross-Appellant appealed against the part of the decision of the lower court “relating to jurisdiction to entertain the suit ab initio” in his Notice of Cross-Appeal dated 12/2/2008 and filed on 13/2/2008. The grounds of appeal set out in the process, shorn of their particulars, read: –

“GROUND 1

The learned trial judge lacks the jurisdiction to adjudicate on the matter as constituted before it.

GROUND 2

The learned trial judge lacks the jurisdiction to entertain the matter as constituted as there was no cause of action justiciable before it (sic).”

Like the 2nd Plaintiff/2nd Respondent/Cross-Appellant, the 3rd and 4th Respondents/Cross-Appellants in their Notice of Cross-Appeal dated 11/3/2008 and deemed as properly filed and served on 12/3/2008 appealed against the part of the decision of the lower court “relating to jurisdiction to entertain the suit”. The grounds of appeal in the process shorn of their particulars read: –

“1. The learned trial judge lacked the jurisdiction to entertain/adjudicate on the matter as constituted before it (sic).

2. Learned trial judge erred in law to have heard and determined the suit by way of originating summons, when it (sic) held that by provisions of order 2 rule 2 of the Federal High Court {Civil procedure} Rules the matter was properly commenced by originating summons as it involved the construction of documents only.”

The 5th Respondent/Cross-Appellant in its Notice of Cross-Appeal dated 8/3/2008 and filed on 14/8/2008 appealed against the whole of the decision of the lower court. The grounds of appeal set out in the process shorn of their particulars read: –

“1. The learned trial Judge erred in law when she held that the Plaintiff/1st Respondent was properly substituted for the 3rd Defendant/Appellant when no cogent or verifiable reasons were given for the substitution as demanded by section 34(2) of the Electoral Act, 2006.

2. The learned trial Judge erred in law in deciding the case when she lacked the requisite jurisdiction and competency to entertain the matter since a wrong procedure, by way of originating summons, was adopted by the Plaintiffs/1st and 2nd Respondents in commencing the ‘highly contentious action.”

As provided for in the Rules of this Court, parties duly filed and exchanged their briefs of arguments. Hearing of the appeal commenced on the 8th day of October, 2008. On the said day, learned senior counsel for the Appellant, Chief Assam E. Assam (SAN), in urging this Court to allow the appeal relied on and adopted Appellant’s brief of argument filed on 26/4/2007; and Appellant’s Reply brief filed on 24/6/2008. He laid emphasis on the case of Ehinlawo v. Oke & Ors cited in the List of Additional Authorities dated 6/lD/2008 filed in the matter. Dr. Alex Izinyon (SAN) learned senior counsel for the 2nd Respondent/Cross-Appellant in urging this Court to allow the cross appeal relied on and adopted the party’s brief of argument dated 22/2/2008 deemed as properly filed and served on 12/3/2008 and Cross-Appellant’s Reply brief to 2nd Cross-Respondent’s (i.e. 1st Respondent) brief of argument dated 25/3/2008 and filed on 26/3/2008.

He urged the Court to hold that the case before the lower court was not properly constituted and to strike the same out.

Wole Adebayo, learned lead counsel for the 3rd and 4th Respondents/Cross-Appellants in urging this Court to allow the cross appeal and reverse the decision of the lower court, relied on and adopted the brief of argument of the said parties dated 19/3/2008 deemed as properly filed and served on 17/6/2008.

Mike Ozekhome learned lead counsel for the 5th Respondent/Cross-Appellant in urging the Court to allow the cross appeal relied on and adopted the party’s brief of argument dated 22/2/2008 deemed as properly filed and served on 12/3/2008 and the said 5th Respondent/Cross-Appellant’s Reply brief dated 2/6/2008 deemed as properly filed and served on 17/6/2008.

Chief Wale Olanipekun (SAN) learned senior counsel for the 1st Respondent relied on the party’s brief of argument dated 20/2/2008 and filed on 21/2/2000; 2nd Cross Respondent’s brief of argument dated and filed on 23/6/2008; and 1st Cross Respondent’s brief dated and filed on 19/3/2008. In his oral submissions, learned SAN said that an appeal is a continuation of hearing. He submitted to the effect that that the submissions in the various briefs of the Appellant and Cross-Appellants are not borne out of the case at the lower court. Learned senior counsel equally submitted that the case of Ehinlawo v. Oke was distinguishable from the instant one. He referred to the cases of Barr. Handel Okoli & 1 Ors v. INEC & Ors CA/A/102/07 (Unreported Judgment of Court of Appeal, Abuja Division dated 4/6/2007); and Adeogun & Ors v. Fashogbon (unreported) Appeal No. CA/A/81/M/07 of 31/5/2008 as being more apposite. The case of Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 was also referred to as showing that submissions of counsel cannot take the place of evidence. Learned senior counsel urged the Court to dismiss the appeals and uphold the decision of the lower court.

Given the disclosure by Chief Assam E. Assam (SAN) that he was not served with the 1st Respondent’s brief dated 21/2/2005, and that he was entitled to respond to the same, the hearing of the appeal had to be adjourned.

The appeal was heard to completion on 22/1/2009. On that date, Chief Assam E. Assam (SAN) having first withdrawn the Appellant’s Reply brief dated 24/6/2005 thereafter relied on and adopted the Appellant’s Reply brief dated 12/10/2005 filed on 11/12/2005 but deemed as properly filed and served on 22/1/2009 and urged the Court to allow the appeal and the cross-appeals.

Three Issues were distilled by the Appellant from the two grounds of appeal contained in his Notice of Appeal in his brief of argument. The Issue read thus: –

“1. Whether the learned trial judge was right in holding that by the provisions of order 2 rules 2 of the Federal High Court [Civil Procedure] Rules this matter was properly commenced by Originating Summons as it involved the construction of documents only.

2. Whether exhibits EDB 5 and H complied with the provisions of s.34 [2] of the Electoral Act to bind the 3’d and 4th respondents and to predicate the order of substitution made by the learned trial judge in this action.
3. Whether in the circumstances of this case, the plaintiffs/respondents made out a case deserving of any hearing on the merit.”

The 1st Respondent (i.e. 1st Plaintiff) in his brief of argument argued the preliminary objection raised in respect of the Appellant’s Notice of Appeal and/or alternatively ground 2 of the grounds of appeal; vide the Notice of Preliminary Objection dated 20/2/2008 and filed on 21/2/2008.

Two Issues were also set out for the determination of the appeal in the said brief in the event the preliminary objection was overruled. The Issues read thus: –

“1. Whether in the light of the peculiar facts and circumstances of this case, the matter was properly commenced by originating summons.

2. Whether the trial Judge was right when she held that the substitution of the appellant with the 1st plaintiff/respondent as the Peoples Democratic Party’s candidate for Akwa Ibom North East Senatorial District against the election that held on the 21st April, 2007 in Uyo, Akwa Ibom State was proper.”

The 2nd Respondent/Cross-Appellant formulated a sole Issue for the determination of his cross-appeal. The Issue reads thus: –

“Whether the trial court had the jurisdiction to determine the suit before it. (Encompassing grounds 1 and 2 of the Cross Appeal).

The 1st Respondent (i.e. 1st Plaintiff) in the main appeal as the 1st Cross-Respondent in the cross-appeal of the 2nd Respondent/Cross-Appellant in his brief of argument argued the preliminary objection raised in respect of the cross-appeal vide the Notice of Preliminary Objection dated and filed on 18/3/2008. The sole Issue formulated for determination, in the Cross-Appellant’s brief was however adopted and argued by the 1st Cross-Respondent in the event the preliminary objection was overruled.

The 3rd and 4th Respondents/Cross-Appellants in their brief of argument formulated two Issues for the determination of their cross appeal.

The Issues read thus: –

“1. Whether the lower court had jurisdiction to adjudicate on the matter as constituted before it.

2. Whether the lower court was right to hold that (sic) was properly commenced by originating summons considering the contentious nature of the matter.”

Again, the 1st Respondent (i.e. 1st Plaintiff) as 2nd Cross-Respondent in his brief of argument argued the preliminary objection raised in respect of the cross-appeal vide the Notice of Preliminary Objection dated and filed on 23/6/2008. In the event the preliminary objection was overruled, the 2nd Cross-Appellant formulated the following Issues for the determination of the cross-appeal: –

“1. Whether the lower court had jurisdiction to entertain the Plaintiff/2nd Cross-respondents’ (sic) claim before it.

2. Whether the lower court was right in holding that the suit was properly commenced by originating summons.”

The 5th Respondent/Cross-Appellant in its brief of argument distilled the following Issues from the grounds of appeal contained in the party’s Notice of Cross-Appeal: –

“1. Whether the learned trial judge was right in holding that the plaintiff was properly substituted for the 3rd Defendant (appellant in this appeal) without cogent and verifiable reasons having been given for such substitution;

ALTERNATIVELY, whether the learned trial judge was right in holding that there was substitution at all.

ii. Whether the procedure adopted by the Plaintiffs (Originating Summons) in a highly contentious matter did not as it were oust the jurisdiction of the trial court;

ALTERNATIVELY, whether a proper procedure was adopted by the Plaintiff in instituting the action, and if not, what is the effect?”

Yet, again the 1st Cross-Respondent (i.e. 1st Plaintiff) in his brief of argument argued the preliminary objection in respect of the cross appeal raised vide the Notice of Preliminary Objection dated and filed on 18/3/2008. The following Issues were formulated for the determination of the cross-appeal in the event the preliminary objection was overruled:-

“1. Whether the 1st plaintiff/respondent was properly substituted for the 3rd defendant/appellant.

2. Whether this matter was properly commenced by originating summons in the light of the peculiar facts of this case.”

I consider it more expedient to first consider the preliminary objections in. respect of the main appeal and cross-appeals argued by the 1st Respondent (i.e. 1st Plaintiff) in his various briefs.

PRELIMINARY OBJECTION IN RESPECT OF THE MAIN APPEAL

The 1st Respondent (i.e. 1st Plaintiff) by his preliminary objection in relation to the main appeal prays for the striking out the Appellant’s Notice of Appeal or in the alternative: (a) that ground 2 contained in the said Notice of Appeal be struck out for being an incompetent ground of appeal; and (b) that Issue 3 in the Appellant’s brief of argument be struck out as it is at large.

The grounds of the objection as set out in the Notice of Preliminary Objection are to the effect that: –

1. The address for service of the Notice of Appeal on the

Respondent is not endorsed thereon as mandatorily required by Order 6 Rule 2(1);

2. That ground 2 of the ground of appeal and the particulars offend the provisions of Order 6 Rule 2(2) & (3);
3. The particulars of the grounds of appeal are clearly argumentative;
4. That the Appellant fell into the error of proliferation by distilling three Issues from his two grounds of appeal and that the said Issues being incompetent ought to be struck out; and
5. That Issues two and three are at large as they do not arise from either of the grounds of appeal; and
6. Alternatively, that the said Issues two and three having been distilled from an incompetent ground of appeal ought to be struck out.

Dwelling on the preliminary objection, as it pertains to the Notice of Appeal, the 1st Respondent relying on the provision of Order 6 rule 2(1) of the Rules of this Court in the main, submitted that it was a mandatory requirement for an intending appellant to endorse the respondent’s address on his Notice of Appeal. It was further submitted that such endorsement is a condition precedent to the competency or validity of a Notice of Appeal. Failure to comply with a condition precedent stipulated by a statute or rule of court it was submitted rendered the step taken or process filed by the offending party a nullity. The case of Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493 at 517 was cited to show that “mandatoriness” was implied where the operative word of a statute is “shall”.

The 1st Respondent submitted that the Appellant’s Notice of Appeal is incompetent and liable to be struck out given the failure to comply with the mandatory provision of Order 6 rule 2(1) of the Court of Appeal Rules, 2007. This is more so in the light of the long line of cases that litigants are under obligation to obey the rules of court and the cases of Kachia v. Yazid (2001) 17 NWLR (pt. 742) 431 at 463 and Akanke v. Alao (2005) 11 NWLR(pt. 937) 620 at 628 were cited in aid.

Dwelling on Ground 2 of the Appellant’s grounds of appeal, the 1st Respondent argued that the said ground is a quintessential case of argument in a ground of appeal which appellate courts have held rendered such ground of appeal incompetent and the case of Kamba v. Bawa (2005) 4 NWLR (pt. 914) 43 at 64-65 was cited in aid. It was equally submitted that a ground of appeal that is argumentative, or which contains prolix narrative particulars such as ground 2 in question, ought to be struck out. The cases of SCOA (Nig.) Plc v. Mohammed (2004) 3 NWLR (pt. 862) 20 and Adah v. Adah (2001) 5 NWLR (Pt. 705) 1, were cited in aid.

The 1st Respondent argued that the incompetence of ground 2 in question becomes more glaring when it is appreciated that the particulars rather than disclose the nature of error in law committed by the learned trial Judge as perceived by the Appellant are worse in terms of argument thereby not qualifying as particulars of error. The cases of Kachia v. Yazid and Kamba v. Bawa (both supra) were cited in aid.

On proliferation of issues for determination, the point was made that the Appellant distilled three Issues from the two grounds of appeal in his Notice of Appeal. It was submitted that this is against the settled position of the law and the cases of Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 159; Nya v. Edem (2005) 4 NWLR (Pt. 915) 345; C.S. Inc v. MIT “Cindy Gala” (2007) 4 NWLR (pt. 1024) 222; Int’l Nigerbuild Canst. Co. Ltd v. Giwa (2003) (Pt. 836) 69 were cited in aid. It was submitted that Appellant’s Issue 3 which did not arise from either of the two grounds of appeal ought to be struck out as decided in the case of UBA Plc v. Abdullahi (2003) 3 NWLR(Pt. 807) 39 at 371. It was further submitted that if the said Issue 3 is struck out as it should be, since it did not arise and could not have arisen from either of the grounds of appeal, then the argument at pages 10-16 of the Appellant’s brief of argument ought to be struck out as well; as the court cannot pick and choose from it.

Dwelling Oil the preliminary objection of the 1st Respondent in his Reply brief, the Appellant referred to pages 281-282 of the Record which contain the Notice of Appeal and stated that addresses for service of persons affected are clearly endorsed therein with the address for service of the 1st and 2nd Respondents specifically provided. It was said that it cannot be disputed that a litigant can be served processes through his solicitors as was done in the case of the 1st and 2nd Respondents whose address for service was given as in care of’ or ‘through their solicitors’ address. This is more so as Counsel in the appeal was also the Counsel in the lower court and through whom processes were then served and the case of Cross River Basin & Rural Development Authority v. Sule (Saba) Ali Sule (2001) 6 NWLR (pt. 708) 194 at 205 was cited in aid. It was further submitted that if a litigant can validly be served through his counsel (especially where such a counsel is representing the litigant he had represented in the lower court in the Court of Appeal then it cannot be disputed that the endorsement of the counsel’s address on a Notice of Appeal for the purpose of service on the client as was done in the instant appeal, satisfied the provision of Order 6 Rule 2(1). It was also submitted that the preliminary objection of the 1st Respondent as it relates to the Notice of Appeal was purely academic given the position of the law that a party who appears in response to a process cannot afterwards complain that he was not served or about the mode of service and the case of Public Finance Securities Ltd v. Harrison Fefia (1998) 3 NWLR (pt. 543) 602 was cited in aid. This is more so as the era of technicalities triumphant and justice prostrate is over and done with and the cases of Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 91; and Peter Obi v. INEC & 7 Ors In Re Dr. Andy Uba (2008) 7 NWLR (pt. 1085) (page not provided) were cited in aid.

Focussing on the word “shall” in the last part of Order 6 Rule 2(1) of the Court of Appeal Rules, the Appellant submitted that the same was merely directory as it made a general prescription as to the content of a Notice of Appeal and the case of Nwadike & Ors v. Awka South Local Govt. (2008) 16 NWLR (pt. 1112) 203 at 218 was cited in aid.

Dwelling on the preliminary objection as it relates to ground 2 of the Notice of Appeal, the Appellant submitted in the main that shorn of legalese, the said ground simply says that the trial court did not come to the right decision in holding that the 1st Plaintiff was the rightful candidate of the PDP, because there was no proof that the Party had nominated him or had substituted him for another candidate within the time allowed for such substitution by law. It was submitted that there was no argument in the statement and an analysis of what constitutes an argument was embarked upon. The point was made that every counsel is a master of his brief and brings his style to bear on the presentation of the brief and that what is important is for one’s case to be presented in substantial compliance with procedural law and the case of Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372 at 390 was cited in aid. Concluding, the Court was urged to overrule the preliminary objection.

The provisions of the Court of Appeal Rules, 2007 dealing with Notice and Grounds of Civil Appeals are contained in Part 2 of the said Rules. Order 6 Rule 2(1) under the said Part 2 provides thus:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient numbers of copies for service on all such parties; and shall also have endorsed on it an address for service.”

It would appear indisputable from the underlined portions of the provision of the rule re-produced above, that a Notice of Appeal is expected to contain the names and addresses of the parties directly affected by the appeal; and the addresses for service of the said parties.

The submissions of the Appellant in relation to the Notice of Appeal have been extensively reviewed before now, and I am of the respectful view that the submissions to the effect that the address of the 1st Respondent given as a party directly affected by the appeal suffices as his address for service, admits of the fact that no separate address for service was endorsed on the Notice of Appeal.

The question therefore is whether the Notice of Appeal amounts to a nullity for this reason as argued by the 1st Respondent particularly as the word “shall” is used in relation to the endorsement of address for service?

The law no doubt is that rules of court should be obeyed. However this Court has consistently held to the effect that as a general rule, noncompliance with rules of court (including its own Rules) is primarily an irregularity. See:

1. JULIUS ENAKHIMION V. EDO TRANSPORT SERVICES (2006) All FWLR (pt. 334) 1882 at 1904-1905 where this Court held to the effect that non-compliance with the rules of court does not prima facie invalidate the proceedings unless no reasons are adduced upon which the court can overlook or waive the non-compliance.
2. ELDER ANIETIE UKO V. MR. OKON EKPENYONG (2006) All FWLR (Pt. 324) 1927 at 1946 where this court held to the effect that non-compliance with rules of court would not be a ground for nullity unless such non-compliance amounts to denial of justice.

Rules of Court it must always be borne in mind are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, courts have been consistently admonished not to be slavish to their rules and therefore not read the rules in the absolute without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See PRINCESS CATHERINE OLADUNNI ODU V. HON. JUSTICE R.O. FAWEHINMI (RTD) & 2 ORS [2006] All FWLR (pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out clearly the effect of non-compliance with the rules of court in any given situation stated the difference between a defect in competence of an action and a defect in procedure to be that “a defect in competence of an action spells absence of jurisdiction” while “a defect in procedure shows a defect in the process of adjudication and not be fatal to jurisdiction.”

Without doubt a Notice of Appeal can properly be said to be the originating process upon which an appeal is founded. This is because it is the process by which a party aggrieved by the decision of a court signifies the dissatisfaction. See MR. VICTOR ADELEKAN V. ECULINE NJ 2000 All FWLR (Pt. 321) 1213 at 1222. The provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2007 relating to the endorsement on the Notice of Appeal of the addresses for service of parties directly affected by the appeal, in my respectful view is simply to ensure service of the said Notice of Appeal on the parties in the appeal.

It is to be noted that the provision of Order 6 Rule 2(1) has earlier required that the names and addresses of the parties affected by the appeal be provided in the Notice of Appeal before stating again that the addresses for service shall be endorsed on the Notice. An appellant is equally enjoined by the provision of the rule under consideration to provide not only the names and addresses of all parties directly affected by the appeal but to also file sufficient number of copies of the Notice of Appeal for service on such parties. Courts it is to be appreciated are expected to interpret the provision of legislation (be it statute or subsidiary that Rules of Court are) sensibly and not to make nonsense of same. Against this backdrop, it is my respectful view that the requirement for the endorsement of addresses for service of parties affected by the appeal on the Notice of Appeal is simply to enable the appropriate officer charged with the duty of serving the process know at a glance where service is to be effected thereby eliminating the need for him to wade through the whole of the Notice of Appeal to determine this. The use of the word “shall” in relation to the endorsement of addresses for service therefore does not connote “mandatoriness” as argued by the 1st Respondent. It is directory only and the non-endorsement of the address for service of a respondent on the Notice of Appeal therefore cannot render an otherwise valid Notice of Appeal invalid.

And I am in no doubt that a Notice of Appeal which duly sets out concisely and under distinct heads the grounds upon which an appellant is challenging the decision appealed against, thereby disclosing the dissatisfaction of the appellant with the decision in question and the reasons therefore is valid. See MR. MAZIEN FARDOUN & ANOR V. MBC INTERNATIONAL BANK LIMITED [2006] All FWLR (pt.297) 1130 at 1152.

The case now on appeal was initiated by way of Originating Summons.

In the process it is stated thus: –

“This Summons was taken out by Solomon E. Umoh Esq. of Solomon E. Umoh & Co., of No. 10 Beach Road, Jos, Legal Practitioners for the above named plaintiffs.”

The 1st and 2nd Respondents, before parting ways in this appeal, were joint Plaintiffs in the Originating Summons and at all material times to the filing of the Notice of Appeal. Their names were duly set out in the Notice of Appeal amongst persons directly affected by the appeal and their address given as:

4. Chief Imeh Albert Akpan
5. Out Ita Toyo c/o Solomon E. Umoh No. 10 Beach Road, Jos.

It is therefore glaring that the address of the 1st Respondent in the Notice of Appeal is the same as the only address disclosed by the legal practitioner that took out the Originating process by which this case was initiated. This is despite the provision of Order 7 Rule 5(1) of the Federal High Court (Civil Procedure) Rules which provides to the effect that if a plaintiff sues by legal practitioner the Originating Summons shall be endorsed with the plaintiff’s address and the legal practitioner’s name or firm and a business address within jurisdiction. The objection of the 1st Respondent that the Notice of Appeal filed by the Appellant is a nullity for the failure to separately endorse thereon as his address for service, of his only “disclosed address” in my respectful view is hollow against the backdrop that the said address is the same as the one already set out against his name as a party directly affected by the appeal. The hollowness of the objection indeed becomes more pronounced when regard is had to the purpose which the provision of “address for service” is to serve vis-a-vis the lack of any complaint that the Notice of Appeal was not served.

In the light of all that has been said, the preliminary objection of the 1st Respondent as it relates to the Notice of Appeal is accordingly overruled.

All that is required of the Court in the resolution of the preliminary objection of the 1st Respondent in relation to ground 2 of the Notice of Appeal is to give the said ground a critical analysis. Now, it is in my view clear from the said ground that all the Appellant has done therein is to reflect what the lower court did that is considered to be wrong; and the complaint against the same. At the worst, it could be argued that the couching of the ground is inelegant because it could have been broken into two parts. The ground as couched by the Appellant does not make it argumentative or amount to a prolix narration as argued by the 1st Respondent. This cannot result in the affected ground of appeal being struck out. See NIGER MILLS COMPANY PLC V. ENGINEER SAM I. AGUBE (2008) All FWLR (Pt. 427) 86 at 103. As rightly stated in the Appellant’s Reply brief, “every counsel is master of his brief and brings his style to bear in the presentation of that brief”.

It is to be borne in mind that a ground of appeal is to disclose the error of law or fact or mixture of both which the appellant alleges to be the defect in the judgment appealed against and which he relies on in his bid to get the judgment set aside. In other words a ground of appeal that defines or isolates and fully identifies a wrong committed by a court in its judgment for the purpose of attack and also furnishes the rationale for challenging the decision that aggrieves the appellant is proper. See MR. MAZIEN FARDOUN & ANOR V. MBC INTERNATIONAL BANK LIMITED (supra) at 1152-1153.

Arguments in an appeal are canvassed on the basis of the Issue or Issues formulated and not on the grounds of appeal. Issues for determination are expected to be formulated in general terms devoid of argument and to be competent they must address the complaints articulated in the grounds of appeal. An Issue or Issues for determination is/are not expected to be distilled from the particulars of the grounds of appeal and where this is done the Issue(s) must be declared incompetent. See NNAMDI C. IBE V. OKECHUKWU IBE & ANOR [2008] All FWLR (Pt. 405) 1719 at 1725-1726.

The essence of the particulars of a ground of appeal is to highlight in brief the aspect of the substantive or procedural law that has been affected by the error or misdirection complained of in the ground of appeal. See NWAOGWUGWU V. PRESIDENT F.R.N. [2007) All FWLR (Pt. 358) 1151 at 1163.

In the light of all that has been said before now, I therefore find ground 2 in the Notice of Appeal proper as it glaringly discloses the alleged error committed by the lower court and the complaint of the Appellant as it relates to the alleged error. The efforts of the 1st Respondent to invalidate the said ground of appeal by resorting to the particulars go to naught. The objection of the 1st Respondent against the said ground 2 is therefore overruled.

‘The 1st Respondent has equally argued that three Issues were formulated for determination from the two grounds of appeal in the Notice of Appeal. The Court was urged to strike out Issue 3 formulated by the Appellant as the same does not arise from either of the two grounds of appeal.

The Appellant (who undoubtedly formulated three Issues from his two grounds of appeal), did not respond at all to the submissions of the 1st Respondent in this regard. This apparently is because the submission of the 1st Respondent that proliferation by way of formulating more Issues than there are grounds of appeal is not allowed by appellate courts is unassailable.

The two grounds of appeal contained in the Notice of Appeal have already been set out in this judgment. Issue 3 formulated in Appellant’s brief reads: –

“Whether in the circumstances of this ease, the plaintiff/respondent made out a case deserving of any hearing on the merit.”

Looking at the Issue re-produced above, vis-a-vis the two grounds of appeal, I am of the respectful view that the said Issue cannot in any way be said to arise from either of the grounds of appeal. The law is settled that any Issue that does not arise from, or is not distilled from a ground of appeal is not only incompetent and liable to be struck out but also all argument in support of such a ground discountenanced. See MR. MAZIEN FARDOUN & AN OR V. MBC INTERNATIONAL BANK LIMITED (supra) at pages 1155 & 1156; IBE V. IBE (supra) at 1725; and PASCHAL IKENNA EJIOGU V. HON. ALPHONSUS GERALD IRONA & ORS [2008] All FWLR (Pt. 442) 1066 at 1085-1086.

Accordingly, the objection of the 1st Respondent in relation to Issue 3 formulated by the Appellant in his brief of argument succeeds, and is upheld. The said Issue 3 is hereby struck out and all arguments in the Appellant’s brief in support of it are to be discountenanced

PRELIMINARY OBJECTION IN RESPECT OF THE CROSS-APPEAL OF THE 2ND RESPONDENT/ CROSS-APPELLANT.

By the Notice of Preliminary Objection dated and filed on 18/3/2008 the 1st Respondent (i.e. 1st Plaintiff) seeks for an order striking out the Notice of Appeal filed the 2nd Respondent/Cross-Appellant, or alternatively (a) an order striking out grounds 1 and 2 of the said Notice of Appeal; and (b) an order striking out the lone Issue in the said Cross-Appellant’s brief of argument for being incompetent. The grounds for the objection as can be gathered from the process are: –

1. That ground 1 is not arguable as it did not arise from the decision of the lower court, while the particulars of the said ground are likewise irrelevant since they too did not arise from the said judgment.
2. That ground 2 is a conclusion while its particulars are argumentative.
3. That the Cross-Appellant’s lone issue for determination having been distilled from incompetent grounds of appeal ought to be struck out if any of the grounds is found to be incompetent.

The 1st Respondent (i.e. 1st Plaintiff) in arguing the preliminary objection in the brief captioned “1ST CROSS RESPONDENTS’ (sic) BRIEF” “Facts Crucial to this Appeal” were first set out and the said facts disclosed to the effect: –

a. that the Cross-Respondent jointly with the 1st Plaintiff instituted the case now on appeal as a pre-election matter and that the Cross-Appellant was then the PDP Chairman for Akwa Ibom State;

b. that all the affidavits filed in the case at the lower court were filed with the authority and consent of the Cross-Respondent.

c. that based on the said affidavits, the question posed for determination were answered and reliefs granted accordingly.

d. that the Cross-Respondent obtained leave to appeal against the judgment and is urging the Court to hold that the lower court had no jurisdiction to entertain his claim;

e. that the Cross-Appellant has not resiled from the evidence which he gave before the lower court.

The 1st Cross-Respondent (hereinafter simply referred to as “1st Plaintiff”) said to the effect that what the Cross-Appellant is saying by his cross-appeal is that the lower court was wrong to have granted him the reliefs sought in this case because the said court has no jurisdiction to do so and that this is in spite of the truth of the depositions contained in the affidavits and which led to judgment being entered in his favour.

It was the submission of the 1st Plaintiff that the two grounds of appeal of the 2nd Respondent/Cross-Appellant (hereinafter simply referred to as the 2nd Plaintiff) are incompetent as the said grounds do not arise from the judgment of the court below.

The 1st Plaintiff submitted that the first particular of ground 1 in the Notice of Appeal which according to him suggested that the 2nd Plaintiff was sued in his personal capacity is a blatant lie and irrelevant as it cannot be gainsaid that the 2nd Plaintiff was not sued by anybody but that on the contrary, he instituted the action being a 2nd Plaintiff therein.

The second particular was also said to be irrelevant as the action was one which the lower court could decide as between the parties before it and which the said court actually did. It was stated that no relief was sought in the case against the PDP.

The third particular was equally said to be irrelevant as the plaintiffs were entitled to the reliefs and the claim was such as could be granted by the lower court.

It was also submitted that ground 1, not only seeks to make a mockery of the administration of justice but that all its particulars are at large as they do not arise or relate to the judgment and are not relevant to the complaint.

Dwelling on ground 2, the 1st Plaintiff stated that the ground demonstrated a total misconception of some elementary concepts and thereafter re-produced extensively the dictum of Oguntade, JSC; in the case of Ameachi v. INEC and which re-echoed the dictum of Niki Tobi, JSC in the case of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048). And having done this, the 1st Plaintiff said that it was evident that the particulars of ground 2 clearly did not arise from the judgment and could not have been borne out of the ground.

The 2nd Plaintiff in his Reply captioned “Cross Appellant’s Reply brief to 2nd Respondent’s brief of argument” said that the contention of the 1st Plaintiff that his two grounds of appeal did not arise from the judgment of the lower court and are therefore incompetent is completely misconceived and does not represent the correct position of the law. It was submitted by the 2nd Plaintiff that the said two grounds of appeal raise the issue of jurisdiction and which issue can be raised at any stage of the proceeding and even at the Supreme Court. It was further submitted that the issue of jurisdiction raised by the two grounds in question can therefore be raised for the time before this Court and that the issue need not have arisen from the judgment of the lower court.

The 2nd Plaintiff said his grievance in ground 1 of his Notice of Appeal is to the effect that proper parties were not before the trial court and which is reinforced by the particulars. The summary of the particulars it was submitted is that it is only the PDP and it’s National Officers that are the juristic persons that could sue and not him (i.e. 2nd Plaintiff) as the issue for determination at the lower court was in respect of nomination.

In respect of the submission of the 1st Plaintiff that ground 1 and its particulars are ambiguous and irrelevant, the 2nd Plaintiff submitted that the entire ground 1 and its particulars are clear and unambiguous and therefore valid and cited the cases of Aderounmu vs. Olowo (2000) 4 NWLR (Pt. 652) 253; and Dan Fulani v. Shekari (1996) 2 NWLR (Pt.433) 723 at 735 in aid. It was further submitted that the said ground 1 in itself has given adequate or sufficient information as to the nature or content of error complained of and therefore cannot be struck out even if (and which is not conceded) all or one of the particulars were bad and the cases of NBN Ltd vs. Opeola (1994) 1 NWLR (Pt. 319) 126; and Ayua v. Adasu & Ors (1992) 3 NWLR (Pt. 231) 598 at 612; amongst others were cited in aid. The submission of the 1st Plaintiff that ground 1 is not arguable was said to be out of touch with reality as this Court in its Ruling of 12/2/2008 had held that the grounds of appeal were substantial and arguable.

It was submitted that the case of Ameachi v. INEC (supra) has no application to ground 2 and that it could only arise for consideration in the substantive appeal.

The Court is bound to consider and decide on the preliminary objection of the 1st Plaintiff strictly on the grounds relied upon in making the same. It would appear incontrovertible from the brief of the 1st Plaintiff and the 2nd Plaintiff’s Reply brief that the 2nd Plaintiff in raising the issue of jurisdiction upon which he has hinged his cross-appeal procured the requisite leave of this Court and that this Court in granting the said leave found the grounds of appeal substantial and arguable.

The right of appeal to the Court of Appeal and circumstances of the exercise of the same are basically provided for in the 1999 Constitution.

Suffice it to say that the Constitution confers a right of appeal to this Court on any of the parties in a final decision of the lower court as a court of first instance. This right of appeal is exercisable without leave of court being first obtained. It would also appear clear that a party cannot appeal against a decision unless he has a grievance against the same.

To be aggrieved with a decision, the said decision must be perceived by the party appealing to have wrongfully deprived him of an entitlement or something which he has a right to demand. See UNIVERSITY OF ILORIN V. PROFESSOR J.A. AKINYANJU [2008] All FWLR (Pt.408) 1989 at 2005-2006.

The law as it pertains to the issue of jurisdiction is very settled. It is that the issue of jurisdiction is very fundamental to adjudication and goes to the competence of the court to entertain a matter. Hence it is always permissible for the issue of jurisdiction to be raised at the court of first instance, or in the Court of Appeal or even for the first time before the Supreme Court. The issue can also be raised by either of the parties or by the court suo motu. See LADOJA V. INEC [2007]12 NWLR (Pt.1047) 119 at 181 per Aderemi, JSC; and THE MINISTER OF WORKS AND HOUSING V. ALHAJA KUBURAT SHITIU & 2 ORS 2008 All FWLR {Pt. 401} 847 at 863 per Ariwoola, JCA. Indeed in the case of CHIEF EMIMIGRE OMOKHAFE & 2 ORS V. THE MILITARY ADMINISTRATOR EDO STATE OF NIGERIA & 3 ORS 2000 All FWLR {Pt. 24:D. 629 at 640 the Supreme Court per Katsina-Alu, JSC; stressed that though from experience it is always the defendant that raises the issue of absence of jurisdiction in a court to hear a case, the duty in this regard is not placed on a particular party, or defendant. The grounds of appeal in the 2nd Plaintiff’s Notice of Cross-Appeal and which are now being attacked as not arguable and/or not arising from the judgment of the lower court have been found by this Court in a previous Ruling to be substantial and arguable. The 2nd Plaintiff’s grounds of appeal undoubtedly raise the issue of jurisdiction. This is because it is clear in law that the question as to whether or not an action is properly constituted raises the issue of jurisdiction. See the cases of DR. AUGUSTINE MOZIE & 6 ORS V. CHIKE MBAMALU & 2 ORS (2006) All FWLR (Pt.341) 1200 at 1232; and ALHAJA RAFAFU AYORINDE & ORS V. ALHAJA AIRAT ONI & ANOR (2003) NWLR (Pt. 649) 348. Likewise is the issue of justiciability of an action. See THE CHIEF JUDGE OF ABIA STATE, HON. JUSTICE K.O. AMAH & 2 ORS V. NDIONYEMMA NWANKWO ESQ (2008) All FWLR (pt. 411) 879 at 896-897. I have earlier in this Ruling stated what the essence of particulars of a ground of appeal is. I do not see how the particulars of the grounds of appeal filed by the 2nd Plaintiff have fallen short of this.

I do not see how the Court can now be expected, upon the preliminary objection under consideration, to make findings contrary to its earlier decision that the 2nd Plaintiff’s grounds of appeal are substantial and arguable. The process of preliminary objection is not one by which the merit of the grounds of appeal filed by the 2nd Plaintiff is to be determined. In the circumstances, I simply do not see any merit in the preliminary objection of the 1st Plaintiff, which is a subtle invitation to this Court to now find to the contrary of its earlier decision in respect of the 2nd Plaintiff’s Notice of Cross-Appeal and all therein contained. The preliminary objection of the 1st Plaintiff in respect of the cross-appeal of the 2nd Plaintiff is accordingly overruled.

PRELIMINARY OBJECTION IN RESPECT OF THE CROSS-APPEAL OF THE 3RD AND 4TH RESPONDENTS/CROSS-APPELLANTS

By the preliminary objection raised in the Notice of Preliminary Objection dated and filed on 23/6/2008, the 1st Plaintiff/1st Respondent/2ndCross-Respondent hereinafter simply called 1st Plaintiff prays for the striking out of ground 1 of the 3rd and 4th Respondents’/Cross-Appellants’ Notice of Cross-Appeal and Issue 1 distilled there-from, in the brief of argument of the said parties.

The 1st Plaintiff in his brief captioned “2ND RESPONDENTS'(sic) BRIEF OF ARGUMENT” noted to the effect that the 3rd and 4th Respondents/Cross-Appellants (hereinafter simply called “3rd and 4th Respondents”) never raised the issue of that the PDP did not furnish cogent and verifiable reasons for his substitution (i.e. 1st Plaintiff) for the Appellant at the lower court. It was equally stated that the 3rd and 4th Respondents never challenged the jurisdiction of the lower court to entertain the 1st Plaintiff’s suit but now seek to do so for the first time before this Court by ground 1 of their Notice of Cross-Appeal. It is the submission of the 1st Plaintiff that the 3rdand 4th Respondents cannot do this, as the said ground does not arise from the judgment appealed against and is therefore incompetent and should be struck out. It was further submitted that the issue of jurisdiction being canvassed by the 3rd and 4th Respondents is a new issue which cannot be raised on appeal without first seeking the leave of this Court. The cases of Jov v. Dom (1999) 9 NWLR (Pt. 620) at 547; Ukpong v. Comm. For Finance (2006) 19 NWLR (Pt. 1013) 187 at 221 and Int’l Offshore Const. Ltd v. S.L.N. Ltd (2003) 16 NWLR 157 at 174-175 were cited in aid.

The 3rd and 4th Respondents would appear not to have responded to the preliminary objection as they did not file any Reply brief in which the objection under consideration was treated. The failure to file any response however does not mean that the preliminary objection in question must succeed automatically. In other words, the default of a party to react to a preliminary objection does not preclude the court from considering the merit and demerit of same for the purpose of either overruling the objection or sustaining it. See MICHAEL ODUNZE & ORS V. NWOSU NWOSU & ORS [2007] All FWLR (Pt. 379) 1295 at 1314. Around 1 of the Notice of Cross-Appeal filed by the 3rd and 4th Respondents has earlier been set out. It attacks the jurisdiction of the lower court to have entertained the instant case as constituted before it.

I do not understand the 1st Plaintiff as arguing that the nature of the said ground does not pertain to jurisdiction. Anyway, for the avoidance of doubt, it is my considered view that the ground clearly raises a jurisdiction issue inasmuch as it challenges the proper constitution of this case.

It has been argued by the 1st Plaintiff that the issue of jurisdiction raised by 3rd and 4th Respondents does not arise from the judgment appealed against and that leave of this Court ought to have been first sought and obtained before raising the said issue. The current judicial trend is that leave of the appellate court need not be sought and obtained before the issue of jurisdiction is raised on appeal. In this regard see the decision of the Supreme Court in each of the following: M/V GONGOLAHOPE V. SMURFIT CASES LTD [2007] All FWLR (Pt. 388) 1005 at 1018; BENJAMIN OYAKHIRE V. THE STATE (2007) All FWLR (pt. 344) 1 at 10; ELUGBE V. OMOHKHAFE (2005) All FWLR (Pt. 243) 629; as well as the decisions of this court in HINTERLAND RESOURCES LTD V. FIXITY INVESTMENT LTD [2007] All FWLR (Pt. 355) 487 at 500; and MINISTER OF WORKS AND HOUSING V. SHITTU (supra) 863.

Also, the law is not that an issue of jurisdiction cannot be raised unless it arises from the judgment appealed against. If this were so, then it would be virtually impossible to raise the issue of jurisdiction on appeal once a court neglects or refuses to avert its mind to it in its judgment, even if raised at trial. The correct position of the law in my respectful view is as stated by my learned brother, Ba’aba, JCA, in the case of HINTERLAND RESOURCES LTD V. FIXITY INVESTMENT LTD (supra).

In this regard, His Lordship, applying the case of Dagari of Dere v. Dagaci of Ebwa (2001) 7 NWLR (Pt. 712) 365, said to the effect that the issue of jurisdiction cannot be raised in a vacuum and that there must be materials in the proceedings to sustain it.

Ground 1 of the Notice of Cross-Appeal of the 3rd and 4th Respondents by its very tenor, in my respectful view, simply relies on material filed in this case for its sustenance. Indeed see also the case of MOBIL PRODUCING NIGERIA UNUMITED V LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY & ORS [2003] FWLR (pt.137) 1029 (SC); which amongst others identifies and deals with “jurisdictional incompetence evident on the face of the proceedings” and “jurisdictional incompetence dependent on the ascertainment of facts”.

From all that has been said, I do not see anything that renders ground 1 in question and the Issue distilled from it incompetent. Accordingly the preliminary objection of the 1st Plaintiff is overruled.

PRELIMINARY OBJECTION IN RESPECT OF THE CROSS-APPEAL OF THE 5TH RESPONDENT/CROSS-APPELLANT By the preliminary objection raised in the Notice of Preliminary Objection dated 18/3/2008 and filed on the same day, the 1st Cross-Respondent, hereinafter simply called ‘1st Plaintiff’, prays for the striking out of the 5th Respondent’s/Cross-Appellant’s Notice of Cross-Appeal.

Alternatively the 1st Plaintiff seeks for the striking out of the two grounds of appeal in the said Notice of Cross-Appeal and (ii) striking out the two Issues distilled by the said Cross-Appellant (hereinafter simply called “5th Respondent”) for being incompetent.

The 1st Plaintiff in arguing the preliminary objection submitted that ground 1 of the 5th Respondent’s Notice of Cross-Appeal is not arguable and also that it did not arise from the decision of the lower court. The point was made that an appeal is a continuation or review of the matter as they stood before the lower court and the decision therefrom. The case of Ndayako v. Mohammed (2006) 17 NWLR (Pt. 1009) 655 at 679 was cited in aid. The 1st Plaintiff said that the ground of appeal in question and the particulars are contradictory in terms. This is because the 5th Respondent in one breath was saying that it did not give any cogent and verifiable reasons for the substitution of the Appellant with the 1st Plaintiff; and in another breath, alleging that the 3rd and 4th Respondents never received the name of the 1st Plaintiff to substitute the Appellant.

The 1st Plaintiff raised the poser as to whether or not the 5th Respondent, without facts can argue as it had done, that it did not give cogent and verifiable reasons for substituting the Appellant. The 1st Plaintiff submitted that the argument in this respect was an afterthought and made in bad faith.

Dwelling on ground 2 in the 5th Respondent’s Notice of Cross-Appeal, the 1st Plaintiff submitted that same was worse than ground 1.

The ground was classified as a conclusion by the 1st Plaintiff. Particular A was said to have highlighted no error to be addressed; while Particular B was said to sing a discordant tune from the ground of appeal. The 1st Plaintiff however emphasized that the situation in the cross-appeal of the 5th Respondent is that of joinder of parties which is not apparent on the face of the ground of appeal.

In responding to the preliminary objection of the 1st Plaintiff, the 5th Respondent disclosed (in its “CROSS APPELLANT’S REPLY BRIEF OF ARGUMENT”) that the two grounds in its Notice of Cross-Appeal were filed pursuant to leave granted by this Court. It would appear that the requisite leave having been granted the 5th Respondent then it is definitely not in the province of the 1st Plaintiff to now complain about the grounds. The applications for leave to file the grounds contained in the 5th Respondent’s Notice of Cross-Appeal could not have been made ex-parte. In my respectful view, whatever grouse the 1st Plaintiff has with any or all of the grounds ought to have been articulated before the Court at that stage. I do not think the 1st Plaintiff by a preliminary objection can seek to upturn the earlier decision of this Court granting the 5th Respondent leave to argue the grounds of appeal contained in its Notice of Cross-Appeal.

Aside from the above, and given all that I have earlier stated on the issue of jurisdiction in considering the preliminary objection relating to the Cross-Appeal of the 2nd Plaintiff and 3rd and 4th Respondents respectively, I cannot but reach the same conclusion in respect of the instant preliminary objection. Accordingly, the said preliminary objection is overruled.

MAIN APPEAL

Before now, the Issues for the determination of the main appeal as formulated by the Appellant and 1st Respondent respectively, had been set out. I shall determine the appeal upon the Issues formulated by the 1st Respondent, as I am of the view that the Issues formulated by the Appellant can equally be conveniently considered under the Issues formulated by the 15t Respondent. I will continue to refer to the 1st Respondent as the 1st Plaintiff for the sake of consistency.

Dwelling on the inappropriateness of commencing the instant action by Originating Summons, the Appellant started by citing the Supreme Court cases of NBN & Anor. v. Alakija & Anor. (1978) 11 NSCC 470 at 477-478; Alegbe v. Oloyo (1983) 14 NSCC 315 at 335; as well as the decisions of this Court in the cases of Nig. Breweries Plc v. L.S.I.R.S. (2002) 5 NWLR(Pt. 759) 1 at 14; and PDP v. Abubakar (2007) 3 NWLR (Pt. 1022) 515. All these were referred to in aid of the submission that the nature of matters to be commenced by Originating Summons, are those in which there are no disputes on questions of facts or likelihood of such disputes. The Appellant claimed that the questions which the lower court was asked to determine were enmeshed in substantial factual disputes and that none of them was predicated on the construction of a written law, or any instrument, or document which is relevant in determining what is in issue between the parties.

In support of the assertion that there are factual disputes in the instant case, the Appellant highlighted the case of the 1st Plaintiff as being, that he (i.e. 1st Plaintiff) was elected at the primaries of 4/12/2006 and his name sent to INEC – the 3rd Respondent; that the said 3rd Respondent gave him all the statutory forms which he duly completed and the National Chairman of the PDP followed up the nomination with a letter – Exhibit “H” – insisting on his candidature.

On the other hand, the Appellant stated his own case to be that the congress of 4/12/2006 was marred with all forms of irregularities, violence and thuggery unleashed by the 1st Plaintiff and that the Congress was nullified upon his (Appellant’s) complaint and as a result of which the National Chairman and National Secretary of PDP forwarded his (Appellant’s) name as the Party’s candidate for election into the Senate as evidenced by Exhibit “EDB 1”. It was the contention of the Appellant that the letter dated 5/2/2007 purportedly signed by the National Chairman and Secretary is a forgery in that it does not bear the true signature of the National Chairman of the Party.

The Appellant also made the point that the 3rd and 4th Respondents in their counter affidavit completely denied that the name of the 1st Plaintiff was ever forwarded to them. Again the Appellant said that the 1st Plaintiff filed a further affidavit on 28/3/2007 and therein contended that the Appellant smuggled his name onto the list of candidates which was prepared by both the National Chairman and National Secretary of the PDP; and that the 3rd & 4th Respondents having accepted the name of the 1st Plaintiff gave him the statutory forms to complete.

Given the respective cases of the parties as highlighted by the Appellant, he stated the contentious facts which the lower court ought to have resolved in order to reach a valid decision in the instant suit to be: –

1. Whether indeed the 1st Plaintiff was ever presented as a candidate as claimed by him or it was the Appellant who was ab initio presented, as corroborated by various exhibits and the affidavit of the 3rd & 4th Respondents who had the statutory duty of receiving the nominations?
2. Whether there was ever a substitution of the Appellant, whom the 1st Plaintiff alleged smuggled himself onto the list, to bring this case within the purview of section 34 of the Electoral Act, 2006 and sections 50 and 51 of the PDP Electoral Guidelines for primary elections 2006, cognizance being taken of the fact that in the Originating Summons, substitution was not the case of the 1st and 2nd Plaintiffs?
3. Whether the name of the 1st Plaintiff was actually removed from the list of candidates by the 3rd & 4tf1 Respondents in order to predicate the claim that he was the validly nominated candidate?
4. Whether indeed Exhibits “E”, “F” and “G” attached to the 1st Plaintiff’s affidavit are forgeries in view of Exhibits “H”, and Appellant’s Exhibits “EDB 1′” “EDB 4′” “EDB 5′” and “EDB 6′”, carrying the authentic signature of the PDP National Chairman?
5. If the 1st Plaintiff’s claim was based on substitution, was there any evidence, however tenuous that the letter of substitution was submitted to the 3rd & 4th Respondents within the time and in the manner specified in the Electoral Act, 2006?

The above stated contentious facts, the Appellant submitted, could not be resolved upon affidavit evidence but required the hearing of evidence. This, it was further submitted by the Appellant, made the instant case qualify as hostile proceedings, and as such for the lower court to have proceeded with it, by way of Originating Summons “would not meet the justice of the case”. The case of Osuagwu v. Emezi (1998) 4 NWLR (Pt. 579) 640 at 649 was cited in aid. It was not only submitted that the lower court lacked the requisite jurisdiction to hear and determine the instant matter in the manner it did, as it was not merely for the interpretation of documents (and which was even not the 1st and 2nd Plaintiffs’ case) but also that the case having not been initiated by due process of law was bound to have failed and this Court was urged to so hold.

The 1st Plaintiff in dealing with the Issue under consideration submitted that the form in which an action is commenced does not render the court incompetent. That it is immaterial whether the instant case was begun by Originating Summons or Writ of Summons, as the relevant issue is whether or not justice has been done in the case. The cases of Federal Govt. of Nigeria v. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162; Famfa Oil Ltd v. A.G. Federation (2003) 18 NWLR(852) 453; Egbarin v. Agho Ghoubia (2003) 16 NWLR (Pt. 846) 280; and Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) 199 at 212 were cited in aid.

The point was made that it is not every action in which facts are disputed that must be commenced by Writ of Summons and the case of Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 at 346-347 was cited in aid. It was further submitted that the issue before the lower court in the instant case was not such that necessitated its being brought by Writ of Summons. This is because the affidavit evidence and documents exhibited thereto said all that was necessary and needed in the proof of the case of the 1st and 2nd Plaintiffs. The unreported decision of this Court in APPEAL NO. CA/A118/2007 between Barr. (Mrs.) Amanda Peters Pam v. ANPP & Ors dated 5/7/2007 was cited in aid. In the circumstances the 1st Plaintiff urged the Court to resolve Issue 1 in his favour.

To further demonstrate that there was nothing contentious in the proceedings before the lower court, the 1st Plaintiff submitted that the Appellant made nonsense of his allegation of forgery by his Exhibit “EDB 5”. The Exhibit the 1st Plaintiff submitted, excused the allegation of forgery because it vindicated the correspondences alleged to have been urged. This is more so as the said Exhibit, being against the interest of the Appellant, is admissible in law and the cases of Fagunwa v. Adibi (2004) 17 NWLR (pt, 903) 544 at 566; NBC v. Adeyemi (19956-84) 10 SSND 39; Ojiegbe v. Okwaranyia (1962) 2 SCNLR 358; and Salamatu v. Biba (1975) NNLR 176 were cited in aid.

Also, dwelling on Exhibit “J”, which the Appellant alleged to be a forgery, the 1st Plaintiff submitted that there was nothing to be resolved by the lower court in that regard, as the Appellant brought no better document to be relied on. Exhibit “EDB 5”, the 1st Plaintiff submitted, in any case vindicated the said Exhibit “J”.

The Court was urged by the 1st Plaintiff to abide by its decision in the case of Barr. (Mrs.) Amanda Pam v. ANPP & 2 Ors (supra), and hold that the procedure adopted by the lower court was in the interest of justice and met the same.

Issue 1 under consideration questions the appropriateness of commencing the instant suit by Originating Summons. There are definitely many decisions of both the Supreme Court and this Court dwelling on when it is appropriate to commence an action by Originating Summons.

The principle of law which the courts have consistently stated and reiterated is to the effect that Originating Summons is an unusual method, or procedure of commencing proceedings in the High Court. It is said to be best suited for cases where the facts are not in dispute or there is no likelihood of their being in dispute and when the sole, or principal question in issue, is or likely to be one directed at the construction of a written law, Constitution, or any instrument, or deed, will, contract, or other document, or other question of law, or in a circumstance where there is not likely to be any dispute as to facts.

Originating Summons being a procedure for the determination of disputes on affidavit evidence and thereby rendering the calling of witnesses and examination of witnesses rarely necessary, has been recognized as a judicial means of achieving expeditious hearing of deserving cases. See:

1. OSUNBADE & 4 ORS V. OYEWUNMI & 2 ORS (2007) 4-5 S.C. 98 at 112 (SIC)
2. DAPIANLONGV. DARIYE (No.2) (2007) All FWLR (Pt. 373) 81 at 122 (SC); and
3. UNIVERSITY OF ILORIN V. AKINYANJU (2008) All FWLR (406) 1989 at 2007-2009 (Q).

It would appear indisputable that it is not the filing of a counter affidavit to oppose the claims in an Originating Summons that makes such proceedings to be contentious or to result in disputed facts. Indeed, the nature of claims and facts deposed to in the affidavit in support of the prayers in an Originating Summons can by themselves disclose disputed facts and hostile nature of the proceedings. See S.A.I. OSSAI V. ISAAC F. WAKWAH & 9 ORS [2006J All FWLR (Pt. 303) 239 at 256.

Likewise it should be appreciated that the mere filing of a counter affidavit in response to the supporting affidavit of an Originating Summons does not automatically make the matter one in which oral evidence need be adduced. Where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the court is not saddled with the responsibility of calling oral evidence. Again the need to call oral evidence would not arise where the areas of conflict are so narrow and insignificant. See THE ATTORNEY-GENERAL OF ADAMAWA STATE & ORS v. THE ATTORNEY-GENERAL OF THE FEDERATION & ORS (2006) All FWLR (Pt. 299) 1450 at 1477-1478.

Lastly, it is not in every instance that there is conflict in affidavit evidence that oral evidence must be called to resolve the same. Where the conflict can be resolved on available documentary evidence before the court, oral evidence need not be called as there is a presumption of regularity in favour of documents. See PEOPLES DEMOCRATIC PARTY & ANOR V. YA’UD MOHAMMED [2005] All FWLR (Pt. 289) 1322 at 1343. Embedded in this decision is the principle of law that documents are the hangers of oral evidence.

The questions posed for the determination of the lower court in the Originating Summons and reliefs sought therein have earlier been set out verbatim in this judgment. It is glaring that the lower court in its judgment averted its mind to the questions posed for its determination as well as the reliefs claimed. The lower court relying on the provision of Order 2 Rule 2 of the Federal High Court (Civil Procedure Rules) held that the suit can conveniently be determined by Originating Summons.

The lower court in this regard disclosed that the case appeared “to deal with documents, basically which of the correspondences the 1st Defendant bound is by”.

I cannot fault the conclusion of the lower court that the case basically deals with documents, going by the questions posed for the determination of the said court and reliefs sought.

I have earlier highlighted the contentious questions of fact which, according to the Appellant, the lower court had to resolve in order to reach a valid decision in the instant action. It is on the basis of the said contentious facts that it was argued that the commencement of the instant action by Originating Summons was not appropriate. As rightly argued by the 1st Plaintiff in his brief, the Appellant himself provided documents that established his allegation of forgery of some of the Exhibits in this case. Having painstakingly perused the totality of the affidavit evidence in the case, I am equally of the view that there is no material factual dispute in this case that cannot be resolved with the documentary evidence before the court.

Given all that I have said before now, I accordingly find the instant case to have been properly commenced by Originating Summons. In any event, if the action had been found to have been wrongly commenced by Originating Summons, this cannot result in the same being terminated, as the Appellant would appear to have argued in his brief. It is now settled law that the proper order to make where it is found that an action had been wrongly commenced by Originating Summons is not one dismissing the action, but one ordering that pleadings be filed therein and the case heard upon the pleadings by the court below (i.e. the Federal High Court in the instant case). See OBA ADEGBOYEGA OSUNBADE & ORS V. OBA JIMOH OLADUNNI OYEWUNMI & ORS (supra) at page 1015. I accordingly resolve Issue 1 against the Appellant and in favour of the 1st Plaintiff (i.e. 1st Respondent in the main appeal).

Issues 2 and 3 formulated by the Appellant were argued together.

Before now, Issue 3 had been struck out given the success of the 1st Plaintiff’s preliminary objection attacking the same. I will therefore limit myself to submissions in the Appellant’s brief that relate to Issue 2.

Relying on the provisions of section 34(1), (2) and (3) of the Electoral Act, 2006 the Appellant stated that whenever an application is made to substitute a candidate, such an application must give reasons which are not only cogent, but verifiable. The case of CCB Nigeria Plc vs. A-G Anambra State [1992] 8 NWLR (pt. 261) 528 was cited in support of the principle that whenever a law provided for the doing of a thing, the thing is to be done in that way only. Referring to the deposition in paragraph 16 of the 1st and 2nd Plaintiffs’ further affidavit in support of the Originating Summons, the Appellant submitted that it was not for the candidate to give the reasons for change in the names of candidates. The deposition referred to reads thus:

‘That I know as a fact that the 1st Defendant (i.e. INEC) has no option when a party substitutes a candidate for cogent and verifiable reasons as was the case in my situation vis-a-vis the person of the 3rd Defendant (i.e. Appellant) who after losing the primary election woefully smuggled his name into the list dated 21/12/2006″.

The Appellant stated that Exhibit “H” annexed to the Originating Summons was the document which the learned trial Judge relied on and opined was the application for change of candidate. He further stated the question which the learned trial Judge posed and the answer given.

These go thus: “the question is was the name of the 1st plaintiff properly submitted to the 1st defendant? Speculating that what the question actually seeks to resolve is whether there was an application in compliance with section 34 of the Electoral Act, the Appellant submitted that the finding of the learned trial Judge that the name of the 1st Plaintiff was properly submitted in place of the 3rd Defendant’s by Exhibit “H” and for the reasons given therein (and as none of the parties is alleging that the reason is neither cogent nor verifiable) was most perverse as nothing could be farther from the truth. In this regard, the Appellant said Exhibit “H” was not the letter of substitution. That the letter applying for substitution of the 1st Plaintiff if any, was purportedly signed by the National Secretary of the PDP and which was not attached to the said Exhibit “H”. Secondly, the Appellant said that no reason at all was given in Exhibit “H” for the application to substitute. It was submitted by the Appellant that as Exhibit “H” was not in compliance with Section 34 of the Electoral Act, 2006, the 3rd and 4th Respondents were not obliged to make any substitution, even if the letter was duly written and delivered to the said Respondents and that this they have denied.

It was equally submitted that assuming Exhibit “H” was a letter for substitution; it was for the 1st and 2nd Plaintiffs to establish that the reasons for the change of candidates were cogent and verifiable. Still on Exhibit “H”, the Appellant submitted that the order of substitution made by the learned trial Judge could not be predicated thereon as the said Exhibit did not comply with Clause 50 of the PDP’s guideline for Primary Elections, 2006.

The 1st Plaintiff having first set out what he called the salient and undisputed facts of the case noted especially that INEC (i.e. the 3rd Respondent) never stated any reason for refusing to substitute the 1st Plaintiff for the Appellant. In this regard he reproduced the deposition in paragraph 7 of the counter affidavit of the 3rd and 4th Respondents. It reads:

“I know that the 1st defendant did not at anytime accept the substitution of the 3rd defendant by any person howsoever”.

The response of the Appellant to the case of the 1st Plaintiff at the court below was equally said to be as contained in paragraph 3 of his further and better affidavit. The deposition in the said paragraph reads:

“Paragraphs 4-17 are false. Exhibit J is manufactured and or procured by the plaintiffs for the purpose of this case. I have no personal contact with the election. Neither have I any cause to confide in him on anything regarding my campaign and candidature as he falsely alleges in paragraph 9 of his further and better affidavit”.

The 1st Plaintiff said it was apparent that none of the defendants at the court below alleged that the reason for the substitution was neither cogent nor verifiable given their respective cases, as identified by him.

In the circumstances, the 1st Plaintiff saw nothing wrong when the lower court found and held that his name was properly submitted in place of the 3rd Defendant’s. This was more so as he (1st Plaintiff) won the primaries by over 60% of the votes whereas the Appellant lost.

Reference was made to the case of Amaechi v. INEC (supra), particularly the judgment of Oguntade, JSC, therein.

Given what was stated to be the respective cases of the aforementioned Respondents, the 1st Plaintiff said that it was apparent the Appellant did not predicate his case on the absence of cogent and verifiable reasons, but on forgery and that the finding of the learned trial Judge that “None of the parties is alleging that the reason is neither cogent nor verifiable” against which the Appellant did not appeal, exposed the emptiness of the Appellant’s position. INEC, it was said never raised the issue of cogent and verifiable reasons as the reason for not substituting the 1st Plaintiff with the Appellant, as it is deemed to be present at the congress of a political party conveyed for the nomination of a candidate for an elective office and thereby knew the result of such primary. Again, the 1st Plaintiff retied on the case of Amaechi v. INEC (supra). Relying on Exhibit “EDB 5” from which it was apparent that there were correspondences between PDP and INEC dated “February 5th, 2007” and “February 12th, 2007”, the 1st Plaintiff submitted that the two letters came within the time available for political parties to substitute any of their candidates for any election as it was more than 60 days to the Senatorial election billed to take place on 21st of April, 2007.

Furthermore, it was submitted that the recognition afforded Exhibit “EDB 5” as issuing from the National Chairman and National Secretary of the PDP rendered unnecessary any further proof that the said Exhibit and the letter dated 5th February, 2007 were authentic.

The Court was urged to follow its decision in the Amaechi case and further urged to resolve Issue 2 against the Appellant.

1st Respondent’s (i.e. 1st Plaintiff’s) Issue 2 reads:

“Whether the trial Judge was right when she held that the substitution of the appellant with the 1st plaintiff/respondent as the Peoples Party’s candidate for Akwa Ibom North East Senatorial District against the election that held on the 21st April, 2007 in Uyo, Akwa Ibom State was proper.”

The learned trial Judge, before arriving at the finding or conclusion, that the 1st Plaintiff was properly substituted for the 3rd Defendant (i.e. Appellant), had earlier identified the questions for determination in the case to be:-

“1. who amongst the 1st Plaintiffs (sic) and the 3rd Defendant is the authentic candidate for (sic) Peoples Democratic Party for the Senatorial election in question; and

2. is the 1st defendant empowered to effect any change so requested by the party?”

In resolving the two issues in favour of the 1st Plaintiff, the learned trial Judge said to the effect that Exhibit “EDB 5” settled the fact that the 1st Plaintiff and not the Appellant was the Party’s candidate by the wish of the Party and that by Exhibit “H” the name of the 1st Plaintiff was properly submitted in place of that of the Appellant for the reasons stated in the said Exhibit. The learned trial Judge also said that none of the parties was alleging that the reason was neither cogent nor verifiable.

Exhibit “EDB 5” is a letter dated 20/3/2007 addressed to the 4th Respondent and signed by both the National Chairman and National Secretary of the PDP. It shows on its face that it was received on 21/3/2007. Therein, it was stated that the 1st Plaintiff is the PDP’s candidate for Akwa Ibom North East Senatorial District. It was also said that he won the Party’s primary “and his name duly forwarded in a substitution letter dated February 5, 2007 signed by the National Chairman and National Secretary”. It was also stated that “his candidacy had further been authenticated by a letter dated February 12, 2007 and signed by the National Chairman.”

Exhibit “H” is a letter dated 12/2/2007 addressed to the 4th Respondent by the National Chairman of the PDP.

Unlike Exhibit “EDB 5” it does not disclose the date of receipt on its face. The letter confirmed that the 1st

Plaintiff is the PDP’s candidate for Akwa Ibom North East Senatorial District. Again it was stated in the letter that the 1st Plaintiff “substitutes” the earlier name for the aforementioned constituency which was submitted ‘without enough information’.

The 1st Plaintiff has argued in his brief that none of the defendants in the court below alleged that the reason for substitution was neither cogent nor verifiable. In particular, the case of the Appellant was said to be based on forgery.

The 1st Plaintiff chose to commence the instant suit by Originating Summons. The Issues for determination in the suit therefore must be identified from the originating process and various affidavits of the parties. In paragraph 3 of the Appellant’s counter affidavit, he deposed to the effect that the PDP had never been equivocal about his candidature and that at no time under the Electoral Act, 2006 did the Party replace him or seek to replace him as its candidate. I am of the respectful view that this sufficiently puts in issue the provisions of the Electoral Act, 2006 dealing with change or replacement or substitution by a political party of its candidate for an election. In any event, I am also of the respectful view that given the case of the 1st Plaintiff and particularly the Exhibits hereinbefore referred to, the question as to whether any cogent or verifiable reasons were given for the substitution of the Appellant with the 1st Plaintiff was patently in issue. An issue, it should be remembered, is a point that has arisen in the pleadings of the parties and which requires resolution by the trial court. See UNITY BANK PLC V. MR. EDWARD BOUARI [2008] All FWLR (Pt. 416) 1825 at 1847.

Having regard to the various documents attached to the affidavits of the parties, there is no single one that shows that the name of the 1st Plaintiff was ever forwarded to the 3rd Respondent as the candidate of the PDP for Akwa Ibom North East Senatorial District (after the primaries he claimed to have won) before that of the Appellant. The Appellant deposed in his counter affidavit to the effect that his name was in the list dated 21/12/2006 signed by the National Chairman and National Secretary of the PDP that was sent to the 3rd Respondent as the Party’s candidate for Akwa Ibom North East Senatorial District.

Exhibit “EDB 1” at pages 107-111 of the Record bears this out. The letter dated 5/2/2007, at page 34 of the Record, which was the first in the series of the letters which the 1st Plaintiff relies upon to establish the fact that his name was sent to the 3rd Respondent as the candidate of the PDP for the Akwa Ibom North East Senatorial District requested that the1st Plaintiff should be substituted “for the earlier name for the aforementioned constituency which was submitted without enough information”. Exhibit “H” at page 37 of the Record is no different.

Affidavit evidence is not sacrosanct, in that it is not above evaluation by the court. Like oral evidence, a court is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. Thus the court cannot be blinded to lies even in uncontradicted affidavit evidence.

See DR. N.E. OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTO [2008] All FWLR (Pt.441) 810 at 834. It is, in my respectful view, clear from the affidavit evidence and the Exhibits aforementioned that the name of the 1st Plaintiff definitely was not sent to the 3rd Respondent as the candidate of the PDP for Akwa Ibom North East Senatorial District, first in time; hence the consistent request to the 4th Respondent that the said 1st Plaintiff’s name should be substituted for that of the Appellant.

Section 34 of the Electoral Act, 2006, is clear on what is expected of a political party wishing to change its candidate for an election especially, where such change is not necessitated by the death of the candidate who is sought to be replaced or substituted. Such a party is enjoined to:

1. inform INEC of such change in writing not later than 60 days to the election;
2. give cogent and verifiable reasons for the change in its application for change of candidate.

The 1st Plaintiff given the questions he posed for the determination of the lower court, the reliefs sought and depositions in his various affidavits, has based his claim for substitution for the Appellant on the ground that he won the primary. The lower court found the 1st Plaintiff to be the Party’s candidate by the wish of the Party and in this regard relied on Exhibit “EDB 5”. The lower court however never based its finding that the 1st Plaintiff was properly substituted for the Appellant upon the content of the said Exhibit “EDB 5”. The court relied on Exhibit “H” in its finding that the 1st Plaintiff was properly submitted in place of the Appellant for the reason given therein. It is to be noted that Exhibit ”’H” predates Exhibit “EDB 5”. I do not see how the lower court can be said to be right when it said “None of the parties is alleging that the reason is neither cogent nor verifiable” when Exhibit “H” upon which the lower court based its finding on its face raises the very issue of the cogency and verifiability of the reason given therein. This is aside from the deposition in paragraph 3 of the Appellant’s counter affidavit, to the effect that the PDP had never been equivocal about his candidature and that the Party at no time under the Electoral Act, 2006 replaced him or sought to replace him as its candidate. It is my respectful view therefore that to succeed, the 1st Plaintiff must establish, by his own case, that there was cogent and verifiable reason or reasons for the substitution sought.

The 1st Plaintiff is the party seeking for reliefs which can only be awarded him upon establishing that he was properly substituted for the Appellant as the PDP’s candidate for Akwa Ibom North East Senatorial District. He therefore has the duty to place concrete affidavit evidence before the court entitling him to the reliefs.

The affidavit evidence in this regard must show the date of delivery of the application for substitution to INEC (for the computation of the 60 days limit) and that the application for substitution is based on cogent and verifiable reason(s).

There is absolutely no concrete evidence showing when the letter dated 5/2/2007 was delivered to the 3rd Respondent. One would have thought that whatever acknowledgment of receipt of such an important letter was fundamental and any such acknowledgment as endorsed by or proof of delivery to, the receiver of the letter would have been exhibited.

Also whoever delivered the letter could have sworn to an affidavit and the same exhibited to the Originating Summons. Be that as it may.

The Supreme Court gave the meanings of the words “cogent”; and “verifiable” in BARR. (MRS.) AMANDA PETERS & ANOR V. NASIRU MOHAMMED & ANOR [2008] All FWLR (Pt. 436) 1868 at 1901.

See also ENGR. CHARLES IGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR (2007) ALL FWLR (Pt. 377) 807 at 922. Indeed in the case of CHARLES CHINWENDU ODEDO V. INEC & ANOR [2008] 17 NWLR (pt. 1117) 554 the Supreme Court held amongst others to the effect that the words “without enough information” do not connote anything that is cogent or verifiable.

Guided by the meanings of the words “cogent” and “verifiable”, I definitely do not see how it can be said by any stretch of imagination that the phrase “without enough information” used in the letter dated 5/2/2007 furnished any cogent and verifiable reason for the seeking for the substitution of the Appellant with the 1st Plaintiff. The words “without enough information” were used at large and they do not relate to anything specific about the Appellant.

The same applies to Exhibit “H” in which the reason for seeking for the substitution of the Appellant with the 1st Plaintiff was again stated to be “without enough information”. Exhibit “EDB 5” would no doubt appear to contain semblance of cogent and verifiable reason for seeking the substitution of the Appellant with the 1st Plaintiff to wit: that he won the primary election of the party, but the letter though dated 20/3/2007 shows on its face that it was received by the 3rd Respondent on 21/3/2007. Substitution is to be made not later than 60 days to the election concerned. It would therefore appear, with effortless calculation, that whatever application that was made therein was not made within the compulsory time limit. I am aware that the 1st Plaintiff argued that as reference was made in Exhibit “EDB 5” to the letters dated 5/2/2007 and 12/2/2007 respectively, then the application for substitution was made within time.

Respectfully, I do not consider the argument sound. This is because the two letters in question never furnished any cogent and verifiable reason(s) in the first place. It was only in Exhibit “EDB 5” that semblance of cogent and verifiable reason would appear to have been furnished.

I have read all the cases cited by parties in support of their respective cases and I am in no doubt that the facts of the instant case are not too dissimilar with those in the case of SENATOR HOSEA EHINLAWO V. CHIEF OLUSOLA OKE & ORS [2008] All FWLR (Pt. 442) 1007.

The case decided to the effect that a court has no jurisdiction to inquire into the question of who is the right candidate of a political party for an election once the party has nominated a candidate. It was also decided that the exception to the rule has to do with substitution of a candidate already nominated and submitted to INEC and that the substitution must be done within the time frame provided in the Electoral Act with cogent and verifiable reasons given. The case further decides that where no cogent and verifiable reasons are given, the substitution or change of candidate cannot be effected and the original candidate presented to INEC by the political party, in accordance with the law, remains the candidate of the party for the particular election.

It is seen that in all the relevant Exhibits forwarding the name of the 1st Plaintiff to the 4th Respondent, for it to be substituted for that of Appellant, the PDP never claimed not to have forwarded the Appellant’s name in the first instance. The Party only said that to the effect that the Appellant’s name was submitted “without enough information”, No letter written by the PDP in which the party ever denied writing Exhibit “EDB 1” dated 21/12/2006 and forwarding same with the list attached thereto to the 3rd Respondent was exhibited. This in my respectful view punctures the case of the 1st Plaintiff that the Appellant smuggled his name into any list. It therefore behoves the 1st Plaintiff to establish that his party complied strictly with the provisions of Section 34(1) and (2) of the Electoral Act, 2006, to warrant the finding by the lower court to the effect that his name (i.e. 1st Plaintiff’s) was properly submitted in place of that of the Appellant, by and for the reasons stated in Exhibit “H”. In other words it is only the substitution of the 1st Plaintiff for the Appellant made in strict compliance with the provisions of Section 34 of the Electoral Act, 2006 that can validly dislodge the authenticity of the candidature of the Appellant for the PDP in respect of Akwa Ibom North East Senatorial District as evidenced by Exhibit “EDB 1” and not Exhibit “EDB 5” which according to the lower appeared to settle it that the 1st Plaintiff and not the Appellant is the candidate of the party by the wish of the party. Having first submitted the name of the Appellant as its candidate, the PDP can only implement a contrary wish by complying with Section 34 of the Electoral Act, 2006.

In conclusion and for the foregoing reasons, Issue 2 is resolved against the 1st Plaintiff/1st Respondent and I hold that the learned trial Judge was wrong to have found that the 1st Plaintiff (i.e. 1st Respondent) was properly substituted for the 3rd Defendant (i.e. Appellant). The said Issue 2 is accordingly resolved in favour of the Appellant thereby resulting in the appeal succeeding in part. By the resolution of Issue 2 in favour of the Appellant, he therefore remained the authentic candidate of the PDP for Akwa Ibom North East Senatorial District in the 2007 General Elections as the 1st Plaintiff/1st Respondent was not properly substituted for him, contrary to the finding of the lower court in that regard. In the circumstances, the declarations and reliefs granted by the lower court, particularly the directive issued to the 3rd Respondent (i.e. INEC) and which was predicated on the wrong finding of the lower court that there was proper substitution must collapse or crumble. The appeal is therefore meritorious. The same succeeds.

CROSS-APPEAL OF THE 2ND RESPONDENT/CROSS-APPELLANT

The 2nd Respondent/Cross-Appellant was the 2nd Plaintiff in the instant suit at the lower court. He will hereafter be simply called “the 2nd Plaintiff”. The 1st Respondent in the cross-appeal was the 3rd Defendant at the lower court and Appellant in the main appeal. He will simply be called “the Appellant” hereafter. The 2nd Respondent/Cross-Respondent in the cross-appeal was the 1st Plaintiff at the lower court. I will continue to refer to him as “the 1st Plaintiff”. The Issue which the 2nd Plaintiff formulated for the determination of his appeal is – “whether the trial court had the jurisdiction to determine the suit before it”.

The 2nd Plaintiff stated the facts of the instant case to be that the 1st Plaintiff and the Appellant were among the contestants in the PDP primaries for Akwa Ibom North East Senatorial District. That after the primaries, the PDP sent the name of the Appellant to 3rd Cross-Respondent (hereinafter simply called “INEC”) as its senatorial candidate for the Senatorial District in question vide a letter dated 21/12/2006.

The 2nd Plaintiff further stated that 1st Plaintiff brought an action challenging the nomination of the Appellant as the candidate of the PDP for the Senatorial election and joined the Chairman, PDP, Akwa Ibom State in that capacity as a co-plaintiff.

The 2nd Plaintiff submitted that the lower court lacked the jurisdiction to determine the suit before it because the facts and circumstances showed clearly that it was not instituted by due process of law and that the subject matter was not justiciable. It was also said that proper parties were not before the lower court to enable it exercise its jurisdiction.

The proper parties that were not before the lower court having regard to the brief of argument of the 2nd Plaintiff were the PDP and/or its National Officers. In this regard it was submitted that the 2nd Plaintiff as an officer of the Party at the State level has no personal capacity to sue in respect of matters that concerned the headquarters of the Party and reliance was placed on Sections 221 and 222(a) of the 1999 Constitution as well as the Supreme Court decision in the case of Hon. Rotimi Amaechi v. INEC & 2 Ors. It was submitted that it was only the PDP and/or its National Officers that are the proper and necessary parties to sue and be sued on matters relating to the affairs of the Party. It was further submitted that the claims of the 1st Plaintiff at the trial court could not be effectually and completely determined in the absence of the PDP and/or its National Officers whose presence were necessary for the purpose. The non-joinder of the aforesaid parties, the 2nd Plaintiff submitted, robbed the 1st Plaintiff of the locus standi to have brought the instant action at the lower court as he did, in that a non-juristic person (namely the said 2nd Plaintiff) was made a party instead of the PDP and this should result in the striking out of the suit and the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 58 was cited in aid. Still on the non-joinder of the PDP and/or its National Officers, the 2nd Plaintiff submitted that the “averments” relating to the activities of the PDP should be struck out in the circumstance, and the entire suit struck out where the remaining “averments” cannot sustain the suit of the 1st Plaintiff. The case of Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 146 was cited in aid.

Still dwelling on the question of proper parties, the 2nd Plaintiff submitted that he was not a juristic person having regard to the manner he was described at the lower court and the case of Hope Democratic Party v. INEC & Ors unreported Ruling of the Court of Appeal delivered on 20/8/2007 was cited in aid.

Dwelling on the non-justiciability of the suit, the 2nd Plaintiff submitted that with the action lacking in juristic persons such as the PDP and/or its National Officers, the claim of the 1st Plaintiff in the circumstances related to the “nomination and sponsorship of candidate of the PDP” in the 21st April, 2007 Senatorial election for Akwa Ibom North East Senatorial District and that the 1st Plaintiff lacked the jurisdiction to raise this, as it is not justiciable. It was submitted that the case of the 1st Plaintiff has nothing to do with section 34(2) of the Electoral Act, 2006 as the case shorn of all the trappings of words, is simply that he was the nominated and sponsored candidate of the PDP for the 21st April, 2007 Senatorial election and yet he did not join PDP to canvass the issue as to who was its candidate.

It was further submitted that the 1st Plaintiff cannot raise the issue of nomination and sponsorship of a candidate on his own. The issue of nomination and sponsorship of candidate was said to be an internal affair of a political party and which is not justiciable. To buttress the point, reference was made to the questions posed for the determination of the lower court as well as the reliefs sought. The case of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1084) 367 was cited on the justiciability of the domestic affairs of a political party and section 34(2) of the Electoral Act, 2006 and it was submitted that the consequence of the judgment in the case is that where section 34(2) of the Electoral Act is not in issue the court should revert to Onuoha v. Okafor (1983) 2 SCNLR 244. The holding/finding by the learned trial Judge that “none of the parties is alleging that the reason is neither cogent nor verifiable” was relied on as buttressing the submission that section 34(2) was not in issue in this case. The cases of Ibrahim v. Gaye (2002) 13 NWLR (Pt.784) 267 at 296 and Jang v. INEC (2004) 12 NWLR (Pt. 886) 46 at 75-76 were also cited on the issue.

In his brief, captioned “1ST CROSS RESPONDENTS’ (SIC) BRIEF OF ARGUMENT”, the 1st Plaintiff noted that the 2nd Plaintiff who in the affidavit before the lower court made out a case for substitution has neither appealed against the finding of the lower court that the substitution was properly made nor that the 1st Plaintiff is the candidate of the party. It was submitted that it is the claim before the court that determines jurisdiction and that a court is competent once the conditions in Madukolu v. Nkemdilim (1962) 2 All NLR 581 at 589 are satisfied. According to the 1st Plaintiff, the facts and circumstances of the instant case clearly show that his grievance was the refusal of INEC to substitute the name of the Appellant with his own name in spite of his right to be so substituted and as contained in the 1999 Constitution as well as the Electoral Act, 2006.

The 1st Plaintiff said that the present stance of the 2nd Plaintiff was regrettable, as he is clearly approbating and reprobating. This is against the backdrop of the settled facts to which he (i.e. 2nd Plaintiff) deposed at the lower court and in respect of which he has not sought any leave to adduce fresh evidence to contradict. In the circumstances it was said that this Court is bound in law to review the decision of the lower court and its jurisdiction to adjudicate over the instant matter based on the claim and facts before the said court.

The 1st Plaintiff also said that the allusion that the 2nd Plaintiff should have been sued as the PDP is clearly a contradiction in terms as indeed he was the person that took out the action. This Court was urged to see beyond the antics of the 2nd Plaintiff and find his present conduct in seeking to set aside the judgment he obtained when he was loyal to his party despicable and condemnable as it seeks to make a mockery of the administration of justice and the case of Amaechi v. INEC & Ors was again referred to extensively.

Responding to what was termed the heavy weather made out of the provision of section 34(2) of the Electoral Act by the 2nd Plaintiff; the 1st Plaintiff submitted to the effect that it was not for him to raise cogent and verifiable reasons before the suit can be competent. He further submitted that even if it were correct that he is the one to raise the same, he has done this by the deposition in paragraph 16 of his further affidavit which is to the effect that the his substitution for the Appellant was made with cogent and verifiable reasons and also the deposition in paragraph 3 (a-h) of his 2nd further affidavit. These depositions the 1st Plaintiff further stated were not challenged or contradicted by the 2nd Plaintiff and accordingly the learned trial Judge had no difficulty in coming to the conclusion that the refusal of INEC to accept his name (i.e. 1st Plaintiff’s) in substitution for the Appellant “was not for the absence of cogent and verifiable reasons but rather for their strong preference for the Appellant for reasons personal to INEC”. May I quickly say that I have been unable to find in the record where the lower court said or expressed itself in the words in quote?

The 1st Plaintiff urged the Court to hold that the lower court had the jurisdiction to entertain the matter which bordered essentially on the substitution of a candidate by a party for another, in compliance with the requirement of the Electoral Act and the right of such a person to have the substitution effected by INEC. He further said it is axiomatic in law that a party cannot appeal against his victory, nor will a party who went to court, after obtaining judgment, be permitted to turn around on his own to complain about the court’s jurisdiction.

The Appellant in his Reply brief indicated that he aligned himself with the appeals of all the Cross-Appellants and that he adopted their respective arguments in support of the appeals as his own. The Appellant went further to elaborate on some issues but the elaboration was not tied to specific cross-appeals. It would appear that the Appellant expects this Court to compartmentalize or marry the issues elaborated upon to the cross-appeals as appropriate. This is not for the Court to do. Accordingly time and energy will not be wasted on the issues elaborated upon by the Appellant.

It has been stated earlier in this judgment that the issue of jurisdiction is very fundamental to adjudication and goes to the competence of the court to entertain a matter. Hence it is always permissible for the issue of jurisdiction to be raised at the court of first instance, or in the Court of Appeal or even for the first time before the Supreme Court. The issue can also be raised by either of the parties or by the court suo motu. See the cases of LADOJA V. INEC; BENJAMIN OYAKHIRE V. THE STATE; THE MINISTER OF WORKS AND HOUSING V. ALHAJA KUBURAT SHITTU & 2 ORS (all supra). The case of CHIEF EMIMIGBE OMOKHAFE & 2 ORS V. THE MILITARY ADMINISTRATOR EDO STATE OF NIGERIA & 3 ORS (supra) was also cited to show that the law did not place the burden of raising the issue of jurisdiction on any particular party in the proceedings. From all that has been said in relation to jurisdiction, it would therefore appear that the 2nd Plaintiff is not precluded by any principle of law from appealing against a judgment “said to have been in his favour” on the ground that the lower court lacked the jurisdiction to have entertained the matter in the first place (and I have used the words “said to have been in his favour” advisedly).Jurisdiction, it must always be borne in mind, cannot be acquired by a court, by the consent of the parties to confer the court with the same; or by negligence or omission of the parties to raise the same. To hold that the 2nd Plaintiff cannot lodge an appeal challenging the jurisdiction of the lower court to have entertained the case in the first place, on the ground that the said judgment was in his favour, as urged by the 1st Plaintiff would tantamount to conferring jurisdiction on the lower court “by default” without considering the merit of the challenge to the jurisdiction of the court in question. This Court therefore does not find the supposed turpitude on the part of the 2nd Plaintiff, in appealing against the judgment of the lower court, sufficient to deny him of the right of appeal which he has exercised.

The 2nd Plaintiff hinged the lack of jurisdiction of the lower court to entertain the instant matter in the main on two grounds namely, (i) that instead of joining the PDP as a plaintiff in the action, he (i.e. 2nd Plaintiff) a non-juristic person, was joined as a co-plaintiff; (ii) that the instant action filed by the 1st Plaintiff relates to the nomination and sponsorship of a candidate for election and not section 34(2) of the Electoral Act, 2006 and is therefore not justiciable in law with the 1st Plaintiff lacking the locus standi to institute the same.

The issues of cause of action, locus standi and proper parties to an action are invariably intertwined. Locus standi denotes legal capacity to institute an action for the reliefs sought in a court of law. To have locus standi, the plaintiff must disclose his interest which has been, or is in danger of being violated, or act of the defendant which has adversely affected his interest. Cause of action is the entire set of circumstances giving rise to an enforceable claim and consists of two elements namely,

(i) the wrongful act of the defendant which gives the plaintiff his cause of complaint and (ii) the consequential damage. Proper parties are those to whom rights and obligations arising from the cause of action can attach. The questions posed for the determination of the lower court and reliefs claimed have been set out in this judgment before now. Given the same as well as his various affidavits I have also stated before now, to the effect that the 1st Plaintiff clearly based his claim for substitution for the Appellant on the ground that he won the primary. Indeed the 1st Plaintiff clearly understands his case when he urged this Court to hold that the lower court had the jurisdiction to entertain the matter which bordered essentially on the substitution of a candidate by a party for another as contained in the Electoral Act and the right of such a person to have the substitution effected by INEC.

A claim for the resolution of the question as to whether or not one candidate of a political party has been properly substituted for another is, in my respectful view, different from a claim calling for the resolution of which one out of two candidates was nominated and sponsored by a political party for an election. A claim for substitution admits of the fact that the two candidates involved in the dispute were at different times nominated and sponsored by the political party, but that the political party after having nominated and sponsored the candidate first in time has decided to change him with the one nominated and sponsored second in time. The instant suit is primarily seeking for the determination of the question as to whether or not the 1st Plaintiff has been properly substituted for the Appellant as the candidate of the PDP for Akwa Ibom North East Senatorial District given the affidavit evidence of the parties before the lower court. There is nothing therein that could not be effectually and completely determined by the said court without the presence of the PDP. In other words, the presence of the PDP as a party to come and canvass before the lower court who its nominated and sponsored candidate for the election was, was not the question for determination in the suit but whether the candidate earlier nominated and sponsored by the PDP, had been properly substituted with the 1st Plaintiff and the resolution of the question definitely cannot be based on what the PDP says, but on whether or not the provisions of the relevant law in that regard have been satisfied or complied with in the light of the documentary evidence that must be placed before the court. The PDP, in the circumstances of this case, in my respectful view, does not necessarily have to be a party.

I must note that all the submissions of the 2nd Plaintiff glaringly admit that if this case is not about the nomination and sponsorship of a candidate of the PDP for the election in question, then the 1st Plaintiff not only has locus standi to have instituted the same but that the case is justiciable.

There is no doubt that the decision of the Supreme Court in the case of EHINLANWO V. OKE (supra) and which came after the one in Amaeehi v. INEC [2008] All FWLRC Pt.407) 1, (on which the 1st Plaintiff would appear to have built his case) has clearly shown that the decisions in ONUOHA V. OKAFOR; and ENGR. CHARLES IGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR to the effect that the question of nomination and sponsorship of a candidate of a political party for an election is not justiciable. But as earlier stated the instant action given the questions posed for the determination of the lower court and reliefs sought as well as affidavit evidence of the parties is definitely not one seeking for the resolution of who as between the 1st Plaintiff and the Appellant is the candidate nominated and sponsored by the PDP.

Given all that has been said, I am therefore in no doubt that all the submissions of the 2nd Plaintiff relating to the non-justiciabilty of the instant suit as it deals with the nomination and sponsorship of candidate of a political party for an election; lack of locus standi on the part of the 1st Plaintiff to institute the action; non-joinder of PDP as a co-plaintiff as rendering the lower court without jurisdiction to entertain the instant suit only show a misapprehension of the case of the 1st Plaintiff. In any event and given all that has been said about locus standi, cause of action and proper parties to an action before now, I definitely find the 1st Plaintiff who claims to have been substituted for the Appellant by the PDP upon the documents he placed before the lower court to have sufficiently disclosed his locus standi to institute the instant action. See PAM V. MOHAMMED (supra). The action being one dealing essentially with substitution of one candidate for another is equally justiciable by virtue of Section 34 of the Electoral Act, 2006. See also ENGR.CHARLES IGWU & ANOR V. SENATOR IFEANYI ARARUME & AN OR (supra).

Finally the proper parties to who rights and obligations arising from the 1st Plaintiff’s cause of action were before the lower court. See IKEMEFUNA & ANOR V. MRS. AGNES SOLOMON IBOK & 2 ORS [2006] All FWLR (Pt. 321) 1247 at 1260.

May I say that if this case was improperly constituted in any respect, it would be by the joinder of the 2nd Plaintiff as a co-plaintiff and not by the non-joinder of the PDP, given its nature. The 2nd Plaintiff is the one who, having regard to the questions for determination and reliefs claimed as well as affidavit evidence before the lower court, never showed his locus standi to institute this case. This is buttressed by the fact that there is none of the reliefs sought that has benefited him. See OUNIYAN V. ADENIYI (2007) 37 WRN 33 at 56. Indeed the 2nd Plaintiff has himself argued that he has no locus standi in the case. I cannot but agree more with him.

Accordingly the 2nd Plaintiff who has clearly shown that he has no locus standi in the instant action and who has in no way benefited from any of the reliefs sought and granted, ought to have been struck out as a party. (This is why I earlier used the words “said to have been in his favour” advisedly). This however does not affect the case of the 1st Plaintiff. This is because the law is that once a party has the locus standi to sue, the non-joinder or mis-joinder of any other particular party does not and cannot defeat the action if the matter in controversy can be determined as between the parties actually before the court. See AKANNI V. OLANIYAN [2007] All FWLR (Pt. 380) 1534 at 1547.

The locus standi of the 1st Plaintiff therefore sufficiently sustained his action; but even the non-joinder of the PDP, had it been a necessary party, has not in any manner defeated this action.

In conclusion, I find the lower court to have jurisdiction to entertain the instant matter and thereby resolve the Issue formulated by the 2nd Plaintiff for the determination of his appeal against him. The cross appeal therefore fails and is dismissed.

CROSS-APPEAL OF THE 3RD AND 4TH RESPONDENTS/CROSS APPELLANTS

These Cross-Appellants formulated two Issues for the determination of their appeal in their brief of argument. The Issues had been re-produced before now in this judgment. The Cross-Appellants (who will hereafter simply be called “the 3rd and 4th Respondents”) argued Issue 1 from two noticeable positions. The first position is that the instant case having regard to the questions posed for the determination of the lower court and the reliefs sought by the 1st Respondent (who I will continue to refer to as the 1st Plaintiff) was merely and simply in respect of the domestic affair of the PDP and which the said lower court ordinarily ought not to have determined.

The 3rd and 4th Respondents were categorical that the issue the lower court was called to adjudicate upon was not within the confines of Section 34(2) of the Electoral Act, 2006 but within the domestic affairs of the PDP thereby making it not justiciable as was held in Onuoha v. Okafor (supra). The case of Ugwu v. Ararume (supra) was also cited to show that the Supreme Court did not overrule the issue of nonjusticiability of matters bordering on the domestic affairs of a political party. The 3rd and 4th Respondents like the 2nd Plaintiff relied on the holding/finding of the lower court that none of the parties alleged that the reason is neither cogent nor verifiable, to buttress their stance that the case has nothing to do with section 34(2) of the Electoral Act, 2006. The second position of the 3rd and 4th Respondents is that Exhibit “H” did not comply with the provisions of Section 34(2) of the Electoral Act, 2006, assuming (though they did not so concede) that the said section was applicable in the instant case. In this regard the 3rd and 4th Respondents argued in the main that the said Exhibit “H” gave no cogent or verifiable reason for the substitution. They relied on the case of Ugwu v. Ararume (supra).

The 1st Plaintiff in his brief captioned as “2ND CROSS RESPONDENTS'(sic) BRIEF OF ARGUMENT” responded to the 3rdand 4th Respondents’ Issue 1, under the Issue which he formulated as-

“Whether the lower court had jurisdiction to entertain the Plaintiff/2nd Cross Respondent’s claim before it”.

The 1st Plaintiff submitted that his claim was within the competence of the lower court to entertain and adjudicate upon as the facts and circumstances of the case showed his grievance to be the refusal of the 3rd and 4th Respondents to publish his name as the PDP’s substitute for the Appellant for the election, despite his right in that regard under the 1999 Constitution and the Electoral Act, 2006, after he had fulfilled all the relevant requirements of the law. It was further submitted that the contention that the questions posed for the determination of the lower court and reliefs sought showed that the matter was within the domestic affairs of a political party is misconceived as the said contention overlooked the provisions of sections 34 and 85 respectively of the Electoral Act, 2006. For a better appreciation of the submission the 1st Plaintiff re-produced extensively the dictum of Oguntade, JSC; in the case of Amaechi v. INEC & Ors (supra)

It was submitted by the 1st Plaintiff that the 3rd and 4th Respondents even misconceived the substance of their Issue 1 given their contention that the issue of cogent and verifiable reasons for the substitution must be raised before the instant suit can be competent. This, according to the 1st Plaintiff is because the competence of a suit is not determined by the consideration of whether or not a party has raised a particular issue and the case of Madukolu v. Nkemdilim (supra) was cited in aid.

The 1st Plaintiff submitted that in any event he made clear depositions in paragraph 3(a)-(h) of his 2nd further affidavit to the effect that his substitution for the Appellant was made with cogent and verifiable reasons and which depositions were unchallenged or controverted. The decision of this Court in the case of Olusola Oke v. Senator H.O. Ehinlanwo: Appeal No. CA/A/112/01 delivered on 2/10/2001 was cited as showing that INEC has no discretion in the matter once a political party had exercised its prerogative to substitute a candidate. That the only reason INEC can advance is that the party did not give any cogent and verifiable reasons and not that it did not accept the candidature of the 1st Plaintiff as was done in the instant case.

The question as to whether or not the lower court had the jurisdiction to entertain the instant matter was the sole Issue posed for the determination of the appeal of the 2nd Plaintiff. In order to answer the Issue, this Court relying on the questions posed for the determination of the lower court and reliefs claimed in the instant suit, as well as the various affidavits of the 1st Plaintiff has before now stated to the effect that the 1st Plaintiff clearly based his claim for substitution for the Appellant on the ground that he won the primary. The 1st Plaintiff has equally clearly shown that he understands his case better than the 3rd and 4th Respondents when, with apparent reference to the said Respondents, he said to the effect that his grievance was with their refusal to publish his name as the PDP’s substitute for the Appellant in the election in spite of his right in that regard. The 3rd and 4th Respondents have not advanced any argument to dislodge the view earlier expressed in this judgment that the instant suit is primarily seeking for the determination of the question as to whether or not the 1st, Plaintiff has been properly substituted for the Appellant as the candidate of the PDP for Akwa Ibom North East Senatorial District given the affidavit evidence of the parties before the lower court.

The Issue of substitution clearly transcends that of nomination and sponsorship of a candidate for an election by a political party that has been rendered non-justiciable by the cases of ONUOHA V. OKAFOR; and ENGR. CHARLES IGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR (both supra).

The instant action being one dealing essentially with substitution of one candidate for another, is therefore justiciable by virtue of Section 34 of the Electoral Act, 2006 and the lower court eminently had the jurisdiction to entertain it. See also ENGR. CHARLES IGWU & ANOR V. SENATOR IFEANYI ARARUME & ANOR (supra).

The second position of the 3rd and 4th Respondents on the Issue that the lower court lacked the jurisdiction to have entertained the case is predicated on the ground that Exhibit “Hit did not comply with the provisions of Section 34 of the Electoral Act, 2006, in that no reason for the substitution is disclosed in the Exhibit, talk less of any cogent and verifiable reason been disclosed, would appear to have been flawlessly dealt with by the 1st Plaintiff in his submissions earlier reviewed.

Indeed, I can only say that once it is assumed or conceded that Section 34 of the Electoral Act, 2006 is in issue in the instant case, then the justifiability of the 1st Plaintiff’s suit and consequently the jurisdiction of the lower court to entertain the same are settled per adventure. Any grouse which the 3rd and 4th Respondents might have with the compliance or otherwise of Exhibit “Hit (by which the substitution of the 1st Plaintiff for the Appellant was allegedly effected) with Section 34 of the Electoral Act, 2006, and the finding of the lower court that the substitution was properly effected by the said Exhibit “Hit go to the correctness of the decision of the lower court in the light of the affidavit evidence and other relevant Exhibits before it, and definitely not as to the competence of the court to entertain the subject matter of the suit and or the constitution of the suit.

All the submissions of the 3rd and 4th Respondents on the compliance or otherwise of Exhibit “H” with the provisions of Section 34 of the Electoral Act, 2006, not being jurisdictional in nature, therefore go to no issue and do not call for resolution having regard to the Issue under consideration.

Issue 1 formulated by the 3rd and 4th Respondents is therefore resolved against them.

Issue 2 of the 3rd and 4th Respondents calls for the resolution of the question as to whether or not the instant case was properly commenced by Originating Summons given its contentious nature.

In arguing this Issue the 3rd and 4th Respondents said nothing different from what the Appellant stated in his brief of argument. The submissions of the Appellant on the appropriateness or otherwise of commencing the instant action by Originating Summons have been elaborately reviewed; likewise the submissions of the 1st Plaintiff in that respect. All that the 1st Plaintiff has engaged in the “2nd Respondent’s brief” is a rehash of the submissions.

While considering the main appeal, I did say that it is indisputable that it is not the filing of a counter affidavit to oppose the claims in an Originating Summons that makes such proceedings to be contentious or as one that contains disputed facts. Indeed, the nature of claims and facts deposed to in the affidavit in support of the prayers in an Originating Summons can by themselves disclose disputed facts and hostile nature of the proceedings. See S.A.I. OSSAI V. ISAAC F. WAKWAH & 9 ORS (supra) 239 at 256.

I also said that it should be appreciated that the mere filing of a counter affidavit in response to the supporting affidavit of an Originating Summons does not automatically make the matter one in which oral evidence need be adduced. Where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the court is not saddled with the responsibility of calling oral evidence. Again the need to call oral evidence would not arise where the areas of conflict are so narrow and insignificant. See THE ATIORNEY-GENERAL OF ADAMAWA STATE & ORS V. THE ATIORNEY-GENERAL OF THE FEDERATION & ORS (supra) 1450 at 1477-1478.

Again, it is not in every instance that there is conflict in affidavit evidence that oral evidence must be called to resolve the same. Where the conflict can be resolved on available documentary evidence before the court, oral evidence need not be called as there is a presumption of regularity in favour of documents. See PEOPLES DEMOCRATIC PARTY & ANOR V. YA’UD MOHAMMED (supra) 1322 at 1343.

Embedded in this decision is the principle of law that documents are the hangers of oral evidence.

I have thoroughly considered and reviewed all the principles of law enunciated in the aforementioned cases, alongside the questions posed for the determination of the lower court in the Originating Summons, including the issues arising therein for determination, as well as the reliefs claimed. I have also said before now that I cannot fault the conclusion of the lower court that the case basically deals with documents and that it can conveniently be determined by Originating Summons by virtue of the provision of Order 2 Rule 2 of the Federal High Court (Civil Procedure) Rules for which reason I, therefore found the instant action to have been properly commenced by Originating Summons. I still abide with that finding. Consequently, in the circumstances, the 3rd and 4th Respondents’ Issue 2 must be, and is hereby resolved against them.

As the two Issues formulated by the 3rd and 4th Respondents for the determination of their appeal have been resolved against them, their appeal fails in the circumstances and is accordingly dismissed.

CROSS-APPEAL OF THE 5TH RESPONDENT [CROSS-APPELLANT

The first of the Issues which the 5th Respondent/Cross-Appellant (simply called 5th Respondent hereafter) argued in its brief of argument” after the facts of the instant case had first been highlighted is: –

“Whether the learned trial Judge was right in holding that the plaintiff was properly substituted for the 3rd Defendant (appellant in this appeal) without cogent and verifiable reasons having been given for such substitution.”

The 5th Respondent submitted to the effect that the position of the 1st Plaintiff that he was properly substituted for the Appellant and which the lower court agreed with goes against the grain of the judgment of the Supreme Court in Ugwu v. Ararume (supra). Section 34 of the Electoral Act, 2006 was referred to as dealing with the issue of substitution of candidate and it was submitted that the learned trial Judge was wrong to have held that there was substitution when the evidence at the trial did not show that cogent and verifiable reasons were given for allegedly substituting the 1st Plaintiff for the Appellant. Stating also that it (i.e. 5th Respondent) is in a better position to say who it sponsored for the election and has repeatedly said it was the Appellant that it sponsored, the question was then asked as to how the lower court arrived at the conclusion that the 1st Plaintiff was the candidate of the 5th Respondent.

It was stated that the deposition of the 1st Plaintiff to the effect that INEC has no option when a party substitutes a candidate for cogent and verifiable reasons as was in his situation could not be the basis for this, as it is not for the candidate to give reasons for his substitution, but the party and the provision of Section 34(2) of the Electoral Act, 2006 was cited in aid. The case of CCB Nigeria v. Anambra (supra) was equally cited in respect of the principle that it is the method prescribed by law for the doing of an act that should be adhered to and the court urged not to aid a litigant to violate a clear and unambiguous statutory provision. In the circumstances, it was not only submitted, that the trial Judge was in error in relying on Exhibit “H” in holding that there was proper substitution as the said Exhibit did not comply with the provisions of Section 34(2) of the Electoral Act, 2006, but also that the 3rd and 4th Respondents could not have been bound by the said Exhibit “H”. In any event it was submitted that Exhibit “H” was not a letter of substitution.

The 1st Plaintiff responded to the Issues raised in the 5th Respondent’s brief of argument in his own brief captioned “1ST CROSS RESPONDENTS'(sic) BRIEF OF ARGUMENT”. The argument of the 1st Plaintiff in relation to the Issue of his substitution for the Appellant is that the letters of substitution dated 5/2/2007 and 12/2/2007 respectively, were submitted to INEC by the 5th Respondent within the time allowed by the Electoral Act for a party to substitute its candidate and that Exhibit “EDB 5” introduced by the Appellant tremendously vindicated that the two letters were from the National Secretariat of the 5th Respondent. It was further submitted that the trial Judge was right that the 1st Plaintiff was the authentic candidate of the 5th Respondent given the said Exhibit “EDB 5” and the lack of complaint in respect of the substitution from INEC, and particularly as the reasons were verifiable pursuant to section 85 of the Electoral Act. Again the decisions of the Supreme Court in Amaechi v. INEC& Ors as well as Amaechi v. Omehia were relied on in aid of the stance of the 1st Plaintiff.

The Issue as to whether or not the 1st Plaintiff was properly substituted for the Appellant, and which the two Issues as formulated by the 5th Respondent and 1st Plaintiff respectively raise, in my respectful view is subsumed in the 1st Plaintiff’s Issue 2 considered in the main appeal. The said Issue 2 reads: –

“Whether the trial Judge was right when she held that the substitution of the appellant with the 1st plaintiff/respondent as the Peoples Democratic Party’s candidate for Akwa Ibom North East Senatorial District against the election that held on the 21st April, 2007 in Uyo, Akwa Ibom State was proper.”

After an elaborate consideration of the facts of the case and Exhibits placed before the lower court by the parties, I stated that the PDP (i.e. 5th Respondent) never denied forwarding the Appellant’s name to INEC (i.e. 3rd Respondent) in all the relevant Exhibits by which the name of the 1st Plaintiff was forwarded to the same 3rd Respondent (i.e. INEC) for it to be substituted for that of the Appellant. The Party (i.e. PDP) only said to the effect that the Appellant’s name was submitted “without enough information”. It therefore behoves the 1st Plaintiff to establish that his party complied strictly with the provisions of Section 34(1) and (2) of the Electoral Act, 2006, to justify the finding by the lower court to the effect that his name (i.e. 1st Plaintiff’s) was properly submitted in place of that of the Appellant, for cogent and verifiable reason(s) and which it failed to, having regard to Exhibit “H” which the lower court relied upon.

Consequently the substitution of the 1st Plaintiff for the Appellant was found not to have been properly done. Suffice it to say, that I still abide with this finding. Accordingly Issue 1 in question concerning whether or not the 1st Plaintiff was properly substituted for the Appellant is resolved against the said 1st Plaintiff. A fortiori the answer to the issue argued by the 5th Respondent as to whether the lower court was right in holding that the plaintiff was properly substituted for the Appellant is in the negative and which tantamount to a resolution of the issue in favour of the said party. It is to be noted that the 1st Plaintiff is the 1st Respondent in the main appeal and the 1st Cross-Respondent in the instant cross appeal.

The second Issue formulated by the 5th Respondent questions the appropriateness of the procedure of Originating Summons adopted in commencing the instant case which is described as highly contentious and whether the jurisdiction of the lower court was not thereby ousted.

On the other hand the issue as formulated by the 1st Plaintiff is as to whether the instant case was properly commenced by Originating Summons in the light of the its peculiar facts.

The appropriateness or otherwise of commencing the instant suit by Originating Summons has been duly considered in the main appeal as well as in the cross-appeal of the 3rd and 4th Respondents and the conclusion I reached then, was that the action was properly commenced before the lower court by Originating Summons. I also found that even if the action had been wrongly commenced by Originating Summons, this could not have robbed the lower court of the jurisdiction to adjudicate on it and that the proper order to make in such a situation is one ordering the filing of pleadings and for the trial to continue before the lower court (i.e. Federal High Court). There is absolutely nothing canvassed in the brief of argument of the 5th Respondent that necessitates a contrary conclusion. Accordingly, I still hold that the instant action was properly commenced by Originating Summons. The 5th Respondent’s Issue 2 is accordingly resolved against it.

Having however resolved the issue concerning the proper substitution of the 1st Plaintiff/Respondent/1st Cross-Respondent against him and in favour of the 5th Respondent (i.e. PDP), it follows that this cross-appeal partly succeeds in that the Appellant remained the authentic candidate of the 5th Respondent (i.e. PDP) for Akwa Ibom North East Senatorial District in the 2007 General Election as he was never properly substituted with the 1st Plaintiff/Respondent/15th Cross-Respondent contrary to the wrong finding of the lower in that regard. The partial success of the cross-appeal of the 5th Respondent (i.e. PDP) which strikes at the very or primary finding of the lower court therefore must result in the cross-appeal being allowed with the consequence that the declarations and reliefs granted the 1st Plaintiff/1st Respondent/1st Cross-Respondent by the lower court, particularly, the directive issued to the 1st Defendant (now 3rd Respondent) predicated on the wrong finding that there was proper substitution, must be set aside.

In conclusion as the main appeal and cross-appeal of the 5th Respondent respectively succeed, all the reliefs granted by the lower court in its judgment delivered on 18/4/2007 and particularly its finding that the 1st Plaintiff/Respondent/Cross-Respondent was properly substituted for the Appellant and the directive to the 1st Defendant (now 3rd Respondent) predicated on the finding to wit: “to include the name of the 1st Plaintiff as the candidate of the party (i.e. PDP) in place of that of the 3rd Defendant (now Appellant)” are set aside.

The 1st Plaintiff/Respondent/Cross-Respondent was not properly substituted for the Appellant; therefore the Appellant remained the proper or authentic candidate of the PDP for Akwa Ibom North East Senatorial District in the 2007 General Elections.

The claims/reliefs of the 1st Plaintiff/Respondent/Cross-Respondent in the Originating Summons are accordingly dismissed.

Main appeal and cross-appeal of the 5th Respondent/Cross-Appellant succeed. Cross-Appeals of the 2nd Plaintiff/2nd Respondent/Cross-Appellant and 3rd and 4th Respondents/Cross-Appellants respectively, are dismissed.

I make no order as to costs.

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Other Citations: (2009)LCN/3173(CA)