Peoples Democratic Party (PDP) V. Obasi Uba Ekeagbara & Ors (2016) LLJR-CA

Peoples Democratic Party (PDP) V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

This is an appeal against the judgment of the Federal High Court Abuja, (the Lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st ¢and 2nd respondents (who were the Plaintiffs) at the Lower Court instituted the suit against the appellant and the 3rd and 4h respondents (who were the defendants) by an originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The 1st, 2nd and 4th respondents were members of the 3rd appellant.

The appellant conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and its Constitution. At the conclusion of the primary election, the 4th respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The 4th respondent then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the appellant as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State.

The 1st and 2nd respondents were dissatisfied with the election of the 4th respondent, hence they instituted the suit at the Lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 2ih of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the Lower Court, the appellant filed a Notice of appeal, on the 28th of June 2016. Another Notice of appeal was filed on the 19th of July, 2016. However, the appeal has been argued on the Notice of appeal filed on the 19th of July, 2016.

The appellant filed its brief of argument dated 20th and filed on the 21st of July 2016, wherein eight (8) issues have been distilled from the Notice and grounds of appeal, on page 2 thereof. The eight (8) issues are thus:

(1). Whether the trial Judge was wrong when he assumed jurisdiction to adjudicate on the suit when the initiating Originating Summons was not signed in any manner known to law. Ground XXXII.

(2). Whether the trial Judge was wrong in assuming jurisdiction to adjudicate over the suit when the 1st and 2nd Respondents had no cause of action as at the date the suit was initiated. Grounds I, II, II and IV.

(3) Whether the trial Judge was wrong in granting the reliefs sought in the amended Originating summons founded on questions 1 and 2 which were outside the ambit of section 31 (5) and (6) of the Electoral Act, 2010 ( as amended). Grounds V, XXIV & XXV.

(4). Whether the trial Judge was wrong when he held that the issue was whether 4th Respondent paid his taxes as and when due and was thus disqualified to participate in the Appellant’s primary election. Grounds VI, VII, VIII, X, XI, XII and XXII.

(5). Whether the trial Judge was wrong when he held that the suit had nothing to do with forgery or making of false document under the criminal law. Grounds IX and XXX.

(6). Whether the trial Judge was wrong when he placed on the defence to prove that the information provided in Form CF001 and the attached documents were correct, true and genuine. Grounds XIII and XIV.

(7). Whether the trial Jude was wrong when he held that the 4th Respondent who was sponsored by the appellant was not qualified to contest the election on the platform of the Appellant having given false information on the matter of payment of his taxes.

Grounds XV,XVI, XVII, XVIII, XIX, XX, XXI, XXVI, XXVII, and XXVIII.

(8). Whether the trial Judge was wrong when he granted the reliefs sought in the Originating Summons. Ground XXIII and XXIX.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 4, three (3) issues have been distilled from the grounds of the Notice of appeal. They are thus:

Whether having regards¢ to the facts and circumstance of the case, the trial Court was right in determining the matter on the amended Originating Summons of the 1st and 2nd Respondents and holding that the 4th Respondent gave false information in INEC Form CF.001 duly filled and signed by him contrary to Section 31 (5)(6) of the Electoral Act which makes him disqualified.

(Encompassing Grounds 1, 2, 3, 4, 6, 11, 13,14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28, 32)

Whether the trial Court was right in disqualifying the 4th Respondent and granting the reliefs sought by the 1st and 2nd Respondents having regards to the facts and circumstances of the case. (Encompassing Grounds 5, 8, 12, 23, 24, 25, 29 and 31)
Whether having regards to the facts and circumstances of the case the trial Court was right in its findings that the action was based on the submission of false information and not forgery.

(Encompassing Grounds 7, 9, 10, 30)

The 3rd and 4th respondents did not file brief of argument. A Reply brief was filed by the appellant on the 4th of August, 2016.

In the resolution of issues contained in the briefs of argument, an appellate Court is not under a regimental duty to accept the issues formulated by the parties. An appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. Okoro v. State (1988) 5 NWLR (Pt. 94) P.255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 390) P. 379.

Furthermore, in the interest of Justice, and for a just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the appellant’s brief of argument or that of the respondent in the determination of an appeal. See AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt.1328) P. 1 @ 31 and Sha (Jnr) v. Kwan (2008) 8 NWLR (Pt. 670) P. 685. That a Court can also frame or formulate issues for determination in an appeal has support in the case of Peterside v. Fabara (2013) 6 (Pt. 1349) P 156 @ 172, where it was held that an issue for determination may be framed by the appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal. It must not be the issues as formulated by the appellant that the appellate Court must rely on for its consideration and determination of the appeal before it. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) P. 373; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) P. 608; Unity Bank of Nigeria v. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177. The eight (8) issues contained in the appellant’s and those contained in the 1st and 2nd respondents’ briefs of argument are interwoven, intertwined and dovetailing such that one set of issues cannot be resolved without delving into the other set of issues. For this reason the issues contained in the two (2) briefs of argument and that are hereunder compressed and restructured thus:

ISSUES FOR RESOLUTION

(i). Whether the trial Judge was wrong when he assumed jurisdiction to adjudicate on the suit when the initiating Originating Summons was not signed in any manner known to law. Ground XXXII.

(ii). Whether the trial Judge was wrong in assuming jurisdiction to adjudicate over the suit when the 1st and 2nd Respondents had no cause of action as at the date the suit was initiated. Grounds 1, II, II and IV.

(iii). Whether the trial Judge was wrong when he placed on the defence burden to prove that the information provided in Form CF001 and the attached documents were correct, true and genuine. Grounds XIII and XIV.

(iv). Whether the trial Judge was wrong when he granted the reliefs sought in the Originating Summons. Ground XXIII and XXIX.

The issues enumerated supra, would be taken and resolved in the following order 1, 2, 3 and 4.

ISSUE 1

Whether the learned trial Judge of Lower Court was not wrong when he assumed jurisdiction to adjudicate on the Suit No. FHC/ ABJ/CS/1086/2014 when the initiating originating summons were not signed as required by law? On this issue, Dr. Ikpeazu SAN, of learned Senior counsel, who settled the brief of argument of the appellant, referred to pages 3-5 thereof, specifically page 5, and pointed out that the originating summons was taken out by Max Ozoaka Esq., Osim U. Jones Esq., and Prosper Ukachukwu Esq., of Excellex Solicitors & Barristers. That none of the said solicitors and Barristers appended a signature, mark, stamp or any sign on the originating summons. Senior counsel contended that the signature of counsel who prepared the originating summons and applied for its issuance must be appended on the process as required by Order 3 Rule 12 (2) & (3) of the Federal High Court Rules, 2009. Senior counsel cited and relied on the case of SLB Consortuim Ltd v. NNPC (2001) 9 NWLR (Pt. 1252) P. 317, wherein Order 26 Rule 4 (3) of the Federal High Court (Civil Procedure) Rules, 2000 was interpreted and applied. That it was held in that case that non-signing of the originating summons by counsel as required by the above provision of Order 3 rule 12(3) of the Federal High Court (Civil Procedure) Rules would divest a Court the jurisdiction to adjudicate such suit.

Senior counsel specifically referred to the manner an original Court process is to be singed as spelt out by Rhode-Vivour, J.S.C. That where a Court process has not been signed as provided for by Order 1 rule 12(2) (3) of the Federal High Court, Rules, such process is incompetent, of no legal effect. Learned Senior counsel cited several authorities to buttress his submissions supra, among which are Faro Bottling Co. Ltd v. Osuji (2002) (Pt. 748) P. 311; Olagbenro v. Olayiwola (2014) 17 NWLR P. 313, Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 137’5) P. 466 and Odukwe v. Achebe (2008) 1 NWLR (Pt. 1067) P. 40. Concluding, Senior counsel did urge that this issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned Senior counsel contended that an examination of the originating summons on pages 5 and 565 of Vol.1 of the record of appeal clearly shows that same was signed on the left hand side of page 5 of the record, next to the names of counsel appearing thereon. That all the requirements stated in the case of SLB Consortium Ltd v. NNPC cited by counsel to the appellant have been complied with or satisfied, therefore not in support of the argument canvassed by counsel to the qppellant. In conclusion, Senior counsel did urge that the issue be resolved against the appellant. Order 3 rules 12(2) and (3) of the Federal High Court Rules, 2009, provides as follows:

“12(2) A plaintiff or the plaintiff’s legal practitioner shall on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.

“(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being a true copy of the original process.

Section 2(1) of the Legal Practitioners Act provides thus:

“2(1) subject to the provisions of this Act; a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll.

Section 24 of the Legal Practitioner’s Act further provides that:

“24 in this Act; unless the con Justice otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-

‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.

œOnce it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e. the Legal Practitioners Act).~ All the processes filed in Court are to be signed as follows:

First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad’~

In Mekiye & Anor. V. Tajudeen & Ors. (2012) 15 NWLR (Pt.1323) P. 315 @ 338, this Court enunciated that:

œAny person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised

Furthermore, in Adeneye v. Yaro (2013) 3 NWLR (Pt.1340) P.625 @ 63, Ogunbiyi, JCA (as she then was) said:

”It is significant to emphasize the clear intention of Section 2(1) of the Legal Practitioners Act; 1990 wherein the expected signatory must be a person qualified to practice “as a Barrister and¢ Solicitor if and only if, his name is on the. The said section should be read along with section 24 of the same Act which defines the nature of the personality anticipated by section 2(1). An unknown person cannot qualify under the said provision, more so where a mere signature cannot give any information for purpose of specific identity. In other words, the stating clearly of the name of the counsel who signed the proposed notice of appeal is crucial with the document being an originating process. The scribed as it is in the case at hand, is not sufficient. (Underlining mine)

At this juncture, I think, it is pertinent to have recourse to the printed record of appeal to scrutinize the originating processes in respect of Suit No. FHC/ ABJ/CS/1086/2014 which was instituted before the Lower Court. An originating summons was taken out on behalf of the 1st and 2nd respondents (who were the plaintiffs) by counsel, Max Ozoaka Esq. & ors). It is on pages 3 to 5 of Vol. 1 of the printed record of appeal. ~ The Originating Summons on pages 3-5 of the record of appeal Vol. 1 was amended and filed on the 12th of February 2015.

On page 5 of the record of appeal Vol.1, at the left side, there is an indication that some counsel purportedly signed the Originating Summons. The name of “Max Ozoaka Esq; Osimu Jones Esq., and Prosper Ukachukwu Esq., of Excellex Solicitors & Barristers have been stated as the persons who took out the originating summons. The question is who among the three persons signed the originating summons. Is it the 1st person named Max Ozoaka Esq., or the 2nd person Osim U. Jones Esq., or the 3rd person, Prosper Ukachukwu Esq or all of them? By the decision in SLB Contortuim Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) .P. 137 @ 727, the counsel who sign a Court process must be identified or identifiable, ascertained or ascertainable. Once it cannot be said who signed the process, it is incurably bad.

The originating summons was amended on the 12th of February, 2015. It is on pages 563 to 565 of Vol.I of the record of appeal. Beneath the signature the names of Max Ozoaka Esq, with Osim U. Jones Esq, Prosper Ukachukwu Esq., and Judith Obiora-flo (Mrs) Esq, have been listed as counsel taking out the originating summons. Again who among them signed the Amended originating writ of summons. Can it be said that a specific particular counsel signed it? The manner of signing a Court process has been clearly spelt out by the Supreme Court in the case of SLB Contortuim Ltd v. NNPC supra. That it must be signed by a known or identified or ascertainable counsel. In respect of the Amended originating summons which purportedly amended the originating summons on page 5 of the record of Appeal Vol.l, it cannot be ascertained who of the three (3) counsel¢ signed it. That an originating Court process such as Notice of

Appeal, writ of summons, originating summons or statement of claim, among others; must be signed by an identified or known legal practitioner has been enunciated in the case of PMB Ltd v. NDIC (2011) 12 NWLR (Pt. 1261) P. 253 @ 262 where Mshelia, J.C.A had this to say:

œA notice of appeal is an originating process which activates the jurisdiction of this Court. Since appellant’s counsel decided to sign the notice of appeal on behalf of the appellant, he owes a duty to his client to do so properly. With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of appellant’s counsel is not irrelevant as contended by respondent’s counsel The relevance of the disclosure of the identity is to assist the Court to confirm that the person who signed the document is a Legal Practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of appellant’s counsel is not a mere irregularity as contented by respondent’s counsel but a fundamental error. The notice if appeal under consideration is in the circumstance, fundamentally defective and is liable to be struck-out. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this Court to determine the appeal on merit, same would be struck out for being incompetent.”

In Adeneye v. Yaro (2013) 3 NWLR (Pt.1342) P. 685 @ 633, Jauro J.C.A cited and relied on the then unreported case of Onward Enterprises Ltd v. Olam International Ltd & Ors. Appeal No. CA/L/365/2008, where Mukhtar J.C.A, expressed the view on page 9 of the ruling that:

“Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature. Even common sense dictates that signature is only identifiable by the name of the signatory. A Court initiating process like notice of appeal must therefore be signed by appending the name of the signatory in the absence of which it will be impossible to ascertain who the signatory is much less being a legal practitioner¢ whose name could be traceable to the roll of legal practitioners in Nigeria.

By the definition of signature in the Black’s Law Dictionary as noted above, the mere typing of name on a process does not satisfy the requirement of signature. The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls short of. I am not saying the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner. I am therefore unable to agree with the learned senior counsel for the appellant’s submission that the signature of an unnamed signatory satisfied the requirement of signature by a legal practitioner. Any attempt to detect the unnamed signatory will tantamount to converting the Court into a forensic laboratory. ”

The name of who among the 3 counsel who signed the originating summons on page 5 and page 565 of the record of appeal Vol.l, cannot be ascertained. It is not the duty of the Court to do so. The name of the counsel who signed the originating summons, the Amended originating summons must be certain, and not in doubt as to who signed it.

“The validity of the originating processes in a proceeding ¢ before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”

A Court of law can only be competent and having jurisdiction to adjudicate a matter before it where the following conditions have been fulfilled or satisfied.

(a) The Court is properly constituted as regards number and qualification of the members of the bench;

(b) The subject matter of the action is within the jurisdiction of the Court; and

(c) The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Suit No. FHC/ ABJ/CS/1086/2014 has not been initiated or commenced by a competent originating process as required by law, for the Amended originating summons which purportedly amended the originating summons were not signed by a known and ascertainable counsel as enunciated in the cases of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 327; Mekiye & Anor v. Tajudeen & Ors (2012) 15 NWLR (Pt. 1323) P. 315 @ 338 and Adenye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 630. Based on the principles of law enunciated supra, the Lower Court had no jurisdiction in adjudicating Suit No. FHC/ABJ/CS/1086/2014 for it was not initiated or commenced by a valid and competent originating summons. The judgment of the Lower Court in the said Suit No. FHC/ ABJ/CS/1086/2014, delivered on the 2ih of June 2016, has been delivered without jurisdiction. Same is therefore a nullity, and is liable to be set aside. I so make the order. I resolve issue 1 in favour of the appellant.

ISSUE 2

Whether a cause of action had accrued on the 22nd of December, 2014 when the 1st and 2nd respondents instituted Suit No. FHC/ ABJ/CS/1086/2014 against the appellant, 3rd and 4th respondents? The appellant’s brief of argument was settled by Dr. Ikpeazu SAN.

On this issue Dr. Ikpeazu SAN, of learned counsel who settled the appellants’ brief of arguments made copious and extensive submissions on the issue of whether there was cause of action which had accrued as at 22nd of December, 2014, when the 1st and 2nd respondents initiated or commenced Suit No. FHC/ABJ/CS/1086/2014, at the Lower Court. Senior counsel buttressed his submission by a litany of decided authorities that cause of action had not accrue as at 22/12/14 because the appellant and the 4th respondent submitted FORM CF.001 to the 3rd respondent on the 26/12/16, not on the 8/12/16 as contended. That the cause of action could not have accrued or arisen on the 8th of December, 2014, the date of the primary election by the 3rd respondent. Senior counsel therefore did urge that issue 2 be resolved in favour of the appellant, that is there was no cause of action as at 22/12/2016 when the 1st and 2nd respondents commenced Suit No. FHC/ABJ/CS/1086/2014 at the Lower Court. That being so, the said suit cannot be competent in law. That if there was no competent suit, the Lower Court had no jurisdiction to have adjudicated the matter. Senior counsel concluded by urging this Court to resolve the issue in favour of the appellant, and consequently hold that the judgment of the Lower Court having been delivered without jurisdiction is null and void, same to be struck out.

For the 1st and 2nd respondents, Dr. Izinyon SAN, of learned Senior counsel, made extensive submissions, citing a plethora of authorities to buttress his submissions that cause of action accrued on the 8/12/14 when the 4th respondent submitted documents to the appellant after he was declared the winner of the primary election which was later submitted to the 3rd respondent pursuant to the provisions of section 31 (1) (2) and (3) of the Electoral Act, 2010. In conclusion, Senior counsel did urge that the issue under consideration be resolved in favour of the 1st and 2nd respondents.

(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and

(b) The consequent damages.

Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) (1988) 3 NWLR (Pt.32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.

A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment C.B.N v. Manesport S.A. (1987)1 NWLR (Pt.18) 669; Egbue v. Araka (1988) 3 NWLR (Pt.84) 598; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 18) 669.

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. I; Egbue v. Araka (1988) 3 NWLR Pt. 84 P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.

In determining when the cause of action arose or accrued for the purpose of initiating Suit No.FHC/ ABJ/CS/1086/14, the affidavit filed in ‘support of the Suit is germane. In paragraphs 4(a) to (k) the 1st and 2nd respondents as plaintiffs deposed to the holding of the Primary Election of the Peoples Democratic Party (PDP) 3rd respondent. From the depositions in the aforesaid paragraphs of the affidavit in support of the suit filed by the 1st and 2nd respondents, when considered together with the documents contained in INEC FORM CF 001 which the appellant submitted to INEC, 4th respondent on 26/12/14, it is evident that the cause of action arose or accrued on 26/12/16, the date FORM CF 001 was submitted to INEC, 4th respondent, not on 8/12/16 when the appellant submitted same to the P.D.P for purpose of holding primary election. This view is supported by the decision in the case of Ojukwu v. Yaradua (2008) 12 N-WLR (Pt.1150) P. 50 @ 131, where it is stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See also Adimora v. Ajifo (1988) 3 NWLR (Pt. 30) P. 1 and Egbue v. Araka (1988) 3 NWLR (Pt. 840) P. 598. The provisions of section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveals when the cause of action ought to accrued or arisen. Section 31 (1), (2) and (3) of the Electoral Act provides:

“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Ace submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.

(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.

(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

It is after the Electoral Commission has acted, by publishing the names of the candidates in the Constituency under sub section 7 of section 31 of the Electoral Act, that any person may apply under subsection 4 of the Act for a copy of the documents submitted by a candidate. Thereafter, if the person who has applied and obtained a copy of the documents submitted by the candidate finds that the documents so submitted contain false information, then he can approach a Court of law seeking for the disqualification of the candidate. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date. It is in view of the foregoing that the institution of the Suit No. FHC/ABJ/CS/1086/14 on the 22nd of December, 2011 by the 1st and 2nd respondents was earlier than the accrual of the cause of action. The law is trite, any action initiated or instituted before the accrual of the cause of action, cannot be valid. For there cannot be a competent action before the accrual of cause of action. Therefore, the suit filed by the 1st and 2nd respondents on the 22/12/14 before the submissions of FORM CF 001 to INEC on 26/12/14, cannot be competent. Where an action or suit is initiated or commenced without cause of action, it is incompetent, and liable to be struck out. The case of Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. SO @ 132 is very instructive. It was held that where and when a Court comes to the conclusion that a plaintiff has no cause of action, the Court can strike out the action. The Lower Court, if it had considered whether there was cause of action disclosed as at 22/12/14 when Suit No. FHC/ ABJ/CS/1086/14 was commenced by the 1st and 2nd respondents, it would have realized that there was no cause of action to have sustained the suit filed by the 1st respondent and 2nd respondent. It would have then struck out same for being CA/A/406A/2016 incompetent. Having found that the Suit No.FHC/ABJ/CS/1086/14, instituted at the Lower Court is incompetent by reason of having been instituted without the accrual of cause of action, I do hereby make an order striking out the suit.

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

(Underlining mine)

I resolve Issue 2 in favour of the appellant.

ISSUE 3

Whether the learned trial judge was wrong when he placed on the defence the burden of proof that the information provided in FORM CF 001 and the attached documents were correct, true and genuine? Dr. Ikpeazu SAN, of learned Senior counsel to the appellant submitted that the learned trial judge was in error when he held that the appellant had the burden to prove that the information contained in FORM CF 001 are not false., On payment of tax,

Senior counsel cited and relied on the case of Ukachukwu v. P.D.P (2014) 17 NWLR (Pt. 1435) P. 134@ 186 and submitted that what must be proved have been enumerated by the court when there is dispute on what tax to pay and when to pay. That without an assessment of tax and notice thereof served, one cannot be said not to have paid tax. The case of Ikuoma v. Ige (1992) 4 NWLR (Pt. 236) P. 511 cited and relied on.

On the effect of wrong placement or misplacement of the burden of proof on a party in civil litigation, counsel contended that it leads to miscarriage of Justice. Several decided authorities, cited to buttress the submission supra. It has been further contended that where the reliefs sought are declaratory in nature there can be no burden of proof on the defence or the appellate as the case may be. The case of Nyesom v.

Peterside (2016) 7 NWLR (Pt. 1512) P. 452 @ 535 cited in aid. Concluding, Senior counsel did urge that this issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned counsel to the 1st and 2nd respondents, who settled their brief of argument, submitted that the issue of burden of proof regarding the submission of false information under section 31 of the Electoral Act (amended) has been settled by the decision of the courts in such cases as Rimi v. INEC; Ikuonla v. Ige and Sandy v. Hotogua. That the submissions of counsel to the appellant on burden of proof have been misconceived in view of the decision in Ekeagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) P.411. That the true and correct position of the law is that the burden of proof in respect of not submitting false information is on the person who submitted it, in this case the 4th respondent. The 4th respondent who submitted the document with FORM CF 001 to the 3rd respondent had the burden to prove same as not false. That the affidavit of Mr. J. C. Okoji; being contradictory only worsen the defence of the 4th respondent that he did ¢ not supply false information to the 3rd respondent in FORM CF 001.

On payment of tax correctly, it has been submitted that the 4th respondent had the duty to present all the required tax receipts and clearance certificates to prove that he paid tax correctly and timely. The case of Babandubu v. Waziri (1998) LRECN 233 @ 238 & 239 cited to reinforce the submission supra.

By the provisions of section 133(2) of the Evidence Act, 2011, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. Thus, in civil cases, the onus of proof is not as fixed on a plaintiff as it is -on the prosecution in criminal . cases. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered before the court. Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; A. G. Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (Pt. 845) 1; F.A.T.B Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35.

In the case of (Mrs) Orji v. Justiceiles Mills (Nig) Ltd (2009) 18 NWLR (Pt. 1173) P. 467 @ 489, the Apex Court, TOBI J.S.C, lucidly expounded the provisions of section 133(2) of the Evidence Act, 2011, thus:

“By the section, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given . in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burden changes places almost like a chameleon or the weather cock in climatology until all the issues in the pleadings have been dealt with.”

In Dana Impex Ltd v. Aderotoye (2006) 3 NWLR (Pt. 966) P. 78 @ 102, it has been enunciated that:

“Although the onus of proof in civil cases shifts depending on the nature of evidence produces by the parties, the initial duty is always on the plaintiff to prove or establish his case. Thus the popular maxim that, he who asserts must prove. In other words where an allegation is made by a party, whether affirmative or negative, the burden of proving that allegation rests squarely on the party who made it.”

In Okechukwu & Sons v. Ndah 1967 NWLR (Pt. 368), it was enunciated that section 133(1) of the then Evidence Act, (which are impari materia~ with the extent Evidence Act, provides for the burden of proof in civil cases when it held that:

“The law is elementary that the burden of proof of any issue rests before evidence is gone into upon the party esserting the affirmative of the issue:, but after all the evidence have been completed the burden rests on the party against whom the Court at the time in question would give judgment, if no further evidence was adduced.”

The evidential principle of who asserts must prove has been applied by the Courts in the adjudicating process. It has never been altered nor abrogated. This is what the Apex court said in Famfa Oil Ltd v. A. G. Federation (2003) 18 NWLR (Pt. 852) P. 453.

“The evidential principle of who asserts must prove has stayed with us for long that it is too late now to change it.”

On the burden of proving that false information has not been given in FORM CF 001 to the 3rd respondent by the 4th respondent, I am of the view the provisions of sections 131-135 of the Evidence Act 2011 are still valid and remain the position of the law of evidence. I am in agreement with Dr. Ikpeazu SAN, of learned counsel to the appellant that the case of Ekeagbare & Ors v. Dr. Ikpeazu (2016) 4 NWLR (Pt.1503) P. 411 has not really altered or changed the position of the provisions of the sections 131-135 of the Evidence Act, 2011 on the burden of proof; for, that was not the decision of the Supreme Court. Therefore, I am of the view that what was decided by that case can not apply to this case on who had the burden of proof on the assertion that the 4th respondent submitted document, FORM CF. 001 to the 3rd respondent on the 26/12/14, as the candidate representing the appellant at the Governorship election for Abia State conducted on the 11th of April, 2015.

The main or principal reliefs sought by the 1st and 2nd respondents are declaratory in nature. See the 1st and 2nd reliefs sought by the 1st and 2nd respondents on page 564 of Vol.1 of the record of appeal. Where the reliefs sought are declaratory in nature, the burden of proof cannot be on the defence, rather, it is placed on the plaintiff. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 152) P. 452 @ 535, where it was held thus:

“Both the Tribunal and the court below made much of the fact witnesses called by the Appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd respondents. It will be recalled that the 1st and 2’d Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”

(Emphasis supplied)

As to the payment of tax, whether the 4th respondent did pay tax correctly and or properly or not, and on who the burden of proof lies, the decision of the Supreme Court in Ukachukwu v. P.D.P (2014) 17 ¢ NWLR (Pt. 1435) P. 134 @ 186, is an answer. The Apex Court held that:

“The Courts have in the cases of Lanto v. Wowo (supra) and Ikumola v. Ige (supra) laid out conditions for proof of tax where that is a requirement. That is proof of failure to pay tax as and when due:

(a) That the person earned a taxable income during the period in question.

(b) That there was a proper assessment of tax covering that period

(d) That the person failed to pay tax assessed within two months after the service of notice of assessment.

Ubaezonu J.C.A, in the case of Ikuomola v. Ige (1992) 4 NWLR (Pt. 236) P. 511 @ 526 clearly stated how to prove or disprove the payment of tax by an individual thus:

“The main thrust in the appeal is the vexed question of payment of tax ”as and when due” there is evidence in this appeal however that 1st respondent paid 1998 tax on 9/11/88 and 16/11/89. It is however not disclosed in any page of the record of proceedings when he was severed with assessment Notice or Notice for payment of tax in accordance with section 65 of the income Tax Law of Lagos State Cap 85 Volume 3 Laws of the federation and Lagos 1958 or if any such notice was served on him at all The period of two months within which he should pay his tax as provided by the statute starts running from the service of the said notice. If no notice of assessment is served, no tax is due or payable. I would even go Further to say that there should be a notice calling for a return of income on tax payer before he should be served with a notice of assessment.”

There are no evidence on the record of appeal that the conditions or requirements enumerated in the case of Ukachukwu v. P.D.P, supra was satisfied or fulfilled to warrant the conclusion that the 4th respondent did not pay tax correctly or properly, therefore the documents he submitted together with FORM CF 001 to the 3rd respondent contained false information.

It is worthy of note that the provisions of section 31 of the Election Act, in its entirety did not contain how the false information is to be proved and by whom to be proved. The provisions of sections 131-135 of the Evidence Act, 2011, therefore, remain the only applicable law burden of proof in civil proceedings before the court of law; for now. How is misplacement of burden of proof occasioned? In Gilson Ass. Ltd v. Association of Local Gov’t of Nigeria (ALGON) (2011) LPELR-4197, ¢this court is said:

“Now to misplace the onus or burden of proof in a case by a Court is to require a party on whom the law does not impose the duty or responsibility of adducing or calling evidence in proof of a particular fact which needed to be proved in the case, to provide or call such evidence. If either by the rules of pleadings, presumptions or specific provision of law of evidence, facts do not require proof by a party asserting them, then it would amount to misplacing the burden or onus of proof for a court to require proof if the facts by that party since no such burden or onus exists in Jaw on him. Such a misplacement of burden or onus of proof would therefore be wrongful in law and if relied on by a trial court in its determination of a case then depending on the peculiarities of the case, its decision cannot and should not stand on the ground that it is erroneous in law.”

The learned trial judge of the Lower Court held that the appellant had the burden of proving that he did not give false information in the document FORM CF 001, which he submitted to the 3rd respondent on the 26/12/14 as the candidate representing the appellant at the Gubernatorial Election of 2015. I am in agreement with learned Senior Counsel to the appellant that it was an error to have done so. What is the effect of misplacing the burden of proof on the wrong party in a civil proceedings? In Akinwumi v. Sodio (1997) 8 NWLR Pt. 516 P. 277 @ 291, the Supreme Court held that:

“Where a Court misplaces the onus of proof on the wrong party thus erroneously shifting the burden placed by Jaw under Section 136 of the Evidence Act; Cap 22 Laws of the Federation, then the judgment ought to be set aside.”

Issue 3 is hereby resolved in favour of the appellant.

ISSUE 4

Whether the learned trial Judge was wrong when he granted the reliefs sought in the originating summons? Dr. Ikpeazu SAN, of learned Senior counsel, in the briefs of argument, submitted that the 1st and 2nd respondents who were not aspirants, but were merely delegates at the primary election conducted by the 3rd respondent cannot claim any right for a person who is not a party to the suit at the Lower Court. That the learned trial Judge was not right when he held that the office of the governor of Abia State shall enure to a person who came 2nd of the primary election conducted by the 3rd respondent. Since the 2nd person who came 2nd at the primary election was not a party to the suit at the Lower Court. Senior counsel pointed out that a Court of law cannot take a decision in favour of any person who is not a party before it. The case of Nnaemeka v. Chukwuogor (Nig) Ltd (2007) 5 NWLR (Pt. 1026) P. 60 @ 78 cited to buttress the submissions supra.

On the decisions in the case of Obi v. INEC (2007) 11 NWLR (Pt.1046) P. 645; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) P. 56; Gbilive v. Addingi (2014) 16 NWLR (Pt. 1433) P. 394; Odedo v. INEC (2008) 17 NWLR (Pt. 1117) P. 554, Senior counsel did submit that the principles of law enunciated in the aforementioned cases cannot be applicable to the instant case, in that in most of the cases, an elected candidate at the primary election was involved, having his name submitted to INEC, but later withdrawn. Concluding, Senior counsel urged the Court to ¢find and hold that the granting of the reliefs sought by the 1st and 2nd respondents was improper and outside the ambit of section 31(5) and (6) of the Electoral Act, 2010 (amended); and that the issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned Senior counsel, referred to the case of Ekeagbara v. Ipeazu (supra) and submitted that the principal reliefs sought could be separated from the other reliefs which are consequential to the success of the case of the 1st and 2nd respondent at the Lower Court. That they flow from the granting of the principal reliefs. Counsel contended that by section 31(1) of the Electoral Act, 2010, the Lower Court was right in granting the reliefs sought in the originating summons. That the judgment of the Lower Court is in rem, which applies or affects any person(s) other than those who were parties at the Lower Court. That the 1st and 2nd respondents and or any other person(s) can claim benefits or interest in the judgment of the Lower Court which was in rem, therefore, the reliefs granted which favoured the person who scored the 2nd highest vote at the primary election, was proper in law. The cases of Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) P. 727 @ 764; Akpalugo v. Adeshonye (1996) 10 NWLR (pt. 426) P. 77 and Olaniyan v. Fatoki (2003) 13 NWLR (Pt. 873) P. 273, among others, were cited and relied on to buttress the submissions supra. That the decision in Agbaje v. INEC (2016) 4 NWLR (Pt. 150) P. 151 @ 166 is the correct position of the law on the granting of reliefs in cases where the dispute involved or centered on the conduct of primary elections where candidates to represent a political party are elected for the various elections to occupy a particular office or representation in the State House of Assembly or the National assembly, as the case may be. In conclusion, learned Senior counsel urged that this issue be resolved in favour of the 1st and 2nd respondents.

The 1st and 2nd reliefs sought by the 1st and 2nd respondents by the originating summons at the Lower Court are declaratory in nature. Same cannot be granted unless proved by credible and reliable evidence. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) P. 452 @ 535, where it was held that:

“Both the Tribunal and the Court below made much of the fact that witnesses called by the Appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd Respondents. It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory beliefs, the burden is on him to succeed on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission. (Emphasis supplied).

The 1st and 2nd respondents were not parties to the Suit No.FHC/ABJ/CS/1086/2014, before the Lower Court. They did not participate in the primary election conducted by the 3rd respondent on 8/12/16. They do not therefore have interest in the outcome of the suit at the Lower Court. A person who is not a party to a suit nor represented in the suit cannot be vested with interest in the outcome of that suit. A Court of law cannot decide any matter in favour of person(s) who are not parties before it. See Nnaeinaka v. Chukwuogor (Nig) Ltd (2002) 5 NWLR (Pt. 1026) P. 60 @ 78, where Ngwata, JCA (as then he was), held that:

“Both the respondent and the Court below appear to have been concerned by the need to protect the right of those the Court called , innocent third parties. With due respect the third parties, innocent or otherwise, not being parties to the proceedings cannot have exparte order made in their favour. They are not parties either directly or by representation. See PEENOK INVESTMENTS LTD V. HOTEL PRESIDNETIAL LTD. (1982) 12 SC 1. In so far as the Court below based its order on the need to protect the interest of those who are strangers to the proceedings, the order is gratuitous and made without jurisdiction.

If a court cannot grant a party before it a relief not asked for then there can be no basis for a Court making order in favour of a non party to the proceedings who necessarily bas not asked for any relief. See Bank of the North Ltd & Anor. V. Aliyu (1999) 7 NWLR (Part 612) 622; Ogbe v. Esi:(1943) 9 WACA 76; Ekpenyong v. Nyong (1975) 2 SC 71 and Oyediran v. Amoo (1970) 1 NLR 313.

In view of the foregoing, the Lower Court was not right in granting an order to a person who was not a party to the suit before it. I resolved this issue in favour of the appellant. Having resolved all the four (4) issues in favour of the appellant, the appeal succeeds. The judgment of the Lower Court delivered on the 27th of June 2016, in Suit No. FHC/ABJCS/1086/2014, is hereby set aside. The appellant is entitled to cost assessed at N100,000.00 against the 1st and 2nd Respondents. Same is awarded. The 3rd and 4th respondents having not filed brief of argument are not entitled to costs.

Other Citations: (2016)LCN/8980(CA)

Peoples Democratic Party (Pdp) V. Dr. Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Peoples Democratic Party (Pdp) V. Dr. Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal filed by the Appellant who was the 1st Respondent of the trial Court in suit No. FHC/UM/CS/94/2014 now FHC/ABJ/CS/71/2016 against the judgment delivered by Hon. Justice Okon Ajang on 27/6/16. The Appellant’s brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN and Dr. Joseph Nwobike SAN and filed on 15/7/16. The Appellant’s Reply Brief was settled by Dr. Onyeachi Ikpeazu, OON, SAN, Dr. Joseph Nwobike SAN, Dr. Paul Anonoba SA, Prof. Ernest Ojukwu SAN and Valentine Offia Esq and filed on 4/8/16. The 1st Respondent’s Brief was filed by Dr. Alex A. Izinyon, SAN, OFR, O. O. Okpeseyi SAN, O. J. Nnadi SAN, Femi Falana SAN; and other counsel on 1/8/2016.

In the Appellant’s Brief, 8 issues were identified for determination as set out below:

1) Whether the trial Judge was wrong when he proceeded to hear and determine the originating summons having regard to the nature of complaint as well as the conflicting affidavit evidence of the parties without requiring oral evidence and also when he proceeded to place the burden of proof on the Appellant and the 2nd Respondent. Ground II

2) Whether the trial Judge was wrong when he held that the determination of whether the information contained in documents attached to the INEC form CF001is false does not involve the issue of forgery or making of false documents under the Criminal Code or Penal Code. Grounds I, IV, and V

3) Whether the trial Judge was wrong when he held that the Appellant and 2nd Respondent having failed to submit to INEC valid tax receipts for 2011, 2012 and 2013, the 2nd Respondent was not qualified to contest the Governorship election and was further disqualified from contesting the Appellant’s primary election by virtue of Article 14 of the appellant’s Election Guidelines for 2014. Grounds XXI, XXII, XXIII, XXV, XXVII, XXVIII and XXXI

4) Whether the trial Judge was wrong when he held that in determining the falsity or otherwise of documents delivered with Form CF001, the Court will not have regard to any other document introduced by the Appellant and 2nd Respondent to explain any misapprehension of documents attached to the Form CF001. Grounds X and XIV

5) Whether the trial Judge was wrong when held that it was 2nd Respondent who supplied all the information in the relevant form before the tax receipts and tax clearance certificates were issued by Abia State Internal Revenue Service which he thereafter submitted to the 3rd Respondent with Form CF001. Grounds XXIV

6) Whether the trial Judge was wrong when he held that the Form CF001 was submitted by the 2nd Respondent to the 3rd Respondent and that the documents attached thereto contained false information. Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV

7) Whether the trial Judge was wrong when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs as contained in the Judgment. Grounds XXIV, XXXII and XXXIII

8) Whether the trial Judge was wrong when he held that by virtue of Order 27 Rule 4 of the Feral High Court Rules, 2009, no other affidavit will be filed as of right after a Plaintiff’s reply affidavit. Ground III.

In the 1st Respondent’s brief settled by Dr. Alex Azinyon et al, the following 8 issues were also set down for determination:

1) Whether considering the documentary and affidavit evidence before it and the nature of the claim under Section 31(2), (5) & (6) of the Electoral Act, 2010 (as amended), the trial Court was not right in law in its finds that the 1st Respondent’s action could be determined by means of Originating Summons and placing the burden of proof on the Appellant and the 2nd Respondent. (Encompassing Ground II of the Notice of Appeal)

2) Whether the trial Court was not right in its decision that in an action brought pursuant to Section 31(5) of the Electoral Act, 2010 (as amended) what is required to be established is falsehood of the information contained in the documents attached to the INEC Form (CF001and not forgery or making of false documents under the Criminal code or Penal Code (Encompassing Grounds I, IV and V of the Notice of Appeal)

3) Whether having regards to the facts and circumstances of this case, the trial Court was not right in law to have held that the 2nd Respondent was disqualified from contesting the Abia State Governorship Election and the Appellant’s Abia State governorship primary Election as a result of the 2nd Respondent submitting to INEC Tax Receipts for 2011, 2012, 2013 not known to law or failure of tax papers showing payment of income tax to Abia State Board of Internal Revenue in line with Article 14(a) of the Appellant’s Electoral Guidelines, 2014. (Encompassing Grounds XXI, XXII, XXIII, XXV, XXVI, XXVII, XXIII and XXXI of the Notice of appeal)

4) Whether the trial Court is not right in law when it held that it is only bound to examine the documents attached to INEC Form CF001 and forwarded to INEC, to determine if they contain false information and not documents not forming part of documents attached to the Form CF001.

(Encompassing Grounds X, and XIV of the Notice of appeal)

5) Whether considering the facts and circumstances surrounding this case, the trial court was not right when it held that it was the 2nd Respondent that submitted all information in the relevant form before the tax receipts and Tax Certificate were issued by the Abia State Internal Revenue Service and also that the 2nd Respondent submitted the documents to INEC. (Encompassing Grounds XVII, of the Notice of appeal)

6) Whether the trial court was not right when it held that the documents attached to INEC form CF001 contained false information and same as submitted to INEC by the 2nd Respondent. (Encompassing Grounds VI, VII, VIII, IX, XI, XII, XIII, XV, XVI, XVIII, XIX, XX, XXIX, XXX, XXXIV of the Notice of appeal)

7) Whether the trial court was not right to have held that 1st Respondent was the person qualified to be presented to the and Respondent as the Appellant’s candidate for the Abia State Governorship Election and granted the reliefs contained in its judgment. (Encompassing Grounds XXIV, XXXII and XXXIII of the Notice of appeal)

8) Whether the trial Court was not right in law when it held that by virtue of Order 27 Rule 4 of the Federal High Court Rules, 2009, the 2nd Respondent’s Further Counter Affidavit to 1st Respondent’s Reply Affidavit could not be filed as of right but with leave of court. (Encompassing Grounds III of the Notice of appeal)

As the judex in this matter, I have however as I have the right to do, crystallised all the issues into four and set them down as follows:

Whether the learned trial Judge was right to determine the complaints by the origination summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and placing the burden of proof of the facts in issue on the Appellant and 2nd Respondent.
Whether the learned trial Judge was right to hold that Appellant and 2nd Respondent submitted false tax papers to INEC and that constituted ground for his disqualification to be presented as a candidate for the Appellant at the Gubernatorial Election.
Whether the learned trial Court was right when he held that Or 27 r 4 of the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after form CF001 to explain any misapprehension in the documents attached to the form CF001.
Whether the learned trial judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant all the reliefs sought by the 1st Respondent in the originating summons.

ISSUE ONE

Whether the learned trial Judge was right to determine the complaint by the originating summons procedure in view of the conflicting affidavit evidence, allegations of forgery and making false documents and the placing of the burden of proof of the facts in issue on the Appellant and 2nd Respondent.

Senior counsel for the Appellant argued that the learned trial Judge prevaricated on the nature of the dispute before him by saying that material facts were not in dispute, and that the onus of proof is on the appellant and 2nd Respondent to prove that the information contained in form CF001 submitted to INEC were not false . Senior counsel argued that the proceedings were hostile in nature bearing in mind the volume of affidavit and counter-affidavit evidence before the Court. Counsel urged the view that the Court cannot pick and choose whose affidavit evidence is true as witnesses should be tested under the fire of cross examination. That is why hostile proceedings must be by oral evidence. Counsel cited D.P.C.C. LTD. v. B.P & C LTD (2008) 4 NWLR (Part 1077) 376; FALOBI v. FALOBI (1976) 1 NMLR 169; F.S.B. I BANK LTD. v. IMANA NIG LTD 11 NWLR (Part 679) 620. Counsel also cited RIMI v. INEC (2005) 6 NWLR (Part 920) 56 at 84 (Para A-C).

Counsel submitted that Or 3, r (6) (7) (8) & (9) of the Federal High Court do not contemplate originating summons procedure where there is anticipation of hostility in the proceedings. Counsel cited Olley v. Tunji (2013) 10 NWLR Pt. 1362 Pg. 275 at 322. Senior counsel argued that the 1st Respondent deliberately employed an improper mode to commence a hostile action and that the summons should be struck out as an abuse of Court process.

C.O.M. Inc v. Cobham (2006) 15 NWLR Pt. 1002 Pg. 283 at 303; Saraki v. Kotoye (1992) 9 NWLR Pt. 284 Pg. 156 at 189, Odukwe v. Achebe (2008) INWLR Pt. 1067 Pg. 40 at 57 “ 58 were cited in support.

Learned senior counsel for the Appellant argued that on Pg. 1201 of the Record, the learned trial Judge was wrong to hold that the onus of proof that the tax documents were not false rests on the Appellant and 2nd Respondent. Senior counsel argued that wrong placement of the burden of proof on a party leads to misdirection which invariably leads to a miscarriage of Justice.

Cited also IKUOMOLAvs. IGE (1992) 4 NWLR (Pt. 236) 511 at 526. SANDY v. HOTTOGUA (1952) 14 WACA 18, where the court held that proceedings held on the wrong assumption that the onus was on a party is a matter which affects the due consideration of the case by a trial Judge. See also ONOBRUCHERE v. ISIBOR (2004) 3NWLR (PT 859) 16, 43-44.

Senior counsel submitted that declaratory reliefs, where sought imposes no burden on the defendant as they cannot be granted even on admission. Counsel cited Nyeson v. Peterside (2016) 7 NWLR Pt.1512 pg. 452 at 535. Senior counsel also submitted that there is no distinct specie of false information other than what obtains under the Criminal Code or Penal code. This is for the reason that a finding that a party presented a false document is indeed something which borders on, not just moral turpitude, but outright criminality. The Electoral Act, supra was thus not fashioned to penalize inaccuracies or inadequacies but rather those acts specifically concocted to syncopate and subvert the requirements of the law relating to the qualification of a candidate.

It was further submitted for the Appellant that for section 31 (5) of the Electoral Act to avail a party, it be established that a false document was presented. Senior counsel went on to define what constitutes false document.

Counsel argued that a false document must be established by the fact of a felonious intent coupled with felonious act. Counsel cited Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; Oduah v. FRN (2012) 11 NWLR Pt. 1301 Pg. 76. Counsel insisted that the 1st Respondent who made the allegation must prove it. Counsel cited PAM VS. MUHAMMED (2008) 16 NWLR (PT 1112) 1; UZOKA VS. FRN (2010) 2 NWLR (PT 1177) 118; ADEWALE VS. OLAIFA (2012) 17 NWLR (PT 1330) 478; EDOHEOKET VS. INYANG (2010) 7 NWLR (PT 1192) 25. Senior counsel also argued that with specific reference to the allegation which touched on inadequacy of payments made by the 2nd Respondent, which clearly does not come within the ambit of section 31 (5) of the Electoral Act, it is submitted that the point is equally not established. The 1st Respondent did not prove that an assessment of the 2nd Respondent’s income was made and served on him by the tax assessment authority and that he failed to pay the assessed sum. The evidence of Mr. Okoji disclosed that the 2nd Respondent had nothing to do with the assessment. The tax was on a PAYE with deductions made at source. Issue of non-payment of the assessed tax therefore cannot arise.

In answer to the above argument, learned senior counsel for the 1st Respondent argued that the issues for determination raised by the 1st Respondent in his Originating Summons principally relate to the construction of paragraph 14(a) in Part IV of Appellant’s Electoral Guidelines for Primary Election, 2014 Section 87(4)(B)(i) and (ii) of the Electoral Act, 2010 (as amended) and Section 31(2), (5) and (6) of the Electoral Act, 2010 (as amended). Counsel referred to pages 191 – 193 of Vol. 1 of the Record. In the case now on appeal, what was sought to be determined is whether exhibits A to H disclosed false information within the meaning of section 31 of the Electoral Act 2010 (as amended) for which section 31(5) and (6) can be invoked against the 2nd Respondent and was indeed invoked against the 2nd Respondent.

Senior Counsel argued that the facts relied upon by the 1st Respondent was principally documentary in nature and the said documents which are Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘E1’, ‘F’ and ‘H’ surprisingly belong to the 2nd Respondent and the 2nd Respondent did not in any way deny their existence. Counsel argued that even though not conceded that there are contentious facts, this has clearly been explained away by the aforesaid documentary evidence. It is trite law that where documentary evidence has explained away conflicts or contentious facts in an affidavit, there is no need to resort to oral evidence. See ETIM V. OBOT (2010) 12 NWLR (PT. 1207) AT 157, PARAS. C – D; OBOAZIKWO V. OBIAZIKWO (2008) 8 NWLR (PT. 1 090) 55 AT 573, PARAS. C-D; WINLYN LTD. V. NACB CON. & FIN. CO. LTD. (2000) 8 NWLR (PT. 670) 594 AT 600, PARAS. B- D; BUNGI V. GOV. RIVERS STATE (2006) 12 NWLR (PR. 995) 573 AT 629-630, PARAS. H- B.

Cited also are JEV V. IYORTOM (2014) FWLR (PT.747)749 AT 777, PARAS. B- C; A.G. ADMAWA V. A.G. FEDERATION (2005) 18 NWLR (PT. 958) 581 AT 620, RARA. G; ANZAKU V. GOVERNOR OF NASSARAWA STATE (2005) R NWLR (PART 919) 448 AT 502 PARAS. C – F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.) 448 AT 502 PARAS. C- F; NWOSU V. ISESA (1990) W NWLR (135) 688; CHAIRMAN, NNPC V. CHAIRMAN, IKERE L.G. (2001) 13 NWLR (PART 731) 540.

Learned senior counsel for the 1st Respondent also argued that where the document submitted by a candidate is false, the legal consequence is not penal but simply disqualification, which is not a criminal offence not subject to conviction and imprisonment. See Section 31(5) of the Electoral Act 2010 (as amended). It is not a criminal offence. So, the use of the word “perjury” by the learned trial Judge was used in a loose sense to connote that the 2nd Respondent (Dr. Okezie Victor Ikpeazu’s) tax clearance contain false information cannot be stretched to connote wrong burden of proof in the light of the decision of the Supreme Court in Ekagbara vs. Obasi (supra). Ekagbara vs. Ikpeazu (2016) 4 NWLR Pt. 1503 Pg. 411 to 439.

Senior learned counsel for 1st Respondent argued that the case of OLLEY V. TUNJI (SUPRA) relied upon by the Appellant at paragraph 5.05 of its Brief is inapplicable to the facts and circumstances of this case. He countered the submission of the Appellant in paragraph 5.06, that the introduction of Counter-Affidavit of the Appellant and 2nd Respondent and the Counter-Affidavit of James C. Okoji further magnified the said hostility of Court, as highly misconceived. Senior counsel insisted that the said Counter-Affidavits are oral evidence which amounts to efforts to explain the content of documents which is not allowed in law. Counsel urged this Court to reject the said contention of the Appellant. The cases of DPCC LTD. V. V.B.P. & C. LTD. (SUPRA); FALOBI V. FALOBI (SUPRA) and F.S.B.I. BANK LTD. V. IMANA LTD. (SUPRA) heavily relied upon by the Appellant are inapplicable to the facts and circumstances of this case, also argued senior counsel.

Learned 1st Respondent’s counsel argued that Irrespective of the perspective from which one looks at it, there is no inkling expressly or by implication on the face of the aforesaid Section 31 (5) and (6) of Electoral Act, 2010 (as amended), that forgery or the making of false documents under the Criminal or Penal Code is required, to establish the aforesaid false statement.

Counsel submitted that merely establishing the fact that the information in the affidavit or the document submitted to INEC is false, suffices and no more. Section 31(5) of the Electoral Act, 2010 (as amended) is intended to make persons aspiring to occupy public offices to be vigilant, meticulous and exhibit high level of responsibility. Consequently, any information in their affidavit or document which is established to be false, will result in their being disqualified from contesting the election. The issue of forgery or making of false documents under the criminal Code or Penal Code as canvassed by the Appellant in paragraphs 6.01 of its Brief did not flow from the 1st respondent’s case but ingeniously created by the Appellant. 1st Respondent submitted that it is trite law that a court of law cannot read into a law what is not contained therein. Senior counsel cited UTB (NIG) LTD. V. U UKPABIA (2000) 8 NWLR (PT. 670 AT 580, PARA. E; ADEWOLE V. ADESANOYE (1998) 3 NWLR (PT. 541) 175 AT 198, PARA. G. See UGBA V. SUSWAB (2013) 4 NWLR (PT. 1345)AT 474- 475, PARAS. C- A; ACTION CONGRESS V. INEC (2007) 12 NWLR (PT. 1048) 222 AT 275 – 276, PARAS. G- H.

1st Respondent senior counsel complained that the appellant by its defence in the counter-affidavit or the Appellant’s brief of argument introduced a case of forgery of tax clearance certificate or tax receipts, which is not the case put forward for determination by the 1st Respondent.

To show that false information as envisaged in Section 31 (5) of the Electoral Act 2010 (as amended) is different from forgery or outside the purview of criminality as canvassed by the Appellant, Section 31 (5) of the Electoral Act 2010 (as amended) did not provide penal consequences against the 2nd Respondent but simply that the person shall be disqualified. Senior counsel for 1st Respondent then insisted that the information need not be forged or falsified, so long as any document is not correct, the candidate is liable to be disqualified and was rightly disqualified by the trial Judge.

OPINION

Let me first tackle the issue of the appropriateness of the originating summons procedure in initiating this suit at trial. A Plaintiff would know surely from the nature and the cause of action that it would not only be highly contentious but also hostile. The originating summons procedure is meant to determine simple questions of interpretation of statutes documents, wills, deeds etc. It must be understood that we have not been asked nor was the trial court asked to interpret the provisions of S. 31 (5) or s . 87(4)(B)(i) and (ii) of the Electoral Act 2010 or Article 4a of the PDP Electoral guidelines 2014. The trial Court was specifically asked in the originating summons to determine whether specific tax documents submitted by the 2nd Respondent to INEC were false or not. The trial was therefore the engagement of the trial Judge on the factual interpretation of the contents not of a deed or will or statute but tax receipts and certificates issued by a tax authority. It was not in anyway a legal interpretation of the contents of a deed or statute or document. In the con Justice that the document sought to be interpreted was not in dispute. What I am trying to say is that if the beneficiaries of a will are agreed on the validity of the will but are not agreed on the interpretation of some clauses of the will, then the suit can come by originating summons. However, where there is dispute as regards the validity of the will itself, the proceedings would be hostile in nature and facts would be in dispute. Such a case must be originated by writ of summons.

I had once before made the mistake the learned trial Judge made and was quickly and suitably put right by the esteemed Justices of the Supreme Court in OLLEY V. TUNJI supra at Pg. 322 of Pt.1362 of the NWLR. The Supreme Court reiterated the position as follows therein:

“In Re King, Mellor v. South Australian Land Mortgage Agency Coy (1907) 1 Ch. 72 at 75, Neville, J held, inter alia:

“¦it is our considered view that originating summons should only be applicable in such circumstances as where there no dispute on questions of facts or the likelihood of such dispute”.

Back home, our Courts have shown the same reticence as their English counterparts with regard to application by way of originating summons. In Doherty v. Doherty (1968) NMLR 241 (1967) SCNLR 408, Ademola, CJN, issued the warning that the use of originating summons is not suitable in hostile proceedings. See also National Bank of Nigeria Ltd. & Anor. V. Lady Ayodele Alakija & Anor (1978) 9 “ 10 SC 59 at page 71 – 75 wherein this court traced and reviewed the history of originating summons and held thus at page 86 of the report:

“Originating summons should only be applicable in such circumstances as where there is no dispute on questions of facts or (even) the likelihood of such dispute.”

In the matter before us, there is, from the record, not only a mere likelihood of dispute on facts, there is actual dispute on material facts. The 1st Respondent cannot invoke the concept of technicalities yielding place to substantial Justice to rewrite or truncate the provisions if order 3 of the Federal High Court (Civil Procedure) Rules 2009, particularly Rule 6 thereof.”

I have to agree with learned Appellant’s counsel that being hostile proceedings the suit should NOT have been initiated by originating summons and is thus liable to be struck out and should have been struck out by the trial Judge immediately objection was raised. By proceeding to sift through conflicting affidavit evidence of the parties and unilaterally electing to pick and choose which of the Appellant’s evidence to evaluate, accept or reject, it cannot be said that there was no need for oral evidence when the trial Judge engaged in cloistered Justice.

I agree with Dr. Ikpeazu that if the case of the 1st Respondent was founded on the fact that the 2nd Respondent lied on oath and submitted false papers calling on the 2nd Respondent to rebut these allegations, then they were potentially hostile and were actually hostile proceedings. For example as said earlier this is different from where we all agree that our father made a will but we don’t agree with how the executors wish to interpret a clause in the will or we disagree about the interpretation of a phrase in a statute or the Constitution. It is no doubt equally the law that documentary evidence can be employed to resolved conflicting affidavit evidence. This principle of law will, however, not prevail where the document itself is the subject matter of the dispute and cannot by itself dispense with the need to call oral evidence. See MAGNUSSON v. KOIKI & ORS (1991) 4 NWLR (Part 183) 119 at 129 (Para D-E); PHARMACIST BOARD v. ADEBESIN (1976) 5 SC. 43; EBO v. OKI (1974) 1 SC. 179.

On the issue of where the burden of proof in this case lies, I think the very words of S. 31 (5) of the Electoral Act puts the burden of proof in my humble view on the 1st Respondent who is claiming that the information on form CF001 is false. Section 31(5) provides as follows:

A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by the candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

It is the Plaintiff who must initiate the proceedings to prove it. Clearly declaratory reliefs to find the tax documents false were sought for and the burden to prove entitlements to those declaratory reliefs rested squarely on the 1st Respondent. See Nyelson v. Peterside supra where the Supreme Court held on pg.535 of Pt.1512 of the NWLR as follows:

“It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”

Learned Appellant’s counsel argued a point to which I subscribe to the effect that the allegations of fraud and the way they were couched indicates that there was a form of falsehood or forgery involved. The 1st Respondent cannot allege falsehood of the documents in one breath and then in the other breath claim that this is not an accusation of forgery or making false documents. The learned trial Judge was also speaking from two sides of the mouth and prevaricating. You cannot say a document is false and then say that that incidence is different from making a false statement under the Criminal and Penal code. In ARCHIBOLD – Criminal Pleadings Evidence and Practice 1997 edition at page 1904 paragraph 22.18, it was explained thus:

“For an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered”. Reliance was placed on R. V. MORE 86 Cr. APP.R. 234.

The dictionary variously defines “false” to mean

(1) Not in accordance with fact or reality or actuality

(2) Erroneous and usually accidental

(3) Deliberately deceptive

(4) Not genuine or real

(5) Designed to deceive

The learned trial judge found that the documents fit the above description but yet they were not forgeries. This is moreso when the document was attached to a sworn affidavit. Such a false statement amounts to perjury which the learned trial Judge in the end of pg. 1299 of the Record accused the 2nd Respondent of. The proof of such a grave allegation must perforce rest of the person making these allegations. They are criminal offences for which proof is required beyond reasonable doubt. The burden of proof was misplaced in this case and in my view has led to gross miscarriage of Justice. This issue is resolved in favour of the appellant.

ISSUE TWO

Whether the learned trial Judge was right when he held that the 2nd Respondent supplied false information to the tax office in Abia State who then issued Tax Receipts and Certificates which the 2nd Respondent then gave to the appellant which said Tax documents were then attached to Form CF001.

Learned Appellant’s counsel on this issue reiterated the argument that the following allegations were levied against the 2nd respondent in the originating summons which the learned trial Judge found proved.

(i) He did not submit tax receipt for 2011, 2012 and 2013 known to law;

(ii) He did not submit tax receipt showing that taxes were paid as and when due; and

(iii) 2nd Respondent was in consequence of the foregoing not qualified to contest the Appellant’s primary election.

Senior counsel argued that Form CFOO1 submitted to INEC and which was accompanied by the tax document which presumably disqualified the 2nd Respondent from contesting the primary of 8th December, 2014 was actually submitted and was received by INEC on 26th December, 2014 – 16 days after the primary and that it is obvious that if the primary election took place on 8th December, 2014, submission of Form CF001 to INEC on 24th December, 2014 could not have disqualified the 2nd Respondent for a primary which took place earlier.

Senior counsel also submitted that the argument of the 1st Respondent and the opinion of the learned trial Judge that the 1st Respondent’s counsel quoted the Guidelines in his address, the parties joined issues on them and did not dispute their existence which had been judicially noticed in Ukachukwu v. PDP are untenable. Counsel submitted that a Plaintiff has a primary obligation to place before the Court every requisite material and document in proof of his case. Counsel cited ADELAJA V. ALADE (1999) 6 NWLR (Part 608) 544; JIAZA V. BAMGBOSE (1999) 7 NWLR (Part 610) 16 NWLR (Part 1168) 443 at 456. Cited also OMOTAYO V. C.S.A (2010) 16 NWLR (Part 1218) 1.

Senior counsel also cited C.P.C. v. INEC (2011) 18 NWLR pt. 1279 pg. 493 at. 554; Ogunsanya v. the State (2011) LPELR- 2349SC at 44 – 45; okwejiminor v. Gbakeji (2008) 5 NWLR pt. 1079 pg. 179 pg. 179 at 223; C.C.C.T.C.S. Ltd. v. Ekpo (2008) 6 NWLR pt. 1083 pg. 36; Igwe v. A.I.C.E. to support the point that where material evidence is required, address of counsel cannot be substituted for it. Counsel argued that in the absence of the PDP Guidelines, the declarations founded on them cannot be granted.

Counsel argued that the arrow head of the 1st Respondent’s case as found by the learned trial Judge is that Exh. A, B, C & D “were made on 4/7 /2014” and thus the 2nd Respondent did not pay his tax “as at when due”. Senior counsel argued that the provisions of the 2010 PDP Guidelines are markedly different from the 2014 PDP Guidelines in the first instance and the parties cannot read into a provision what is not there since the phrase “as at when due” is not part of the 2014 PDP Guidelines. Counsel cited FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 2 SCNJ 348; BUHARI V. INEC (2008) 12 S.C. (Part 1) and LADOJA V. INEC (2007) 13 N.W.L.R. (Part 1047) 119 at 188 to 189.

Senior counsel for the Appellant further submitted that neither the Electoral Act, 2010 (as amended) nor the Constitution of the Federal Republic of Nigeria, 1999 (as amended) required the Appellant and 2nd Respondent to submit evidence of tax payment as a ground for qualification of the 2nd Respondent. There is no common law right to contest an election as that right is created and regulated by statute. Also that Section 177 of the Constitution which is couched in mandatory terms by the adoption of the term “shall”, prescribes the factors which “shall” qualify a candidate to occupy the office of a governor of a State. No other law can add to or subtract from it unless enabled by the constitution by virtue of any of its enabling provisions. Section 177 of the Constitution then proceeded to prescribe for the purpose of election to the office of a governor of the State, the minimum standard which every aspirant must attain.

Senior counsel then urged this Court to hold that the provisions of the PDP Guidelines cannot supersede the 1999 constitution and the Electoral Act and that what is not required by the Constitution as qualification should not be required by the political party. Learned counsel referred to Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg. 367; Imam v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80; ANPP v . Usman (2008) 12 NWLR Pt. 1100 Pg. 1 at Pg. 54 – 55; AG. Abia v. AG. Federation (2002) 6 NWLR Pt. 763 Pg. 264 at 391- 392. Senior counsel is of the view that the right created by S. 31 (5) and (6) of the Electoral Act does not constitute a fresh ground for qualification or disqualification. The Court cannot introduce new grounds of disqualification. Counsel cited this Court in A.D. v. Fayose (2005) 10 NWLR pt. 932 pt. 151. The most that can be said on the issue of tax is that it will be a ground of sponsorship within the political party where such is provided in the guidelines of the political party. Where as in this case, the political party which did not as quoted by 151 Respondent’s counsel require that tax be paid “as at when due” and the same party was satisfied with the evidence of tax payment supplied by the 2nd Respondent, it really should be the end of the matter.

On the foregoing issue, learned 151 Respondent’s counsel argued in paragraph 4 .80 of the brief as follows:

“The case of the 1st Respondent under Section 31(2)(5) and (6) of the Electoral Act, 2010 (as amended) is not that the 2nd Respondent is obligated to submit tax receipts and Tax Clearance Certificate to INEC but that the information contained in the said Tax receipts and Tax Clearance Certificate submitted to INEC by the 2nd Respondent are false, which does not show payment of tax, and or false information therein.”

Learned 1st Respondent counsel relied heavily on the opinion of the Supreme Court in Ukachukwu v. PDP supra quoted copiously to argue that the failure to show evidence of payment of tax in the preceding years pursuant to Article 14 (a) is a disqualifying factor. On the requirement of Tax Clearance Certificate, counsel argued that it is important to state that payment of tax is typically provided for in the political parties’ guidelines for election which the aspirant for election office must satisfy as a condition precedent for eligibility to contest elections. Therefore S. 87(9) of the Electoral Act gives the party guidelines a statutory flavour for which the Court can take judicial notice, moreso when parties have not joined issues on the existence of the Guideline which they agree do exist.

Senior counsel for 1st Respondent argued that by virtue of S. 124 of the Evidence Act, the affidavit in support of the originating summons set out the PDP Guidelines which are rules in force in the PDP which existence was not contested by the Appellant, they are deemed admitted by the Appellant.

Senior counsel debunked the contention of the Appellant that what Section 31(2) of the Electoral Act or indeed the entire Section 31of the electoral Act intended is constitutional disqualification as provided in the 1999 Constitution of the Federal republic of Nigeria (as amended).

Counsel insisted that it stands to reason that where the tax receipts and tax clearance certificates submitted to INEC in proof of compliance of the 2nd Respondent with the Electoral Guideline for the said PDP Primary election is false, the entire, status erected and mounted by the 2nd respondent that enabled him to participate in the PDP primary election collapsed.

A disqualification pursuant to Section 31 (5) of the Electoral Act 2010 (as amended), for giving false information, cannot therefore, be restricted and limited to failure to meet constitutional requirements by a candidate.

Senior learned counsel argued that disqualification can arise for breach of the constitutional requirements under the 1999 Constitution or for breach of the Electoral Act. Senior learned counsel referred us to the joint Counter Affidavit admitted 2nd Respondent completing INEC Form CF001 and submitted same to INEC but that eh staff of the Appellant (PDP) inadvertently or in error included photocopy of the tax clearance certificate for 2012 and 2013. It also stated that it discovered there was an earlier error in the one submitted for 2011 on Receipt No.: 0012845 and had to be cancelled upon discovery of the error and therefore they cancelled the said receipt shown as Exhibit ARIRSF. Senior learned counsel insisted that this is even enough to prove false information.

2nd Respondent again filed a further Counter Affidavit in opposition to the Originating Summons on 16 I 3 I 16. Counsel referred us to pages 771 – 785 of Vol. 2 of the Record. Attached to the said Further Counter Affidavit are Exhibits OKl, OKS. Exhibit Ok which is 2nd Respondent’s Appointment Letter as General Manager of Abia State Passenger Integrated Manifest Scheme with effect from the 19th July, 2011 and that the learned trial Judge was correct in his findings on the falsehood of the tax documents. Senior counsel argued that the provision of S. 31 (5) has nothing to do with forgery as it only relates to false information. It is a novel provision of the Electoral Act as it provides that an aspirant to such highly exalted position must be like Ceaser’s Wife, be above board, blameless and free from suspicion. To demonstrate this, the Supreme Court had given the legal imprimatur of what is to be proved and defence under Section 31 of the Electoral Act. All the Plain tiff needed is what the said aspirant submitted to INEC pursuant to Section 31(2) of the Electoral Act. See Ekagbara v. Ikpeazu (supra).

Learned 1st Respondent counsel insisted that it’s a cul de sac provision and all complete once the document had been signed. Therefore senior counsel urged us to hold that the 8 unassailable findings of the learned trial Judge in respect of the tax documents submitted by the 2nd Respondent were well founded, moreso when oral evidence cannot be allowed to contradict the written documents submitted. Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 at 539; AG Bendel v. UBA (1986) 4 NWLR Pt. 37 Pg. 547 at 563; Manfag Nig. Ltd. v. M/S 0.1. Ltd. (2007) 14 NWLR Pt. 1053 Pg. 109 at 137 – 138. Senior counsel insisted that once a person admits any singular or plurality of error in the said Form or affidavit in the battle to exonerate himself in his action, it is an admission against interest. It is worse if he brings another document which came later as a correction of what is already filed in CF 001 with INEC, moreso as the 2nd Respondent had settled by affidavit declaration that everything he included in his form and attached to it are correct. It is too late to explain any inadequacy in the submitted documents.

Learned senior counsel insists that once the statement submitted to INEC in form CF001 is untrue, incorrect or logically wrong whether by intent, by accident or by mistake then the ingredients of disqualification under S. 31 (5) is complete and the documents cannot be salvaged by any corrected document or explained by affidavit evidence. He relied on Ekagbara v. Ikpeazu supra. The Court was entitled to look at Exh. A- H and make a findings as to their falsehood. Counsel cited FASHANU V. ADEKANYE (1974) 1 ALL NLR 35, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AGENCY (1990) 2 BWLR (PT. 135) 688 at 734 – 735, KANNO V. KANNO (1986) 5 NWLR (PT. 40) 138.

OPINION

As senior learned counsel for the 1st respondent kept on insisting, this was a two pronged attack on the Appellant and the 2nd Respondent. There is the issue of the non- observance of the provisions of the PDP Electoral Guidelines for Primary, which the 1st Respondent claims is enough to disqualify the 2nd Respondent, the second leg is that the 2nd Respondent submitted “false” tax documents which automatically led to his disqualification by the learned trial Judge. In the first instance, I do not agree with learned Appellant’s counsel that the issue of alleged non qualification of the 2nd Respondent cannot be taken up even after the primaries by the co-aspirant. Under S. 87(9) and under S. 31 (5) of the Electoral Act by “any person”. There is no doubt that the challenge to what took place at the primaries can only be made by any of the aspirants who is not happy with the outcome of the primaries due to any alleged executive or administrative lapses in the conduct of the primaries by the party. The provision of S. 87(9) of the Electoral Act is not at large but limited to an aspirant complaining about the conduct of the primaries. See. Ukachukwu v. PDP supra, Uzodinma v. Izunaso (No. 2) (20 11) 17 NWLR Pt. 1275 Pg. 30, Uwazurike v. Nwachukwu (2013) 3 NWLR Pt. 1342 Pg. 503. It is not in my humble view a good argument that the tax papers submitted to the Appellant before the primaries cannot be used to challenge the result of the primaries even after the said primaries had taken place. It is trite that a cause of action is founded when the aggrieved person realizes the grievances or it is brought to his knowledge. So if anyone submitted false or forged papers at the primary election stage and the other aspirant or the world at large is not aware of the falsehood in the documents until they are mandatorily published by INEC, weeks later, the aggrieved person is entitled to challenge the veracity of the document as soon as possible immediately thereafter, in that case it may be any person who could do so based on the documents submitted to INEC. On the issue of the status of the tax receipts and tax certificates presented by the Appellant and 2nd Respondent, I agree with the argument of learned Appellant’s counsel that the trial Judge not only acted without the benefit of the 2014 Guidelines, his lordship allowed the importation of the term “as at when due” into the Guidelines of the Appellant when there was no basis for that. All the Appellant required even from what 1st respondent’s counsel quoted was evidence of tax payment simpliciter. Appellant was satisfied with what was presented which the tax master C. J. Okoji confirmed emanated from the office of the Abia State Board of Internal revenue. Being a person whose tax liability is made by the PAYE system, there can really be no question as to whether or not he paid his taxes, as it is the responsibility of the revenue collecting authority to ensure deduction at source. Presentation of tax certificate under this scheme is a merely confirmatory. In any event both parties agree that the phrase “as at when due” does not exist in the 20 14 Guidelines.

The issue of payment of taxes by political parties had been settled in my view by the Supreme Court in Ukachukwu v. PDP supra. The Supreme Court upheld the portion of the judgment of this Court in that case which also adopted the reasoning of this Court in Lanto v. Wowo supra to hold that the burden is on the Plaintiff to prove nonpayment of tax. The systematic proof to be adduced by the Plaintiff would be as follows:

(a)The person earned taxable income during the period

(b)There was proper assessment of the taxable income during that period

(d)The tax payer refused to pay within two months of being served with the notice of assessment.

As I said earlier, all the above goes to no issue in respect of a civil servant or public servant whose tax is deducted from source. Throughout the period in respect of the tax documents submitted by the 2nd Respondent, he was a civil servant or public officer depending on the status he acquired within Abia State government. His tax was deducted from source. The complaint by the 1st Respondent as he keeps on repeating in counsel’s address is not that the 2nd Respondent did not pay his tax but that the tax papers given to the 2nd Respondent by the Tax office in Abia State are false. I have looked closely at the reasons given by the learned trial judge to come to the conclusion that the tax documents were false and to throw out the accusation that the 2nd Respondent perjured himself in the affidavit attached to Form CF001 by asserting that the contents of the tax documents are correct. As I said earlier, the 2nd Respondent was a civil servant or public officer. His taxable income by way of Personal Income Tax would be determined by the Tax office in Abia State. He would be assessed by the tax office and the assessment would be given to his employers who would deduct same from source and pay to Abia State government. I do not think the learned trial Judge was right to find that in this case it was the 2nd Respondent who gave information about his taxable income to the tax office from where tax receipts were issued. That would have been a valid argument if there is proof that apart from his work as a civil servant or public officer, the 2nd Respondent had a viable business which he ran and from which he made income subject to the assessment and taxation. In that case, it would be his civic duty to give the correct information regarding his earnings to the tax office for the appropriate assessment. He would then be culpable for any falsehood contained in that information given to the tax authorities.

Let me give examples of the supposed false information contained in the tax receipts and documents given to the 2nd Respondents by the Abia State Tax Office which he submitted to the Appellant to meet with the requirements of the party for primary elections which the party then submitted along with the Form CF001 to INEC. The first false information found by the trial Judge is that the gross emoluments of the 2nd Respondent did not correspond to the five month period he worked for Abia State government. His Lordship refused to accept any explanation that he was assessed and taxed on his whole income for 2011. The second falsehood found was that the tax receipt in respect of 2011 had the date 31/12/11 and being Saturday the tax receipt was false. A look at the tax receipt shows that it indicated the last date of the taxable year but was issued on 4/7/14. It stands to reason that the taxable year ends on 31st of December whichever day it falls on is irrelevant. The 3rd false information is that one receipt number should have come before the other but the learned trial Judge was not prepared to accept the explanation of the tax authority on the matter. The 4th false information found is that the tax receipts for each were different from the tax clearance certificate issued for the said year. Also in this case attempts were made by affidavit evidence to show how the receipts were issued by the tax office, but the evidence was not considered because it came too late. The fifth false information found is the same complaint raised in the 4th false information found by the learned trial Judge. The 6th false information is also the same one raised in the 1st false information. The 7th false information is the general one that the tax documents were “unknown to law” and therefore could not have proved that the 2nd Respondent paid his tax in 2011, 2012 and 2013. The 8th false information is that because the 2nd Respondent went to the tax office to collect his tax clearance and receipts for the preceding years 2011, 2012 and 2013 on 4th July 2014, then he did not pay his taxes as at when due. This finding is unmindful of the fact that tax receipts and tax clearance can only be collected the following year. I looked at the documents. They showed each taxable year’s income, and the tax already deducted from source from the salary of a public officer. The documents were all issued on 4/7/14. The learned trial Judge was being economical with the truth by saying that the documents showed that the 2nd Respondent paid tax on 4/7/14 for the preceding three years. I have taken the pains to explain the findings of the learned trial Judge in order to ensure that it is not seen as if this Court swept the findings under the carpet under the excuse of technicalities. The findings were ridiculous and could not have been affirmed.

For example, at Pg. 1264 – 1265 of the supplementary record, and pg.79 – 80 of the actual judgment, the learned trial Judge held as follows:

“The amount in the 2013 tax receipt for 2013 should be the same amount in the column for 2013 tax in the tax 2nd Defendant submitted to the 3rd Defendant in his tax clearance certificate exhibit D.

In the 2nd Defendant attempts to show that the amount stated in the tax clearance for year 2013 is genuine and not false, he made reference to his exhibits OK4 and OKS and subparagraphs 11 and 12 of paragraph 3 of his further counter affidavit dated 16th March, 2016 to the effect that the amount in the sum of N75,017.76 shown in the 2013 column of tax clearance certificate is the sum total of taxes paid by him from his employment in two agencies in 2013 i.e. for Abia State Passengers Integrated Manifest and Safety Scheme and the other from Abia State Environmental Protection Agency. That according to the 2nd Defendant accounts for the receipt No.0012847 of 31st December, 2013 and receipt No.0012848 of 31st December, 2013.

My lords, if indeed it is true that the entry of personal income tax of the 2nd Defendant in the tax clearance certificate for 2013 represents payment of taxes by the 2nd Defendant when he served in two agencies in 2013, the 2nd Defendant ought to have made this explanation to Independent National Electoral commission when he filled and submitted Form CF001 to Independent National Electoral Commission.”

If the learned trial Judge cannot understand how civil servants express themselves in government format, it does not mean that the format is wrong. I looked at all the receipts in contention and even without looking at the explanation of Mr. Okoji, I did not see anything spectacularly irregular in them. If I go to the tax office next year for my tax receipts for 2016, on 18th June 2017 and the tax officer decides to put on the receipts the last day of 20 16 which is 31/12/16. The last date in this taxable year of our Lord 20 16 also happens to be a Saturday! Would that mean I did not pay tax? Why should I be blamed for the format regime of the tax authority? I agree with learned Appellant’s counsel that if a judicial officer, for instance a Federal High Court Judge who operates under PAYE system was required to present his tax clearance and receipts and she or he goes to the Federal Revenue Office to obtain receipt and clearance, lets for the purpose of argument without admitting say there are errors, inadequacies, improper serialization and where the date on the document is a Saturday, perhaps a Sunday, can it seriously be contended that the officer will not be entitled to the benefits which would accrue to him if the contention is whether he paid his tax or not? No doubt without a falsification of the documents in order to confer an undue advantage, all these shortcomings will be of no moment. I cannot see my way to agreeing that the tax documents submitted by the 2nd Respondent are irregular and ipso facto false. As I said earlier there was a lot of prevarication in the opinion of the learned trial Judge. It is either the documents are false of not. On Pg. 1254- 1255 of the records, the learned trial Judge held as follows:

“My lords, this is the moment of truth. My lords the issue in this matter has been narrowed down. My duty in this Judgment today is to look at form CF001sworn to by the 2nd Defendant and documents attached to therein (exhibit h) and determine whether any of the information contained in form CF001or any document submitted by the 2nd Defendant to 3rd Defendant is false then the Court shall issue an Order disqualifying the candidate from contesting the election. Put differently, My lords, the Court is enjoined by Section 31(5) of Electoral Act 2010 as amended to look at Plaintiff’s exhibits A to H ex facie and find out whether the information contained in the said documents submitted to INEC by the 1st and 2nd Defendants are correct or false.

In my humble view, this exercise stated above has nothing to do with forgery of these documents as alleged by the 1st, 2nd and 3rd . Defendants or making of false documents under the Criminal Code or Penal Code.”

On Pg. 1256 of the Record the learned trial Judge insisted that:

“…the issue before Court has nothing to do with forgery of the tax documents or any related criminal act or conduct.”

I say so because upon reading the judgment and as indicated above, the learned trial judge kept on saying the documents were false but there is no criminal falsehood in them. It’s just like saying œI know the clothes you are wearing were not stolen by you, you did not borrow them. But I can see that they don’t fit you, therefore, they must be stolen. And I cannot accept any explanation as to why I think the clothes don’t fit you.”

In respect of the argument relating to whether the learned trial Judge was right to have granted the reliefs of the 1st Respondent pursuant to S. 31 (5) & ( 6) of the Electoral Act, I think the law in this regard is settled. The doctrine of “covering the field” as enunciated in AG. Abia v. AG. Federation (2001) 6 NWLR Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation supra, the Supreme Court was emphatic that the National Assembly CANNOT make laws with respect to the qualifications and non-qualifications of candidates for election into political office. This Court in ANPP v. Usman supra; Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 and IMMAM v. Sheriff (2005) 4 NWLR Pt. 914 Pg. 80 also followed that position. S. 31 (2) of the Electoral Act states as follows:

The list or information submitted by each candidate. shall be accompanied by an Affidavit sworn to by the candidate at the High Court of a State, indicating he has fulfilled all the constitutional requirements for lection into that office.

I agree with the position of the law as stated by learned Appellant’s counsel that by the express position of the law in S. 31 (2) of the Electoral Act as it relates to the affidavit to support the documentation of a candidate for election, the requirements must be within the narrow margin of “all constitutional requirements for election to that office.” The challenge in the originating summons regarding submitting false document in respect of payment of tax are squarely outside the requirements of the Constitution. One may express the sentiments that a tax evader should not be allowed to attain public office being an unpatriotic person, however, tax evasion IS a criminal offence which though heinous in my view cannot as the law stands ground a reason for disqualification until the person has been convicted for that offence. That is not even the situation here. There is no outright allegation of non-payment of tax but that the document in proof thereof are false and cannot be legally acceptable in proof of payment. Suffice it to say that the 2nd Respondent or the Appellant did not prepare the tax papers and non-payment of tax is not a constitutional requirement under S.177 of the Constitution. This issue is resolved in favour of the Appellant.

ISSUE THREE

Whether the learned trial Judge was right when he held that Or 27 r. 4 of . the Federal High Court Rules 2009 prohibits the filing of further affidavit after the Plaintiff’s reply affidavit and that the Court cannot have any resort to any other affidavit evidence by way of documents filed after Form CF001 to explain any misapprehension in the documents filed attached to the Form CF001. Learned senior counsel for the Appellant argued that the learned trial Judge tenaciously insisted that the Court would only consider documents submitted to INEC in conjunction with Form CF001 and that any other fact in form of any justification, correction, addition etc. different from what was submitted to INEC was false. On this point, learned senior counsel argued that the learned trial Judge did not allow the Appellant and 2nd Respondent the opportunity to establish

i) That the tax receipts and clearance certificate came from the appropriate authority and,

ii) That other documents from the same assessment authority explained the misconception of the Exhibits relied on by the Appellant.

Senior learned counsel further submitted that S. 128 of the evidence act allows extrinsic evidence to be used where the contents of the document are in dispute. Counsel said that the affidavit evidence of C. J. Okoji in Exh. OK 2 and OKS which were introduced to explain the tax document were ignored by the learned trial Judge. Counsel submitted that it is the duty of the judex to consider all evidence offered in proof or defence of a case as failure to do so will result in denial of fair hearing. Cited OLOWOLAGBA v. BAKARE (1998) 3 NWLR (PART 543) 528; (1998) 3 S.C. 41; UKPAI v. OKORO (1983) 2 SCNLR 380; ONIFADE v OLAYIWOLA (1990) 7 NWLR (PART 161) 130 AT 165.

Counsel also cited Dantata Jnr. V. Mohammed (2012) 14 NWLR Pt. 1319 Pg. 122.

Counsel submitted that the learned trial Judge was in breach of the right of the Appellant and 2nd Respondent to fair hearing. Counsel submitted that admissibility of a document is governed by its relevance and that the learned trial Judge did not give the rule of evidence or practice which barred him from considering any other document which did not accompany Form CF001. Counsel cited ACB Ltd. v. Gwagwada (1994) 5 NWLR Pt. 342 Pg. 25.

Learned counsel for the 1st Respondent argued in reply to this issue that the tax clearance certificates and tax receipts were received by the 2nd Respondent since 4/7/14 and between that time and 26/12/14 when he submitted them to INEC, he did not use his avalanche of degrees and academic qualifications to discover that there were irregularities in the tax documents in his possession. In paragraph 4.125, senior learned 1st Respondent’s counsel argued that The 2nd Respondent should have taken steps to remedy this problem by writing the Abia State Inland Revenue Service to rectify the said anomaly. If the said problems is unresolved before the said submission to INEC it is this step by the 2nd Respondent and the response by the Abia State Inland Revenue Service that should have accompanied 2nd Respondent’s purported Tax receipts for 2011, 2012, 2013 and the said Tax Clearance Certificate which he submitted to INEC.

Counsel insisted that the tax documents should have been explained within the framework of the documents attached to INEC Form CF001submitted to INEC. Counsel argued that the 2nd Respondent should have attached his monthly pay slip to show the requisite deduction from source.

OPINION

At Pg. 1240 – 1243 of the Record, the learned trial Judge held the view that in accordance with Or 3 r 9 (2) (a) & (b) and Or 13 r 35(15) and Or 13 r 6(1) of the Federal High Court Rules 2009, after the Defendant is served with originating summons, he has 14 days to file counter-affidavit and the Plaintiff has 14 days to file reply affidavit. The trial Judge held that no party can file any other process without leave of Court and such other process must be ignored by the Court. In concluding his opinion on this point, the learned trial Judge opined that since both parties had engaged in this improper exercise of filing extra further affidavit, and parties had not joined issues on it, he would leave the issue as it was. Presumably, he would consider all the processes filed before him to which there had been no objection. Even though learned trial Judge set out the similar contents of Exh. PDP 1 and PDP 2 in the judgment on Pg. 1233 – 1240 of the Records, his Lordship did not consider them to be a good defence to the allegation levelled against the 2nd Respondent because they were depositions made after the filing of Form CF001 and should not be considered. Exh. PDP 2 was deposed to by James Okoji, Director of Direct Taxes in Abia State Internal Revenue Service. The learned trial Judge refused to evaluate it as against the allegations .of irregularities pointed out by the 1st Respondent which he accepted hook, line and sinker. The trial Judge in one breath stated that the Exhibits were not for his consideration. Yet he still stated that the documents which were not considered by him were afterthought. One would have imagined that the documents can only be ruled as afterthought if their contents were examined and found to be forged, false, irrelevant orincredible. I agree with the Appellant that in the absence of a consideration of the contents of the documents, it would amount to a deliberate avoidance of the implication of their contents to label them as mere afterthought. This further compounds the denial of the Appellant and the 2nd Respondent of their rights to be heard in their defence.

The learned trial Judge held as follows on pg. 1268 of the record

“The 2nd Defendant is bound by the documents that he submitted to Independent National Electoral Commission. He cannot be allowed to use extraneous documents not forming part of the documents he submitted to Independent National Electoral Commission earlier to establish that the facts contained in A, B, C, D and H are correct, true and genuine.”

Several affidavit evidence e.g. PDP1 and PDP 2 were acknowledged as having been filed by the Appellant to rebut the allegations in the originating summons, but the Court was not prepared to consider and evaluate them to weigh them on the scale of Justice. Surely failure to evaluate the evidence of both parties in order to arrive at a just finding of fact leads to miscarriage of Justice. In BABA V. CIVIL AVIATION (1991) 5 NWLR PT. 192 PG. 388 the Supreme Court held that the Court must hear both sides of a dispute and give equal treatment and consideration to all material issues in the case before reaching a conclusion that may be prejudicial to a party. See also VICTINO FIXED ODDS LTD. V. JOSEPH OJO (2010) 8 NWLR PT.1197 PG. 486. I cannot find merit in the refusal of His Lordship to evaluate the evidence of the adverse party in the circumstances of this case. In my humble view, His Lordship committed great violence against one of the twin pillars of the temple of Justice which is – audi alteram partem. If he had considered the other side of the case, probably some of the obvious faux pas he made in the judgment regarding what happens at the tax office or how the tax office issue their receipts and clearances would not have occurred. Indeed, Justice has not been served by the failure of the learned trial Judge to consider the case of the other side. This issue is resolved in favour of the Appellant.

ISSUE FOUR

Whether the learned Judge was right when he held that the 1st Respondent was the person qualified to be presented to the 3rd Respondent as the Appellant’s candidate for the Abia State Governorship election and proceeded to grant the reliefs in the judgment.

Learned Appellant’s counsel argued that the trial Judge did not follow the path already laid by the decisions of the Superior Courts. He indeed charted a new course and declared as Governor of a State, a person who did not exhibit compliance with Section 177 of the Constitution of the federation and who was not nominated by members of the electorate within the constituency.

Leaned Appellant counsel argued that the present case is a departure from the foregoing cases where a person who scored 103 votes at primaries was ordered to be given the certificate of return by INEC as against the candidate who score 487 votes at the primaries of the party. Counsel argued that if the Election Tribunal had nullified the election of the Governor, on the grounds of nonqualification, a fresh election would be ordered by INEC pursuant to S. 140(2) of the Electoral Act. Senior counsel cited Chukwu v. Igwe (1988) 4 NWLR Pt. 90 Pg. 609; C.P.C. v. Ombugadu (2013) 18 NWLR Pt. 1385. See KOLAWOLE v. FOLUSHO (2009) 8 NWLR (PT. 1143) 338; (U.N.C.P. v. D.P.N. (1998) 8 NWLR (PT. 560) 90; MELE v. NOHAMMED (1999) 3 NWLR (PT. 595) 425. Learned 1st Respondent counsel in response to the above argued that the Supreme Court had ordered that a party who emerges victorious in pre-election matter be issued Certificate of Return. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE v. INEC (2014) 18 NWLR (PT. 1438) 56; JEV V. IYORTOM (2014) 14 (PT. 183) 505. The fact of conduct of an election, does not extinguish the right of a person in a pre-election matter as a preelection cause continues even after the conduct of an election. Cited AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; GWEDE V. INEC (2014) NWLR (PT. 1438) 56 AT 102, PARAS. D – E, 117, PARAS. B – E, 129 – 130. PARAS. H – C; 138, PARAS. C – D; ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 554; NOBISELENDU V. INEC (2015) 16 NWLR (PT. 1485) 197; NWAZURIKE V. NWACHUKWU (2013) 3 NWLR (PT. 1342) 502 AT 522, PARA. E.

Learned counsel argued that the present position of the law is a stated by the Supreme Court in Agbaje v. INEC (2016) 4 NWLR Pt.1501 Pg. 151 at 165- 166.

OPINION

The Appellant had asked this Court to set aside the judgment and orders of the trial Court. The said judgment and orders are as set out below on Pg130 1 – 1306 of the record

It is hereby declared that Dr. Okezie Ikpeazu the 2nd Defendant herein was not eligible not qualified to be nominated or participate in the gubernatorial primary election for Abia state conducted by the People’s Democratic Party and her officers on 8th December, 2014 which the Plaintiff, the 2nd and others participated.
It is hereby declared that Dr. Okezie Ikpeazu not being qualified to be nominate or participate or take part on the Peoples’ Democratic Party Gubernatorial party’s primary election on 8th December, 2014 is not the aspirant scored in law and facts the highest number of votes in the Peoples’ Democratic Party primary election conducted pursuant to Section 87(4)() I and II of the Electoral Act 2010 as amended and part I Article 14(a) of the Peoples’ Democratic Party’s Electoral Guidelines 2014.
It is declare that the votes alleged scored by Dr. Okezie Ikpeazu in the Peoples’ Democratic Party primary election for aspirants to the gubernatorial election in Abia State on 8th December, 2014 are wasted votes, null and void and none of the Defendants is entitle to act on the scores credited to Dr. Okezie Ikpeazu based on the said Peoples’ Democratic Party primary election which Dr. Okezie abinitio is not qualified to be nominated or participate in the said primary election.
An Order is herby made declaring the Plaintiff Dr. Sampson Uchechukwu Ogah as the aspirant in the Peoples’ Democratic Party primary election conducted by the Peoples’ Democratic Party on 8th December, 2014 as the aspirant that scored the highest number of valid votes cast in the Peoples’ Democratic Party’s primary election in which the Plaintiff Dr. Okezie Ikpeazu and others participated as aspirants pursuant to Section 87(4)() I and II of the Electoral Act and Article 14(a) of Peoples’ Democratic Party Electoral Guidelines for 2014.
It is hereby Ordered that the Plaintiff being the aspirant that scored the highest number of lawful votes in the Peoples’ Democratic Party primary election for gubernatorial candidate in Abia State conducted on 8th December, 2014, it is the Plaintiff that is entitle to be nominated as candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State for the 2015 general election scheduled to take place on 11th April, 2015 pursuant to Section 87(4)() I and II of the Electoral Act 2010 and amended and Article 14(a) of the Peoples’ Democratic Party electoral Guidelines 2014.
An Order is hereby made pursuant to Section 87(4) b(1) and (II) of the Electoral Act 2010 as amended and Article 14(a) of the Peoples’ Democratic Party Electoral Guidelines 2014 for the 1st Defendant herein Peoples’ Democratic Party to submit the name of the Plaintiff to the 3rd Defendant as the gubernatorial candidate of Peoples’ Democratic Party in the gubernatorial election in Abia State in the 2015 general election scheduled for 11th April, 2015 and for the 3rd Defendant Independent National Electoral Commission to accept the name of the Plaintiff as the candidate of the Peoples’ Democratic Party for the2015 gubernatorial election in Abia State.
An Order is hereby made mandating the 3rd Defendant pursuant to Section 87 (4) (I) and (II) of the Electoral Act 2010 as amended to publish the name of the Plaintiff as the candidate of Peoples’ Democratic Party so for the gubernatorial election for Abia State in the general election f”lxed for 11th April, 2015.
It is hereby declared that the information supplied by Dr. Okezie Ikpeazu the 2nd Defendant herein in For, CF001 as sworn by him in the aff”ldavit accompanied with other documents submitted to Independent National Electoral Commission by him pursuant to Section 31 (2) of Electoral Act as amended are false.
An Order is hereby made disqualifying the 2nd Defendant from contesting the gubernatorial election in Abia State as the candidate of the Peoples’ Democratic Party.
An Order is hereby made directing the 1st and 3rd Defendant to replace or forward the name of the Plaintiff as the candidate of Peoples’ Democratic Party returned in the governorship election for Abia State.
It is hereby declared that at all material times since the conduct of Peoples’ Democratic Party primary election on 9th December, 2014 till today the date of delivery of the judgment of this Court, the Plaintiff remained and still remains the candidate of the Peoples’ Democratic Party in the 2015 Governorship election in Abia State.

Thereafter the learned trial Judge made some consequential orders as follows:

“A consequential Order is hereby made to give effect to the judgment that the Plaintiff Dr. Sampson Uchechukwu Ogah is the candidate of the People’s Democratic Party in 2015 gubernatorial election in Abia State and is the person entitle to the certificate of return in the election for the office of Governorship of Abia State of Nigeria for the election held on 11th April, 2015.

It is hereby ordered as a consequential relief that Independent National Electoral Commission, the 3rd Defendant herein shall forthwith issue certificate of return to the Plaintiff, Dr. Sampson Uchechukwu Ogah as Governor of Abia State for the election held on 11th April, 2015 and restore all entitlements to him as the elected Governor of Abia State. Dr. Okezie Ikpeazu is hereby ordered to vacate office as Governor of Abia State.”

From my earlier considerations and resolution of the contentious issues, I have to say that there is no iota of justification in law and in fact for these orders made by the learned trial Judge. The learned trial Judge cited some examples of previous decisions of the Supreme Court to justify the reliefs he granted to the 1st Respondent. The learned senior counsel for the Appellant went to great pains to set out what actually happened in those cases and I agree with him. The conclusions in those cases are set out below:

i. In OBI V. INEC (2007) 11 NWLR (PART 1046) 645, Mr. Obi was already a serving Governor who despite the fact that his tenure was yet to expire, INEC conducted an election and issued a Certificate of Return to another who was subsequently sworn in as governor. The Court by a consequential Order restored Mr. Obi to his office.

In GWEDE V. INEC (2014) 18 NWLR (PART 1438) 56, the 2nd Respondent won the primary election but then withdrew formally in writing. Appellant was substituted by PDP and filed his nomination papers, thereupon INEC published his name. He contested the election but INEC issued the 2nd Respondent who did not contest the election with a Certificate of Return. The Supreme Court restored the Appellant who was duly nominated and filled all nomination forms and was published as a nominated candidate by INEC.

iii. In GBILIVE V. ADDINGI (2014) 16 NWLR (PART 1433) 394, the 1st Respondent won the primary election conducted by the National Executive of the party and was nominated. The State faction of the party, however, forwarded the name of the Appellant who was issued with a Certificate of Return. The Supreme Court restored the candidate sponsored by the National Executive and who won the primary and was duly nominated.

iv. In ODEDO V. INEC (2008 19 NWLR (PART 1117) 554, the Appellant was duly nominated and filed the necessary papers, another person Obinna Chidoka was substituted, contested and won the election. The Supreme Court ruled the substitution unlawful and restored the Appellant.

v. In AMAECHI V. INEC (2008) 3. NWLR (PART 1080) 227, the facts were similar to ODEDO V. INEC (SUPRA).

vi. In JEV V. IYORTOM (2014) 14 NWLR (PART 1483) 484, the eventual winner of the appeal at the Supreme Court was indeed the winner at the primary election but his name was not published by INEC.

The fact of this case cannot justify the orders made by the learned trial Judge. The second Respondent in this case won the primaries and was adjudged winner of the general election by the Supreme Court.

In the circumstances, having found the issues raised by both parties in this appeal to be resolved in favour of the Appellant, I find merit in this appeal and it is hereby allowed. The judgment of Hon. Justice Okon Abang delivered on 2716116 1n suit No.FHC/ABJ/CS/71/2016 is here by set aside. The orders therein are also set aside. Costs of N100,000.00 in favour of the Appellant against the 1st respondent. Appeal Allowed.

Other Citations: (2016)LCN/8979(CA)

Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016) LLJR-CA

Dr. Okezie Victor Ikpeazu V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATTA BDLIYA, J.C.A.

This is an appeal against the judgment of the Federal High Court Abuja, (the lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st and 2nd respondents (who were the Plaintiffs) at the lower Court instituted the suit against the appellant (who was the defendant) by an originating summons filed on the 22nd of December 2014 which was amended on originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The appellant and the 1st and 2nd respondents are members of the 3rd respondent. The 3rd respondent conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and the 3rd respondent’s Constitution. At the conclusion of the primary election, the 3rd respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The appellant then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the 3rd respondent as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State. The 1st and 2nd respondents were dissatisfied with the election of the appellant (3rd respondent), hence they instituted the suit at the lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 27th of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the lower Court, the appellant filed three (3) different Notices of appeal, which can be found on pages 1116-1120; 1121-1126 and 1127-1130 respectively, all contained in vol. I of the record of appeal. However, the appeal has been argued on the Notice of appeal dated 20th and filed on the 21st of July, 2016.

The appellant’s brief of argument was dated and filed on the 22nd of July 2016, wherein six (6) issues have been distilled from the Notice and grounds of appeal, on page 4 thereof. The six (6) issues are thus:

(i) Considering the far-reaching definitive findings made by the lower Court on the merits of the case before it whilst considering preliminary objections, whether the judgment of the lower Court is not liable to be set aside as perverse. – Ground 1.
(ii) Considering the questions for determination in the amended originating summons, the reliefs claimed thereat, and the exhibits presented as evidence, whether the lower Court acted without jurisdiction to predicate its judgment on Articles 14 and 14(a) of the PDP Guidelines for primary election 2014 and the primary elections of the PDP. – Grounds 2, 3, 4, 6, 7, 13 and 18.
(iii) Considering the claim in the amended originating summons premised on submission of documents to INEC on 26th December, 2014, whether the claim at the lower Court was/is not premature and incompetent. Ground 27.
(iv) Considering the criminal nature of the findings made by the lower Court and the hostile nature of the plaintiffs’ case, whether the said Court was not wrong to have heard and determined the case before it using the originating summons procedure. – Grounds 26 and 28.
(v) Whether the lower Court was not wrong to have decided to adopt its findings in SUIT NO. FHC/ABJ/CS/71/16 – Dr. Sampson Uchechukwu Ogah v. PDP & Ors. to this suit.
(vi) Considering the totality of the evidence placed before the lower Court vis-Ã -vis the applicable laws and the 1999 Constitution of the Federal Republic of Nigeria (as amended) whether the lower Court was not wrong in granting the claims of the plaintiffs before it and exercising jurisdiction in the way and manner it so did. – Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20 21, 22, 23, 24, 25, 29 and 30.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 3, six (6) issues which are not dissimilar to those contained in the appellant’s brief of argument have been culled from the Notice and grounds of appeal. The 3rd and 4th respondents did not file brief of argument. A reply trial was filed on the 4th of August, 2016.

At the hearing of the appeal on the 9th of August 2016, the Court drew the attention of learned counsel to the parties to pages 3 to 5 and 563-565 of vol.1 of the record of appeal where the originating summons and the Amended Originating Summons could be found, and invited them to address it as to whether the two (2) processes initiating the suit had been signed by the parties or their counsel as required by law. The Court considered it necessary to draw the attention of learned counsel and invited them to address it because the issue raised has not been raised and dealt with by the lower Court nor did the parties raise it in their briefs of argument. The issue has been raised suo motu, by the Court, because it is jurisdictional, that is, it involves the competency of the suit filed at the lower Court, and its jurisdiction to have entertained and or adjudicated same if it is established that the initiating processes have not been signed by the parties nor by their counsel as required by law.

I am not unmindful that a Court of law, either of first instance or appellate, should be reluctant to raise an issue(s) suo motu. For as pointed out in Shirting Civil Engr. v. Yahaya (2005) 5 SCM P. 101 @ 192, that:

“In our adversary system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu, it has removed itself from its exalted position to flirt with the parties and in the course gets itself soiled in the litigation¦ Though a Court has the jurisdiction to raise an issue suo motu; it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to reach to the issue by way of address. On no account should a Court of Law raise an issue suo motu and resolve it suo motu”.

TOBI, J.S.C. (of blessed memory) had this to say in Okonkwo v. Cooperative & Commerce Bank (2001) 13 NSCCER P. 688 @ 735.

“While a Court has the jurisdiction to raise a matter suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a Court of law should be most reluctant to raise suo motu. When it does not, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The Court was in serious error for not giving the right to counsel to react to the issue of waiver which it raised suo motu”.

Onnoghen, J.S.C, in the case of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P. 330 @ 346 said:
”It is settled law that though a Court of law may raise an issue suo motu. It cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that parties or their counsel to address it on that issue. In other words a Court of law has the vires to raise issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu”.

This Court, per Ariwoola, JCA (as he then was) adumbrated in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) P. 1 @ 33, that:
“Though it is ordinarily not offensive for the Court or tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties”.

It was in view of the foregoing judicial pronouncements of the Apex Court and this Court on raising an issue suo motu by the Courts in the adjudication processes that this Court drew the attention of learned counsel to the parties, and invited them to address the Court on the issue raised by it.

The importance of jurisdiction cannot be underrated for purpose of litigation. Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) P. 566; Opara v. Amadi (2013) 12 NWLR (Pt. 1369) P. 512. The issue of jurisdiction can be raised at any stage of the proceedings even at the appellate stage. Since jurisdiction is regarded as a threshold issue and a lifeline for conducting any proceedings, same ought to be taken and determined at the earliest opportunity. This is because any step taken in the proceedings where there is no jurisdiction, the entire proceedings are a nullity no matter how brilliantly handled or concluded. Western Union Works Ltd. v. Iron & Steel Workers Union (No. 1) (1986) 3 NWLR (Pt. 30) P. 617; Ndaeyo v. Ogunnaya (1977); I.B.W.A. v. Imano (Nig) Ltd. (1988) 3 NWLR (Pt. 85) P. 633; Dweye v. Iyomahan (1983) 2 SCNLR 135.

The issue for determination, on the point raised by the Court is this:
“Whether the learned Judge of the lower Court was right in assuming jurisdiction and adjudicated on the Suit No. FHC/ABJ/CS/1086/2014 when the originating summons which was later amended were not signed in any manner known to law.”

In the resolution of issues contained in the briefs of argument, an appellate Court is not under a regimental duty to accept the issues formulated by the parties. An appellate Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed. As a matter of procedure, an appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. Okoro v. State (1988) 5 NWLR (Pt. 94) P. 255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 390) P. 379.

Furthermore, in the interest of justice, and for a just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the appellant’s brief of argument or that of the respondent in the determination of an appeal. See AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt. 1328) P. 1 @ 31 and Sha (Jnr) v. Kwan (2008) 8 NWLR (Pt. 670) P. 685. That a Court can also frame or formulate issues for determination in a suit or appeal has support in the case of Peterside v. Fabara (2013) 6 (Pt. 1349) P. 156 @ 172, where it was held that an issue for determination may be framed by the appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal. It must not be the issues as formulated by the appellant that the appellate Court must rely on for its consideration and determination of the appeal before it. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) P. 373; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) P. 608; Unity Bank of Nigeria v. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177.

The six (6) issues contained in the appellant’s and those contained in the 1st and 2nd respondents’ briefs of argument are interwoven, intertwined and dovetailing such that one set of issues cannot be resolved without delving into the other set of issues. For this reason the issues contained in the two (2) briefs of argument and that formulated by the Court are hereunder compressed and restructured thus:

ISSUES FOR RESOLUTION
(1) Whether the learned trial Judge of the lower Court was right in assuming jurisdiction and adjudicated on Suit No. FHC/ABJ/CS/1086/2014 when the Amended Originating Summons initiating same was not signed in the manner provided by law?
(2) Whether in view of the facts and circumstances of the case as it concerns the 1st and 2nd respondents’ claim in the amended originating summons no cause of action has been disclosed therefore the suit is premature and incompetent (encompassing ground 27 of the notice of appeal).
(3) Whether having regards to the fact and circumstances of this case, the trial Court was right in its finding that the action can be determined under the originating summons procedure. (Encompassing grounds 26 and 28 of the notice of appeal).
(4) Whether in view of the facts and circumstances surrounding the ruling of the trial Court in respect of the Appellant’s preliminary objection, the trial Court can be said to have delved into the merit of the case at the interlocutory stage. (Encompassing ground 1 of the notice appeal).

The issues enumerated supra, would be taken and resolved in the following order 1, 2, 3 and 4.

ISSUE 1
Whether the learned trial Judge of lower Court was not wrong when he assumed jurisdiction to adjudicate on the Suit No. FHC/ABJ/CS/1086/2014 when the initiating originating summons were not signed as required by law? On this issue Dr. Izinyon, SAN, of learned Senior counsel referred to pages 1 to 5 of the record of appeal vol.1, and submitted that the names of counsel who took out the originating summons have been listed at the top left hand margin of page 5 showing the signature of counsel. That the originating summons was amended which can be found on pages 563-565 of Vol.1 of the record of proceedings where the list of counsel who signed the writ have been provided. That if the amended originating summons has been signed, it cannot be doubted it has cured any defect in the original originating summons initiating the suit. Learned senior counsel did urge that the Court should hold that the originating summons having been amended, the suit filed by the 1st and 2nd respondents is competent and the lower Court had the jurisdiction when it entertained and adjudicated on same.

For the appellant, Chief Olanipekun, SAN, of learned Senior counsel, referred to page 5 of the record of appeal Vol. 1, and contended that there is no signature of any counsel on the originating summons, therefore, it has not been signed as is required by law. That even the amended Originating Summons on pages 563 to 565 cannot be valid because the counsel who signed it cannot be ascertained. That an invalid process cannot cure an invalid process. The case of Bawa v. State (1991) 2 NWLR (Pt. 178) P. 461 @ 475 and Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) P. 136 cited to buttress the submission that an incompetent process cannot be amended. That the signature on page 5 is different from that on page 565 of the record of appeal Vol.1, therefore, neither the original Originating Summons nor the Amended originating Summons has been signed by a Legal Practitioner as required by law.

Order 3 rules 12(2) and (3) of the Federal High Court Rules, 2009, provides as follows:
“12(2) A plaintiff or the plaintiff’s legal practitioner shall on presenting any originating process for sealing, leave with the Registrar as many copies of ‘the process as there are defendants to be served and one copy for endorsement of service on each defendant.
“(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being a true copy of the original process”.
Section 2(1) of the Legal Practitioners Act provides thus:

“2(1) subject to the provisions of this Act; a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll”.

Section 24 of the Legal Practitioner’s Act further provides that:
”24 in this Act; unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-
‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”.

A Court process, whether Writ of Summons or Notice of appeal, or Statement of Claim or Statement of Defence must be signed by a named and identifiable Legal Practitioner. Any Court process not signed by a named and identifiable Legal Practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per RHODES-VIVOUR, J.S.C, has had spelt out how it is to be signed in the case of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 27, thus:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e. the Legal Practitioners Act). All the processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad”.
In Mekiye & Anor. v. Tajudeen & Ors. (2012) 15 NWLR (Pt. 1323) P. 315 @ 338, this Court enunciated that:
“Any person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised”.

Furthermore, in Adeneye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 63, Ogunbiyi, JCA (as she then was) said:

”It is significant to emphasize the clear intention of Section 2(1) of the Legal Practitioners Act, 1990 wherein the expected signatory must be a person qualified to practice ”as a Barrister and Solicitor if and only if, his name is on the”. The said section should be read along with section 24 of the same Act which defines the nature of the personality anticipated by section 2(1). An unknown person cannot qualify under the said provision, more so where a mere signature cannot give any information for purpose of specific identity. In other words, the stating clearly of the name of the counsel who signed the proposed notice of appeal is crucial with the document being an originating process. The scribed as it is in the case at hand, is not sufficient”. (Underlining mine)

At this juncture, I think, it is pertinent to have recourse to the printed record of appeal to scrutinize the originating processes in respect of Suit No. FHC/ABJ/CS/1086/2014 which was instituted before the lower Court: An originating summons was taken out on behalf of the 1st and 2nd respondents (who were the plaintiffs) by counsel, Max Ozoaka Esq. & Ors). It is on pages 3 to 5 of Vol. 1 of the printed record of appeal. The Originating Summons on pages 3-5 of the record of appeal Vol. 1 was amended and filed on the 12th of February 2015.

On page 5 of the record of appeal Vol.1, at the left side, there is an indication that some counsel purportedly signed the Originating Summons. The name of “Max Ozoaka Esq; Osimu Jones Esq., and Prosper Ukachukwu, Esq., of Excellex Solicitors & Barristers have been stated as the persons who took out the originating summons. The question is who among the three persons signed the originating writ of summons. Is it the 1st person named Max Ozoaka, Esq., or the 2nd person Osim U. Jones Esq., or the 3rd person, Prosper Ukachukwu, Esq. or all of them? By the decision in SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 137 @ 727, the counsel who sign a Court process must be identified or identifiable, ascertained or ascertainable. Once it cannot be said who signed the process, it is incurably bad.

The originating summons was amended on the 12th of February, 2015. It is on pages 563 to 565 of Vol. I of the record of appeal. Beneath the signature the names of Max Ozoaka, Esq. with Osim U. Jones, Esq. Prosper Ukachukwu, Esq., and Judith Obiora-flo (Mrs.) Esq., have been listed as counsel taking out the writ of summons. Again who among them signed the Amended originating writ of summons. Can it be said that a specific particular counsel signed it? The manner of signing a Court process has been clearly spelt out by the Supreme Court in the case of SLB Consortium Ltd v. NNPC supra. That it must be signed by a known or identified or ascertainable counsel. In respect of the Amended originating summons which ¢ purportedly amended the originating summons on page 5 of the record of Appeal Vol. I, it cannot be ascertained who of the three (3) counsel signed it. That an originating Court process such as Notice of Appeal, writ of summons, originating summons or statement of claim, among others; must be signed by an identified or known legal practitioner has been enunciated in the case of PMB Ltd v. NDIC (2011) 12 NWLR (Pt. 1261) P. 253 @ 262 where Mshelia, J.C.A had this to say:
“A notice of appeal is an originating process which activates the jurisdiction of this Court. Since appellant’s counsel decided to sign the notice of appeal on behalf of the appellant, he owes a duty to his client to do so properly. With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of appellant’s counsel is not irrelevant as contended by respondent’s counsel. The relevance of the disclosure of the identity is to assist the Court to confirm that the person who signed the document is a Legal Practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of appellant’s counsel is not a mere irregularity as contented by respondent’s counsel but a fundamental error. The notice if appeal under consideration is in the circumstance, fundamentally defective and is liable to be struck-out. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this Court to determine the appeal on merit, same would be struck out for being incompetent.”
In Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) P. 685 @ 633, Jauro J.C.A cited and relied on the then unreported case of Onward Enterprises Ltd v. Olam International Ltd & Ors. Appeal No. CA/L/365/2008, where Mukhtar J.C.A, expressed the view on page 9 of the ruling that:
”Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature. Even common sense dictates that signature is only identifiable by the name of the signatory. A Court initiating process like notice of appeal must therefore be signed by appending the name of the signatory in the absence of which it will be impossible to ascertain who the signatory is much less being a legal practitioner whose name could be traceable to the roll of legal practitioners in Nigeria.
By the definition of signature in the Black’s Law Dictionary as noted above, the mere typing of name on a process does not satisfy the requirement of signature. The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls short of. I am not saying the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner. I am therefore unable to agree with the learned senior counsel for the appellant’s submission that the signature of an unnamed signatory satisfied the requirement of signature by a legal practitioner. Any attempt to detect the unnamed signatory will tantamount to converting the Court into a forensic laboratory.”

The name of who among the 3 counsel who signed the originating summons on page 5 and page 565 of the record of appeal Vol. I, cannot be ascertained. It is not the duty of the Court to do so. The name of the counsel who signed the originating summons, the Amended originating summons must be certain, and not in doubt as to who signed it.

An incompetent process is null and void ab initio. It cannot be amended. To reinforce the position of the law adumbrated supra, the case of Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) P. 481 @ 496 is cited and relied on. Muhammed, J.S.C. said:

“My lords, I would have ended this judgment here, but for the submission of the respondent counsel that the said originating process was amended and as such it does not form basis upon which the case was tried and determined. The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cure by the amendment? No doubt, the learned counsel of the respondents pretends not to appreciate the fundamental nature of an originating process? The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing. This highlights the painful realities that confronts a litigants when counsel falls to sign processes as stipulated by law. The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment. See: N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549.”

Where an originating process initiating a suit has been found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it; for an invalid originating process cannot initiate a suit in a Court of law. In Kida v. Ogunmola (2006) ALL FWLR (Pt. 327) P. 402 @ 412 Mohammed J.S.C. enunciated that:
“The validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”

A Court of law can only be competent and having jurisdiction to adjudicate a matter before it where the following conditions have been fulfilled or satisfied.
(a) The Court is properly constituted as regards number and qualification of the members of the bench;
(b) The subject matter of the action is within the jurisdiction of the Court; and
(c) The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Suit No. FHC/ABJ/CS/1086/2014 has not been initiated or commenced by a competent originating process as required by law, for the Amended originating summons which purportedly amended the originating writ of summons were not signed by a known and ascertainable counsel as enunciated in the cases of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 327; Mekiye & Anor v. Tajudeen & Ors (2012) 15 NWLR (Pt. 1323) P. 315 @ 338 and Adenye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 630. Based on the principles of law enunciated supra, the lower Court had no jurisdiction in adjudicating Suit No. FHC/ABJ/CS/1086/2014 for it was not initiated or commenced by a valid and competent originating summons. The judgment of the lower Court in the said Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June 2016, has been delivered without jurisdiction. Same is liable to be set aside. I so make the order. I resolve issue 1 in favour of the appellant.

ISSUE 2
Whether a cause of action had accrued on the 22nd of December, 2014 when the 1st and 2nd respondents instituted Suit No. FHC/ABJ/CS/1086/2014 against the appellant, 3rd and 4th respondents? The appellant’s brief of argument was settled by Chief Wole Olanipekun, SAN. The gist of his submission is that jurisdiction of a Court of law is based on cause of action disclosed in the initiating process of a suit. That Suit No. FHC/CS/1086/14 was filed on 22/12/14; as at this date no document was submitted to INEC. It was on 26/12/16 that INEC FORM CF 001 was submitted to the INEC. That the Amended Originating Summons was based on the submission of INEC FORM CF.001 on the 26/12/14. As at that time no cause of action had accrued. That cause of action is determined by the originating process. The case of Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) P. 207 @ 284 cited to buttress the submission supra. Senior counsel submitted that no extraneous matter can be considered in the determination of when a cause of action arose or accrued. The case of Thomas v. Olafusoye (1986) 1 NWRL (Pt. 18) P. 669 @ 682 cited in aid.

Senior counsel further contended that an examination of the originating summons and the affidavit in support of same would reveal that the claims of the 1st and 2nd respondents were based on the submission of FORM INEC CF. 001 to INEC, not to the Peoples Democratic Party (PDP), therefore the cause of action accrued on 26/12/14, not on 22/12/14 or on the 8th of December, 2014, the date the Primary Election of the Peoples Democratic Party (PDP) was conducted. Senior counsel also referred to the two (2) questions posed for the determination of the lower Court, and the reliefs sought which all referred to the submission of FORM CF.001 to INEC, not to the Peoples Democratic Party (PDP) but to INEC therefore as at 22/12/14 no cause of action had accrued to enables the suit be initiated by the 1st and 2nd respondents. That the action/suit filed on the 22/12/14 had no cause of action at that time, but it accrued on the 26/12/14 with the submission of FORM CF.001 to INEC on that date. That the suit filed on 22/12/14 by the 1st and 2nd respondents cannot be valid in law having been initiated or commenced when there was no cause of action.

Dr. Alex Izinyon, SAN, of learned Senior counsel to the 1st and 2nd respondents settled their brief of arguments. Senior counsel contended that the cause of action started to accrue on 8/12/14 when the People’s Democratic Party (PDP) held the Primary Election whereat the appellant submitted his documents as an aspirant to be elected as candidate of the party for the gubernatorial election of Abia State. That the appellant, having been elected at the primary election submitted documents to INEC 4th respondent making a declaration on oath that he had fulfill all the requirements of the Constitution to be a candidate for the PDP at the election to be held on the 11/4/2015. That the Tax documents submitted together with other documents were not correct, having not paid tax for the hence 2011, 2012 and 2013 as and when due. As to when the cause of action arose or accrued, Senior counsel did content that it was on 8/12/14 when appellant as aspirant submitted his documents for the primary election. The case of Williams v. Williams (2008) 10 NWLR (Pt. 1085) P. 364 @ 380 cited to buttress the submissions supra.

What is cause of action? In Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) P. 50 @ 131, cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements:
(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and
(b) The consequent damages.
Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) (1988) 3 NWLR (Pt. 32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.

A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment C.B.N. v. Manesport S.A. (1987) 1 NWLR (Pt. 18) 669; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598; Bello v. A-G, Oyo State (1986) 5 NWLR (Pt. 18) 669.

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. 1; Egbue v. Araka (1988) 3 NWLR (Pt. 84) P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.

In determining when the cause of action arose or accrued for the purpose of initiating Suit No. FHC/ABJ/CS/1086/14, the affidavit filed in support of the Suit is germane. In paragraphs 4(a) to (k) the 1st and 2nd respondents as plaintiffs deposed to the holding of the Primary Election of the Peoples Democratic Party (PDP) 3rd respondent. From the depositions in the aforesaid paragraphs of the affidavit in support of the suit filed by the 1st and 2nd respondents, when considered together with the documents contained in INEC FORM CF 001 which the appellant submitted to INEC, 4th respondent on 26/12/14, it is evident that the cause of action arose or accrual on 26/12/16, the date FORM CF 001 was submitted to INEC, 4th respondent, not on 8/12/16 when the appellant submitted same to the P.D.P for purpose of holding primary election. This view is supported by the decision ¢ in the case of Ojukwu v. Yar’adua (2008) 12 NWLR (Pt. 1150) P. 50 @ 131, where it is stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See also Adimora v. Ajifo (1988) 3 NWLR (Pt. 30) P. 1 and Egbue v. Araka (1988) 3 NWLR (Pt. 840) P. 598.

The provisions of section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveal when the cause of action ought to accrued or arisen. Section 31 (1), (2) and (3) of the Electoral Act provides:
“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.
(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.”

It is after the Electoral Commission has acted, by publishing the names of the candidates in the Constituency under sub section 7 of section 31 of the Electoral Act, that any person may apply under subsection 4 of the Act for a copy of ‘the documents submitted by a candidate. Thereafter, if the person who has applied and obtained a copy of the documents submitted by the candidate finds that the documents so submitted contain false information, then he can approach a Court of law seeking for the disqualification of the candidate. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date. It is in view of the foregoing that the institution of the Suit No. FHC/ABJ/CS/1086/14 on the 22nd of December, 2011 by the 1st and 2nd respondents was earlier than the accrual of the cause of action. The law is trite, any action initiated or instituted before the accrual of the cause of action, cannot be valid. For there cannot be a competent action before the accrual of cause of action. Therefore, the suit filed by the 1st and 2nd respondents on the 22/12/14 before the submissions of FORM CF 001 to INEC on 26/12/14, cannot be competent. Where an action or suit is initiated or commenced without cause of action, it is incompetent, and liable to be struck out. The case of Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 132 is very instructive. It was held that where and when a Court comes to the conclusion that a plaintiff has no cause of action, the Court can strike out the action. The lower Court, if it had considered whether there was cause of action disclosed as at 22/12/14 when Suit No. FHC/ABJ/CS/1086/14 was commenced by the 1st and 2nd respondent, it would have realized that there was no cause of action to have sustained the suit filed by the 1st respondent and 2nd respondent. It would have then struck out same for being incompetent. Having found that the Suit No. FHC/ABJ/CS/1086/14, instituted at the lower Court is incompetent by reason of having been initiated without the accrual of cause of action, I do hereby make an order striking out the suit.

Consequently, having struck out Suit No. FHC/ABJ/CS/1086/14, the entire proceedings including the judgment of that Court are but a nullity, same can be struck out for there is nothing it can stand on. Eso, J.S.C, (of blessed memory) in the cases of Skenconsult (Nig.) Ltd & Ors v. Ukey 1981 S.C P. 1 @ 9 cited and relied on the case of Macfoy v. UAC Ltd 1962. A.C. 15, 2, where Denning J, said:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” (Underlining mine)
I resolve Issue 2 in favour of the appellant.

ISSUE 3
Whether having regards to the facts and circumstances of the case, the learned Judge of the lower Court was right in its findings that the action can be determined under the Originating Summons procedure? Chief Olanipekun SAN, of learned Senior counsel, who settled the appellant’s brief of argument, did submit that a critical examination of the originating summons and the depositions in the affidavit in support would reveal that it is not the interpretation or construction of the provisions of law that are not involved but it is the application of the provisions of section 31 of the Electoral Act, 2010 (as amended) and section 24 (f) of the 1999 Constitution (amended). That the appellant had disputed the assertion by the 1st and 2nd respondents that he had submitted documents containing false information to the 4th respondent, INEC. That the appellant had adduced evidence, including tax documents from the Abia State Internal Revenue Services to disprove the assertion of the 1st and 2nd respondents. That in view of the foregoing, an inquiry by a Court of law into the assertion of the 1st and 2nd respondents is imperative in order to ascertain the truthfulness or otherwise of the assertion.

Senior counsel further contended that having regards to the reliefs sought by the 1st and 2nd respondents in the originating summons, they are declaratory in nature, which cannot be granted without the parties adducing credible evidence. That same are not grantable on affidavit evidence. The case of Nasco Tow Pic v. Nwabueze (2014) LPELR-22526 (CA) @ 22-23 and the provisions of Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules) 2009 were cited and relied on to buttress the submissions supra. Concluding, senior counsel urged that the issue be resolved in favour of the appellant.

For the 1st and 2nd respondent, Dr. Izinyon, SAN, of learned Senior counsel did submit that the learned trial Judge of the lower Court was right in holding that the originating summons procedure was appropriate for the determination of the action filed by the 1st and 2nd respondents.
Senior counsel referred to Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules and contended that the action was rightly commenced by the originating summons procedure. It was further submitted that the case of the 1st and 2nd respondents at the lower Court had been predicated on the submission of false information to INEC, the 4th respondent, which is contrary to section 31(1)(2)(3)(4)(5)(6) of the Electoral Act, 2010. That the dispute at the lower Court was whether FORM CF. 001 submitted to the 4th respondent, INEC by the appellant contained false information or not, and if so, whether the appellant was disqualified to contest the primary election conducted by the 3rd respondent or not. The cases of Jev. v. Jyortom (2014) FWLR (Pt. 747) P. 749 @ 777, among others were cited and relied on to reinforce the submissions supra. Senior counsel further contended that there were no allegations of the commission of any offence under the Personal Income Tax Act nor section 118(k) of the Electoral Act, 2010 (amended). That the contention of the appellant that the originating summons of the 1st and 2nd respondents commencing the suit at the lower Court alleges the commission of crime, therefore, the said suit was not suitable for adjudication under the Originating Summons Procedure, cannot be correct. That there are no allegations of forgery nor perjury as alleged by the appellant. As to the contention that the reliefs sought by the 1st and 2nd respondents are declaratory in nature, Senior counsel submitted that far from it. Concluding, Senior counsel did urge that this issue be resolved against the appellant.

Was the learned trial Judge of the lower Court right or justified in his decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure? Order 3 rule 2(a) of the Federal High Court Civil Procedure Rules 2009 provides thus:
“Proceedings may be begun by originating summons where:
(a) The sole or principal question at issue is, or likely to be one of the construction of a written law or of any instrument made under any written Jaw, or of any deed, will, contract or other document or some other question of law… ”

Originating summons is simply a mode of procedure to which recourse is made where the circumstances are such that there is no dispute of facts or likelihood of such dispute. Where there is a dispute on facts requiring the setting of pleadings to resolve such issue of facts, there can be no recourse to originating summons. In Ezeigwe v. Nwalulu (2010) 4 NWLR (Pt. 1183) P, 169 @ 191, it was held that:

“It is settled ¢ Jaw that originating summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law or any deed, will, contract or other document or any substantial dispute of fact relevant to the determination of the issue in controversy”.

Originating summons is an unusual procedure or method of commencing proceedings in the High Court. It is best suited for cases where there are no substantial dispute of facts, 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 circumstances 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 Etim v. Obot (2010) 12 NWLR (Pt. 1207) P. 108 @ 156 and Omojula v. Oyateru (2009) All FWLR (Pt. 453) P. 1318. It must be noted 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 must be adduced and thereby necessitating the ordering of pleadings. 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. Where the areas of conflict are so narrow and insignificant, the need to call oral evidence and thereby necessitating the ordering of pleadings will not arise. Also, where the conflict in the affidavit evidence can be resolved on available documentary evidence before the Court, oral evidence need not be called and a fortiori pleadings need not be ordered.

The Amended Originating summons are on pages 563 to 563. There are two questions posed for determination. The reliefs sought are on pages 564 to 565. There is an affidavit filed in support of the originating summons on pages 568 to 569. There is a 26 paragraphs counter affidavit of Mr. J. C. Okoji, Director of Direct Taxes of Abia State Internal Revenue Services. In these paragraphs of the Counter-affidavit the deponent deposed to facts explaining the contradictions and inconsistencies in the payment of tax by the appellant illustrating each point with tax receipts and Tax Clearance Certificates, how the tax was paid by the appellant and the reasons for the apparent discrepancies in the documents submitted to INEC by the appellant regarding payment of tax by him during the relevant periods, 2011, 2012 and 2013. See pages 629 to 635 of Vol. 1 of the record of appeal. The 1st and 2nd reliefs sought by the 1st and 2nd respondents are declaratory. They are the principal reliefs upon which the rest of the reliefs are hinged, and their being granted or not all depends on the two principal reliefs enumerated supra.

It is also significant to note that the provisions of sections 31(8) and 118(k) of the Electoral Act create offences for the submission of names of candidate to INEC who does not meet the qualifications stipulated, and the punishment for the commission of such offence has been provided for. Declaratory reliefs are only grantable on cogent and credible evidence adduced by a claimant. Sections 31(8) and 118(k) of the Electoral Act create criminal offences which must be proved beyond reasonable doubt as required by section 135(1) of the Evidence Act, 2011. In view of the foregoing adumbration, the facts and the evidence upon which the issues raised by the Amended Originating Summons could not have been resolved easily on the affidavit credence before the lower Court for they are hostile in nature.

Where the facts of¢ a dispute are likely to be in dispute, the originating summons procedure cannot be restored in resolving or determining disputes. See Asogwa v. PDP (2013) 7 NWLR (Pt. 1353) P. 207 @ 284, where the Apex Court held that; the procedure of originating summons ought not be used where the facts are likely to be in dispute.

The learned trial Judge of the lower Court was therefore not right in his findings and decision that Suit No. FHC/ABJ/CS/1086/2014 was properly initiated by the originating summons procedure. Issue 3 is resolved in favour of the appellant.

ISSUE 4
Whether the lower Court did not delve into the substantive suit when ¢considering the preliminary objection in its interlocutory decision? Chief Olanipekun SAN, of learned Senior Counsel submitted that when considering the preliminary objection by the appellant on the issue of lack of locus standi of the 1st and 2nd respondent to institute Suit No. FHC/ABJ/1086/2014, and non-disclosure of cause of action at the time it was commenced on the 22/12/14, the lower Court delved into and took decisions touching or concerning issues in the substantive suit. Senior Counsel contended that a Court has no jurisdiction or power to delve into the substantive suit when ruling in an interlocutory issue on preliminary objection raised by any of the parties. That a Court cannot and should not pronounce on the merit of any issue in the substantive action in an interlocutory ruling or decision. The cases of Nwakwo v. Yar’adua (2010) NWLR (Pt. 1209) P. 518 @ 54 and Odon v. Bariga-Amange (No. 2) (2010) 12 NWLR (Pt. 1207) P. 13 @ 28 were cited and relied on¢ to reinforce the submissions supra.

Senior Counsel went further to contend that the lower Court had taken decision on the issue in the substantive action when he used the words “offensive”, “false”, “told a lie” in referring to the information submitted to INEC by the appellant. That having taken such a decision, there were nothing left for the Court to decide in the substantive suit; the Court has had already reached a decision by the usage of such words or phrases. The cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P. 158 and Anuforo v. Oblilor (1997) 11 NWLR (Pt. 530) P. 661 @ 674 cited to buttress the submissions supra. Senior counsel concluded by submitting that by taking a decision in the interlocutory ruling on the preliminary objection without affording the appellant the opportunity to be heard before taking such decisions, his right to fair hearing has been breached occasioning a miscarriage of judgment to him. As to what constitutes breach of fair hearing, counsel cited and relied on the case of Mohammed v. Kano N. A (1968) 1 ALL NLR P. 44 where it has been held that it is the opinion or impression of a reasonable person who has been observing the proceedings as to what he thinks of the process and proceedings of the Court, whether fair hearing has been afforded to the appellant or not.

For the 1st and 2nd respondent, Dr. Izinyon SAN, of learned senior counsel, contented that the lower Court did not decide on the issue of qualification or disqualification of the appellant in the ruling when considering the preliminary objection. That the finding of the Court was on the 1st and 2nd respondents’ locus standi to initiate the suit, and the accrual of the cause of action. It was further submitted that it is only where a trial Court delve into the substantive suit in an interlocutory ruling that a miscarriage of justice could be occasioned to the appellant. That such a decision could be set aside. The cases of Onyesoh v. Nneuchie (1992) 3 NWLR (Pt. 229) P. 315 @ 335; Adamu v. Nasarawa State (2007) 6 NWLR (Pt. 105) P. 485 and Obiaha v. Military Administrator, Imo State (1998) 10 NWLR (Pt. 569) P. 205 cited to buttress the submissions supra.

Senior counsel further contended that a mere reference to an issue in the substantive suit in an interlocutory ruling without more cannot be a ground to void the ruling. That the contention of learned senior counsel to the appellant that the lower Court took a decision on an issue in the substantive suit cannot be correct, it is a misconception. That there was no breach of the appellants right to fair hearing because the ruling of the lower Court centered on the processes filed before the lower Court. That the decision of the lower Court was not tainted with bias, it is therefore not correct as alleged by the appellant. Counsel did urge that this issue be resolved against the appellant.

Whether the lower Court took a decision in the ruling touching on the issues in the substantive suit or not, it is imperative to examine the record of appeal. On page 1080 of the record, the learned Judge in his ruling on locus standi and cause of action held that:

“without the 3rd defendant submitting the documents containing false information to the 1st defendant to enable contest the defendant’s primary on 8th December, 2014, the 1st defendant would not have submitted the documents on 26th December, 2014 to the 2nd defendant. Therefore, the cause of action accrued before the documents containing false information were submitted on 26th December, 2014.” (Underlining mine)

Also on pages 1081-1082, the lower Court held that:

”In any event, the 3rd defendant submitted documents containing false information on his tax papers to the 1st defendant on or before 8th December, 2014 for him to be nominated as a party candidate for Abia State Governorship Election. Therefore, the cause of action arose before 22nd December, 2014 that the suit was filed to restrain the 1st defendant from accepting the 3rd defendant’s particulars inclusive of the offensive tax papers as part of Exhibit A2 attached to the amended originating summons.” (Underlining mine)

The forgoing findings of the lower Court in the ruling on the preliminary objection obviously would affect the mind of the learned trial Judge when considering the substantive suit having taken a decision on the status of the tax papers attached to the originating summons as “offensive” and “false” information, which the lower Court later decided in the judgment in the substantive suit. The findings on the ruling reproduced supra should not have been taken before considering the substantive suit on the merit, after both parties might have been heard or their affidavit evidence been considered by the Court. That a decision taken in an interlocutory ruling which would later be an issue in the substantive suit is not proper as it could affect the mind of the learned Judge to favour the other party to the dispute has been reinforced to the cases of Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) P.158 P. 196-197, in a similar situation or circumstances as in this extant appeal. It was held that:
“In the instant case, the learned trial Judge while reviewing the evidence called by parties made the following adversary or damaging remarking:¦
There is no or dispute that the learned trial Judge made the above remarks at the initial stage of his judgment and while setting down the case as presented by both parties to the dispute. At most, it was the stage in which the plaintiff/appellant was required to establish a prima facie case. I am therefore of the humble view that under the principle of the above cited authorities, (particularly Anuforo v. Obilor (supra), it was too early and out of place for the learned trial Judge to make the conclusions or findings of facts on the evidence or on its probative value as he did in his above quoted remarks. If anything, the adverse remarks made against the appellants case at that stage, only gives the impression that the learned trial Judge was leaning unfairly against the appellant and in favour of the respondents.” (Underlining mine)

In Mbanefo v. Molakwu (2014) 6 NWLR (Pt. 1403) P. 377 @ 416, the Apex Court stated that there should be no negative finding or resolution of an issue which would be prejudicial to any of the parties before considering the matter on the merits otherwise it would tantamount to pre-judging the issue. In case of Mohan1med v. Kano Native Authority (1968) 1 ALL NLR P. 411, the Supreme Court provided the parameter for testing whether a particular act could be a breach of fair hearing to be the impression of an unbiased reasonable bystander who had observed the proceedings. In the instant case, what would an unbiased by-stander say of the pronouncements of the lower Court on pages 1080, 1081-1082 of the record of proceedings. Where a decision of a Court has breached a party’s right to fair hearing, such an act, or decision is to be set aside. See Agpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) P. 124 @ 197; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) P. 23 @ 44 and Tsowa Motors v. UBA Plc (2008) 2 NWLR (Pt. 1071) P. 747. The comments on the preliminary objection in ruling of the lower Court referred to supra having breached the appellant’s right to fair hearing ought to be set aside. I so make the order.

This issue is resolved in favour of the appellant.

Having resolved Issue 1, 2, 3 and 4 in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered in Suit FHC/ABJ/CS/1086/2014 on the 27th of June, 2016, is hereby set aside. The appellant is entitled to costs assessed at N100,000.00, same is awarded to him against the 1st and 2nd Respondents. The 3rd and
4th respondents have not filed briefs of argument in the appeal, therefore, are not entitled to cost.

Other Citations: (2016)LCN/8978(CA)

Dr Okezie Victor Ikpeazu V. Dr Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Dr Okezie Victor Ikpeazu V. Dr Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PHILOMENA MBUA EKPE, J.C.A.

This appeal emanates from the decision of the Federal High court in Suit No.FHC/ABJ/CS/7112016 coram Hon. Justice Okon Abang delivered on the 27th day of June, 2016. The Appellant herein being clc.ulv dissatisfied with the said Ruling also emanating from the same judgment, on pages 217 to 253 of the record has appealed to this court raising two grounds of appeal to wit:

Ground One:

The learned trial Judge erred in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

PARTICULARS OF ERROR

(i) The learned trial Judge was without the vires to sit on the interpretation of the Court of Appeal Rules, being Rules of a superior court of record.

(ii) Without prejudice to (i) supra, the interpretation given to Order 4 Rules (10) and (11) of the Court of Appeal Rules by the Lower Court is erroneous and misleading.

(iii) Order 4 (11) of the Court of Appeal Rules does not demarcate/bifurcate final and interlocutory appeals.

(iv) Without prejudice to (iii) supra, there was no interlocutory proceeding pending before the Lower Court.

(v) The Lower Court knew and was duly informed that the record of appeal in Appeal No. CA/A/390/2016 had been transmitted to the Court of Appeal, and a motion, seeking sundry interlocutory reliefs had also been filed before the Court of Appeal.

(vi) The interpretation of Order 4 Rules (10) and (11) embarked upon by the Lower Court was/is unprecedented, and the Lower Court did not support its proposition with any judicial precedent.

(vii) Deliberately, the Lower Court decided to encroach on the exclusive jurisdiction preserved for the Court of Appeal.

The learned trial Judge er.re d in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

Ground Two:

The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it, after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

PARTICULARS OF ERROR

(i) Binding decisions of the Supreme Court and Court of Appeal, including Ogunremi v. Dada (1962) 2 SCNLR 417, V AB Petroleum Inc. v. Momah (2013) 14 NWLR(Pt. 1374) 284 etc., were cited to the Lower Court on the trite proposition on when an appellate court is fully seised of an appeal.

(ii) Counsel to the 1st respondent honourably conceded to the trite legal position in (i) above, but the Lower Court chose to disagree with him.

(iii) Throughout the ruling of the Lower Court, no decision of the Court of Appeal or Supreme Court was cited by it to support the novel position that it was still vested with jurisdiction to continue with the proceedings.

(iv) The Supreme Court decision in Mohammed v. Olawumi (1993) 4 NWLR (Pt. 287) 254 was also cited to the Lower Court in order to avoid a situation of judicial impertinence.

(v) The Lower Court failed, refused and neglected to follow and be bound by both the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules, and the several decisions of appellate courts cited to it.

(vi) The Lower Court wrongly relied on the provisions of Order 7 of the Court of Appeal Rules which are not applicable to the matter before it.

(vii) In acting as aforesaid, the Lower Court, in its elaborate ruling, made further comments and conclusions depicting its prejudice against the Appellant. The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

The Appellant also sought the following reliefs:

“1. To allow the appeal;

To set aside the ruling of the Lower Court dated the 8th day of July, 2016”.

From the grounds of appeal raised by the Appellant, a sole issue for determination was distilled thus:

Considering the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules 2011, binding decisions of appellate courts on same as well as the age-long doctrine of stare decisis, whether the Lower Court was not in grave error by holding that it has jurisdiction to entertain and continue with proceedings on the same subject/applications after the record of appeal has been transmitted to this Honourable Court, and this court has been fully seised of the proceedings- Grounds 1 & 2.

Grounds 1 and 2

The 1st Respondent on his_ part also raised a sole issue for determination thus:

Whether the trial court was right in the construction given to Order 4 Rules 10 and 11 and Order 7 of the Court of Appeal Rules, 2011 vis-a-vis the pending Motion for Stay of Execution pending appeal.

I shall determine appeal based on the sole issue couched by the Appellant.

The 2nd, 3rd and 4th Respondents did not file processes and therefore had nothing to urge.

The argument of the Appellant revolves around Order 4 Rules (10) and (11) of the Court of Appeal Rules and what he termed the sacred doctrine of stare decisis stating that when an appeal has been entered at the appellate court, the Lower Court lacks jurisdiction to entertain any further proceedings on the subject apart from transmitting the remnants of applications before it to the appellate court. That the Lower Court unnecessarily promoted arguments to circumvent the clear meaning of Order 4 Rules (10) and (11) of the said Rules. Learned counsel for the Appellant faulted the stance of the Lower Court when the judex called on both counsel for the parties to address the court on the interpretation of Order 4 Rules (10) and (11) referring particularly to page 228 of the record as follows:

“Learned senior counsel for Appellant/Applicant please kindly address the court whether the provisions of Order 4 Rule 11 of the Court of Appeal Rules applies to appeal against final decision that has been entered or whether it applies to or regulates appeal against interlocutory decision that has been entered or whether it applies to both the appeal against final and interlocutory decision that has been entered”.

Learned Appellant’s counsel further opined that the Lower Court was in grave error when it held that Order 4 Rules (11) only regulates an interlocutory appeal that has been entered in the Court’ of Appeal and that it does not regulate an appeal against a final decision which has been entered at the Court of Appeal. Learned counsel further reiterated the fact that no Lower Court has the right or vires to interpret the Rules of the Court of Appeal or the audacity to depart from a decision of a superior court. He then cited the case of OKEKE V. OKOLI (2000) 1 NWLR (PT. 642) 641 & 654, where the Court of Appeal thus held:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this order, every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

Learned counsel further cited the following authorities to buttress his argument:

OSEMWINGIE & ORS. V. OSEMWINGIE & ORS. (2012) LPELR – 19790.
SUSWAN V. SAROR & ORS. (2012) LPELR- 9767.
DALHATU V. TURAKI (2003) 12 NWLR (PT.843) 310 @ 336.

Learned Appellant’s counsel concluded that it should be noted that no application was pending at the time before the Lower Court in accordance with the Rules for setting aside of the Order of the Abia State High Court. That the mere oral application by the 1st Respondent counsel to set aside the said order was only an off shoot of the Appellant’s interlocutory application mentioned in the counter affidavit to the Appellant’s application and did not constitute an application per se. He further concluded that none of the proceedings of the Abia State High Court is before the Lower Court.

In his reply filed and dated the 3rd day of August, 20 16; learned counsel for the Appellant submitted that the Respondent made a volte face when in one breath he acceded to submission of the Appellant that the Lower Court had lost jurisdiction since the Court of Appeal is already seised of the matter and in another breath made an attempt to justify the action of the Lower Court. He further submitted that a party cannot under any circumstance change his case on appeal. He then referred the case of AJIDE v KELANI (1985) 3 NWLR (pt. 12) 248 @ 269 and AKPAN v BOB (2010) 17 NWLR (pt.1223) 421 @523- 524.

Learned counsel again referred to the rationale reached at the Lower Court when it held thus:

“However, the turning point in this ruling is that Dr. Alex Izinyon (SAN) has conceded that where an appeal is entered in the court of Appeal, this court lacks jurisdiction to entertain an application for stay”.

Counsel pointed out that the said decision of the Lower Court has not been appealed against and neither did the Respondents file any cross appeal to challenge it. Learned counsel also reiterated the fact that there was indeed no dichotomy between interlocutory and final appeals envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011. He emphasized on the clarity of the law in that regard by calling in aid the cases of MARWA v NYAKO (2012) 6 NWLR (pt 1296) 199 and CALABAR CCC v EKPO (2008) 6 NWLR (Pt.1083) 3 62 @ 39.

That the above Rule wholly takes control of every aspect of an appeal to the exclusion of the court below once the appeal is entered. Learned counsel concluded that paragraphs 4.12 to 4.14 at page 9 of the Respondent’s brief goes to no issue as the Respondent resorted to mere sentiments in an attempt to justify the pronouncement of the Lower Court when that court sought to comment on proceedings not before it. He referred to it as mere sentiment and cited the case of BUHARI v. OBANSANJO (2005) 13 NWLR (PT 941) 1 @198 para G- H.

While urging the court to disregard the argument of the Respondent in its entirety, he urged the court to allow the appeal.

He then urged the court to resolve the sole issue in favour of the Appellant and set aside the. “Bench Ruling” of the Lower Court dated 8th July, 2016.

Learned counsel for the 1st Respondent on his part also raised a sole issue for determination which to my mind is on all fours with the sole issue raised and argued by the Appellant in this discourse.

He submitted that the trial court was right in establishing a distinction between an interlocutory and final appeal envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules. That the said Order which the trial court read in conjunction with Order 7 of the Court of Appeal Rules to arrive at the said decision cannot be faulted particularly since learned senior counsel for the Appellant did not cite any decision where the provisions have been so interpreted. He then urged the court to resolve the issue in favour of the Respondent and dismiss the appeal.

RESOLUTION

Notwithstanding the fact that the appeal before us has become a mere academic exercise, it is pertinent at this juncture to clearly adumbrate on the correct position of the law for the clarification of some knotty issues and the promotion of justice for the benefit of all and sundry. To begin with, let me reproduce ORDER 4 RULES (10) and (11) of the Court of Appeal Rules, 2011, the interpretation on which this entire appeal revolves.

ORDER 4 RULE 10:

RULE 10:

“An Appeal shall be deemed to have been entered in the court when the record of proceedings in the court below has been received in the Registry of the Court”.

RULE 11:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto au d except as may be otherwise provided in this order every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

It is on record that on the 8th day of July, 2016 both learned counsel for the Appellant and the 1st Respondent appeared before the Federal High Court. Learned Appellant’s counsel Chief Olanipekun SAN informed the court that the record of appeal had already been transmitted to the Court of Appeal and that the appeal had also been assigned an Appeal No. CA/A/390/2016 and that the Court of Appeal was fully seized of the matter. He then made heavy weather of Order 4 Rules (10) and (11) urging the Court to transit the proceedings of the application before it to the Court of Appeal. Learned counsel for the 1st Respondent who had brought an application before the Lower Court to set aside the order of the Abia State High Court for abuse of court process and contempt of court order disagreed with learned opposing counsel stating that the said application had already been argued on the 4th July, 2016 and urged the court to pronounce on it. The Lower Court however after very extensive arguments proffered by both learned counsel finally disagreed with the two learned senior counsel and suo motu adjourned all applications therein to abide the outcome of the main appeal in CA/A/390/2016.

Learned counsel for the Appellant based his arguments on two planks: first that the records of the said appeal had already been transmitted to the Court of Appeal and any further applications should also be transmitted to the Court of Appeal for determination. The second plank of his argument is that the Lower Court was in grave error to have called for the interpretation of Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011. On the first point which is the issue of jurisdiction of the Lower Court after an appeal has been entered in the appellate court, I shall refer to the words of the said Order which stipulate that an appeal shall be deemed to have been entered in the court when the record of proceedings in the Lower Court has been received in the Registry of the Court. In the case at hand judgment was delivered on the 6th day of June, 2016 in FHC/ABJ/CS/71/2016. On the 1st day of July, 2016 the appeal was duly entered at the Registry of Court of Appeal and assigned an Appeal No.CA/A/390/2016.

The presumption is that the said appeal is deemed duly and properly entered in the Court of Appeal. The second arm or the said order is that after the appeal has been duly entered, and until it has been finally disposed of, the Court of Appeal shall be seised of the entire proceedings and any applications thereafter shall be made in the appellate court.

The Rules have also made provisions for any application to be filed in the court below but for onward transmission to the Court of Appeal. In the case of SHELL PETROLEUM DEV. CO. LTD. v. OJIOWHOR MONDAY AMADI & ORS. 2011 LPELR 3204. The Apex Court stated thus:

“The general rule is that after an appeal has been entered; all other applications can ¢ be made in the appellate court, even though application may be filed in the court below for proper transmission to the Appellate Court”.

The Supreme Court further expantiated the tact that even the Court of Appeal will cease to have juris to hear any application when the records of appeal will have been received in the . Supreme Court who then has the sole juris to deal with all matters both interlocutory and otherwise.

It is worthy of note that the rules of court are the guiding watchdogs of proceedings and must be strictly adhered to. See KAF ARU AROWOLO & ORS V. NAVY CAPTAIN ABIMBOLA ADESINA (2010) LPELR 4384.

Also in the case of ABRAHAM ADELEKE & OR. V. OYO STATE HOUSE OF ASSEMBLY & ORS. (2006) LPELR 7655,this court held that as soon as an appeal is entered in the appellate court, it becomes fully seised of the matter and from thence forward, the court becomes dominus litis having full and complete dominion over all processes filed and ensuing proceedings to the exclusion of the Lower Court.

Also an appeal is deemed as having been duly entered as soon as all salient records are transmitted to the registry of the appellate court which cannot be heard to be competing with the Lower Court over any application in respect of the appeal. See also DUKE V. DUKE (2014) LPELR 2309; AJIBADE AINA & ORS. V. TIKA TOR PRESS LTD. (1968) 1 ALL NLR 210.

Learned senior counsel for the 1st Respondent in his brief of argument at page 5 stated that where there is an interlocutory appeal and motion for stay of proceedings and records are transmitted to the appellate court, and there is evidence of such before the trial court, it ceases to have jurisdiction except where the application is filed before the Court of Appeal where the applicant is enjoined to show exceptional circumstances where the application cannot be filed in the trial court.

He then referred to Order 7 Rule 3 & 4 of the Court of Appeal Rules. Let me also make referenqe to the said Order which clearly states as follows:

RULE 3:

“Wherever an application has been refused by the court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal”.

RULE 4:

“Wherever under these Rules an application may be made either to the court below or to the Court, it shall not be made in the first instances to the Court,. except where there are special circumstances, which make it impossible or impracticable to apply to the court below”.

We do not require the services of any soothsayer to read in-between the lines of Order 7 Rule 3 of the Court of Appeal Rules 2011 as cited supra.

It simply means that where an application has been heard and refused by the Lower Court, then such an application may be made to the Appellate court within 15 days after its refusal. In this instance the application even though made in the court below has not yet been determined. The Lower Court merely adjourned all the applications before it to abide the decision of the Court of Appeal. Rule 4 enjoins the applicant to first make such an application to the court below except in special circumstances which makes it impossible or impracticable to apply to the court below.

Like I stated earlier, no application had been decided upon in the Lower Court and the special circumstance here is the fact that the appeal had already been entered in the Court of Appeal and by Order 4 Rules 10 and 11 the Federal High Court had ceased to have jurisdiction to entertain any application in that court.

The learned judex of the- trial court however claimed jurisdiction to entertain the application before it. In his words at page 244 of the records he stated thus:

“The summary of my finding here is that I have jurisdiction to entertain a motion for stay of execution of the judgment of this court whether or not an appeal has been entered because it is an appeal against final decision that has been entered and not appeal against interlocutory decision that has been entered this distinction must be made because once an appeal against interlocutory decision of the trial court has been entered at the Court of Appeal, the trial court ceases to have jurisdiction to take any application filed before it but where it is an appeal against final decision that has been entered at the Court of Appeal,¢ there is nothing pending at the trial court that the Court of Appeal is to be seised of except the motion for stay of execution of the judgment that statutorily the trial court is enjoined to entertain it first”.

I am indeed not enthused by that decision of the trial court. It appears that the Lower Court has made a summersault of the law and his decision to continue until the application based on a final decision of the Lower Court is¢ indeed most appropriate. In an application against a final decision, once the appeal is entered in the appellate court, there is indeed nothing before that court to be heard or determined as the records would have left the court below having been transmitted to the appellate court. I do not agree with learned senior counsel that there is no distinction between interlocutory and final decisions as envisaged in the Rules. It merely stands to reason that the Lower Court could have jurisdiction to continue with the substantive suit even when an interlocutory application is pending in the appellate court. This does not apply to final decisions. The Lower Court was clearly wrong to have assumed jurisdiction in that regard. Although Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011 which I too hold tenaciously to did not make any distinction between interlocutory and final appeals. However, the practice is that if an appeal is entered in the court of appeal against a final decision, the court below ceases to have jurisdiction as all records would have been transmitted to the appellate court. The Lower Court therefore had no business entertaining any such applications even by way of adjourning any matters to abide the outcome of the main appeal.

With regard to the second plank of appellant’s argument that the Lower Court ought not to have called on learned senior counsel to interpret Order 4 Rules 10 and 11 of the Court of Appeal Rules, I am in tandem with the argument of Learned Senior Advocate for the Appellant that the Lower Court has no jurisdiction to interpret the rules of a superior court when the wordings of the said rules are albeit clear and unambiguous. The Lower Court clearly acted ultra vires by that singular act.

It is my ardent view that whenever a rule or legislature is clear and unambiguous, there is indeed no need for any further interpretation. All the Lower Court needed to do was to simply give effect to it and not to embark on any canon of interpretation.

In the case of FEDERAL REP. OF NIGERIA V. CHIEF JOSHUA C. DARIYE (2011) LPELR 4151. This court stated as follow:

“It is trite that once the provisions of the Constitution or statute are clear and unambiguous, a court should deploy the literal rule of interpolation and give them their ordinary grammatical meanings without any interpolation or embellishment. The reason for adopting or employing the literal ca!”on of construction is simple. The function of the court, or its alter ego, the Judges, is jus dicere, not jus dare, that is, to declare the law not to make one. This timeless literal rule, which triumphed over the golden rule after months of ancient struggle for superiority, does not allow a court to stray away or sniff around for meanings of provisions beyond the legislation itself. The rule has been recognized in a legion of cases, see A. – G., Fed. v. Abubakar (supra);

Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1 001) 76; Nigerian Army v. Aminu-Kano (supra); Action”.

From the totality of all of the above summation the sole issue is hereby resolved in favour of the Appellant against the 1st Respondent. Consequently, this appeal is deemed meritorious and is hereby allowed.

Accordingly, the decision of the Lower Court delivered on the 8th day of July, 2016 is set aside. Cost of N100,000.00 is awarded in favour of the Appellant against the 1st Respondent.

Other Citations: (2016)LCN/8977(CA)

Basil E. N. Ofole V. Dr Samuel E. N. Ofole & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A.

On the 21 – 10 – 1982, the appellant herein with one Gabriel N. Ofole, as plaintiffs, filed a claim and caused a writ of summons to issue on the same date commencing suit No 0/378/82 in the High Court of Anambra State at Onitsha against the respondents herein as defendants claiming for –
(i) A declaration that the 1st plaintiff as the Okpala of Late Johnson Ofole is entitled to call in all the properties of Late Johnson Ofole to be distributed amongst his children in accordance with the customary law of Eziowelle.
(ii) An order of the Court for the partition and distribution of all the properties of late Johnsons Ofole amongst his sons in according to Eziowelle customary law.
(iii) N500,000.00 or No. 19 Francis Street, Onitsha to be given to the 2nd plaintiff as compensation for the huge sums of money which he spent in renovating and rehabilitating the properties and maintaining them especially after the damages to properties during the civil war.
(iv) An order of injunction restraining the 1st Defendant from further managing or controlling the

properties to the exclusion of the plaintiffs before the said partition and distribution are finally effected.

After both sides had filed and exchanged pleadings as follows-statement of claim filed on 4-3-83 and statement of defence filed on 27-6-83, they opted to settle the dispute amicably.

On 22-9-1987 they filed their agreed terms of settlement in the trial Court. It was signed by all parties to the suit. The exact of the said terms of settlement is reproduced here as follows- ”
Having received the support of this Honorable Court to co-operate in effecting settlement of this case out of Court amicably and pursuant to the opportunity so offered, Barrister G.F.I. Eonu S.A.N. for the defendants and Barrister Ben. O. Anyaduba and O.C. Igwealor for the plaintiff met and discussed. A letter was written by the leading counsel for the plaintiff Ben. Anyaduba Esq. to senior Advocate of Nigeria Barrister R.R.I. Egonu on 11/2/87 to summon a meeting where the lawyers could put their heads together and assist the disputants to reach a final settlement with members of the family (disputants) who all agreed to attend and did attend the settlement on

Tuesday, 17th March 1987 at N. 40 New market Road, Onisha chambers of the Senior Advocate of Nigeria by 5 pm.
Having ventilated their feelings, regrets and misgivings after much heated arguments and when tempers died down, the parties went into proposals for settlement, on a quid pro quod basis. IT IS RESOLVED AS FOLLOWS that the properties which form the core and that is to say, the subject matter of this litigation should be shared and distributed as follows:-
1 Dr.SAMUEL N. OFOLE – should take No. 9A new Market Road. Onisha.
2. MR. SYLVANUS I. OFOLE – should take N0.18 Bright Street, Onitsha.
3. Mr. BASIL E.N. OFOLE- should take one half share of No. 19 Francis Street Onitsha.
4. MR. DAVID I. OFOLE – should take the other half share of No. 19 Francis Street, Onitsha. The said premise is made up of 6 flats and 8 shops on the ground floor.
5. MR. CHRISTIAN N. OFOLE SHOULD take No. 8 Modebe Street, Onitsha
And in addition should be paid the sum of Thirty-Five thousand Naira (N35,000.00) from the estate,
6. To GENERATE the necessary fund it is resolved that the Bida Road property should be sold off and the money realized

there from ”

On the same 22-9-1987 the trial Court entered judgment in the suit on the basis of the said terms of settlement.

By a motion on notice dated 5-10-1990 and filed on 10-10- 1990, Gabriel N. Ofole, (1st plaintiff,) applied for –
(a) An Order of the Honourable Court staying execution of the consent judgment delivered on 22/9/87 by the honourable Justice J. G. O. Aneke.
(b) A further Order of Court that none of the parties to the said suit i.e.Suit No. 0/378/82 shall take benefit, alienante dispose of or in any other manner seek to change the character or title of any of the property contained in the consent judgment until the estate debt and expenses shall have been first determined and settled as per the said judgment.
And for such order or other orders as the honourable Court may deem fit to make in the circumstance.”

It is supported by an affidavit of 19 paragraphs sworn to by the appellant herein. The 1st respondent herein swore to and filed a counter affidavit of 27 paragraphs opposing the above application. The appellant swore to and filed two further affidavits in response to the said counter affidavit.

On 21 – 3 – 1994, Learned Counsel for the plaintiffs informed the trial Court that Gabriel N. Ofole was dead and applied for his name to be struck out. The trial Court accordingly struck out the name of the late Gabriel N. Ofole from the action.

On 17-10-1994, the trial Court determined the said application, ruling that there is no basis for the application, that it lacks merit and dismissed same.

Dissatisfied with the said ruling of the trial Court, the appellant on 26-10-1994 commenced this appeal No CA/E/72/99 by filing a notice of appeal containing eight grounds for this appeal.

Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised the following issues for determination –
1. Is the Learned trial Judge right to hold that execution of a judgment can be stayed only when there is an appeal?
2. Was the appellant given a fair hearing by the learned trial Judge?

The respondents adopted the said issues for determination in the appellant’s brief.

?I will determine this appeal on the basis of the issues raised for determination in the

appellant’s brief.

Learned Counsel for the appellant argued under issue no. 1 that the consent judgment imposed an obligation on the parties to sell the Bida Road property and use the proceeds from the sale to pay the estate debts and expenses, that the respondents appropriated the proceeds from the said sale and did not pay the estate debts including the debt owed to the appellant by the estate, which he said is N500, 000.00 he spent in repairing the buildings destroyed during the civil war, that it is for the above reason that the appellant applied for an order that the execution of the consent judgment be stayed pending the determination and settlement of the estate debts and expenses and an order that the parties be restrained from alienating or meddling with the estate until the said estate debts and expenses are determined and settled, that this Court should hold that the determination and settlement of the estate debts and expenses is one of the incidences of legal occurrence that can warrant the grant of an application for an order of stay of execution of a judgment as it arises naturally from the proceeding and judgment of 22-9-87 , that none of

the parties should take benefit of the judgment without the estate debt and expenses being first determined and settled.

Learned Counsel further argued that he did not appeal against the consent judgment because he was satisfied with it, that he is only complaining of the non implementation of one of the terms of the consent judgment, that he did not apply for the stay of execution of judgment pending the determination of an appeal therefrom because he did not appeal against the judgment, that the execution of a judgment can be stayed even when no appeal is pending in certain circumstances such as the occurrence of a legal incidence which naturally arises from the proceeding and judgment of the trial Court. For the above submission, Learned Counsel relied on Order 25 Rules 9 and 10, High Court Rules of Anambra State 1988, Oladapo V ACB Ltd. (1950) 13 WACA 100, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644, Olayinka V Elusanmi & Anor (1971) 1 NWLR 277 and Inter-Contractors V UAC (1988) 2 NWLR (Pt 76) 324.

Learned SAN, for the respondents argued in reply that prayer 2 of the appellant’s application clearly suggests that there is nothing in the

consent judgment indicating that there is a condition precedent to its execution, that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment, each party to whom property was allocated ought to assume responsibility for any property rates, if any, due on the property allocated to him under the judgment. Apart from general allegations, the applicant has not established how the sum of N500, 000.00 was due to him from the estate”. The Learned SAN submitted that the correctness of the said part of the ruling became implicitly admitted by the absence of a ground of appeal complaining against it, that no valid issue can be raised to determine its correctness and all argument in respect thereto should be discountenanced and struck out.

Another argument of the Learned SAN is that the order of stay of execution of the judgment prayed for is indefinite as it is not limited to the occurrence of an event such as the determination of an appeal against the judgment, that there is no rule of Court in Anambra State that provides for

such indefinite order of stay, that the then applicable High Court Rules 1988 provided only for stay of execution of Judgment or proceedings pending an appeal against the judgment and that the trial Court correctly held that a stay of execution of a judgment can only be predicated on the pendency of an appeal against the judgment sought to be stayed,

Learned SAN also submitted that the appellant wrongly relied on the judicial authorities of Olayinka V Elusanni & Anor (1971) 1 NWLR 277, Oladapo V ACB Ltd. (1950) 13 WACA 100, Deduwa V Okorodudu (1974) 6 SC 2 and Lijadu V Lijadu (1991) 1 NWLR (Pt 169) 627 at 644 as they do not support the argument of the applicant.

Let me now determine the merit of the above arguments of both sides.

The Learned SAN for the respondents correctly submitted that there is no ground of this appeal complaining against the holding of the trial Court that “all the properties comprised in the said estate have been distributed according to the consent judgment and there is nothing for which a stay of execution of the judgment”(sic), It is settled law that by not appealing against the above holding, the parties herein

accepted the holding as correct, valid and binding upon them. See Iyoho V Effiong (2007) 4 SC (Pt 111) 90, Amale V Sokoto L. G. & Ors (2012) LPER – 7842 (SC), SPDC Nig Ltd. V Edamkue & Ors (2009) LPER 304 (SC) and Biariko & Ors V Edeh – Ogwuile (2011) 4 SC (Pt II) 96.
?The legal consequence of the appellant’s acceptance of this holding as correct and valid is that there was no basis for the application for stay of execution of the consent judgment and therefore this appeal is rendered unarguable. The appellant, having accepted as correct the holding of the trial Court that all the properties comprised in the estate had been distributed according to the terms of the consent judgment and that therefore that there is nothing in respect of which a stay of execution of the judgment could be made, cannot validly argue in this appeal as he has done, that the order of stay of execution of the judgment should have been made. A party who did not appeal against a holding or decision in a judgment or challenge it by any other legal process, cannot, in an appeal against the judgment argue contrary to that holding or decision. Such an argument is invalid. See

NBCI V Integrated Gas Nig. Ltd & Anor (2005) LPER – 2016 (SC), Amale V Sokoto LG &Ors (Supra) and Dabup V Kofo (1993) (NWLR (Pt 317) 254 at 269.
Another consequence of the acceptance of the correctness of the above quoted holding of the trial Court is that the appellant’s argument in its brief that the trial Court should have granted the second prayer in the application before it is rendered futile and invalid. An order that none of the parties to Suit No. 0/378/82 shall take benefit of any of the property in the consent judgment until the estate debts and expenses shall have been first determined and settled can no longer be made since all the said properties had already been distributed according the terms of the consent and the execution of the said judgment thereby completed. The parties to the suit had already taken benefit of the properties which were subject of the consent judgment so their taking of benefit of the said properties could no longer be restrained. In any case prayer 2 of the application is in substance the same with prayer 1 therein as it has the same effect of stopping the execution of the consent judgment. The appellant having

accepted as correct the holding of the trial Court that there was no basis for an order staying execution of the consent judgment since all the estate properties had been distributed to all parties, cannot validly argue that the trial Court should have restrained the parties to the suit from taking benefit of any estate property until the estate debts are determined and settled. Such an argument would be contrary to said holding he had accepted as correct and valid and is therefore incompetent.

It is settled law that an order to restrain an act or the occurrence of an event cannot be made after the act or occurrence of the event. Such an order would be baseless and futile. Therefore after properties had been distributed to the parties to a suit or sold to third parties in the execution of a judgment, an order to stay the execution of the judgment or restrain the parties from taking benefits of the judgment properties cannot be validly made. See John Holt Nig. Ltd V Holts Worker’s Union of Nigeria and Cameroon (1961), 1 All NLR 379 or (1963) 2 SCNLR 383 (SC), Adelaja & Ors V Ogunyade (2000), 2 NWLR (Pt 645) 376 at 384 (CA) and UBN Ltd. V Edamkue & Anor

(2003), LPELR ? 6190 (CA).

Learned Counsel for the appellant has argued in the appellant’s Brief that – “The respondent sold the Bida road property as agreed but instead of using the proceeds to settle the appellant of the expenses of 500, 000.00 which he incurred in the repairs of the properties damaged during the war and property rates he paid in respect of some of the properties they appropriated the money to themselves.
After waiting endlessly for the respondents to implement fully the terms of settlement, the appellant in 1990 filed a motion to stay the execution of the consent judgment” This argument is not supported by the terms of the consent judgment. There is no term therein entitling the appellant to the payment of the sum of N500,000.00 or any sum of money as the expenses he incurred in repairing the estate properties destroyed during the civil war. The terms of settlement and the judgment based thereon merely state that “the Bida Road Property should be sold off and the money realized there from should be ploughed into the settlement of the estate debt and expenses”. There is nothing in the terms of settlement or consent

judgment stating or indicating that the parties settled and agreed that appellant expended any such money in repairing the estate or that they had agreed that he be paid his said expenses from the proceeds of the sale of the Bida Road property.

Paragraphs 25 and 26 of the statement of claim in Suit No 0/378/82 had stated thusly –
“25. After the civil war when the plaintiffs returned to Onitsha they discovered that No. 18 Bright Street Onitsha, (A New Market Road, 3A Bright Street, No 19 Francis Street Onitsha and No 6 Mobebe Avenue Onitsha were all damaged during the war.
26. 2nd Plaintiff expended large sums of money in reconstructing renovating rehabilitating and developing the said damaged properties.”

The respondents in Paragraph 21 of their statement of defence denied the above averments thusly-
‘In answer to Paragraph 215 of the statement of claims, the defendants aver that 19 Francis Street, Onitsha was not damaged during the Nigerian Civil War or at any other time. With advance rents collected from tenants, the damages to 18, Bright Street, Onitsha and 9A New Market Road, Onitsha, were repaired.’

The parties to the suit

did not settle and agree on this claim in their terms of settlement contained in the consent judgment. Since it was not settled and agreed on by the parties in their terms of settlement, it means that both sides did not agree that the appellant incurred any such expenditure. The appellant clearly abandoned or waived the same claim by signing the terms of settlement that did not acknowledge and agree that he expended such money on the estate and so was entitled to the reimbursement of same. The consent judgment is meant to give legal effect to the terms of settlement. The parties to the suit can only enforce the rights and interests adjudged by the judgment as theirs. The consent judgment did not adjudge that the appellant incurred expenses in respect of the estate property, that the estate was indebted to him and so was entitled to be paid such debt by the estate. So, the judgment did not give him a right to be paid N500, 000.00 or any other sum by the estate. So, he had no legal right to employ the judicial process to cause the estate to pay him such money as a judgment debt accruing to him under the consent judgment because no such judgment debt exists in

the consent judgment.

The “estate debt and expenses” in clause 6 of the terms of settlement and the consent judgment required to be settled from the proceeds of the sale of the Bida Road property are not specified therein. This portion of the terms of settlement and consent judgment cannot be invoked by any of the parties to the suit to reassert his entitlement to a payment he claimed in the pleadings and gave up during settlement. The lack of specificity of “the estate debt and expenses” to be settled under the consent judgment cannot be exploited to reopen a claim that had been abandoned under the guise of the enforcement of the consent judgment. In any case, if the appellant insists that the estate is indebted to him and that he is entitled to the benefit of the said clause 6 of the terms of settlement as contained in the consent judgment, then he has to first prove the existence of such a debt and then claim for its recovery. This can only be done by a fresh originating action and not by a post judgment interlocutory process in the suit in which the judgment was rendered.

The appellant in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 of his affidavit

in support of his application deposed that –
7. That if any of the parties had as much as mounted any form of opposition to any proposal, I would never have subscribed to the consent judgment.
8. That the defendants fully appreciate that I spent not less than the sum of N500, 000.00 between 1970 when the war ended till the date of the consent judgment on the following properties which form part of our late father’s estate viz; No. 18 Bright Street Onitsha, no. 9A new Market Road, Onitsha, No 3A Bright Street Onitsha, No. 19 Francis Street, Onitsha and No. 8 Modebe Avenue Onitsha.
9. That I had settled the property rate in respect of most of these property from my personal account up to when the consent judgment was entered and it was in agreement between the parties that I shall be recompensed fully from the proceeds of sale of some of the property.
10. That up till now in spite of the agreement and the further fact that it is contained in the consent judgment. I have not been paid even a kobo nor any of the property

The 1st respondent herein in response to the above averments deposed in Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 11 and 12 of

his counter-affidavit that –
3. That a consent judgment based on terms of settlement between the parties to this suit and the solicitors acting for them has been entered in this suit before the honourable justice J. G. O. Aneke on the 22nd day of September, 1987,
4. That a copy of the terms of settlement upon which the said consent judgment of September 22, 1978 is hereto exhibited and marked Exhibit A and the certified true copy of the consent judgment and is Exhibited as Exhibit B.
5. That all parties to the said consent judgment have since taken control of the properties given to them in the said judgment and have been dealing in them as owners thereof including the plaintiff/applicant.
6. That all duly ascertained estate debts and expenses have been settled.
7. That the application is in bad faith and a continuation of the attempts to render the judgment of this Court nugatory by the plaintiff/applicant.
8. That the applicant has since the judgment of September 22 1987 nether given notice of appeal nor has refused to take his own half share of 19 Francis Street Onitsha and has been enjoying quiet possession of the said 19 Francis Street, Onitsha.

9. That the only property which was according to the said consent judgment is to be sold is the one situate at Bida Road, Onitsha.
10. That the said property located at Bida Road Onitsha had been sold and the estate debts due settled from the proceeds which amounted to N35, 000.00 (THIRTY – FIVE THOUSAND NAIRA).
11. That some of the other beneficiaries under the same consent judgment of September 22, 1987 have already sold their properties or pledged or rented same out.
12. That the plaintiff/applicant participated in the consent judgment without any pressures or pre-conditions and is also enjoying peaceable ownership of his share of the said estate, to wit, and half of 19 Francis Street, Onitsha.”

?There is nothing in the terms of settlement stating that it was the understanding and agreement of the parties that the appellant expended his money on the estate properties, and that he shall be reimbursed whenever the estate debt shall be settled first before any person could claim any benefit from the estate. So the depositions in the above reproduced paragraphs of his affidavit in support of his application are not supported by the terms of

settlement and are therefore false. The consent judgment which is as per the terms of settlement did not adjudge so. There is therefore nothing in the consent judgment stating that it shall be executed or that the parties to the suit can take benefit under it only on the condition that the estate debts and expenses are first determined and settled.

So, the appellant’s application which proceeded on the false assumption or suggestion that the consent judgment stipulated such a condition precedent to its execution was ab initio ill fated.

Let me now deal with the issue of whether the execution of a judgment can be stayed in the absence of pending appeal.
Ordinarily, the execution of a judgment can only be stayed pending the determination of a pending appeal or other legal process challenging the judgment or the execution of the judgment.
The cases of Olayinka V Elisanmi & Anor (Supra), Deduwa V Okorodudu (Supra) and Lijadu V Lijadu (Supra) relied on by the Learned Counsel for the appellant support my above proposition. See also Intercontractors V UAC (Supra) cited by Learned SAN for respondents and Dingyadi V INEC (No 2) (2010) LPELR – 952

(SC).But where no appeal against a judgment is filed or pending, but there is a legal process challenging the validity of the judgment or seeking to set it aside for certain reasons or there is legal process challenging the execution of the judgment or seeking to set it aside for certain reasons, then the execution of the judgment can in appropriate circumstances be stayed or suspended pending the determination of the legal process. In our present case there was no pending appeal against the consent Judgment and there was no pending legal process challenging the validity of the judgment or its execution. So the application for stay of execution of the consent judgment was not anchored on any existing valid legal process. It is therefore incompetent.

In the light of the foregoing, issue No. 1 in the appellant’s brief is resolved in favour of the respondents.

I will now determine the appellant’s second issue which asks
“Was the appellant given a fair hearing by the learned trial Judge?”

?Learned counsel for the appellant started his argument of this issue by stating the facts forming the basis of the complain under this issue. He stated thusly –

“On issue No. 2 which is based on ground 2 of the further grounds of appeal. Appellant argued that he was denied of fair hearing by the lower Court during the argument on the motion for stay of execution dated 5th October, 1990. It is the case of the Appellant that on the 12th day of September 1994, the learned trial judge called up the motion for argument. Appellant Counsel was not in Court Appellant informed the Court that his counsel’s absent in Court was owing to ill-health and applied for adjournment to enable his counsel be in Court to argue his motion. The trial Court instead of adjourning the motion compelled the Appellant who is a layman to move the motion in the absence of his counsel personally. Appellant argues that this is a clear case of denial of fair hearing?

I agree with the argument of learned SAN for the respondents that the events alleged in the above quoted address of learned counsel for the appellant are not supported by the record of the proceedings of the trial Court on 12-9-1994. The record of the proceedings which is at pages 42 – 43 of the record of this appeal did not state that the trial Court called up the motion

filed on 10-10-1990 for argument. The record of the proceedings of 18-7-1994 at page 41 of the record of this appeal state that in the presence all existing parties and their respective counsel the motion was adjourned to 12-9-1994 for definite hearing. The record of the said proceedings at page 42 of the record of this appeal state that “G. A. M. applicant says he relies on all paragraphs of his affidavit dated 10th October 1990 to support his application, urges to grant prayer in the motion paper. Says he was not paid N5000,000 cost of building the house.” The record do not state that the appellant explained his counsel’s absence from Court or informed the Court that his counsel’s absence in Court was owing to ill health or any reason and do not state that the appellant applied for adjournment to enable his counsel to be in Court to argue his motion.

The said records do not state that the trial Court compelled the appellant to personally move the motion in the absence of his counsel. The records do not state that the appellant is a layman. Even though the record of the proceedings of 12-9-1994 do not state the occurrence of these events, learned counsel

for the appellant has alleged their occurrence in his above quoted address and based his entire argument of this issue on these alleged events.

The appellant has not challenged the record of the proceedings of 12-9-1994 as contained in the record of this appeal as incomplete and inaccurate and has not applied to amend the record of this appeal to include the alleged events as part of the proceedings of the trial Court on 12-9-1994. Learned SAN for the respondents correctly stated the law which is now settled that the record of the proceedings of the Court as contained in the record of an appeal binds both the Court and the parties to the appeal and is the only legally recognized basis for the arguments and determination of the appeal. So allegations of events not contained in the record of proceedings are not valid for consideration and the appellate Court must determine the appeal only on the basis of what is apparent on the record see Idemudia v State (1995) 55c (pt 11) 110, Summer & Ors V FHA (1992) since 73, Fawehinmi Co. LTD V O.A.U (1998) 5SC 43 and Owope V Osanibi & Ors (2009) LPELR 3954 (CA)

The record of the proceedings of a Court is

presumed correct and accurate until the contrary is shown. The burden of rebutting its correctness and accuracy is on the party alleging that it is not correct or accurate. See Ogli Oko Memorial Farms Ltd & Anor V NACB LTD & Anor(2008) 34 NSCQR (pt 11) 157 in which the Supreme Court held that “Any person who is contending that the record of proceedings before an appellate Court is not a fair record of what happened at the Court of first instance must first formally impeach the record of proceedings,
Where the record of proceedings is not formally impeached, it is not open to the appellate Court to speculate that other things happened in the trial Courts which were not recorded in the record of proceedings.
See also Agbeofu V Brisibe & Ors (2004) LPELR- 7377 (CA).

Through the cases, it is settled that the appropriate method by which the record of proceedings of a Court can be impeached is by the filing of a sworn affidavit of the facts or events omitted from or wrongly stated in the record and serving the affidavit on the other parties to the case and the judge or registrar of the Court whose record is being impeached to avail him or

her an opportunity to respond thereto by a counter affidavit. See Peremolize Nig Ltd & Anor v Globe Motor’s Holding Ltd (2007) LPELR – 4840 (CA), Akwa v COP (2003) 4 NWLR (pt 811) FHA Supra).
Since the appellant has not formerly impeached the record of the proceedings of 12-9-1994, by an affidavit of the events that occurred in the trial Court on that day which are not recorded in the record of proceedings, the allegations of such events in the address of learned counsel for the appellant are not valid for consideration in this appeal and this Court cannot speculate that such events occurred when they are not recorded in the record of proceedings. The arguments of issue No.2 which are based on the alleged occurrence of events not recorded in the record of proceedings are speculative and invalid.

There is nothing in the record of proceedings that show an infraction of the appellant’s right to fair hearing during the proceedings of 12-9-1994. The motion on notice filed on 10-10-90 had suffered several adjournments. On 18-7-1994, it was, in the presence of all parties and their counsel, adjourned to 12-9-1994 for definite hearing. On that day, even

though appellant’s counsel was absent, appellant did not inform the Court the reason for his absence and did not apply for adjournment to enable his counsel attend Court and argue his application. The record show that he argued the motion without any prompting from the Court and made no application for adjournment to enable his counsel attend Court and argue his application. There is nothing in the record of proceedings of 12-9-1994 showing or suggesting that the appellant was deprived the right to present his case through his counsel.

Learned counsel for the appellant had argued that “Appellant concedes that there was nowhere in the record of proceedings where his application for adjournment was recorded but argues at the same time that even if there was no application for adjournment on the part of the appellant, the learned trial Judge should have suo motu, pursuant to Order 24 Rule 7 of the High Court Rules Anambra State 1988, adjourned the motion to another date to enable the appellant procure the services of the same or another counsel to argue the motion in view of the fact that an application for stay of execution involves complex issues of law

for which the appellant was not legally equipped. Following this submission, learned counsel reproduced the provisions, now corrected as Order 23 Rule 7, as follows
“The Court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the question between the parties on the merits and is not made for the purpose of mere delay. The postponement may be made on such terms as to the Court may seen just.?
This provision does not support the argument of learned counsel for the appellant. The motion was adjourned to 12-9-1994 for definite hearing in the presence of all the parties and their respective counsel. There is no law requiring the Court in a civil case to suo motu adjourn it from the date it was fixed for definite hearing because learned counsel for the applicant who was aware that the matter was coming up that date for definite hearing chose to be absent without reason, even though the applicant who is present willingly moves his motion without insisting on the presence of his counsel and did not ask for an adjournment to enable his counsel

to attend Court and present his case.
In civil proceedings, when an application or any matter is adjourned in the presence of a party and his counsel or either of them to a named date for definite hearing, the absence of the party or his counsel from Court on the date the matter is fixed for definite hearing cannot prevent the Court from proceeding with the hearing of the application or matter if it chooses to. The reason is that the said party and or his counsel had reasonable notice of the said date for the said definite hearing and had reasonable opportunity to be heard in the matter. No legal duty is placed on the Court to mandatorily further adjourn the matter due to the absence of the said party and or his counsel. The Judicial authorities of Agbaponwu V Agbapuonwu (1991) 1 NWLR (pt 165) 33, Ntukidem & Ors v Oko & Ors (1986) 5 NWLR (pt 45) 909, Ebele & Ors v Ikwelki & Ors (1995) 7 NWLR (pt 405) 91 and Adigun V A – G of Oyo State (1987), NWLR (pt. 53) 678 relied on by learned counsel for the appellant for his argument of issue No. 2 are inapplicable and therefore irrelevant to this case. In each of the Agbapuonwu, Ntukidem and Ebele

cases, there was an application for adjournment that was refused and the appellate Court had to determine if such refusal was proper. That is not the case here in which the appellant who did not apply for adjournment moved his motion and now on appeal contends that the trial Court should have suo motu adjourned the hearing of the application since his counsel was absent.
In Adigun’s case, the record of proceedings showed clearly that the complaining party was not heard before the decision of the commission of inquiry which affected his interest. That is not the case here.

In the light of the foregoing, I resolve issue No.2 of the appellant’s brief in favour of the respondents.

On the whole, this appeal fails as it lacks any iota of merit. It is accordingly dismissed.

?The ruling of the High Court of Anambra State sitting at Onitsha in suit No. 0/378/82 delivered on 17-10-94 by C.J. Okoli J is hereby affirmed and upheld. The appellant shall pay cost of 50,000.00 to the respondents.

Other Citations: (2016)LCN/8976(CA)

Keystone Bank Limited V. Okeb Nigeria Limited & Anor (2016) LLJR-CA

Keystone Bank Limited V. Okeb Nigeria Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A.

This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered by Honourable Justice M.M. Dodo on the 8thof March, 2012. The appellant dissatisfied appealed by a notice and grounds of appeal dated the 20th of April, 2012 but filed on the 24th of April, 2012.The grounds shorn of their particulars are:-
GROUND ONE:
The Learned Trial Judge erred in law when he set aside the sale of the filling station mortgage to the Appellant by the 1st Respondent as security for overdraft facilities granted to it by the Appellant.
GROUND TWO
The Learned Trial Judge erred in law when he held that Exhibit D was invalidated by Exhibit B executed between the Appellant and the Respondents.
GROUND THREE:
The Learned Trial Judge erred in law when he came to the conclusion that an unincorporated legal entity cannot be a party to a purchase transaction contrary to Section 72 of the Companies and Allied Matters Act, 2004, dealing with pre-incorporation contracts.
GROUND FOUR:
The Learned Trial Judge erred in law when he held

the sale transaction between the Appellant and Al Qudus Global Services Limited was a fraud without any proof of same beyond reasonable doubt.
GROUND FIVE:
The Learned Trial Judge erred in law when he awarded the sum of N76,014,800.00 (Seventy Six Million, Fourteen Thousand, Eight Hundred Naira) to the Respondent as general damages for loss of earnings when the said award is inconsistent with the principles of law for the grant of special damages and, therefore, unjustified.
GROUND SIX:
The Learned Trial Judge erred in law when he dismissed the Appellant’s Counter-claim on the ground that the Counter-claim was abandoned by the Appellant.
GROUND SEVEN:
The judgment of the trial Court is against the weight of evidence.

Dr. Joseph Nwobike, SAN of counsel to the appellant in his brief dated the 26th of May, 2015 and filed on the 27th of May, 2015 formulated the following issues for determination on behalf of appellant
1. Whether on a proper consideration of the documentary and oral evidence led by the parties at the trial Court, the decisions leading to and the order setting aside the sale of the Filling Station is unjustified.

(Grounds 1, 3 and 4).
2. Whether the decision of the learned trial judge invalidating the Deed of Legal Mortgage (Exhibit D) is altogether erroneous and unjustified in law. (Ground 2).
3. Whether or not the learned trial judge fell into a grave error when he held that the Appellant’s Counter claim was abandoned. {Ground 6}
4. Whether the award of damages in the sum of N76,014,800.00 is justified.

The following issues were formulated for the respondents in the brief settled by P. A. Akubo, Esq. SAN, of counsel:
1. Whether upon proper consideration of oral and documentary evidence led by the parties before the trial Court, the learned trail judge was right or justified in invalidating the Deed of Legal Mortgage, to wit, Exhibit “D and setting aside the purported sale of 1stRespondent’s Filling Station. (Ground 1, 2, 3 and 4)
2. Whether the learned trial judge was right in dismissing the Counter-Cl3im of the Appellant. (Ground 6)
3. Whether having regard to the entire circumstance, the learned trial judge was right or justified in awarding N76,014,800.00 as Special Damages or loss of earning Per Annum with effect from

October, 2005 till judgment as claimed by the Respondents.

PRELIMINARY OBJECTION:
The respondents formulated the following issues for determination in their preliminary objection:
1. Whether the appeal vide the notice of appeal dated the 20th day of April, 2012 is not tantamount to abuse of Court process and liable to be dismissed having regard to an earlier notice of appeal dated and filed on the 27th of March, 2012 by the same appellant on the same subject.
2. Whether grounds 3 and 5 of the notice of appeal dated 20th day of April, 2012 are not altogether incompetent having not directly arisen from the judgment of the trial Court delivered on the 8th March, 2012.
3. Whether ground 7 of the notice of appeal dated 20th April, 2012 ought not to be deemed as abandoned and liable to be struck out there being no issue thereof for determination by the appellant.

The issues formulated in the preliminary objection were adopted by the appellants.

On issue one of the preliminary objection it is submitted for the respondent that it is abuse of Court process for the appellant to file a notice of appeal dated the 27th of March, 2012,

contained at pages 6 to 10 of the additional record compiled by the respondents, and yet again file another notice of appeal on the 24th of April, 2012 against the same judgment of the trial Court, contained at pages 926 to 930 of Volume 2 of the record of appeal; learned counsel referred this Court to OPEKUN V. SADIQ (2003) 3 NWLR Part 814 at 485, SARAKI V. KOTOYE (1992) 9NWLR Part 264 at 188, DINGYADI V. INEC 2 (2010) 18 NWLR Part 1224Page 154 at 195, HARRIMAN V. HARRIMAN (1989) 5 NWLR Part 1196 and OWONIKOKO V. AROWOSHAIYE (1997) 10 NWLR Part 523 page 61at 77.

In response, it is submitted for the appellant while referring to TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1SCNJ 61 and TUKUR V UBA (2013) 4 NWLR Part 1343 90 at 116 that the Position of the respondents is misconceived because a process which is valid and issued in exercise of a right cannot constitute an abuse of Court process.

It is trite in a long line of decided cases that there is nothing wrong with filing more than one notice of appeal by an appellant, and where the appellant decides to withdrew one of the two notices which are of the same nature, as was done in this case, his

process would not be an abuse of process; see; DIAMOND BANK LTD v P. I. C. LTD[2010] ALL FWLR (Pt. 512) 1098, 1126, C-F. In effect, an appellant canvalidlywithdraw one of the two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal, see also SAVANNAH BANK OFNIGERIA PLC v. CBN [2009] All FWLR (Pt. 481) 939, 969; conversely, even if he does not withdraw such a notice, it is within the right of the Court to proceed to deem the earlier one as abandoned; see FRN V. DAIRO (2015) LPELR-24303-SC; accordingly this issue is resolved in favour of the appellant against the respondent

On issue two it is submitted for the respondent that ground 3 of the notice of appeal challenges the conclusion of the trial Court to the effect that an unincorporated entity cannot be a party to a purchase transaction; yet there is no such conclusion throughout the judgment of the trial Court appealed against.

That also there is no such award or claim as in ground 5 which challenges the award of N76,014,000 to the respondents as general damages, and the particulars are incongruous, because the ground talks of general damages, while the

particulars talk of special damages; he referred the Court to SARAKI V. KOTOYE supra and contended that grounds3 and 5 are incompetent.

In response it is submitted for the appellant that ground 3 questions the decision of the Court contained at pages 923 to 924 of the record of appeal, and the trial Court did indeed make those findings.

That with regard to ground 5 it questions the award of N76,014,800 to the respondents, and a party has the right to challenge the decision of the Court where the Court fails to consider evidence or make specific findings; learned counsel referred the Court to GAMBLE CO. V. G.S. & D.IND. LTD (2013) 1 NWLR Part 136 page 409 at 455.

The grounds of appeal in this case have been reproduced in earlier parts of this judgment, and it is clear from pages 923 to 924 of the record of appeal that ground 3 questions the decision of the trial Court on specific findings therein; while ground 5 questions the award of N76,014,800 and therefore well within the right of the appellant to challenge same; accordingly, this issue too is resolved in favour of the appellant, against the respondents.

Issue number three was not

contested in the reply, for reasons of which it is accordingly resolved in favour of the respondent, against the appellant, ground 7 therefore is deemed abandoned.

The resolution of issue three in favour of the respondent, makes little or no difference to the preliminary objection, overall. because it is not a threshold issue.

The preliminary objection has no merit, and is accordingly dismissed.

Having dismissed the preliminary objection, I now proceed to determine the main appeal; on the issues formulated for the respondent, because they cover all issues arising aptly.

Issue One:
Whether upon proper consideration of oral and documentary evidence led by the parties the trial Court was right or justified in invalidating the deed of legal mortgage, i.e. Exhibit D, and setting aside the purported sale of the 1st respondent’s filling station.

It is submitted for the appellant that the burden to prove the allegations in Paragraphs 10, 11, 12 and 13 of the further amended statement of claim is on the respondents; and also that the trial Court nullified the sale of the filling station by the appellant to Al Qudus Ltd based on, a) Al Qudus

was not a juristic person as at the time of sale, b) the sale was undervalued, in view of Exhibits B and D8, when contrasted with Exhibit D4 and (C) invalid execution of Exhibit D.

It is further submitted for the appellant that the law does not require that the sale of mortgaged property must be to a juristic person; and the allegation of fraudulent transaction between the appellant and Al Qudus in respect of the sale was not proved, even though it was denied by the appellant; learned counsel referred the Court to NWOBODO V. ONOH (1984) 1SC 1and JULES V. AJANI (1980) 5.7 SC 96.

That there was nothing to show that the appellant knew that Al Qudus Global Services was not registered at the material time: this shows the respondents failed to discharge the burden placed on them by Section 135 (1) & (2) of the Evidence Act, 2011, as the evidence of fraud was not conclusive or compelling; learned counsel referred the Court to SANUSI V. AMEYOGUN (1992) 4 NWLR Part 237 Page 527.

Learned counsel submitted that the mere fact that the sale was undervalued is not sufficient to vitiate the sale in the absence of bad faith or collusion, he referred the

Court to EKA-EKET V. NIG. DEV. SOCIETY LTD & ANOR (1973) NSCC Vol.8 page 373.

That the respondentsdid not prove collusion or the current value of the property as at 2005 when it was sold; he referred the Court to HAMZA V. KURE (2010) All FWLR Part 539 page 1070 at 1090.

In response it is submitted for the respondents that Exhibit B is the basis of the claim end counter claim, and it constitutes a contractual agreement between the appellant and the respondents, and therefore binds both parties; learned senior counsel referred the Court to SAKA V. IJUH (2010) 4 NWLR Part 1184 at 431 .

That conditions stated in Exhibit B were not complied with because the deed of legal mortgage executed by the respondents in line with item 7 of Exhibit B was not tendered by the appellant, so also the consent of the appropriate authority to mortgage, as provided in item 9of Exhibit B was not admitted.

That for those reasons, the appellant lacked the capacity to exercise automatic right of sale in the absence of valid and subsisting deed of legal mortgage, learned senior counsel referred the Court to FBN PLC V. SONGONUGA (2007) 3 NWLR Part1021 Page

230 at 262.

That also the deed of legal mortgage, Exhibit D, stamped on 17th of February, 2003 and registered on the 3rd of April, 2003 was not registered with the Corporate Affairs Commission as conceded by DW1during cross examination, and the purported consent to mortgage obtained from the Abuja Municipal Council elapsed before the deed of legal mortgage was eventually registered.

That fraud was pleaded and particularized at Paragraph 13 of the further amended statement of claim; that the valuation report dated 31st April, 2001, Exhibit D8 indicates that the filling station was valued at N81 Million, end the depreciated value is N45 Million, and Exhibit B shows that the forced sale value of the property is N48.32million; yet by Exhibit D4, the appellant sold the property at N35,000 far less than the market value in Exhibit D8.

That also the property was sold to a non-existent, unregistered company at the time, i.e. Al Qudus Global Services Ltd; indicating collusion and want of good faith, learned senior counsel referred the Court to IBIYEYE V. FOJULE (2006) 3 NWLR Part 968 Page 640 at 655, OKONKWO V CCB NIG. PLC (2003) 8 NWLR Part 822 Page 347

at 388, EKA-ETEH V. NIG. HOUSING DEV. SOCIETY LTD & ANOR (1973) NSCC 373 at 381 and W.A.B LTD V. SAVANNAH VENTURES LTD (2002) 10 NWLR Part 775 at 432.

Learned senior counsel further submitted that the learned trial judge averted his mind to the standard of proof in respect of the allegation of fraud, and did not merely presume the sale as fraudulent simply because it was sold to an unincorporated entity.

The respondents pleaded and particularized fraud at Paragraph 13 of the further amended statement of claim, in the purported sale of the property in dispute to Al Qudus Global Services Ltd for the sum of N35,000,000, as per page 421 of Volume 1 of the record of appeal, and Paragraphs 1e, f, 3 and 5 of the amended plaintiff’s reply to the statement of defense dated 12th of March, 2010.

It is contended for the appellant that the appellant is not by law obliged to conduct a search to ascertain whether or not the 1st respondent is an incorporated company at the time it purchased the property in dispute, and also that even if the purchaser was not incorporated at the time of purchase it still can enter into valid contracts of purchase of land, learned

senior counsel relied on Section 72 of the Companies and Allied Matter Act, 2004; that also the appellants acted in good faith in the transaction that led to the sale of the property in dispute.

Fraud is a serious crime by any standard, and in civil matter where alleged, the particulars must be pleaded and proved strictly, see FABUNMI V. AGBE (1985) 1 NWLR (Pt. 2) 299.
Fraud implies a willful act on the part of anyone, whereby another is deprived, by illegal or inequitable means, of what he is entitled to; and for the purposes of civil law it includes acts, omissions and concealments by which an undue advantage is taken of another, See ADIMORA V. AJUFO & ORS. (1988) 1 NSCC. 1005.

In proof of the allegation of fraud, the respondent, as plaintiff relied on the valuation report on the properly in dispute, dated 31st of April, 2001 by Kuma and partners, Exhibit D8, which indicates that the property in dispute, a filling station, is worth N81 Million; a depreciated value of the same property is put at N45 Million.

This assessment was reinforced by the witness’ statement on oath of DW1, deposed to on the 3rd of March, 2009, see page 359 of the record of

appeal, volume 1.

Yet the appellant sold the same property to Al Qudus Global Services Ltd for N35 Million, see Exhibit D4, a letter dated the 30th of September, 2005.

In an effort to establish fraud, the respondent was able to establish at the trial that as at 30th of September, 2005, the purchaser of the property in dispute, Al Qudus Global Services Ltd did not exist, because it was not incorporated, having been incorporated at the Corporate Affairs Commission only on the 2nd of July, 2008, see Exhibits D9, Q and R; a clear three years after the purported sale of the property in dispute.

These evidence were not contradicted by the appellant, as defendant during trial. On the contrary, they were reinforced by the testimonies of DW1 during cross examination; see page 844, lines 12 to 16 and page 845 lines 17 to 20 of the record of appeal, Volume 2.

Faced with these brazen acts of deceit and lack of good faith in the transaction leading up to the sale of the property in dispute the trial Court was compelled to arrive at the conclusion that the whole transaction smacks of fraud or lack of good faith to say the least, sufficient enough to nullify

the transaction, as pleaded and particularized; see Section 135(1) (2) & (3) of the Evidence Act 2011 and ABATCHA v. KURASTIC NIG. LTD (2014) LPELR-22703-CA.

Where fraud has been established, as in the instant case, the transaction by which the purchaser bought the legal estate will, by application of equity, be cancelled; more so as this Court is satisfied that the conclusion of the trial Court is impeccably in accord with a long line of decided cases such as ABOYADE COLE V. FOLAMI (1956) 1 FSC. 66 and OWOSHO & ORS. V. DADA {1984} 7 SC. 149 AT PAGES 175-176.

The respondents clearly discharged the burden of proof placed on them by law; bearing in mind that proof beyond reasonable doubt is not proof beyond any shadow of doubt
The findings of the trial Court at page 922 lines 6 to 15 of the record of appeal cannot be faulted.

The contention of learned senior counsel to the appellant that the learned trial judge merely presumed the sale as fraudulent simply because it was sold to an unincorporated entity is furthest from the truth, because evidently, the trial Court had shown it is well abreast of the law. especially Section 72(1) of

the CAMA, 2004, which allows for a yet to be incorporated company to enter into a valid contract

The trial Court made it very clear that the ability of an unincorporated company to enter into a valid contract is not the issue here, but that the property in dispute was sold to a non-existent company, not unincorporated; see page 923 lines of 15 to 17 of the record of appeal, Volume 2.

To drive home the point, the trial Court put it eloquently when it held to the effect that it would not have found any fault with the transaction, if the mortgaged facility was sold to an individual or corporate body that was in existence at the time of the sale, see page 924 lines 2 to 4 of the record of appeal, Volume 2.

This Court finds it equally hard to agree with learned senior counsel to the appellant that the trial Court did not evaluate the evidence led in this case, see Paragraphs 5 11.6 09 and 8-01 of the appellant’s brief, not least because evaluation is essentially the function of the trial Judge who does not share this jurisdiction with the appellate Court, see IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT 822) 308 at 343, 344 and 346: but

because the trial Court did in fact evaluate the evidence, see page 919 line 12 to 15 of Volume 2 of the record of appeal, where it held in Part:
“This Court has carefully studied all the claims at the plaintiff; it has also carefully analyzed the defense put forward by the defendant, I have gone further lo scrutinized the exhibits tendered and admitted in Court and verily verified theoral and written evidence given by PW1, PW2, DW1and DW2 respectively for their importance.”

In the circumstances therefore, this Court finds that the trial Court was right in setting aside the purported sale of the property in dispute, and accordingly resolves this issue in favour of the respondents, against the appellant.

Issue Two:
Whether the trial Court was right in dismissing the
counter claim of the appellant.

The appellant’s counter claim is contained at pages 563 to 564 of Volume 2 of the record of appeal; wherein it claimed among other things N3,334,990.69 as at September, 2007.

It is submitted for the appellant that a counter claim is a separate action and subject to the same rules of Court with regard to pleadings, and where evidence

is led in support of a counter claim, the trial Court is bound to evaluate same; learned senior counsel referred the Court to DABUP V. KOLO (1993) 9 NWLR Part 317 Page 254 at 270.

That in this case, the trial Court did not evaluate the evidence of the two witnesses who testified in support of the counter claim, but simply concluded that the claim was abandoned and proceeded to dismiss same; when he had a duty to evaluate the oral and documentary evidence led in support of the claim: learned senior counsel referred the Court to MKPINANG V. NDEM (2013) 4 NWLR Part 1344 Page 302 at 321 and DRAGETANOS CONST. NIG. LTD V. FMV LTD (2011) 16 NWLR part 1273 page 38.

That no effort was made by the trial Court to put the evidence of both parties on an imaginary scale to determine which one of them is more probative within the context of the counter claim; learned senior counsel referred the Court to OTITO V. ODlLI (2011) 7 NWLR Part 1245 Page 108

Learned senior counsel further submitted that there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplate the payment of

interest on sum borrowed.In spite of which the trial Court failed to evaluate the evidence led in support of the counter claim; he referred the Court to ARAB CHEM V. OWODUENYI (2013) 10 NWLR Part 1361 at 101.

In response it is submitted for the respondents that appellant did not substantiate its counter-claim because the two witnesses that testified for the appellant destroyed the very foundation of the counter claim, while the respondent denied the counter claim.

A counter claim as the name suggests is an independent action by the defendant, and not part of the original action, though for convenience the two are tried together, there is no separate hearing for a counter claim; the plaintiff in a counter claim gives evidence on his pleadings which would include his reply to the counter claim, where such a plaintiff fails to do so, he would be deemed to have abandoned his defense to the counter-claim, see NWAENANG V. NDARAKE & ORS (2013) LPELR-20720-CA.

Abubakar Naseh testified as DW1. his statement on oath is dated 3rd March, 2009at pages 353 to 362, of Volume 1 of the record of proceedings deposed in part as follows:
“The plaintiffs

are still indebted to the defendant in the sum of N3,334,990.69 as at September, 2007”.

This same witness stated under cross examination that the 1st respondent had a credit balance of N6 Million, thus contradicting himself fundamentally.

The witness even went as far as admitting that he had not seen any facility in the sum of N3.3 Million granted to the respondents, when he said as follows at page 845 of Volume 2 of the record of appeal:
“The credit balance of N6 Million exist after the sale N62,792,255.53. From this balance there wasn’t any credit facility taken by the 1st plaintiff from our bank. This I have never seen! From this stand I haven’t seen any facilitates of N3.3m even after the sale of the filling station. It is only somebody who physically visited the site who could tell what was happening there at the station. I have never even compile any records regarding that”

The second of the two witnesses Maimuna Mohammed stated during her cross examination at page 860 of Volume 2 of the record as follows:
“Yes the Para of my witness statement on Oath are not born out of my 1sthand knowledge. Yes from this Exh.F2 the statement of

account the 31/08/2005 entry show recorded debit balance of N28,101,914.81k. Yes a bit below I can see a credit entry of N35M on 22/09/05. That brought the account to credit balance of N62,922,53k; I couldn’t see from the date any evidence of the 1st Plaintiff borrowing any money from the Bank. I saw no where the credit balance was ever paid to the Plaintiff. Yes the last 4 sheets of Exh. F2 the entry from October 2004 up to August 2005 reflected several credit entries by the 1st Plaintiffs to his account. Meaning that the account was book out. I never see any debit in his account reading N3,334,990.69k. I have never in charge of the 1st Plaintiff’s account”

It is equally important to bear in mind that the respondents denied counter claim of the appellant, at Paragraphs 2, 3, 4, 6, and 7 of the amended defense to counter claim. dated 12thof March, 2010 at pages 394 to 395 Volume I of the record of proceedings, in addition Exhibit D5 clearly denied liability in respect of the counter claim, see pages 330 to 331 of Volume 1 of the record of proceedings and 822 to 823 of Volume 2.

Now in view of these, the contention by learned senior counsel for the

appellant, at Paragraph 7.04 of his brief to the effect that the respondents admitted the indebtedness to the appellant in the sum of N28,122,593.18 at 30th September, 2005 counts for very little.

Furthermore the contention by learned senior counsel for the appellant, also at page 25 of his brief that: “there was evidence before the trial Court that the relationship between the parties was that of banker/customer relationship which envisages or contemplates the payment of interest on sum borrowed” with respect, loses sight of both the fact and law that even if there was evidence of banker customer /relationship, if there is no evidence of debt or indebtedness established. it would not be the place at the trial Court to “envisage” or ‘contemplate’ payment of interest as argued, because Courts do not assume anything.

It is these failings on the part of the appellant to lead evidence on its counter claim that led the trial Court to the conclusion it did; because it is not simply enough to plead something, what is pleaded has to be supported by evidence, as pleadings are not synonymous with evidence. Averments in pleadings not supported by evidence are

bound to be discountenanced. See CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; MOTOH V MOTOH (2011) 16 NWLR {PT. 1274) 474.

In the circumstances therefore, the trial Court was right to hold that the appellant did not prove the counter claim; accordingly, this issue too is resolved in favour of the respondents, against the appellant.

Issue Three:
Whether having regard to the entire circumstances, the trial Court was right or justified in awarding N76,014,800 as special damages or loss of earning per annum with effect from October, 2005 till judgment as claimed by the respondents.

It is submitted for the appellant on this issue that the special damages of N76,014,800.00 awarded was not proved, and the evidence in that regard not evaluated by the trial Court; that the trial Court never said anything about the oral evidence, the demeanour of the witnesses and the documentary evidence led by the parties before it awarded damages; learned senior counsel referred the Court lo OGUNJEMILA V. AJIBADE (2010) 11 NWLR Part 1206 Page 559 at 579.

In response, it is submitted for the respondents that evidence was led in spite of the

appellants denial of the functionality of the filling station by the statement on oath of the 2nd respondent confirming the existence of a restaurant, and a super market in addition to a functional filling station.

That the special damages were proved without contradiction from the appellant; learned counsel referred the Court to HABIB NIG. BANK LTD V.OPOMULERO {2000) 15 NWLR Part 690 at 329 and SBN PLC V. CBN (2009) 6 NWLR Part 1137 at 308.

It is trite that special damages are items of loss which the Plaintiff has to particularize in his pleadings to enable him to give evidence thereto and to recover thereon, See ATTORNEY-GENERAL, OYO STATE V. FAIRLAKES HOTELS (NO 2) (1989) 5 NWLR (PT 121) 255; these type of damages must be strictly proved, see AGUNWA V.ONUKWUE (1962) 1 ALL NLR 537; (1962) 2 SCNLR 275 AND BASIL V FAJEBE 1990 6 NWLR (PT 155) 172.

The respondent averred to the special damages in this case in Paragraphs 14, 15, 16 and 17 of the further amended statement of claim dated 16th June, 2010; wherein it was stated to the effect that the filling station in dispute was actively taking delivery of products, and had in addition a

restaurant and a super market, see page 474 of Volume 1 of the record of proceedings.

The appellant did indeed contend that the filing station was not functional and therefore could not have suffered the loss claimed; see Paragraphs 14, 15, 16 and 17 of the emended statement of defense.

The respondents in support of their pleadings on the functionality of the tilling station and the existence of a restaurant and a supermarket led evidence at Paragraphs 1a, b, c, d, e, f, g, h, l, j, k, l, m, n,and o, as well as Paragraphs 2, 6, 9 and 10 of the statement on oath of the 2nd respondent deposed on the 25th of November, 2009as well as the statement on oath of Samuel Chimezie Eguzuowa, the PW3 at Paragraphs 4 to 17, see pages 225 to 226 of Volume 1 of the record of appeal.

Clearly the evidence of PWS1and 3 with regard to the functionality of the filling station and the corresponding loss of earnings was reinforced by Exhibits M to M22, N to N30 and P to P25 at page 834 of Volume 1 of the record of appeal, see U.T.B V. OZOEMENA(2007) ALL FWLR Part 358 1014 at 1049.

The contention of learned senior counsel that the evidence in this regard was not evaluated

is not justified, because the trial Court did evaluate the evidence before it before arriving at the decision it did, that much is very clear; and most importantly it is a trite principle of law that the function of evaluation of evidence is essentially that of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (Pt. 548) 118; Where the trial Judge has unquestionably evaluated the evidence before him, it is not the business of the appellate Court to disturb such findings of facts and substitute its own unless such findings are perverse, See WOLUCHEM v. GUDI (1981) 5 SC 291; ENANG v. ADU (1981) 11-12 SC 25: IWUOHA & ANOR. v. NIPOST & ANOR. (2003) 8 NWLR (PT. 822) 308 at 343, 344 and 346.

This Court is satisfied that the trial Court was justified in the circumstances in awarding the sum of N76,014,800. 00 as loss of earnings from the 22nd of October, 2005 as claimed; this issue too is accordingly resolved in favour of the respondents, against the appellant.

Having resolved all the three issues for determination in favour of the respondentsagainst the appellant, the appeal fails for

lack of merit, and it is accordingly dismissed.

Cost of N50,000.00 is awarded in favour of the respondents, against the appellant.

Other Citations: (2016)LCN/8975(CA)

Dr Alex Otti & Anor V. Dr Sampson Uchechukwu Ogah & Ors (2016) LLJR-CA

Dr Alex Otti & Anor V. Dr Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR DATTI YAHAYA, J.C.A.

This is a Motion filed by the applicants, on the 15th of July, 2016 praying for-1. An Order granting the Appellants/Applicants leave to appeal as interested persons against the final judgment of the Federal High Court Abuja Division, delivered on 27th June, 2016 in suit No. FHC/ABJ/CS/71/2016/FHC/UM/CS/94/2015 – Dr. SAMPSON UCHECHUKWU OGAH VS. PEOPLES DEMOCRATIC PARTY (PDP) & 3 ORS.2. An Order deeming the Notice of Appeal already filed on the 1th day of July, 2016 against the said Judgment as properly filed and served, the appropriate filing fees thereto having been paid.If ¢Reliefs 1 and 2 above are granted:3. An Order by way of departure from the rules permitting the Appellants/ Applicants to make use of and rely on the record of appeal already transmitted by the 2nd and 3rd Respondents to this Honorable Court in Appeal No. CA/A/390/2016.4. An Order granting an accelerated hearing of this appeal and also abridging the time for filing of briefs of arguments in this appeal.The grounds for the application are: -i. The Appellants/Applicants were not parties nor were they served with the originating and other processes which led to the judgment of the Federal High Court, Abuja delivered on 27th June, 2016 in Suit No. FHC/ABJ/CS/71/2016ii. By the judgment of the Federal High Court, Abuja Division delivered on 27thJune 2016 in Suit No. FHC/ABJ/CS/71/2016 (formerly FHC/UM/CS/94/2015), the Court below after rightly holding that the 3rd Respondent as the PDP candidate for the Abia State Governorship election held on 11 April 2015 was disqualified from contesting the said election made consequential orders to the effect that the 1st Respondent was the winner of the PDP primary election held on 8th December 2014 and thereby entitled to be returned as the winner of the Governorship election.

iii. The disqualification of the 3rd Respondent herein to contest the said Abia State Governorship election held on 11 April 2015 arose from the false information contained in the form CF001 submitted by the 2nd and 3rd Respondents to INECiv. The disqualification to contest the Abia State Governorship election under Section 31(6) of the Electoral Act 2010, (as amended) contemplates that the 2nd Respondent who sponsored the disqualified candidate, the 3rd Respondent, did not have any legitimate candidate in the Abia State Governorship election held on 11 April 2015.

v. The appellants/Applicants who were adjudged second in the Abia State Governorship election are desirous of appealing against the judgment of the lower court containing consequential orders that directly affects them.

vi. The Appellants/Applicants are entitled under Section 243(1)(a) of the 1999 Constitution (as Amended) to seek the leave of this Honourable Court to appeal as persons interested against the judgment o the lower court dated 27th June 2016.vii. The 2nd and 3rd Respondents have appealed against the said judgment of the lower court.viii. The Record of Appeal compiled by the 2nd and 3rd Respondents in Appeal No. CA/A/390/2016 have since been transmitted and entered into this Honourable Court.The application is supported by a 26 – paragraphed affidavit, a 10 – paragraphed affidavit of urgency, a further 8 – paragraphed Affidavit in support with an Exhibit marked Exhibit MAM 1 (proposed Notice and grounds of appeal and another 21 – paragraphed Further Affidavit in support of the application.The 1st, 2nd 3rd and 5th respondents in opposing the application, filed counter-affidavits. The 1st and 2nd respondents filed their respective courter-affidavits on the 22nd of July, 2016.

The 3rd respondent filed 10 – paragraphed counter-affidavit, on the 22nd of July 2016, also. The 5th respondent filed a 27 – paragraphed counter-affidavit. The 3rd respondent filed a further counter-affidavit on 1/8/16.The facts are that the 2nd respondent herein, (PDP) held its primary election, in order to nominate and sponsor a candidate, to stand election as a Governor of Abia State on the 8th of December, 2014. The third respondent emerged the winner at the primary election and was nominated by his party, the PDP. Thereafter, the election into the office of Governor, Abia State was held and he won. After series of litigations on Election Petition, the Supreme Court declared the third respondent as the duly elected Governor of Abia state. The 1st applicant herein, was the Petitioner leading to the Supreme Court case.

In the meantime, the first respondent herein, came second, in the PDP primary election above stated. He filed an action at the Federal High Court (the trial court), to challenge the nomination of the third respondent as the candidate of the second respondent, at the primary election as the plaintiff. The relevant declarations and Orders sought in the Amended Originating Summons, by the first respondent are:

-“{1)A declaration that Dr. Okezie Ikpeazu (the 2nd defendant) was not eligible nor qualified to be nominated or to participate or take part in the gubernatorial primary election for Abia State conducted by the Peoples Democratic Party and her officers on the 8th day of December 2014 which the plaintiff, Dr. Okezie Ikpeazu (the 2nd Defendant) and others participated as aspirants.(2) A declaration that Dr. Okezie Ikpeazu not being qualified to be nominated or to participate or take part in the Peoples Democratic Party Gubernatorial Party Primary Election on 8/12/2014 is not the aspirant scored in law and on facts, the highest number of votes cast in the Peoples Democratic Party Primary Election conducted…….

(3) A declaration that the votes allegedly scored by Dr. Okezie Ikpeazu in the Peoples Democratic Party Primary Election….. are wasted votes, null, void … Dr. Okezie Ikpeazu …… is not qualified to be nominated or participate in the said Primary Election.(4) An order declaring the plaintiff (Dr. Sampson Uchechukwu Ogah) as the aspirant in the Peoples Democratic party Primary Election for aspirants conducted by the Peoples Democratic Party on 8/12/14 …”(5) An order that the plaintiff being the aspirant that scored the highest number of lawful votes cast … it is the plaintiff that is entitled to be nominated and is the nominated candidate of Peoples Democratic Party in the gubernatorial election in Abia …” (Underscores for emphasis)On the 26th of July 2016, we ordered interested parties to file written addresses. The applicants filed their Written Address on the 28th of July 2016. The 1st respondent filed his Written Address on the 1/8/16. The 2nd respondent filed its Written Address on the 2/8/16. The 3rd respondent filed his written address on the 1/8/16. The 5th respondent filed his written address on the 1/8/16. The 4th respondent has not filed any address.In the applicants’ written address, two issues were identified for resolution. They are-1. Whether having regard to the continually vested right as participant and second highest vote winner at the election, held in April, 2015 into office of Governor of Abia State, the Appellants/applicants have disclosed arguable grievance to be granted leave to appeal as persons interested against the identified portion of the judgment of the trial court, on the grounds and for the reliefs set out in the Proposed Notice of Appeal (Exhibit MAM 1)2. Whether having regards to the circumstances of this case, this Honourable court ought not to exercise its discretion in favour of the grant of the other prayers endorsed on the motion paper.For the 1st respondent, one sole issue was identified. It is-1. Whether the applicants have disclosed by their Motion, any right or interest of theirs, affected by the Judgment of the Federal High Court in suit No. FHC/ABJ/CS/71/2016 Between Dr. Sampson Uchechukwu Ogah Vs. Dr. Okezie Victor Ikpeazu & Ors to warrant the grant of leave to appeal as persons interested by this Honourable Court against the said Judgment.The 2nd Respondent identified four issues, viz; -1. Whether this application as disclosed on the Motion Paper does not constitute an abuse of the process of the Court of Appeal and ought to be dismissed.2. Whether the Applicants are not barred from bringing this application by the doctrine of res judicata.3. Whether the Applicants reliefs are not statute-barred and ought to be dismissed.4. Whether the Applicants who are not members of the 2nd Respondent (PDP) have made out a case entitling them to the reliefs sought in this application having regard to the nature of the dispute the subject matter of the appeal.The 3rd respondent identified a single issue for determination, to be-Having regard to the entire facts and circumstances of this appeal, whether this Honourable Court would not dismiss the applicants’ Motion on Notice dated 14th July, 2016.The three issues identified by the 5th respondent are; –

A. Having regard to the facts of this case, do the applicants have sufficient interest in the subject matter of the Appeal to qualify them as persons interested in this appeal to merit the grant of the leave sought in this application?B. Whether the Applicants herein have the Locus Standi to sue in the subject matter leading to this Appeal i.e. Suit countering or challenging the outcome of the Gubernatorial Primary Election for the 2nd Respondent (PDP).C. Whether this Application by the Applicants herein is not an abuse of Court process in the circumstances of this case.In my view, the sole issue raised by the 3rd respondent is sufficient to resolve the issue but I re-couch it to read: -Having regard to the entire facts, the law and circumstances of this Appeal, whether this Honourable Court would not dismiss the Applicant’s Motion on Notice filed on the 15th of July 2016.

I have carefully studied all the processes filed by all the parties in this application, to enable me arrive at a just decision.As a preliminary point, although the 2nd respondent has made it a substantive issue, reference was made to the Suit Number and the parties in Exhibit A, the judgment of the Federal High Court (the trial Court) attached to this application and it was stated that this was different from the parties reflected in this Motion filed by the applicants, for leave to appeal. The applicants have been reflected as “Appellants” in the Motion for leave to appeal and that this is a fundamental vice bordering on abuse of the process of this Court. ADEH VS. PDP (2016) 7 NWLR (Pt. 1510) 153 at 173 – 174 and PDP VS. INEC (2012) 13 NWLR (Pt. 1317) 215 at 236- 233 were referred to.

I agree that the applicants have added their names as appellants in their Motion seeking leave to appeal, names that are not reflected in the Suit before the trial court. They have not been granted leave to appeal yet and they cannot reflect their names as appellants in the originating Motion. However, this has not misled the respondents on any way. It is one of those surplage mistakes made by counsel that are pardonable and which should not be visited in their clients. I waive whatever irregularity there is and hold that the process is complete and is not an abuse of the process of this Court.The applicants have submitted in the written address, that they have an interest in the judgment of the trial court dated the 27th of June 2016 as they have by their affidavits, demonstrated the nature of their legal interest and that they were not aware of the Suit until judgment was delivered. The proposed notice of appeal was referred to as showing the applicants’ grievances with the consequential orders made in the judgment, pursuant to section 31(5) of the Electoral Act 2010 as amended, for giving false information in the document submitted along with Form CF001 by the 2nd and 3rd respondents. Having obtained the second highest votes at the election, they aver that they have an interest which has been affected by the judgment, especially, the consequential orders. They predicate their application on section 243(1) of the 1999 Constitution as amended. The cases of FUNDUK ENGINEERING L TO. VS. MCARTHUR IN RE MADAKI (1990) 4 NWLR (Pt. 143) 266 at 267 and ICAN V. UNEGBU (2012) 2 NWLR (Pt. 1284) 216 at 233 were cited in support of their contention that “a person having an interest” is synonymous with a person aggrieved, one against whom a decision has been pronounced which has wrongfully affected his title to something.Learned senior counsel for the applicants placed reliance on the cases of LABOUR PARTY VS. INEC (2009) 6 NWLR (Pt. 1137) 315 and ISIAQ VS. SONIYI (2009) ALL FWLR (Pt. 498) 347 at 384, to submit that where a candidate has been adjudged as lacking qualification to contest an election, the election will be nullified and another fresh election ordered, without that candidate and his political party that sponsored him. But that if the votes of the disqualified candidate were wasted, then the candidate next to the disqualified candidate at that election (and not his co-aspirant at the primary election) will be entitled to be returned – ATAI VS. DANGANA (2012) VOL. 1 INEC LAW REPORT at page 523.

Since the judgment of the trial court has returned the 1st respondent as the winner of the election, the applicants have an interest which has been affected, they argued, especially as the 1st respondent did not take part in the election proper but the applicants had done so and had come second in the contest. Counsel argued also that since the PDP had no qualified candidate at the election, the law regards that it had no candidate at the election.Learned senior counsel for the applicants also submitted that the applicants were not aware of the pending suit until judgment was delivered. He argued that whether they were aware or not, since the judgment is in rem, failure to attempt to join it, is immaterial.

On the judgment of IKPEAZU VS. OTTI (2016) 8 NWLR (Pt. 1513) 38, counsel argued that it could not be a bar to this application, since the subject matters are different and unrelated. Whereas in the Supreme Court the case of IKPEAZU VS. OTTI the issue was who, between the two contending parties, scored the majority of lawful votes, here, the issue is who is supposed to step into the shoes of the disqualified PDP candidate – the 3rd respondent.

On the issue of legal interest, the 1st respondent, in the written address, submitted that the applicants have failed to disclose what interest or rights belonging to them, have been affected by the Orders of the trial court. Since they belong to APGA political party, by their admission, and not PDP, they have no interest whatever in the subject matter of the Suit which is an intra-party matter – section 87(a) of the Electoral Act 2010 as amended. Their scoring second highest votes in the election is of no moment it was argued, since the Supreme Court had finally determined that issue.Learned counsel for the 1st respondent argued that since the Suit before the trial court was an intra-party, pre-election matter, not the conduct of election, the applicants do not have interest enough to warrant them to appeal here as that would alter the nature of the case – NNAOGU VS. ATUMA (2013) 9 NWLR (Pt. 1358) 113 at 134; HON. ANTHONIA TABANGSI-OKOYE VS. HON. LYNDA CHUBA & 4 ORS in CA/A/416A/2015 delivered on 22/1/16, and ENYIBROS FOODS PROCESSING CO. LTD VS. NDIC (2007) 9 NWLR (Pt. 1039) 216 at 251 which decided that “a person having interest in the matter” is one who could have been joined as a party in the Suit at the trial court. He urged us to hold that the applicants had no legal interest in the judgment of the lower court.For the 2nd respondent, it was submitted on the authority of E.F.P CO. LTD VS. NDIC (2007) 9 NWLR (Pt. 1039) 216 at 251, that the applicants could qualify as persons interested only if they could have been joined as parties to the Suit, likely to be aggrieved by the proceedings. It was then argued that as the applicants were not aspirants under the platform of the 2nd respondent, who can bring a pre-election suit over the candidacy of the 3rd respondent, they do not have any right capable of being affected by the judgment of the trial court and so have no legally cognizable interest in this appeal. Learned counsel emphasised that the subject matter of the suit at the trial court, was as to who between the 1st, 3rd and 5th respondents, should be the candidate of the 2nd respondent, and this being an intraparty dispute from primary election, which did not concern the applicants, they could not be parties interested- NWAOGU VS. ATUMA (SUPRA) at 1038 – 1039.Further, that the reliefs claimed in the proposed Notice of appeal, are post election reliefs, new reliefs that are claimed a long time after the election SALIM VS. CPC (2013) 6 NWLR (Pt. 1351) 501 at 523 – 524.

This, he argued, is an attempt to convert the nature of the case which is not allowed. In that vein he urged us to dismiss the application.Learned senior counsel for the third respondent attacked the competence of the Motion because by section 243(1)(a) and (b) of the 1999 Constitution, and Order 7 rule 4 of the Court of Appeal Rules 2011, the application should have been made in the first instance at the trial court. Since this was not done, and the application was filed in this court firstly, it is incompetent, especially as the affidavits in support have not shown any extreme or special circumstances. He urged us to refuse to grant any indulgence to the applicants – WILLIAMS VS. HOPE RISING (1982) 2 SC 145 At 153 AND OLOWOKERE VS. AFICAN NEWS PAPERS LTD (1993) 5 NWLR (Pt. 295) 583 at 596, 601. He argued that the application should have been filed before the record was transmitted to this court – OGUNREMU VS. DADA (1962) 2 SCNLR 417 and since conditions precedent have not been fulfilled, the application should be dismissed.On the legal right of the applicants to bring this application, learned senior counsel submitted along the same lines with the other respondents. He argued that according to the trial court’s judgment, the dispute before it, bordered on the qualification of the respondent to participate in the PDP primary elections and was instituted by an aspirant. He submitted further, that the case of EHI VS. TINUBU (2011) LPELR- 4737, relied upon by the applicants to ground their status as interested parties, despite the concluded case of IKPEAZU VS. OTTI (supra), has confirmed that when reliefs are the same in two different matters by the same party, then the later is abusive. He then pointed out, that there is no difference between the reliefs sought in their petition at the Tribunal and the ones sought in this proposed Notice of Appeal. The reliefs seek that the applicants be “sworn into office forthwith as Governor of Abia State” or alternatively, a “fresh election” be held, reliefs that are the same as items (iv), (v) and (vi) as seen at pages 70 – 71 of the Supreme Court judgment in OTTI V. IKPEAZU (supra). The case of OKORCHA V. PDP (2014) 7 NWLR (Pt. 1406) 213 was cited to show that a party who litigated on an election petition up to Supreme Court and lost cannot, by reason of a Ruling of a lower court revisit the issue. UDE V. OJECHIMI (1995) 8 NWLR (Pt. 412) 152 at 169 was also referred to on this point. Since the applicants have conceded, in their grounds and notice of appeal that it is the respondent that had the right to institute the action before the trial court, they cannot claim to have the same right, by bringing this application, he argued. Since the issue at the trial court was one of pre-election and party primaries of the PDP, applicants could not have the legal right to maintain claims before the trial court, they thus cannot be persons interested in the subject matter at the trial court as paragraph 9 of the affidavit in support deposed to, he submitted.

He argued that the appellants had not disclosed any interest known to law, or what grievance they had, which directly and personally affected them. He placed reliance on NWAOGU VS. ATUMA (supra); SHINKAFI & ANR. VS. YARI & 2 ORS (2016) 7 NWLR (Pt. 1511) 340 at 415 – 416; CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1072) 526 at 543. In his oral address, counsel submitted that an appeal is not a market where everyone will rush to, to display wares. He also submitted that the reliefs of the applicants are not grantable.Learned senior counsel for the 3rd respondents also submitted that the applicants stood by, watching the outcome of the case, allowing others to fight their battle, and are now realizing that they have interest, a situation which cannot avail them – OSIEC VS. AC (2011) ALL FWLR (Pt. 567) 622 at 674. He urged us to dismiss the application.In their Reply to the 3rd respondent’s brief, the applicants submitted that the argument of the 3rd respondent on failure to bring the application in the first instance to the trial court, is misconceived since the appeal had already been entered, to which senior counsel for the 3rd respondent countered in his oral address before us, that the applicants have ample time to appeal and transmit record, and could still bring the application before the trial court, before the record was transmitted.

On the argument of the 3rd respondent that the reliefs are not grantable, the reply of the applicants is that the reliefs are grantable since they are not outside the record and evidence adduced before the trial court.Mr. Idoko, learned counsel for the 5th respondents argued in the main, also along the lines of the other respondents. He submitted that the subject matter of a suit must be examined and the reliefs identified, before it can be decided that a party has interest in the claim and the pronouncement of the court, has prejudicially affected his interest, or has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something – NWAOGU VS. ATUMA & ORS SC. 10 (2012), page 1. Per Mohammed JSC as he was. He then submitted that all the reliefs sought at the trial court, pertain to the primary election of PDP held on the 8/12/14 and that the Orders issued by the trial court bear on the rightful candidate of the 2nd respondent in the said primary election. As such, the applicants have not disclosed any legally cognizable interest in that suit, to warrant the grant of the application. In the Reply to the 5th respondent’s address, the applicants argued that they are not challenging the conduct, outcome or declaration in the primary election of the 2nd respondent. The 4th respondent did not file a written address.Now, on the attack of the competence of this application, by Mr. Olanipekun SAN for the 3rd respondent, it is correct, that by a combined reading of section 243(a) and (b) of the 1999 Constitution as amended, and Order 7 rule 4 of this Court’s Rules 2011, this application should have been made in the first instance, at the trial court, before it can be brought in this court, unless special circumstances are shown why a departure was made.In OGUNREMI VS. DADA (supra), the Supreme Court held that before the transmission of record by an appellant/applicant, such applicant must first bring the application for leave to appeal as interested party, before the lower court. This clearly means, that if the record is not transmitted to this court from the lower court, the applicant must in the first instance, bring the application before the lower court which would still have the jurisdiction to entertain it.

But once the record is transmitted to this court from the lower court, and the appeal thus entered, the application which had not yet been brought, can only be brought before this court since the lower court would no longer have jurisdiction to entertain it. We take Judicial Notice of our processes. The record of appeal in Appeal No. CA/A/390/2016 was transmitted to this court on the 4th of July 242016. This application was filed on the 15th of July 2016, after the transmission of the record on Appeal No. CA/A/390/2016. Arguably, the record transmitted is not for the applicants as they are only praying to rely on that record. It is also instructive, that they are filing a separate appeal and are not praying to join the appeal of the appellants for obvious reasons. I also agree, that the applicants have been lethargic. The judgment of the trial court was delivered on the 27th of June 2016 and they admitted that on that date, the judgment was widely reported and they became aware of it “through the media”. They should have moved timeously, to file this application at the trial court, before the record was compiled and transmitted to this court on the 4th of July, 2016, a week after the delivery of the judgment. They did not do so.

They were tardy, but this is not enough a reason to knock them out on technicality. Since the record of appeal has been transmitted to this court, we regard this as special circumstances warranting the bringing of the application in the first instance, to this court. It is not incompetent.As seen earlier in this Ruling, the 1st, 2nd and 3rd declarations sought by the 1st respondent herein, as plaintiff in the Amended Originating summons, are all challenges on the eligibility and qualification of the 3rd respondent herein, Dr. Ikpeazu, to ”participate or take part or be nominated in the Gubernatorial PRIMARY ELECTION for Abia State conducted by the Peoples Democratic Party and her officers on the 8th day of December 2014…” So the challenge was as to the participation of Dr. Ikpeazu in the Primary Election conducted by his party, it was not yet a challenge as to his contesting the election even. The Order sought in (4) in the Amended Originating Summons, was a declaration that the 1st respondent herein, but the plaintiff in the Suit at the trial court, is the “aspirant” in the primary Election conducted by PDP on the 8/12/14. It is only prayer (5) that sought for an order that the 1st respondent herein was entitled to be nominated and is the nominated candidate of PDP to contest the gubernatorial election for Abia State. The entire gamut of the Suit was therefore on the participation, taking part and being nominated in the PRIMARY Election conducted by PDP on 8/12/14. This position is vindicated, by the judgment of the trial court, where at page 68 of the judgment (Exhibit A) the judge found that the Suit was a challenge on participation at primary election.The PDP guidelines are to the effect that payment of tax as and when due, is a ground for qualification or disqualification of a candidate for the PRIMARY ELECTION for the post of a Governor of Abia State – pages 62 – 63 of the judgment of the trial court (Exhibit A)So, the foundation and crux of the Suit before the trial court, is the qualification or disqualification to participate in the Gubernatorial Primary Election. It was a case of an aspirant challenging another aspirant (Dr. Ikpeazu) to participate in the Primary Election and to be nominated and sponsored for election for the post of Governor of Abia State, conducted by PDP. The trial judge reviewed the documents in issue and the PDP guidelines and came to the conclusion at page 87 of the judgment, that the 2nd defendant had no tax clearance certificate before the primary election.So the case before the trial court and the findings of the trial judge, were on participation of the 3rd respondent (Dr. Ikpeazu) to contest the primary election and be nominated.It is only section 87(9) of the Electoral Act 2010 as amended, that gives the courts the jurisdiction to entertain the issue of nomination and sponsorship of a candidate in a primary election, an issue which is a domestic affair of the political parties. Even in this respect, nobody has the locus to question participation, nomination and sponsorship of a candidate in a primary election, except an aspirant. Thus a member of the party conducting the primary election, who did not himself participate in the primaries, cannot question same. Likewise, a member of another party cannot question participation, nomination and sponsorship of the primaries of another party. See DALHATU VS. TURAKI (2003) 15 NWLR (Pt. 843) 310 and SHINKAFI VS. YARI (2016) 7 NWLR (Pt. 1511) 340 at 415 416 where the Supreme Court per Sanusi, JSC held that -“…if there are dispute(s) in the conduct of the primary election, only person who took part in the primary election is an aspirant within the meaning of section 87(9) of the Act.

That is to say, it is only an aspirant that has the locus standi to approach the court to seek redress …this precludes any person who though a member of the political party but did not participate at the primary election not to talk of any person who is even not a member of the said political party, as the present appellant who is a member of an entirely different political party. The appellant herein, therefore lacks the locus to complain in the manner a primary election of his adverse political party was conducted.He is merely a busy body… He will therefore have no grievance against the primary election …”In NWAOGU VS. ATUMA (supra) at page 1040 – 1041, Ngwuta JSC held -”In a contest as to who is the flag bearer of a political party in an election….. is essentially an internal wrangling within the party and a non-party member cannot be heard to complain against the nomination of a candidate to stand an election on the platform of a party to which he is not a member.”Locus standi is a rule that keeps off and away non-interested parties from litigations, and clogging the courts with unnecessary suits at the expense of justiceable cases. So, by section 87(9) of the Electoral Act 2010 as amended, the applicants had no locus standi, not being aspirants in PDP primary election, to challenge the participation and nomination of the 3rd respondent in the PDP primary election. It follows therefore, that the applicants also have no locus to appeal against the whole decision (as they have stated in the proposed Notice of appeal) of the trial court which pronounced, on the nomination and participation of the 3rd respondent in the PDP primary election conducted on the 8/12/14. See TAIWO VS. ADEGBORO (2011) 11 NWLR (Pt. 1259) 562 and AL-HASAN VS. ISHAKU (2016) 10 NWLR (Pt. 1520) 240. Once they lack the locus to maintain a challenge against the primary election, the applicants cannot have an interest recognizable in law.

The interest the applicants acquired, was to participate in the election, having been nominated. They participated and lost. They exercised a right of presenting an Election Petition and pursued it up to the Supreme Court where they lost again. The extent of their right had thus been extinguished. They cannot and have no interest in an intraparty matter, as to who should participate in the PDP primary elections.The applicant’s Reply on point of law to the 5th respondent’s address, argued that they are not challenging the conduct, outcome or declaration in the primary election conducted by the 2nd respondent. But they are, for particular (d) of ground I, ground II and its particulars (b) and (c) in the proposed Notice and grounds of appeal, are direct and unequivocal challenge to the qualification of the 3rd respondent to CONTEST the primary election conducted by PDP on the 8/12/14. They cannot do so.To qualify as parties having interest, the applicants had the onus to show the interest they have and how the judgment of the trial court had prejudicially affected that interest. They have not shown that a decision had been pronounced against them or have been wrongly deprived of something belonging to them. They do not posses any title which has been wrongly affected by the judgment. They have not won the election, which the judgment had wrongly deprived them of. They, therefore, do not have any interest in the judgment or sufficient legal grievance which was wrongly affected. They only have a general interest similar to what other candidates in other political parties have and that is not enough – CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1415) 385.The dispute at the trial court is one of participation in the PDP primaries and the resultant nomination. Non aspirants cannot challenge same in court, and so are not necessary parties to the case at the trial court. They are therefore not necessary or desirable parties on an appeal here and so do not qualify as persons having interest, pursuant to section 243 of the 1999 Constitution. It is for the 1st, 3rd and 5th respondents to slug it out, but certainly not the applicants. Therefore, it is immaterial, whether the applicants were aware of the pending Suit at the trial court or not. Even if they were aware, they could not be joined as they have no locus, and no interest sufficient, to participate in it.Mr. Olanipekun SAN for the 3rd respondent has argued that the applicants raised the issue of their interest in the supporting affidavit.Paragraphs 4, 9 and 10 of the affidavit in support of the application, contain the depositions as to the interest of the applicants in the subject matter of the Suit before the trial court.The law is clear. An applicant seeking to appeal as an interested party has to disclose his interest in the record of proceeding before the court, and not in an affidavit in support of the application. The reason is simple. The appeal would be determined on the record of appeal and not on affidavits and other extraneous material. See OMOTOSHO VS. ABDULLAHI (2008) 2 NWLR (Pt. 1072) 526, at 543, a judgment of this Court approved by the Supreme Court in CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1415) 385, at 414 – 415. In the instant application, the applicants have not transmitted record on their own. Their prayer 3 in the Motion under consideration, is that they be permitted to make use of and rely on the Record of appeal transmitted by the 2nd and 3rd respondents to this Court, in Appeal No. CA/A/390/2016. That prayer has not been granted yet, as it can only come after the substantive prayer for leave to appeal has been granted. So in effect, there is no record transmitted by the applicants upon which this court can discern their legal interest in the Suit at the trial court. They have not even taken the liberty to refer this Court to what page in the record transmitted by the appellant in CA/A/390/2016, their interest have been disclosed.

That being so, the applicants have not placed sufficient material before this court, for the discretion to be exercised judicially and judiciously on their behalf. They have thus not disclosed any sufficient interest as required by section 243(a) of the 1999 Constitution as amended.I have also looked at the reliefs sought for in the proposed Notice of Appeal initially filed on 15/7/16 and the proposed Notice of Appeal MAM 1 attached to the Appellants/Applicant’s further Affidavit in support of the Motion, deposed to on 21/7/16. The prayer common to both proposed notices, is that the 1st applicant/appellant should be sworn as the Governor of Abia State instead of the 1st respondent or alternatively, a fresh election to be conducted.The exercise amounts to an attempt to change the nature of the dispute from an intra-party, pre-election affair, to a postelection matter. This is not allowed – NWAOGU VS. ATUMA (supra) and IKECHUKWU VS. NWOYE (2015) 3 NWLR (Pt. 1446) 367 at 417 – 418.

The lone issue is thus resolved against the applicants.In sum, the applicants/appellants have not established any legal interest cognizable, to qualify as persons interested, to appeal the decision of the trial court. They have no locus standi and interest in the internal affairs of the 2nd respondent, to enable them appeal. They have not transmitted record of appeal where they are bound to show what interest they have in the case before the trial court. The application lacks merit and it is hereby dismissed with N50,000 costs to each respondent, except the 4th respondent.

Other Citations: (2016)LCN/8974(CA)

Barr. Daniel Ikechukwu Onyeonagu & Anor V. Dr. Okezie Victor Ikpeazu & Ors (2016) LLJR-CA

Barr. Daniel Ikechukwu Onyeonagu & Anor V. Dr. Okezie Victor Ikpeazu & Ors (2016)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR DATTI YAHAYA, J.C.A.

This is an application brought by the applicants for an Order granting leave to them as interested parties, to be “made parties to this case” and to appeal the judgment of the Federal High Court Abuja, delivered on the 27th of June 2016. The application is supported by an affidavit of 41 paragraphs deposed to by Daniel Ikechukwu Onyeonugu.

At the hearing of the application yesterday, Mr. Aluchukwu, learned counsel for the applicants agreed to the suggestion of Dr. Izion SAN counsel for the 1st respondent, that since this application is similar in substance with the application in CA/A/390c/M/2016, this application should abide the outcome of the application in CA/ A390c/M/2016. All other counsel also acquiesced in this decision.
The application in CA/A/390c/M/2016 has now been determined and dismissed as lacking in merit. Consequently, this application lacks merit and it is dismissed.
No Order as to costs.

Other Citations: (2016)LCN/8973(CA)

Labour Party V. Yahaya Bello & Ors (2016) LLJR-CA

Labour Party V. Yahaya Bello & Ors (2016)

LawGlobal-Hub Lead Judgment Report

ITA G. MBABA, J.C.A.

This is an appeal against the Ruling of the Kogi State Governorship Election Petition Tribunal, delivered on the 9th day of March 2016, wherein the Tribunal dismissed the petition filed by the Appellant, who was the petitioner, against the 3rd Respondent (INEC) on the ground that Appellant did not file application for pre-hearing session of the petition separately and independently before the final close of pleadings between the parties. The appeal is also against the decision of the said Tribunal on the main petition, delivered on 8th June, 2016, whereof Appellant, as petitioner, had challenged the return of the 1st Respondent (Yahaya Bello) as the winner of the election conducted by the 3rd Respondent on 21st November, 2015 and 5th December, 2015 to the office of the Governor of Kogi State, notwithstanding (according to Appellant) that he (1st Respondent) did not participate in all the elections and in all stages of the elections.

The facts of the case at the Lower Tribunal revealed that the 3rd Respondent (INEC) conducted election to the office of Governor of Kogi State. Appellant, being a Registered Political Party in Nigeria, sponsored a candidate (Mr. Philip Omeiza Salawu) to contest the election on 21/11/2015 and 5/12/2015. The 1st Respondent who was sponsored by the 2nd Respondent in the election was declared winner of the election by the 3rd Respondent. Dissatisfied Appellant, as petitioner, filed petition No. EPT/KG/GOV.O4/2015 at the lower Tribunal in Kogi State (which petition was later transferred to Abuja for hearing and determination.

Upon the filing of the Petition on 24/12/2015, the 3rd Respondent was served with the petition on 29th December, 2015 and it filed a Reply on 14th January, 2016 and served same on Appellant on 15th January, 2016. The 2nd Respondent was served with the Petition on 04/01/2016 and it filed a Reply on 23/01/2016 and served Appellant with same on 25/01/2016, thereafter, on 29/01/2016. Appellant filed his reply on 29/01/2016. The 1st Respondent was served with the petition by substituted means, that is by pasting, on 26/01/2016 and he filed a Reply on 01/02/2016 and served same on Appellant on 02/02/2016. Appellant filed a Reply to 1st Respondents Reply on 05/02/2016, which was the last Reply filed by the Appellant at the Lower Tribunal and it immediately filed an application for pre-hearing session on the 05/02/2016 and served it on the parties.

Upon the filing and service of the Appellant™s Reply to the 2nd Respondent on 29/01/2016. Appellant had, on 31/01/2016, filed an application for pre-hearing session and served all the parties. The last competent Reply of Appellant was served on the 1st to 3rd Respondents on the 8th of February, 2016 and upon this final service of the last Reply on the 1st to 3rd Respondents, Appellant having closed the final pleading, applied for the pre-hearing session. See pages 815 -818 of the Records. And upon the application to set down the petition for pre-hearing session between Appellant and the 1st to 3rd Respondents, the 3rd Respondent (INEC), claimed that the petition was separate as per the parties; that Appellant should have brought pre-hearing application against INEC (3rd Respondent), separately and independently, before the final close of pleading between the 1st “ 3rd Respondents. It, thereafter, filed a motion on 15/02/2016 seeking dismissal of the petition for incompetence. Appellant filed a counter-affidavit and a written address on 20/02/2016 to oppose the said motion.

On 09/03/2016, the various preliminary objections, by the Respondents came up for hearing, during the pre-hearing session. After hearing the said motions, including that of 3rd Respondent, which sought the dismissal of the petition, for failure to comply with paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, the Tribunal reserved ruling in respect of motions filed on 26/02/2016, 09/02/2016 and 22/02/2016 respectively, opting to deliver same alongside the judgment in the main petition. See page 1006 of the Records (Volume II).

The Tribunal, thereafter, went on to resolve the 3rd Respondent™s motion, filed on 15/02/2016 against the Appellant. It held on page 1014 “ 16:

œ¦. Where there are several respondents as in the instant petition, the petitioner is obliged to filed (sic) separate application for pre-hearing notice in respect of each respondent at the close of its pleadings with the respective respondents. See the cases of Oseke & Anor Vs INEC & others (2011) LPELR CA/PH/EPT/25/2011, MR. UCHENNA MBAM NSHI Vs HON. SYLVESTER OGBAGA & 2 ORS CA/E/EPT/09/ 2015 of 15/09/2015 ¦.. it is elementary to state that INEC is a necessary party to any election petition and therefore a respondent ¦ the inevitable conclusion which this tribunal reaches in the instant application is that the failure of the petitioner to file an application for pre-hearing notice in respect of the 3rd Respondent is fatal to his case against the 3rd Respondent.Consequently, the tribunal finds and holds that this petition is deemed abandoned against the 3rd respondent.

The above ruling was also delivered on 09/03/2016 when the tribunal also refused Appellants application, filed on 08/02/2016, for an order extending the time within which to file witness statement on oath of three of its witnesses, in reply to the 1st respondent™s new issues, raised in its reply to the petition.

On 10/03/2016, Appellant appealed against the said Ruling of the Tribunal delivered on 09/03/2016 (pages 1025 to 1034 of the Records). But on 05/05/2016 the said appeal was struck out by this court, and Appellant, in his brief, says that this court, in a full panel, directed and advised Appellant to incorporate the interlocutory decision/ruling of the lower tribunal with the main appeal; that in compliance with that directive, it filed grounds 1 to 4 of the grounds of appeal, herein, together with the appeal against the judgment of 08/06/2016 in the main petition.

The decision of the lower tribunal delivered on 08/06/2016 (in the main petition) was also against the Appellant. As the Tribunal said:

œIn the light of our painstaking analysis of the facts and circumstances of this petition, we come to the conclusion that the petition has failed in its intent. It is not competent either in itself or by the Labour Party that filed it without locus standi. One would have thought that the Labour Party would have fore borne to file the petition. For one thing, it performed miserably in the election in view. The fact that its flag bearer resiled from lending his dignity to its agitation in this petition is a minus. The petition has not prayed for its flag bearer to be declared winner or elected in the stead of 1st Respondent herein. And when the Chairman of the party PW1 in answer to cross examination by Counsel to 1st Respondent said:

œI have no document to show that Chief Salau Omeiza Philips has expressed intention to participate in a re-run election if ordered one equally wonders to what end this petition has clamoured for a fresh election to be ordered by this tribunal. In the same vein, all the points raised by respective Respondents on their preliminary objection are upheld, save for their insistence that this tribunal must hear and determine their preliminary objections without recourse to trial of the petition on the merits

The arguments of counsel to the petitioner against those objection are accordingly dismissed for lacking in merit¦. Consequently, none of the reliefs prayed for in the petition is probable. They are accordingly dismissed. (See pages 1327 “ 1328 of the Records).

Those are the decisions Appellant appealed against, as per the Notice of Appeal on pages 1329 to 1359 of the Records of Appeal, which disclosed 21 grounds of Appeal. Appellant file its Brief of argument on 08/07/2016 and donated 8 Issues for the determination of the appeal, as follows:

1) Whether the Hon. Tribunal had jurisdiction when it entertained and determined the 3rd Respondents (a nominal and neutral party) Motion on Notice (Grounds 3 and 4).

2) Whether the Juctices of the Lower Tribunal were right when they held that the 3rd Respondent (INEC) is a necessary party and the Appellants ought to have filed application to set down the petition for pre-hearing on the 3rd Respondent separately and independently (Ground 2).

3) Whether the Tribunal was right in its interpretation of paragraphs 18(1), (3) and (4) of the 1st Schedule to the Electoral Act 2010 (as amended) in dismissing the Appellant™s Petition as abandoned against the 3rd Respondent (Ground 1).

4) Whether the 1st Respondent was not disqualified to contest the election into the office of Governor of Kogi State, not having personally nominated another candidate as his associate for the office of Deputy Governor and not being a candidate of Kogi State Governorship election conducted on 21st of November, 2015, can be regarded as an internal affair of the 2nd Respondent as held by the Tribunal (Grounds 5, 6, and 7).

5) Whether the Hon. Tribunal was right in holding that the 1st Respondent who did not participate in all the elections and in all the stages of the elections was duly returned as the candidate who secured majority of lawful votes cast in the election, on the ground that votes cast in the election of 21st November, 2015 are for the 2nd Respondents (sic) not for the joint ticket of Late Prince Abubakar Audu and His running mate (James Abiodun Faleke) (Grounds 8, 9, 10, 11 and 12).

6) Whether the Tribunal was right in upholding the preliminary objections of the Respondents that the Appellant™s Petition is not competent either in itself or by Labour Party that filed it, without locus standi (Grounds 15 and 16).

7) Whether in the peculiar circumstances of this case, the Tribunal was not wrong in its interpretation of non- compliance with the provisions of the Electoral Act 2010, as amended (Grounds 13, 14, 17 and 18)

8) Whether the Tribunal was right in dismissing the petition as lacking in merit on the ground that votes cast at an election belonged to only the political party and not the candidate, notwithstanding the overwhelming and unchallenged evidence adduced by the Appellant in support of the Petition (Ground 19 and 20).

The 1st Respondent filed his brief on 13/07/2016 and formulated 6 issues for the determination of the appeal, namely:

1) Whether the Hon. Tribunal was properly constituted in law when it heard and determined the 3rd Respondent™s application filed on 15/02/2016 seeking to dismiss the petition against the 3rd Respondent for failure to comply with the mandatory provisions of paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (Issue No.1) (Ground 3 and 4).

2) Whether the Hon. Tribunal was right when it dismissed the petition against the 3rd Respondent for failure of the Appellant to comply with the mandatory provisions of paragraph 18(1) 1st Schedule to the Electoral Act, 2010 (Issue 2) (Ground 1 and 2).

3) Whether the Issue of the 1st Respondent being unqualified or disqualified from participating in the Kogi State Governorship elections on account of alleged lack of nomination of Deputy Governorship as raised by the Appellant is correct both in law and infact and whether the lower Tribunal could be faulted for resolving the issue against the petitioners? (Issue 3) (Grounds 6, 7, and 8).

4) Whether the lower Tribunal could be faulted in the way and manner it resolved the issues raised, on locus standi, sponsorship and nomination, particularly when it held that the 1st Respondent was properly and lawfully substituted for the deceased Prince Abubakar Audu? (Issue 4) (Ground 5, 15, 19 and 20).

5) Whether or not the trial tribunal was right in holding that the 1st Respondent participated in all the stages of the Election and was duly returned, having scored the majority of lawful votes in the Kogi State Gubernatorial Elections held on 21/11/2015 and the 05/12/2015 respectively. (Issue 5) (Ground9, 10, 11 and 12).

6) Having regard to the facts and circumstances of the case, whether the lower tribunal dismissing the petition can be faulted in the way and manner it resolved the substantive claims of the petitioners, such as alleged non-compliance with the provisions of the Electoral Act and that the 1st Respondent did not win the election by a majority of lawful votes? (Issue 6) (Grounds 13, 14, 16, 17 and 18).

The 2nd Respondent filed its Brief on 15/02/2016 and in it incorporated a preliminary objection (pages 1 to 5 therefore). The preliminary objection sought the striking out/dismissal of the appeal and/or grounds 1, 2, 3 and 4 of the appeal, together with the issues distilled therefrom, on the grounds that:

a) the instant appeal is an academic exercise;

b) the grounds of appeal (together with the issues formulated therefrom) based on the Ruling of the Hon. Tribunal delivered on 09/03/2016 are incompetent because they were presented out of time stipulated by law;

c) the time stipulated by the Constitution of the Federal Republic of Nigeria for the hearing and determination of the appeal based on the Ruling of the Hon. Tribunal delivered on the 09/03/2016 has lapsed and, therefore no longer cognizable in law.

In the alternative, the 2nd Respondent too raised 6 Issues for the determination of the appeal, as follows:

1) Whether the Hon. Tribunal acted within jurisdiction when it sat as a penal of 3 Juctices to hear and determine the 3rd Respondent™s motion on notice of 15/02/2016 (Grounds 3 and 4).

2) whether the Tribunal was right in its interpretation of the paragraph 18(1) (3) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended) in dismissing the Appellant™s Petition as abandoned against the 3rd Respondent (Grounds 1 and 2)

3) Whether the Tribunal was not right when it dismissed the petition on the ground that the Appellant (sic) lacked the locus standi to challenge the nomination sponsorship and substitution of the 1st Respondent.

4) Whether the tribunal was not right when it held that the 1st respondent was qualified to contest the election into the office of the Governor of Kogi State (Grounds 6, 7 and 19).

5) Whether the tribunal was not right when it held that the 1st Respondent was deemed to have participated in all the stages of the gubernatorial elections of Kogi State (Grounds 8, 9, 10, and 12).

6) Whether the Tribunal was not right in holding that the Petitioners (sic) failed to prove the allegations of corrupt practices and non “ compliance with the provisions of the Electoral Act 2010 in the conduct of the election. (Grounds 13, 14, 16, 17, 18, 20 and 21).

The 3rd Respondent too filed a Notice of Preliminary objection on 15/07/2016, challenging the competence of the grounds 1 to 4 and 15, 16 of the Appeal and the Issues distilled from them and argued in the Appellant™s brief. He urged us to strike out the said grounds and issues and/or dismiss the entire appeal.

His grounds for this were three:

1) Grounds 1, 2, 3 and 4 of the Appeal are against the Ruling of the trial Tribunal delivered on 09/03/2016 and by virtue of this fact are statute barred, same having not been heard and determined within 60 days as required by section 285(7) of the Constitution (as amended).

2) In the likely event that 3rd Respondent™s objection challenging the competence of the Appellant™s Ground 1, 2, 3 and 4 is upheld, the entire appeal becomes an academic as the judgment in this appeal, if in favour of the Appellant would not be able to be enforced in the absence of the 3rd Respondent, same having been struck out in the substantive petition at the trial.

3) Grounds 15 and 16 of the Appellant™s Notice of Appeal filed on 27/06/2016 are against the obiter and not the ratio of the trial Tribunal™s judgment.

In the alternative too, the 3rd Respondent filed its brief on 15/07/2016 and donated 6 Issues for the determination of the Appeal, as follows:

1) Whether the Hon. Tribunal was not right when it dismissed the petition against the 3rd Respondent for failure of the Appellant to comply with the mandatory provision of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) (Grounds 1, 2 and 4).

2) Whether or not the composition and quorum of the Hon. Tribunal was formed when it heard and determined the interlocutory, application with respect to the Appellant™s petition as required by section 285(3) and (4) of the 1999 Constitution (as amended) (Ground 3).

3) Whether the Honourable Tribunal was not right when it held that the Appellant™s Petition relates to the sponsorship, nomination and substitution of candidate for election by a political party, which bothers on intra-party affairs of the 2nd Respondent, which the Appellant lacked the locus standi to challenge (Grounds 5, 6, 7, 15 and 19).

4) Whether the Hon. Tribunal was not right considering the facts and circumstances surrounding the case before it to have held that the 1st Respondent was validly substituted for the late Prince Abubakar Audu was qualified to contest election into the office of Governor of Kogi State and that votes cast at the election belonged to political parties and not candidates (Grounds 9, 10, 11, 12, 18, 20 and 21.

5) Whether the Hon. Tribunal was not right when it held that the Appellant has failed to justify the allegations of corrupt practices and non-compliance with the Electoral Act 2010 (Grounds 13 and 16).

6) Whether the trial tribunal failed to determine the issues raised by the Appellant in its petition, and assuming, without conceding, that the trial tribunal failed to determine the said issues, the Appellant suffered any miscarriage of Juctice. (Grounds 8, 14 and 17).

Appellant, surprisingly, failed to file any Reply to the Respondents™ brief or reaction to the two preliminary objections.

When this appeal was heard on 27/07/2016 parties adopted their briefs and urged us accordingly. Appellant admitted being duly served with the preliminary objections and having failed to react to them.

RESOLUTION OF THE PRELIMINARY OBJECTION

As is usual, we have to consider the preliminary objections first, being a threshold issue since the success of the same can resolve the issues in the appeal in limine.

The two preliminary objection are basically on the same issue, that Appellant cannot raise any appeal against the Ruling of the Tribunal made on 09/03/2016 to the effect that Appellant™s failure to file separate notice of pre-hearing session upon the filing of reply by the 3rd Respondent on 14/01/2016 and served on the Appellant on 15/01/2016 was fatal. It was the position of the trial Tribunal that, after the Appellant had filed a response to the 3rd Respondent™s Reply, that signaled close of pleadings between the Appellant and 3rd Respondent, and so Appellant was bound to apply for issuance of pre-hearing notice between it (Appellant) and the 3rd Respondent within 7 days from 15/01/2016, which period expired on 21/01/2016; the tribunal was of the view that, where there are several respondents, the petitioner is obliged to file separate application for pre-hearing notice in respect of each respondent at the close of its pleading with the respective Respondents, that failure to do so, amounts to non-compliance with the paragraph 18(1) of the 1st Schedule to Electoral Act, 2010, as amended.

Of course, the concern of this preliminary objection is not on whether the learned lower Tribunal was right or wrong that Appellant should have filed separate pre-hearing Notice to call for pre-hearing session as per each Respondent, when a particular Respondent filed his Reply. It is rather that the time to appeal had lapsed.

There are, however, recent decisions to the effect that a Petitioner, who has filed application for pre-hearing Notice in response to requirement to signal close of pleadings between him and a respondent who was prompt in filing his reply, need not file such process again in respect of another Respondent in the case, who filed his processes, belatedly, as the petitioner need not wait for all the Respondents or the last Respondent, to file reply, before applying for the pre-hearing processes, to avoid being caught by the trap of non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act : See the case of Onyereri Vs Nwadike & others (2015) 8 CAR 117, where my lord, Ige JCA held that where there are more than one respondent in a petition, pleadings will not close until the expiration of the time limited in the 1st Schedule, particularly paragraph 16, thereof.

What is obvious in this appeal is that, after the decision on 09/03/2016, Appellant failed to appeal against the said interlocutory decision and waited till the final judgment of the Tribunal in the petition on 08/06/2016, to appeal on 27/06/2016 (See page 1329 of the Records of Appeal).

Counsel for the 3rd Respondent had argued that grounds 1, 2, 3 and 4 (from which issues 1, 2 and 3 by Appellants were distilled) are challenging the decision of the Tribunal, delivered on 09/03/2016, striking out the name of 3rd Respondent from the Petition; that Appellant, having not appealed against the said decision, and the appeal thereon, having not been heard and determined within 60 days, as required by law (section 285(7) of the 1999 Constitution, as amended), the said grounds of appeal should be struck out for incompetence. Counsel relied on the case of Amadi Vs INEC (2013) 4 NWLR (part 1345) 595; Alor Vs Ngene (2007) 17 NWLR (part 1062) 163; Shettima Vs Goni (2011) 18 NWLR (part 1279) 413; Ahmed Vs Makarfi (2012) 2 LRECN 252; Uba Vs APGA (2012) 2 LRECN 128.

The 2nd Respondent also argued in the same vein and relied on the case of Ugba Vs Suswan (2014) 14 NWLR (part 1247). He added that, by paragraph 6 of the Election Tribunal and Court Practice Direction, 2011, Appellant had 21 days within which to file appeal against a decision of the Tribunal, and that is counting from the date of the decision appealed against. He relied on Salik Vs Idris (2014) 15 NWLR (part 1429) 36 to say that a court™s decision includes it ruling. Referring to the Records of Appeal, pages 1329 to 1359, 2nd Respondent said that the Notice of this appeal, against the said interlocutory Ruling of the Tribunal, was filed on 27/06/2016, that is, 110 days, after the date of the decision (09/03/2016). Thus, the grounds 1 to 4 of the Appeal, founded on the said interlocutory Ruling, should be struck out for violating the law. He relied on Okechukwu Vs INEC (2014) 17 NWLR (part 1436) 255.

There is no doubt that Appellant ran fowl of the express provisions of the law by making the appeal agaist the said interlocutory Ruling of the Tribunal, delivered on 09/03/2016, part of the decisions appealed against in this appeal, whereof grounds (1) to (4) and issues 1, 2 and 3 are predicated. Apart from raising such appeal, belatedly, after about 110 days of the ruling appealed against, the constitutional provision that such appeal “ Appeals in election matters, be heard and determined within 60 days of delivery, would be compromised. See section 285(7) of the 1999 Constitution, as amended.

Appellant had, however, advanced reasons to justify why he brought the appeal against the interlocutory appeal together with the appeal against the final judgment. It said it had earlier filed appeal on 10/03/2016 against the interlocutory ruling (See pages 1025 “ 1033 of Records) but later abandoned that appeal. Appellant™s Counsel, at the hearing of this appeal, on 27/07/2016, claimed that this court, when the interlocutory appeal came up earlier, had directed Appellant to go back to the Tribunal, and await the final decision of the Tribunal, and take up the interlocutory appeal, together with the final decision. He admitted such evidence was not carried by the Records.

Sadly, those claims were not borne out on the Records of Appeal and Appellant cannot canvass any position on appeal, which is not supported by the printed Records before the Appellate court. See Orok Vs Orok (2013) LPELR “ 20377 CA; Garba Vs Omokhodion (2011) 15 NWLR (part 1269) 145; Haske Vs Magaji (2008) 1 LPELR “ 8330; (2009) All FWLR (part 461) 887.

Appellant had also argued that the decision of the tribunal on the interlocutory application made on 09/03/2016 had survived the final judgment, that is, the issue determined by the interlocutory ruling still remained live at the final judgment on 08/06/2016.

It is difficult to appreciate that argument, considering the fact that the 3rd Respondent ceased to be a party to the suit from 09/03/2016, upon the interlocutory ruling, which saw the striking out of 3rd Respondent from the case.

But the purport and application of pre-hearing Notice proceedings, are clearly stated by the law and by decided cases, to suggest that it was not intended to serve the role applied by the trial Tribunal.

By paragraph 18(1) of the 1st Schedule to the Electoral Act 2010, (as amended) a petitioner in an election petition is required to apply for issuance of pre-hearing notice as in form TF 007, upon the close of pleadings, as regulated in paragraphs 10, 11, 12(1) 16(1) and 18(1) of the 1st Schedule to the Electoral Act.

Paragraph 18(1)(2) states:

1) œWithin 7 days after the filing and service of the petitioner™s reply on the respondent or 7 days after the filing and service of the Respondents reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.

2) Upon application by a Petitioner under sub- paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008, for:

a) the disposal of all matters which can be dealt with on interlocutory application;

b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;

c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and

d) fixing clear dates for hearing the petition.

3) The respondent may bring the application in accordance with sub paragraph (1), where the petitioner fails to do so, or by motion, which shall be served on the petitioner and returnable in 3 days, apply for an order to dismiss the petition.

Going by the above purport of filing the application for issuance of pre-hearing notice and for the pre-hearing session, namely, to signal close of pleadings and cause the Tribunal (Registry) to issue to the parties invitation to come for pre-hearing session, for the purpose of disposing of all interlocutory matters, and to give direction as to the future of the course of the petition, with regards to the just, expeditions and economical way of disposing of the petition, order of call of witnesses and tendering of documents, as well as fixing date for hearing of the petition, I cannot understand why such application (for issuance of pre-hearing notice) should be done by a petitioner more than once in a case, such that he is expected to do so (file the application) in respect of each Respondent in the same Petition, the moment each Respondent files a Reply (or the petitioner responds to the Reply by each respondent).

See the case of Sa™eed & Anor Vs Yakowa (2013) 7 NWLR (part 1352) 124 at 164 “ 165. on the purport of pre-hearing notice where the Apex court, per Ngwuta, JSC, stated that:

œThe purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who had taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so, when there is no allegation of miscarriage of Juctice from the non-compliance. See Ipinlaiye II Vs Olukotun (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR (part 453) 148; Akhiwu Vs Principal Lotteries Officer Midwest (1972) 1 All NLR (part 1) 229 at 238; Okwechime Vs Philip Igbinadolor (1964) NMLR 132.

In absence of anything showing to the contrary, the appeal sought to be struck out for non-compliance with paragraph 18(1) of the 1st Schedule to the Act in the petition from which the appeal arose comes within the warm embrace of the saving provisions in paragraph 53 of the said 1st Schedule to the Act. The Rules as the handmaids of the law cannot constitute obstacles on the paths of substantial Juctice under the law.

It sounds really absurd, in any view, to expect the Petitioner to file separate pre-hearing notice to each Respondent (on the claim that separate petition is filed against each respondent). In that case, will the Tribunal invite parties, each time, calling for separate pre-hearing sessions with each Respondent, separately, and issue separate directions in the same petition? That does not appear to be the case and it does not make much sense to me.

I agree with the reasoning of my learned brother, P. O. Ige JCA in the case of Onyereri Vs Nwadike (2015) 8 LAR 117 when he said:

œ¦where you have more than a Respondent in a petition, pleadings will not close until the expiration of the time limited in those paragraphs of the schedule, particularly 16 thereof. In effect, an Appellant must wait for the time frame or period of time allocated to the parties to file Replies before the Appellant can take out Form TF 007 within 7 days of the service of the Respondents Reply, filed within time permitted under paragraph 12(1) of the 1st Schedule, on the Appellant. Paragraph 16(1) applies mutatis mutandis to each and every Respondent to this petition, otherwise it will be a breach of section 36(1) of the 1999 Constitution of Nigeria, as amended¦

Appellant had applied for the pre-hearing process at the close of pleadings in this case, but the 3rd Respondent felt the Appellant should have also applied for the pre-hearing notice when it filed its Reply!

It should also be stated that an election petition, being sui generis, whereof the respondents usually delight in laying ambushes and employing of dilatory games against a petitioner, it would be dangerous for a petitioner to wait until the last Respondent files a Reply, before he (Petitioner) applies for issuance of pre-hearing process. This is because, the petitioner may wait in vain and/or to his detriment, where a respondent elects not to file any reply, and by the time he (petitioner) notices this, he is already out of time to activate the pre-hearing process, in respect of the Respondent who had filed a Reply. See the case of Ikechi Patrick Anya & Anor. Vs Egworonu O. Egworonu & others CA/OW/EPT/HA/13/2015, delivered on 08/09/2015 where this court, on the need to avoid undue technicalities in relation to the whole essence of paragraph 18(1) of 1st Schedule to the Electoral Act, 2010, said:

œI am always worried about a situation in which a Tribunal or court, gleefully, applies, or relishes in applying or invoking, or goading a party to invoke procedural law or rule of court, as a tool, to deal a technical knockout of a suit (or on an aggrieved party, to frustrate and/or dismiss a party™s substantive claim) not on the merits, and contrary to the party™s rights, protected by substantive law or constitution of the Federal Republic of Nigeria. The Rules of procedure of court, as always said, are to serve as only a handmaid of the law, to assist the court to do Juctice. See Ibrahim Vs Deputy Sheriff & others (2014) LPELR 23472; Bello and others Vs Attorney General of Oyo State (1986) 5 NWLR (part 45) 828; where the Supreme Court, per Oputa JSC said:

œLaw and all its technical rules ought to be but a hand maid of Juctice, and legal in-flexibility (which may be becoming of the law) may, if strictly followed, only serve to render Juctice grotesque or even lead to outright in Juctice. The court will not endure mere form or fiction of law, introduced for the sake of Juctice should work a wrong contrary to the real truth and substance of the case before it. See also Akirikwen Vs PDP (2012) All FWLR (part 617) 689.

However, in the circumstances of this appeal, the above reasoning and considerations are merely gratuitious, in the face of the naked truth that Appellant in this case had abandoned the appeal he raised earlier against the decision of the lower tribunal reached on 09/03/2016, and had elected to incorporate same into the final decision of the Tribunal, reached on 08/06/2016, thereby bringing appeal against the interlocutory ruling, about 110 days after it was made, by which time the decision (ruling on the interlocutory application) has become stale and offensive, polluting everything that came with it:

By paragraph 6 of the Election Tribunal and Court Practice Directions, 2011:

œAppellant should file in the Registry of the Tribunal his Notice of Appeal within 21 days from the date of the decision appealed against.

That means, the appeal against the Ruling of 09/03/2016, should have been filed at the lower Tribunal within 21 days from the 9th March, 2016. And by section 285(7) of the 1999 Constitution, as amended, appeal against any decision of the Election Tribunal must be heard and determined within 60 days, from the date of that decision. The Supreme Court™s position on the strict interpretation and application of the stipulated time frame to hear and determine a petition, and appeal therefrom, has become a rock “ the rock of Gibraltar, in firmness. See the case of Shettima Vs Goni; (2011) 18 NWLR (part 1279) 413; ANPP Vs Goni (2012) 7 NWLR (part 1298) 147 at 182 “ 183; CPC Vs INEC (2011) 18 NWLR (part 1279) 493; Ugba Vs Suswan (2013) 4 NWLR (part 1345).

In his interpretation of section 285(6) (7) of the Constitution, My Lord, Onnoghen JSC in that case of ANPP Vs Goni (supra) said, concerning the 180 days or 60 days for delivery of judgment in election matter/appeal:

œCourts do not have the vires to extend the time assigned by the Constitution. The time cannot be extended or expanded or elongated, or in any way enlarged. The time fixed by the Constitution is like the rock of Gibraltar or Mount Zion, which cannot be moved, if what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue the matter. See also Marwa Vs Nyako (2012) 6 NWLR (part 1296) 119.

Thus, Appellant could not validly raise any appeal against the said interlocutory ruling of the Tribunal made on 09/03/2016, on 27/06/2016, when it brought this appeal, as the said appeal should have been heard and decision reached within 60 days, from 09/03/2016. This legal contraption called œappeal is, therefore, a complete nullity and incompetent, having been brought about 110 days, after the ruling, and therefore barred.

The 3rd Respondent also raised a crucial point in the preliminary objection, to the effect that the entire appeal is an academic exercise, in that, the 3rd Respondent having ceased to be a party to the petition, from 09/03/2016 when its name was struck out of the suit, it ceased to be a party to the petition and by extension, to the Appeal against the final decision made on 08/06/2016. Thus, even if (and without conceding) the appeal were allowed, it cannot be enforced against the 3rd Respondent who was not a party to the petition at the time of that judgment, and so it would enure no benefit to any party. I agree with that reasoning and submission, completely.

Upon my holding that Appellant cannot appeal against the interlocutory ruling of 09/03/2016 on 27/06/2016, the same being statute barred, and striking out the grounds 1 to 4 of the appeal, the 3rd Respondent, therefore, ceased to be a party or credible party to the rest of the grounds of this appeal, which relate to the decision of 08/06/2016, whereof the 3rd Respondent was not a party.

An appeal is said to be academic, where the outcome of it would bring no benefit to any party, except perhaps the mental or sensual satisfaction to that party or parties who brought it. In the case of Kayode Vs Abdulfatai & others (2012) 33 WRN 145; (2012) LPELR “ 7874 CA, this court said:

œA case is said to amount to an academic venture, where œThere cannot be said to be live issue in a litigation, if what is presented to the court for a decision, when decided, cannot affect the parties thereto in anyway, either because of the fundamental nature of the reliefs sought or of Changed circumstances since after the litigation started, so that in the end, an appeal may become academic at the time it is due for hearing see the case of Attorney General of the Federation Vs ANPP (2004) LRCN 2671;

See also Odedo Vs INEC (2008) 17 NWLR (part 117) 554, where it was held:

œA suit is academic, where it merely makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case at hand ¦. (it) could be a hypothetical or moot question (and)¦. does not relate to the live issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party. See also Tanimola Vs Mapping Godatta Ltd. (1995) 6 NWLR (part 403) 617; Nwodoshi Vs ACB (1995) 6 NWLR (part 404) 658; Ogbonna Vs President Federal Republic of Nigeria (1997) 5 NWLR (part 504) 281; Ndulue Vs Ibezim (2002) 12 NWLR (part 780) 139.

It can be noted that part of the reliefs sought by Appellant in this appeal was:

œ2) An order of this Honourable court pursuant to section 15 of the court of Appeal Act 2004 to rehear the petition against the 1st to 3rd Respondents.

3) An order for the full participation of the 3rd Respondent (INEC) in the proceeding before this Honourable court on the merit.

4) To grant the reliefs sought by the Appellant in the petition, namely ¦..

Of course, such orders/reliefs cannot be made by this court even if this court were to see merit in the appeal, as to do so would violate the Constitutional provisions in section 285(6), confining the hearing and determination of election petition within 180 days, from the date of declaration of result. The case law on this had been earlier referred in this judgment, showing that Constitutional provision in the similitude of a rock or mountain that cannot be moved. ANPP Vs Goni (2012) 7 NWLR (part 1298) 147 at 182 “ 183; Marwa Vs Nyako (2012) 6 NWLR ( part 1296) 199.

That, in my view, further demonstrates the academic nature of this appeal, that even if it were allowable, will not and cannot be implemented, as the petition can no longer be entertained, after the expiration of 180 days allowed for its hearing and determination.

I, therefore, come to the conclusion that, there is merit in the preliminary objections, raised by the 2nd and 3rd Respondents (separately) and the same are hereby upheld. The result is that grounds 1 to 4 of the grounds of appeal, are hereby struck out, and the effect of that is fatal to the entire appeal, as the rest of the grounds and issues distilled therefrom, would amount to pursuing an academic venture, as highlighted above, if considered.

The appeal is accordingly, struck out for incompetence.

In the circumstance, I do not consider it necessary to determine the rest of the issues raised in this appeal. See the case of Ikechukwu Vs FRN (2015) IPELR “ 24445 SC, where my Lord, Nweze JSC, said:

œIt cannot be gainsaid that as a general rule, an intermediate court, like the Lower Court, has a duty to pronounce on all the issues before it, Federal Ministry of Health Vs Comet Shipping Agencies Ltd (2009) 9 NWLR (part 1145) 193; Samba Petroleum Ltd and others Vs UBA Plc & others (2010) 6 NWLR (part ¦.) 530,531, Brawal Shipping Vs Owonikoro (2000) 6 SCNJ 508, 522; Adeogun Vs Fasogbon (2011) 8 NWLR (part 1250) 427; Ovunwo Vs Woko (2011) 17 NWLR (part 1277) 522.

(But) ¦.. where the said court, as an intermediate court, decides that it lacks jurisdiction in an appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction, FCDA Vs Sule (2994) 3 NWLR (part 332) 256, 282; Oro Vs Falade (1995) 5 NWLR (part 396) 385, 407; Ifeanyi Chukwu (Osondu) Ltd Vs Soleh Boveh Ltd (2000) 5 NWLR (part 656) 322, 352. It means, therefore, that, where, as was the case at the Lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination, distilled by the parties to the appeal, Onigemeh Vs Egbochualam (1996) NWLR (part 448) 255; NEPA Vs ANGO (2001) 15 NWLR (part 757) 627; Uwazurike & others Vs Attorney General Federation (2007) LPELR “ 3448 SC (2007) 8 NWLR (part 1035) 1.

Parties shall bear their respective costs.

But as a post script, I think it is necessary to further regulate the exercise of right of petition/appeal in election matters, to ward off frivolous and unnecessary applications brought by Counsel for pecuniary gains or by parties for mischief, to frustrate their opponents. Such frivolous and unnecessary applications/ petitions/ appeals result in complicated processes in Tribunal court, that buy into the limited time meant to hear and determine genuine petitions/appeals.

I think where a petitioner did not finish as a runner up, or one with the 2nd largest votes at election, and is not complaining of undue exclusion in the elections, or that the person returned as the winner of the elections, was not qualified to stand election, the same should be discouraged or barred from the judicial contest, as it may amount to mere fruitless or academic exercise.

Also where parties had fought, together, on the same side as petitioners or Respondents (with common interest) or had common interest in the petition/defence at the Tribunal (for example a political party and its candidate at the election “ as Petitioners or Respondents), they should not be allowed to split the appeal arising from the decision of the Tribunal. This may further sift the processes and weed off frivolous actions to reduce the amount of workload at the Tribunal/Appellate courts, considering the limited time available to hear and determine election petitions and appeals.

Other Citations: (2016)LCN/8972(CA)

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016) LLJR-CA

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A.

This is an appeal against the decision of the Kogi State Governorship Election Tribunal Coram H. S. Mohammed (Chairman), P. L Ajoku and V. E. Ejenu JJ. delivered on 7th June, 2016 in the petition by the Appellants challenging the return of the 1st respondent as winner of the election conducted by the 3rd respondent on 21st November, 2015 and 5th December, 2015 to the office of Governor of Kogi State.

The said Governorship election commenced on 21st November, 2015 and before the results was fully collated announced, the initial candidate of the 3rd Appellant in the election prince Abubakar Audu died. At the end of the collation of results on 22nd November, 2015 the 3rd Respondent declared the Election inconclusive because the margin of win between the said Prince Abubakar Audu and the 1st Appellant was less than the total number of registered voters in 91 polling units where elections was cancelled on 21/11/2016.

After the Election was declared inconclusive by a letter dated 23rd November, 2015 the 2nd Respondent informed the 3rd Respondent that its Governorship candidate Prince Abubakar Audu had

died. Upon receipt of the news of the death of the 2nd Respondent’s candidate by a public notice dated 24th November, 2015 the 3rd Respondent took the decision to conclude the Kogi State Governorship Election by conducting supplementary election on 5th December, 2015 in the said 91 polling units affected by the said cancellation and to allow the 2nd Respondent fill the vacancy created by the death of its candidate. On 5th December, 2015 the said supplementary election was conducted in the 91 polling units where the 2nd Respondent represented by the 1st Respondent scored 6,885 votes where the 1st Appellant scored 5,383 votes.

Upon the addition of the results of the aforesaid supplementary election with the result of the elections held on November 21, 2015 the 2nd Respondent represented by the 1st Respondent scored the highest number of lawful votes cast in the said election and also met the constitutional requirement of securing one quarter of all the votes cast in each of at least two third of Local Government Areas of Kogi State.

?The 1st Respondent and Hon. James Faleke were issued certificates of Return which Hon. James Faleke rejected. Based on

the certificate of Return, the 1st Respondent was sworn in as Governor of Kogi State.

Dissatisfied with the said election and return of the 1st Respondent the Appellants filed their petition on 22nd December, 2015.

In the petition, the Appellants petitioners proceeded on three alternative grounds namely:

(a) That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election, or

(b) That the 1st Respondent was at the time of the election not qualified to contest the election, or

(c) That the election of the 1st Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended).

The 2nd, 1st and 3rd Respondents filed their different replies to the Appellants petition respectively, on the 23/01/2016, 12/01/2016 and 01/02/2016.

Each of the Respondents also filed Notice of preliminary objection in respect of which arguments were taken at the prehearing session and rulings therein reserved to be delivered along with the substantive petition.

At the trial of the petition, the Appellants called only three witnesses. The 1st Respondent called one witness.

The 2nd and 3rd Respondents did not call any witness but tendered Exhibits.

The Tribunal delivered its judgment on the 7th day of June, 2016, wherein it dismissed the petition. In the said judgment the Tribunal held, first at page 3658 in the Appellants favour:

“…. It is therefore, the Tribunal’s considered view that even though the issue of nomination and sponsorship is a pre-election matter but same having been done in the course of the 21/11/2015 and the 05/12/2015 gubernatorial election of Kogi State is a post – election issue which could only be presented before an election Tribunal as done in the instant case see Wambai Vs Donatus (supra) 257 paragraph C. The Tribunal therefore finds and holds that the petition is competently before it”.

Second at pages 3658 – 3661 of the record that:

“Having said this, the issue whether the petitioners having the locus standi to challenge the nomination and substitution of the 1st Respondent by the 2nd Respondent for the 05/12/2015 election is an issue which this Tribunal will consider taking note of the following salient features :

1. We find that the petitioners are members of

the PDP which political party is not a member of the 2nd Respondent

2. That none of the petitioners was a candidate in the 2nd respondent’s party primaries as an aspirant nor participated in the same,

3. That the 1st Respondent is a member of the 2nd Respondent’s Political Party.

4. That the 1st Respondent has been shown in exhibit R(1) to have participated in the 2nd Respondent’s primaries for the gubernatorial election of the 21/11/2015.

5. That the 1st Respondent has also been shown to have taken the 2nd position in the said primaries with late Prince Audu as the first,

6. That the sponsorship and substitution of the 1st Respondent for 05/12/2015 gubernatorial election of Kogi State have been shown to have arisen because of the demise of late Prince Audu, the gubernatorial candidate of the 2nd Respondent in the 21/11/2015 election.

It is trite that an Election Tribunal has no power to investigate matters which took place before the conduct of the election. See ANPP Vs Usman (2008) 12 NWLR (part 614) UDAMA Vs ARUNSI (supra) at 131 paragraph F – H. It is also trite that an Election Tribunal has no Jurisdiction to inquire into the

primaries of a political party. See ALHASSAN & ANOR Vs ISHAKU (supra) ADEBUYI Vs APC (2015) 2 NWLR (Part 1441) 1 at 22 Paragraph.

“It is equally trite that the nomination and sponsorship of a candidate by a political party is not the business of non members of that party nor the Court or the Election Tribunal thus it is only a member of the same political party that has a right of action for being wrongly or unlawfully substituted or changed. See the case of Kolawole Vs Folunsho (2009) 8 NWLR (part 1143) 338 at 339 paragraph A-H. Furthermore, it is trite that a complainant must be an aspirant who participated in the primaries that produced the sponsored candidate. See Ukachukwu Vs PDP (2014) 17 NWLR (part 1435) 134 (SC) at 182 paragraphs E – H, 184 paragraphs F – G and 203 paragraphs A – B, From the analysis above and the reasoning of the Court as espoused in the cases already cited, it is the Tribunal’s considered view that the petitioners who have not been shown to be members of the 2nd Respondent’s political party nor participated as an aspirant in the primaries of the 2nd Respondent for the choice of a gubernatorial candidate for the 21/11/2015

and 05/12/2015 elections lack the locus standi to challenge the nomination, sponsorship and substitution of the late gubernatorial candidate of the 2nd Respondent with the 1st Respondent. The Tribunal finds and holds contrary to the contention of the petitioners that their complaint on the nomination of the 1st Respondent borders on the qualification of the 1st Respondent to contest the election by the 2nd Respondent. Consequently, it cannot be said that it is not within the internal affairs of the 2nd Respondent and we so hold.”

Thirdly, at pages 3670 – 3672, that:

“On the petitioners ground C at non-compliance which supporting facts are as contained in paragraphs 67- 84 the Tribunal notes that the facts therein avers amongst others acts of criminal nature or corrupt practices particularly at paragraphs 74 – 88 which they alleged clogged the success of the election.”

The Tribunal notes that from the provisions of Section 138 (1) (b) of the Electoral Act 2010 (as amended) which provides thus:

“An election may be questioned on any of the following grounds:

b) that the election was invalid by reason of corrupt practices or non-compliance

with the provisions of this Act”, The above provisions anticipates two scenarios, that of non-compliance and corrupt practices thus a petitioner can challenge an election either on the basis that the provisions of the Electoral Act has not been complied with or that it was tainted with corrupt practices,

On allegations bordering on corrupt practices, the petitioner is obliged to proof same beyond reasonable doubt while those bordering on non-compliance can be proved on balance of probabilities it is a fact that paragraphs 67 – 80 of the petition deal with allegation of corrupt practices while the grounds deal with non-compliance and we so hold”.

Finally, at pages 3742 – 3743, the Tribunal held as follows:

“In the instant petition, the petitioners have on this ground contended that the 1st Respondent was not qualified to be returned as the governor of Kogi State not having nominated a running mate and not having been validly substituted for the late gubernatorial candidate, The Tribunal observes from the evidence of witnesses for the petitioners did not address any of the qualification under Section 182 of the Electoral Act as no facts were

adduced before it through the petitioners witnesses that the 1st Respondent was so disqualified under the Constitution. The Tribunal also notes that neither the contention that the 1st Respondent failed to nominate a running mate for the election nor the alleged wrongful substitution is within the constitutional provisions for his qualification or disqualification as a Governor of the State”.

Dissatisfied in substance with the decision the Appellants filed their Notice of Appeal on the 24th day of June, 2016.

The relevant briefs of argument for the appeal are as follows:

1. Appellants brief of argument dated 08/07/2016 and filed on the same day – settled by Chief Chris Uche, SAN

2. 1st Respondent’s brief of argument dated 12/07/2016 and filed on the same day – settled by J. B. Daudu SAN.

3. 2nd Respondent’s brief of argument dated 12/07/2016 and filed on the same day served by Chief Akinlolu Olujinmi SAN, CON.

4. 3rd Respondent’s brief of argument dated 11/07/2016 and filed on 12/07/2016 served by Kenneth O. OMORUAN Esq.

5. Appellants Reply brief to the 1st Respondent dated 13/07/2016 and filed on 14/07/2016 settled by Gordy

Uche SAN.

6. Appellants Reply brief to the 2nd Respondent dated 14/07/2016 and filed on 15/07/2016 – settled by Olakunle Lawal Esq.

7. Appellants Reply brief to the 3rd Respondent dated 14/07/2016 and filed on same day settled by chief chris Uche SAN.

8. List of Authorities by 3rd Respondent dated 11/07/2016 by Kenneth O. OMORUAN Esq.

?Learned Senior Counsel for the Appellants nominated six(6) issues for determination, namely:

1. Whether the 1st Respondent was not disqualified to contest the election into the office of Governor of Kogi State not having personally nominated another candidate as his associate for the office of Deputy Governor. (Grounds 2,3, 5, 6,7, 10, and 25 of the Notice of Appeal.

2. Whether in the light of the finding of the Tribunal that there was no provision for replacement of a governorship candidate who dies in the course of an election, whether the Honourable Tribunal was right in holding that the 1st Respondent was duly replaced as candidate to conclude an election wherein polling had commenced. (Grounds 4, 9, and 12).

3. Whether the Honourable Tribunal was right in holding that the 1st Respondent who

did not participate in all the elections and in all the stages of the election was duly returned as the candidate who secured majority of lawful votes cast in the election. (Ground 8, 11, 13, 26 and 29).

4. Whether the Tribunal was right in upholding the Preliminary objections of the Respondents. (Grounds 1, 15, 16, 17, 18 and 19).

5. Whether in the peculiar circumstances of the case, the Tribunal was not wrong in its interpretation of non-compliance with the provisions of the Electoral Act, 2010 as amended. (Grounds 14,20, 21,22, and 24).

6. Whether the Tribunal was right in dismissing the petition as lacking in merit notwithstanding the overwhelming and unchallenged evidence adduced by the Appellants in support of the petition. (Ground 23, 27, 28, and 30).

?Learned Senior Counsel for the 1st Respondent distilled three (3) issues from the Appellants Notice and Grounds of Appeal.

They are:

1. Whether the issue of the 1st Respondent being unqualified or disqualified from participating in the Kogi Governorship elections on account of alleged lack of nomination of a Deputy Governorship candidate as raised by the Appellants is correct

both in law and fact and whether the lower Tribunal could be faulted for resolving the issue against the petitioners? (Grounds 2, 3, 5, 6,7, 10 and 25).

2.Whether the lower Tribunal could be faulted in the way and manner it resolved the issues raised in the preliminary objection of locus standi sponsorship and nomination particularly when it held that the 1st Respondent was properly and lawfully substituted for the deceased Prince Abubakar Audu? (Grounds 1, 8, 11, 13, 15, 16, 17, 18, 19,26 and 29).

3.Having regard to the facts and circumstances of the case whether the lower Tribunal dismissing the petition can be faulted in the way and manner it resolved the substantive claims of the petitioners such as alleged non-compliance with the provisions of the Electoral Act and that the 1st Respondent did not win the election by a majority of lawful votes? (Grounds 14, 20, 21, 22, 23, 24, 27, 28 and 30)

?Learned Senior Counsel for the 2nd Respondent formulated five (5) issues as follows:

1. Whether the Tribunal was not right to have dismissed the petition on the ground that the appellants lacked the locus standi to challenge the

nomination, sponsorship and substitution of the 1st Respondent. (Ground 1, 15, 16, 17 , 18 and 19).

2. Whether the Tribunal was not right when it held that the 1st Respondent was qualified to contest the election into the office of the Governor of Kogi State. (Grounds 2, 3, 5, 6, 7, 10 and 25)

3. Whether the Tribunal was not right when it held that it could not be said that the 1st Respondent did not participate in all the stages of the gubernatorial election in Kogi State. (Grounds 8, 11, 13,26 and 29).

4. Whether the Tribunal was not right in holding that upon the death of Prince Abubakar Audu the 1st Respondent was properly substituted as the candidate of the 2nd Respondent in the said gubernatorial election of Kogi State. (Grounds 4, 9, and 12).

5. Whether the Tribunal was not right in holding that the petitioners failed to prove the provisions of the Constitution and the Electoral Act 2010 and the petitioner’s criminal allegations in the conduct of the election. (Grounds 14, 20, 21, 22, 23, 24, 27, 28, and 30.

?The learned counsel for the 3rd Respondent chose to distill eight (8) issues for determination from the Appellants Notice

of grounds of Appeal. They are:

1. Whether the trial Tribunal’s decision upholding the Respondent’s preliminary objections is not right in law (Grounds 1, 2, 3, 15, 16, 17 and 19).

2. Whether the trial Tribunal’s decision that the 240, 687 and the 6885 votes secured by the late Prince Abubakar Audu and the 1st Respondent belong to the 2nd Respondent, affirming the merging of the said votes the substitution of the 1st Respondent with the late Prince Abubakar Audu and the 3rd Respondent’s declaration of the 1st Respondent as the winner of the Kogi State Governorship election was valid in law. (Grounds 4,8,9, 10, 11, 12,20, 28,29 and 30).

3. Whether considering the peculiar facts and circumstances of this case the trial Tribunal was right in its decision that Hon. James Abiodun Faleke was nominated by the 1st Respondent and was the 1st Respondent’s Deputy Governorship candidate in the Kogi State Governorship Election. (Grounds 5, 6, 7, and 25).

4. Whether the Tribunal below was not right in its decision that the Appellants failed to establish that the votes recorded in the Kogi State Governorship Election held on 21/11/2015 and 05/12/2015

were not valid votes. (Grounds 13, 14 and 26).

5. Whether the trial Tribunal was right in law when it refused to accord any evidential weight to the expert report tendered in evidence by the Appellants. (Grounds 21, and 22).

6. Whether the trial Tribunal was right in law when it held that the Appellants failed to link the various documents tendered by them to the various areas challenged by them in their petition. (Ground 23).

7. Whether the trial Tribunal wrongly imported the issue of corrupt practices into the petition of the Appellants as alleged by the Appellants (Grounds 24).

8. Whether the trial Tribunal failed to determine the issues raised by the Appellants in their petition and assuming without conceding that the Tribunal failed to determine the said issues the Appellants suffered any miscarriage of justice (Ground 27).

?The appeal will be decided on the issues formulated by the Appellants. Also, the arguments and submissions of the Appellants shall be placed on one side of the scale of Justice while those of the 1st, the 2nd and 3rd Respondents shall be considered together as the arguments and submissions of the Respondents.

This is for the reason of the shared common interest in between the three sets of Respondents and also for convenience of treatment.

ISSUE ONE

Learned Senior Counsel for the Appellants submitted on issue one that the crucial issue that resonates in the case of the Appellants before the Tribunal is that the 1st Respondent did not have a running mate as required by law. That paragraphs 15, 54, 55,57,59,62,63, 65 and 67 of the petition dwelt extensively on the fact that the 1st Respondent was not qualified to contest election having not nominated a running mate or an associate.

The issue of not nominating a running mate on the part of the 1st Respondent according to counsel is tied to Ground B of the petition as well as Relief D. That not only did the 1st Respondent not nominate a running mate, but he contested the supplementary election without a running mate and was sworn in without a running mate.

?In support of the factual basis of the above Appellants contention learned senior counsel for the Appellants referred to paragraphs 32, 33 and 40 (f) of the 3rd Respondent’s Reply to the petition where the 3rd Respondent claimed inter alia that

“…Hon, James Faleke was not nominated by the 2nd Respondent as the running mate of the 1st Respondent…?

Appellants counsel then turned to the evidence led and submitted that the evidence of pw1 and pw3 overwhelmingly support the averments in paragraph 15, 55, 57,59,62,63,65 and 67 of the petition to the effect that the 1st Respondent did not have a running mate as required by law.

Appellants counsel also considered that the evidence of DW1 more especially under cross examination at pages 3270 – 3273 of the record, first that, “I will not be surprised that INEC said that James Faleke is not the running mate”. second, that “?.. P23 is the name of the 1st Respondent substituting the late Prince Audu. I have not seen any other form apart from those ones similar to them” as admissions against the interest of the Respondents. Appellants counsel referred to the cases of Iniama vs Akpabio (2008) 17 NWLR (part 116) 255 at 344 and Omisaodu vs Elewuju (2006) 13 NWLR (part 998) 517, 532, and submitted that when the evidence of a witness supports the case of the opponent, the opponent can take advantage of the

evidence to strengthen his case. He argued that in resolving these all important issue the Tribunal regrettably refused to follow binding judicial procedures by coming to the conclusion that the issue of nomination of a running mate for the election on the part of the 1st Respondent is not within the Constitutional provisions for qualification or disqualification as the Governor of a State. The Tribunal held that the Appellants did not address any of the qualification of a candidate under Section 177 of the Constitution or disqualification under Section 182 of the Constitution. He submitted that the Tribunal also trivialized the admission of the 3rd Respondent on the fact that Hon. James Abiodun Faleke ceased to be running mate on the death of Prince Abubakar Audu on the ground that the Appellant could not rely on such admission as the Appellants case is one of declaratory relief. That the Tribunal equally held that Hon. James Faleke did follow the steps prescribed in Section 35 of the Electoral Act on purported withdrawal and there was no valid withdrawal of nomination to INEC.

?Counsel submitted that in all the circumstances of the case, Section 35 of

the Electoral Act (as amended) cannot be binding on Hon. James Abiodun Faleke as he is not a candidate within the con of the said election.

He added that the same Tribunal interestingly had in another petition EPT/KG/GOR/01/2015 between Hon. James Abiodun Faleke Vs INEC and Ors held that said Hon. James Faleke was not a candidate within the contemplation of the Electoral Act and as such had no locus standi to present an election petition. That the Tribunal cannot therefore in another turn hold that the same Hon James Faleke is a candidate who can only withdraw from contest upon 45 days notice to the Electoral body by his political party.

He submitted that the law is trite that a Court of law must be consistent in its findings and should not make findings that are diametrically inconsistent with each other on the same or similar issue.

?After referring on this point to the case of OBU & ORS vs A.V.A. ONIBUDO & Co. Limited & Ors (2009) LPELR (8255 (CA) Appellants counsel submitted further that having not nominated a running mate in compliance with Section 187 (1) of the Constitution, the 1st Respondent could not have been validly

sponsored by any political party to contest the election in compliance with Section 177(c) of the Constitution. At least the 1st Respondent was not a candidate of any Political party in the election as at 21st November, 2015.

Learned counsel for the Appellant frowned on the finding of the Tribunal that the failure to comply with Section 187(1) of the 1999 Constitution (as amended) was not a disqualifying factor. He argued that the cases of Tarzoor Vs Ioraer & 2 Others (2016) 3 NWLR (part 1500) 463 at 498 ANPP vs Usman (2008) 12 NWLR (part 110) at 53, AISHA JUMMAI ALHASSAN vs Mr. Darius Dickson Ishaku & Others SC 46/2016 (Consolidated) delivered on Monday, the 22nd day of February, 2016, Shinkafi vs Yari SC 9071 2015 delivered on 8th January, 2016. Relied upon by the Tribunal bear no similarity to the instant petition. That the point decided in the above cases is that the manner in which a political party conducts its primary elections to select and nominate candidates is a matter solely within the internal affairs of the party. Non-members of the political party were held to be without locus standi to challenge the nomination of such candidates.

That whilst the Supreme Court made pronouncements on Sections 177 and 182 of the Constitution no consideration was made on the implication of the failure to comply with the mandatory provisions of Section 187(1) of the Constitution. The cases are therefore not relevant and nor applicable to the instant appeal. In none of the cases, said counsel did the import and applicability of Section 187(1) of the Constitution arise. He submitted, the Tribunal was in grave error to have relied on those cases as a basis for its finding that Section 187(1) of the Constitution is not a disqualifying provision for Governorship candidates. Counsel submitted that the Tribunal similarly turned a blind eye to two binding decisions of the Court of Appeal and one of the Supreme Court which directly examined Section 187(1) of the Constitution and held that non-compliance with the said provision disqualifies a Governorship candidate from contesting a Governorship election.

?The Appellants contend that contrary to conclusion of the Tribunal the qualifications specified under Section 177 and 182 of the Constitution with respect to the office of Governor of a State are by no means

exhaustive or exclusive. That the clear cut constitutional requirement embedded in Section 197(1) of the Constitution is that the candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor.

Appellants counsel submitted that Sections 177 and 182 did not close the categories of qualifications and disqualifications.

That Section 187(1) is a subsequent provision and cannot be over-ridden by the earlier provisions but is rather complimentary to the earlier provisions.

He submitted that non-compliance by the 1st Respondent with Section 187(1) of the Constitution makes him completely disqualified from contesting the Governorship election and also completely voids his sponsorship by the 2nd Respondent for the Governorship election. Appellants counsel submitted further that Section 187(1) of the Constitution should be read together with Section 177(c) of the Constitution and that Sections 187(1) 177 and 182 are all related dealing with ascension to the

office of Governor of a State and thus Section 187(1) is a precondition to the effectiveness of Sections 177 and 182 of the Constitution.

He referred to the pronouncements of the Supreme Court in the cases of PDP Vs INEC (1999) 11 NWLR (part 626) 200 at 239 and Emenike Onwata Vs INEC (2011) LPELR (9184) for the proposition that the valid nomination of a Governorship candidate is dependent upon a valid nomination of a deputy Governorship candidate. He submitted further that once the provision of Section 187(1) of the Constitution has not been shown to have been complied with by the 1st Respondent his candidature becomes caught up by the disqualifying factor in Section 177(c) of the Constitution since a candidate not validly nominated cannot be validly sponsored. There is no doubt, said counsel that by the tenor of Section 177(c) of the Constitution a person is qualified only and only if he is sponsored by a political party.

Importantly, according to counsel the issue of qualification to contest election is one of the grounds for maintaining an election petition pursuant to Section 138(1) (a) of the Electoral Act 2010 (as amended). Finally on this

score, appellants counsel referred to the decision of the Court of Appeal in Dingyadi vs Wammako (2008) 17 NWLR (part 1116) 395 and submitted that the 1st Respondent was not qualified to contest the said election not having personally nominated a running mate as mandatorily required by the Constitution. He urged us to resolve the issue in favour of the Appellants

In answer to Appellants issue one the Respondents submitted that Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) strictly govern the issue of qualification or disqualification as envisaged by Section 138(1) (a) of the Electoral Act 2010 (as amended). That the Courts have consistently held that for a party to institute an election petition before a Tribunal on the ground of qualification or disqualification as stated in Section 138(1)(a) of the Electoral Act 2010, the claim must apparently be factually based within the parameters ensured in Sections 177 and 182 of the 1999 Constitution (as amended) otherwise any fact not based on the parameters stated in Sections 177 and 182 of the 1999 Constitution will be outside the provision of Section 138(1) (a) of

the Electoral Act 2010 (as amended) and cannot be entertained by the Election Tribunal. For the above statement of law the Respondents relied on the cases of PDP Vs INEC (2014) 17 NWLR (part 1437) 525 at 559 – 560, CPC vs Umar (2012) 12 NWLR (part 1315) 605 at 629 – 631, Tarzoor vs Ioraer (2016) 3 NWLR (part 1500) 463at 498 to 499 and Ucha vs Onwe (2011) 4 NWLR (part 1237) 386 at 427.

The Respondents argued that the provision of Section 187 (1) of the 1999 Constitution (as amended) borders on the issue of nomination and not qualification of the candidate.

The Respondents distinguished the cases of PDP vs INEC (1999) 11 NWLR (part 626) 200 and Dingyadi vs. Wammako (2008) 17 NWLR (part 116) 395. The latter as being per incuriam and as not representing the law as laid down by the Supreme Court. The former (first) as having been based on a previous electoral legislation which is not in pari materia with the present one.

In fact, that the above case of PDP vs INEC (supra) is not applicable to the instant case because the nomination of a Deputy Governor was included in the law as one of disqualifying factors of a gubernatorial candidate in the then

Section 96(1) (k) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999 whereas in the instant case, the nomination of a Deputy Governorship candidate by a Governorship candidate is not included in the disqualifying provision, that is Section 182 of the 1999 Constitution (as amended).

Apart from the foregoing the Respondents further submitted that it is not required by any provision of the Electoral Act or the Constitution that where a candidate is substituted during the course of an election pursuant to Section 33 of the Electoral Act as a result of the death of the candidate previously nominated, the process is to begin as the poll had not commenced.

He is only required to satisfy the requirements of Section 177 and 182 of the Electoral Act. This, the Respondents submitted is even more so in this petition in which there is an existing running mate which the 1st and 2nd Respondents did not reject and who did not withdraw his candidature in accordance with Section 35 of the Electoral Act before the window of withdrawal created by the Section closed.

The Respondents further submitted that the arguments of

the Appellants that the 3rd Respondent had admitted that the 1st Respondent had no running mate is misconceived. This, they said is because the law is settled that an admission by a defendant is not admissible against a co-defendant. And, also because declaratory reliefs cannot be proved on admission.

RESOLUTION OF ISSUE ONE

The summary of the Appellants argument on issue one is that the nomination and election of the 1st Respondent as Governor of Kogi State via the elections of 21st November, 2015 and 5th December, 2011 is caught up by the provision of Section 187 (1) of the 1999 Constitution (as amended) for the reason that the 1st Respondent did not nominate a running mate for the Governorship elections as stipulated by the said Section 187(1) of the Constitution. Also, that the 3rd Respondent had admitted that the 1st Respondent indeed did not nominate a running mate for the elections.

The respondent on the other hand contended that the provision of Section 187(1) of the Constitution has nothing to do with the qualification or disqualification to the office of an elected Governor of a State but that the provision is rather limited to the

stages of nomination and sponsorship of the Governorship candidate. Consequent on the above argument the Respondents believe that the provision of Section 187(1) of the Constitution deals with intra – party pre-election matter the complaint of which can only be ventilated or entertained in the Federal High Court.

The Respondents insisted that the nomination of the Hon. James Faleke by the late Prince Audu is extant as a matter of law since the 1st Respondent was a substituted candidate pursuant to Section 33 of the Electoral Act. And that the admission by the 3rd Respondent that the 1st Respondent did not nominate a running mate is of no moment in law.

The relevant statutory provisions for the determination of issue one are essentially the provisions of Section 187(1) 177 and 182 of the 1999 Constitution (as amended) Section 187 (1) states:

“In any election to which the foregoing provisions of this part of this Chapter relate, candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor who is to

occupy the office of Deputy Governor and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provision”.

Section 177 of the Constitution deals with the qualification for election as Governor as follows.

“A person shall be qualified for election to the office of Governor of a State if:-

(a) he is a citizen of Nigeria by birth.

(b) he has attained the age of thirty five years.

(d) he has been educated up to at least school certificate level or its equivalent.”

Finally the provision of Section 182(1) (A-J) categorized ten (10) possible disqualifications for election to the office of Governor of a State.

It would be recalled that one of the salient arguments by the learned SAN for the Appellants is that a person who breaches the provision of Section 187(1) of the Constitution could not be said to be validly nominated and/or sponsored by a political party under the provision of Section 177(c) of the Constitution and also that the qualification and the

disqualification ingredients in Section 177 and 182 of the Constitution are not exhaustive.

In pursuing this line of reasoning the appellants placed reliance on two judgments of the Supreme Court that is the cases of PDP vs INEC (1999) II NWLR (part 626) 210 at 239 (per Uwais CJN) and Emenike Onwata & Anor vs INEC (2011) LPELR 9184.

The Respondents have distinguished these cases, in particular they argued that the decision in PDP Vs INEC (supra) is not applicable to the instant case because the nomination of a Deputy Governor was included in the Decree No. 3 at 1999 (Section 96 (1) (k) as one of the disqualifying factors of a gubernatorial candidate whereas in the instant case, the nomination of a Deputy Governorship candidate by a Governorship candidate is not included in the disqualifying provision that is Section 182 of the 1999 Constitution. They (Respondents) also submitted that the case of Onwata Vs INEC (supra) is of no moment to the instant case as the authority itself recognizes the fact that complying with the provision of Section 187(1) of the 1999 Constitution is an issue of nomination.

?I think that the draftsman of the

Constitution deliberately separated the provision of Section 187(1) as a nomination issue from the provisions of Sections 177 and 182 which specifically deal with qualification and disqualification of a person to be elected as Governor. For this reason I am in agreement with the learned senior counsel to the Respondents and in line with the recent decisions of the Supreme Court in the cases of Tarzoor Vs Ioraer (2014) 3 NWLR (part 150) 483 at 498 to 499 and PDP Vs INEC (2014) 17 NWLR (part 1137) 525 at 559 – 560 that the issue of qualification and disqualification, once raised as per Section 138(1) of the Electoral Act is determined with reference to Section 177 of the Constitution in case of qualification and Section 182(1) in case of disqualification. See also Ucha vs Onwe (2011) 4 NWLR (part 1237) 386 at 427 and CPC v Umar (2012) 12 NWLR (part 1315) 605 at 629 – 631.

I therefore agree with the Tribunal on this issue as a matter of law when it held at pages 3742 – 3743 of the printed record that:

“… in the instant petition the petitioners have on this ground contended that the 1st Respondent was not qualified to be returned as the governor of

Kogi State not having nominated a running mate and not having been validly substituted for the late gubernatorial candidate. The Tribunal observes from the evidence of witnesses for the petitioners did not address any of the qualification of a candidate under Section 177 of the Constitution or disqualification under Section 182 of the Electoral Act (sic) Constitution as no facts were adduced before it through the petitioner’s witnesses that the 1st Respondent was so disqualified under the Constitution. The Tribunal also notes that neither the contention that the 1st Respondent failed to nominate a running mate for the election nor the alleged wrongful substitution is within the Constitutional provisions for his qualification or disqualification as a Governor of State.”

Issue one is resolved against the Appellant.

ISSUE TWO

Learned counsel for the Appellants noted on issue two that it is intrinsically linked to Ground A of the petition as well as reliefs a, b, and c in the petition and submitted that it is also closely connected to the issue of non – qualification of the 1st Respondent to participate in the election.

?He submitted that the

petition challenged the lawfulness of the votes ascribed to the 1st Respondent on the basis that the purported substitution of late Prince Abubakar Audu with the 1st Respondent after election had commenced and almost concluded, with over 95% of votes already cast and collated is alien to our electoral laws.

He submitted that the Tribunal in its judgment delivered on 7th day of June, 2016 made an important finding of fact to the effect that there is no provision either in the Constitution or in the Electoral Act for replacement of a Governorship candidate who dies after voting has commenced in an election.

?He noted that no appeal has been lodged against the above finding and as such, the finding is binding on all the parties to this appeal. Appellants counsel submitted that Section 36 of the Electoral Act does not permit the substitution of a candidate who dies after the commencement of the polls as arbitrarily done in this case and submitted further that having found that there is no provision in the Constitution or Electoral Act for the replacement of a governorship candidate who dies before the election is concluded, the Tribunal was clearly wrong

to have turned around to validate the replacement of 2nd Respondent’s deceased candidate with the 1st Respondent.

He submitted that the decision of the Tribunal in returning the 1st Respondent as duly elected was with respect inconsistent with binding Constitutional and statutory provisions and its own earlier finding that there is no law permitting replacement of candidates who dies after polls have commenced in an election. He referred to the decision of the Court of Appeal in ABDULLAHI AHMAN & ANOR Vs ABUBAKAR TANKO AYUBA & ORS (2008) LPELR where the provision of Sections 33 – 36 of the Electoral Act 2010 was interpreted to mean that the right to substitute or replace a candidate exists only where the candidate dies before the commencement of the poll.

?That there is no provision whatsoever either in the Constitution or Electoral Act to justify, the idea of the closest alternative candidate as a suitable replacement to a deceased candidate after the commencement of polls as preferred by the Tribunal at page 3755 of the printed record, just as there is no provision for a runner-up in party primary as replacement for a deceased candidate upon

the commencement of polls.

He concluded on this score that it is beyond contest that since the 1st Respondent was not substituted in accordance with any laws, his participation in the election was unlawful and cannot take benefit from any votes(s) ascribed to him.

?The Respondents reacted to issue two and submitted that the holding of the Tribunal that upon the death of Prince Abubakar Audu, the 1st Respondent was properly substituted as the candidate of the 2nd Respondent is valid and well grounded in law.

They reiterated the salient facts of the case as follows:

i) Prince Abubakar Audu was the candidate of the 2nd Respondent in the 2015 Kogi State gubernatorial election until his death before the conclusion of the election.

ii) That upon the 2nd Respondent communication of late Prince Abubakar Audu’s death to the 3rd Respondent directed the 2nd Respondent to substitute the late Prince Abubakar Audu with a new candidate for the supplementary election which was slated for December 5, 2015 which would mark the conclusion of the Kogi State gubernatorial election.

iii) It was in accordance with the directive of the 3rd Respondent that

the 2nd Respondent submitted the name of the 1st Respondent (the 1st runner-up in the 2nd Respondent’s Kogi State gubernatorial primary election wherein the late Prince Abubakar Audu emerged as the winner and candidate of the 2nd Respondent) as the substitute candidate replacing the late Prince Abubakar Audu.

The respondents submitted that the Tribunal was right when it held at page 3760 of the record that:

“… it is the considered view of the Tribunal that the 1st Respondent was qualified to contest in the election into the office of Governor of Kogi State and be returned as duly elected as done in the instant case and we so hold.”

The Respondents submitted that by this the Tribunal affirmed the validity of the substitution of late Prince Abubakar Audu with the 1st Respondent.

?They argued that even if there is no provision specifically on the replacement of a candidate who dies before the election is concluded, the conclusion of the Tribunal that the 1st Respondent was qualified and duly returned is supported by the law. According to the Respondents the peculiarity of the case can only be situated within the parameters of

Section 33 of the Electoral Act 2010 (as amended) which enables a political party to substitute a candidate in the case of death. The Respondents referred to the cases of Ugwu vs PDP (2015) 7 NWLR (part 1459) 478 at 500 ? 501 and Dr. Abdullahi Baba Abdul Vs Congress for Progressive Change (CPC) 2 ORS (2012) LPELR – 9283 (CA) noted that there is no time limit as to when a political party can change its candidate in the case of death of the candidate or withdrawal by the candidate. In effect, that Section 33 of the Electoral Act 2010 (as amended) allows a political party to substitute a deceased candidate with another candidate at any time before the conclusion of the election.

This according to Respondents means that the replacement can be done even where the candidate dies after the commencement of the poll but before the conclusion of the election (as was done in the instant case).

?The Respondents further submitted that the fact there is no time limit for the replacement of a dead candidate is not novel as this was also the position under Section 34(3) of the Electoral Act, 2006. Also that in this respect the provision of Section 36(1) of the

Electoral Act 2010 (as amended) is absolutely inapplicable as Section 36(1) is only applicable where the candidate dies upon the delivery of nomination paper and before the commencement of the poll.

It was further submitted for the Respondents that there is absolutely no provision of the law either directly or inversely that says where the candidate of a political party leading in the majority of lawful votes dies after the commencement of the poll but before its conclusion, the person or political party which scores highest number of votes should be declared the winner of the election. Respondents counsel distinguished the facts of the case of Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba & ORS (2008) LPRLR – 3659 (CA) referred to on this issue by the Learned Senior Counsel for the Appellants from facts of this case.

In particular that the provision of Section 34 of the Electoral Act 2006 considered in that case are not the same as the provision of Section 33 of the Electoral Act 2010 (as amended). And that unlike the instant case the death of the candidate in the Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba case (supra) occurred

before the commencement of the poll. That indeed the leading judgment of Oredola JCA in the Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba case (supra) though decided under the Electoral Act 2006 recognized the fact that there is no limitation whatsoever as to the time to replace a deceased candidate.

More particularly, the 2nd Respondent referred to paragraph 25 of its Reply to the petition at page 1453 of the record to demonstrate that the finding of the Tribunal that the 1st Respondent was in the circumstance the closest alternative to replacing the late Prince Abubakar Audu was dictated by pleadings and not manufactured or merely suggested by the Tribunal from the blues. Rather that the exigency of the situation dictated that the 1st Respondent was the lawful replacement of the late prince Abubakar Audu. They urged us to resolve the issue against the Appellants.

RESOLUTION OF ISSUE TWO

It seems to me that the argument of the learned senior counsel for the Appellants that the decision of the Tribunal in returning the 1st Respondent as duly elected was inconsistent with its own earlier finding that there is no law permitting

replacement of candidates who die after polls have commenced in an election counters one basic principle, that is an Appeal Court should concern itself with the rightness or otherwise of a decision rather than the reasons for coming to such a conclusion.

Beyond this, the pleadings, the evidence of the parties and more particularly the directive of the 3rd Respondent to the 2nd Respondent dictated that the 2nd Respondent (the 1st runner-up in the 2nd Respondent’s Kogi State gubernatorial primary election emerge as the substitute candidate replacing the late prince Abubakar Audu.

Perhaps, there is no provision of the law specifically on the replacement of a candidate who dies before the election is concluded, however I do agree with the Respondents that the conclusion of the Tribunal that the 1st Respondent was qualified and duly returned is supported by law.

In this respect, Section 33 of the Electoral Act 2010 (as amended) provides thus:

?A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 37 of this Act except in the case of death or withdrawal by the

candidate.”

Indeed, it is evident from the wordings of Section 33 above that there are two arms in this Section which are the general principle and the exception of the general principle that is:

1. the general principle: once a political party submits the name of a person as its candidate that political party shall not be allowed to change such candidate.

2. the exception: a political party shall only be allowed to substitute a candidate only if:

i) the candidate dies;

ii) the candidate by himself withdraws his candidacy.

Clearly Section 33 of the Electoral Act 2010 (as amended) allows a political party to substitute a deceased candidate with another candidate at any time before the conclusion of the election.

Again, the situation envisaged in Section 36 of the Electoral Act where a poll can be countermanded does not arise in the instant case as polls had already commenced.

?Based on the above, I agree with the Tribunal and the Respondents that where the candidate dies, his political party his vested with authority under Section 33 of the Electoral Act to replace the deceased candidate with another candidate and that the

Tribunal was right in holding that the 1st Respondent was rightly returned as the winner of the election. This is because substitution of a party simply means a designation of a person or thing to take place of another or thing. It is the process by which one person or thing takes the place of another or thing etc. See Black’s Law Dictionary page 147 Ugwu vs Ararume (2007) 12 NWLR (part 1048) 365, Attorney General of Anambra vs Attorney General of the Federation (1993) 6 NWLR (part 302) 692.

It is needless to add that the Respondents clearly distinguished the case of Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba (supra) referred to by the learned senior counsel for the Appellants from the facts and circumstances of the instant case. In the first place the Abdullahi Ahman case (supra) was decided on the provisions of Sections 34(3) and 37(1) of the Electoral Act 2006 which are not in pari materia with the provision of Section 33 of the Electoral Act 2010 (as amended).

Secondly the death of the candidate in the Abdullahi Ahman case (supra) unlike the instant case occurred before the commencement of the poll.

Meanwhile the judgment of Oredola

JCA in the Abdullahi Ahman case (supra) recognized that there is no limitation whatsoever as to the time to replace a deceased candidate as:

“… the issue will be taken or considered as the exigency of the situation dictated. This is moreso, since the monumental event of death does not serve any notice on either the healthy or the ailing …”

Finally on this score the Tribunal cannot be faulted having regard to pleadings, evidence and the state of the law for holding at page 3755 of the printed record that:

“…… the 1st Respondent having participated in the primaries that produced the late gubernatorial candidate can be said to be the closest alternative to replace the deceased gubernatorial candidate having come second in the primaries, That because of time it would not have been possible for the 2nd Respondent APC to conduct another primary election for the purposes of electing a gubernatorial candidate to replace the deceased candidate.”

Issue two is resolved against the Appellants.

ISSUE THREE

Learned senior counsel for the Appellants noted that issue three is equally an integral part of the petition of the

Appellants before the Tribunal and that it is linked to Ground A of the petition as well as reliefs a, b and c in the petition. He submitted that it is closely connected to the issue of non qualification of the 1st Respondent to participate in the election.

Appellants counsel submitted that in the petition filed before the Tribunal, the issue of non-participation of the 1st Respondent in all the stages of the election and the fact of his having scored only 6,885 votes in the supplementary election of 5th December, 2015 and as such incapable of securing majority of lawful votes cast at the election features prominently in the case before the lower Tribunal specifically, at paragraph 25 of the petition, the Appellants averred thus:

“25 The 1st Respondent neither campaigned nor presented himself for election of the 21st day of November, 2015 and the said 1st Respondent never voted in either the 21st of November, 2015 or 5th, December, 2015.”

Also, that at paragraph 17(c) of petitioners Reply to 1st Respondent’s Reply dated and filed 5th February, 2016, the Appellants averred thus:

“17(c) the 1st Respondent was not a candidate at nor

participated in the election of 21st November, 2015 and cannot presumptuously be deemed to have participated in the election and cannot take any benefit from the election.?

That in the same vein, the Appellants in their Reply to 2nd Respondent’s Reply dated and filed 28th day of January, 2016 raised the matter of the 1st Respondent not having participated in the election of 21st November, 2015. The paragraph reads:

“15 The petitioners shall also contend that the 1st Respondent was not a candidate at, never participated in the election of 21st November, 2015 and cannot presumptuously be deemed to have participated in the election and cannot take any benefit from the election.”

It was submitted that the sum total of the Appellants averments in their various pleadings impugns the return of the 1st Respondent as Governor of Kogi State having not participated in all the stages of the said election and in particular, not having been a candidate at the election of 21st November, 2015. On this score, Appellants counsel referred to the provision of Section 141 of the Electoral Act 2010 (as amended) on the need to fully participate in all the

stages of the election. They submitted that in evidence even DW1 who testified for the 1st Respondent agreed with PW1 that the 1st Respondent was not a candidate at the Governorship election on 21st November, 2015.

Appellants counsel referred to the cases of OMBUGADU Vs CPC (2013) 18 NWLR (part 1340) 31 at 75 – 76, ELIGWE vs OKPOKIRI (2015) 2 NWLR (part 1443) 348 at 377 and JEV & ANOR vs IYORTYOM & ORS (2014) LPELR ? 23000 (SC) to show that a candidate in an election is obliged to participate in all stages of the election before he can be duly returned.

The Appellants submitted that having not fully participated in all the stages of the election, particularly the main election of 21st November 2015, either as a candidate or a voter for that matter the 1st Respondent was not qualified let alone being returned as the winner. By implication, the return of the 1st Respondent by the 3rd Respondent as the winner of the Governorship election in Kogi State vide Exhibits P4 and P5 is unlawful.

?On the issue of majority of lawful votes cast, the Appellants submitted that the 1st Respondent who only participated in the election of 5th December, 2015

and received 6,885 votes did not and could not secure more votes than the 1st Appellant who polled 204,877 votes and scored more than 1/4 votes cast in every Local Government Area of Kogi State. That the act of amalgamating the 240,867 votes of a deceased person who was hitherto candidate of the 2nd Respondent to the 6,885 votes scored by the 1st Respondent in declaring the 1st Respondent returned was an inherent vice that rendered the said votes of 240,867 unlawful. This, the Appellants said is particularly so as there is no provision either in the Constitution or in the Electoral Act justifying such amalgamation of votes.

?The Appellants submitted further that contrary to the conclusion reached by the Tribunal, upon the death of prince Abubakar Audu the votes cast for him ceased to be valid for purposes of collation or reckoning in the election under Section 69 of the Electoral Act 2010 and Section 179 of the Constitution of the Federal Republic of Nigeria. By implication said counsel, the 240,887 votes scored by the Prince Abubakar Audu became nonexisting upon his death.

?Learned senior counsel for the Appellants further submitted that besides

taking irrelevant factors into consideration, the Tribunal pointedly ignored the provisions of Section 69 of the Electoral Act 2010 (as amended) which was cited to it and which shows that votes are cast for candidates and not political parties. He argued that in the whole of Section 69 of the Electoral Act that governs how the winner of an election is determined, the term political party is not used at all. The provisions show that the votes are scored by the candidates and not political parties. This he said is in tandem with Section 179 of the Constitution which is incorporated by reference into Section 69 of the Electoral Act.

He submitted in the light of the above there was no law or precedent that could have formed the basis of amalgamation of votes which the Tribunal found that the 3rd Respondent was entitled to do. In making such a finding the Tribunal held that votes belong to political parties and as such it could be ascribed to any person the political party desires.

He submitted that not even Section 221 of the Constitution did in any manner confer proprietary right in the votes to the political parties. As is manifest from the afore said

provision is the use of the term “for the candidate” in relation to the votes.

Appellants submitted that the Tribunal wrongly relied on Amaechi Vs INEC (2008) 5 NWLR (part 1080) 227 in arriving at a decision that the 2nd Respondent owned the votes and had the prerogative of assigning same to whosoever it desires. And, that the case of Amaechi Vs INEC (supra) is not authority for amalgamation of votes.

He submitted that the ratio decidendi of Amaechi Vs INECis to the effect that at all material times, Rotimi Amaechi was the candidate of the Peoples Democratic Party (PDP) and not that a political party can go into elections with one candidate and later ascribe votes to another person as was sought to be done in the instant case.

He submitted that Section 221 of the Constitution supports the position of the Appellants that votes are meant for candidates and not for political parties who at best canvassed votes for candidates. On this he referred to the case of Ngige vs Akinyuli (2012) 15 NWLR (part 1323) 343 at 375 – 376 and urged us to resolve the issue in favour of the Appellants.

?In answer to Appellants issue three, the Respondents

referred to the provision of Section 141 of the Electoral Act to wit:

“An Election Tribunal or Court shall not under any circumstance declare any person a winner of an Election in which such person has not fully participated in all stages of the said election.”

?This they (Respondents) followed up with the question:

Who is seeking to be declared winner of the election in this petition? They (Respondents) answered that it is the Appellants that are seeking a declaration as winner of the election which held on November, 21 and December, 5, 2015 and not the Respondents. It is the Appellant that cannot be declared the winner of an election by the Court or Tribunal if they have not participated in all the stages of the election. That the Respondents are not here to seek an order of the Tribunal to be declared winner of the election. They did not also file a cross – petition by which they could make such a prayer and they have none. In fact, that the 1st and 2nd Respondents were declared winner by INEC the 3rd Respondent and not the Tribunal. The provision of Section 141 does not apply to the 1st and 2nd Respondents but the Appellants who are the ones

seeking an order declaring them winner by the Tribunal. On this, counsel to the Respondents referred to the cases of Jev vs Iyortom (2015) LPELR – 24420 (SC) page 22 and Ntiero vs N.P.A (2008) 10 NWLR (part 1094) 129 at 147 – 148.

Respondents submitted further that another ground upon which the fallacy in the argument of the Appellants becomes more obvious with respect to the issue whether the 1st Respondent participated in all the stages of the election is that it is parties that contest elections and not candidates who are just mere standard bearers of their political parties.

On this score, the Respondents referred to Section 221 of the Constitution and the judgment of the Supreme Court per Oguntade JSC in Amaechi Vs INEC (2008) 5 NWLR (part 1080) 227 at 317 – 318 to the effect that the primary method of contest for elective offices is between parties.

That candidate may change in an election but the parties do not and that in reality in consonance with Section 221 of the Constitution “it is his party that has won the election”.

The Respondents also referred to the recent decision of the Supreme Court in the case of Agbaje vs Ambode

(2016) 4 NWLR (part 1501) 151 at 166 and submitted that the Supreme Court felt bound in that case by the logic of the decision in Amaechi’s case and therefore reiterated the position of the law to the effect that no individual candidate can contest an election without its political party and votes cast thereat belong to the party.

The Respondents submitted that in the circumstances it is clear that the votes cast for APC during the November 21 election cannot be buried with Abubakar Audu but enured to the benefit of the party that sponsored him. it is also the law that at the death of Abubakar Audu APC had the right to substitute him and that by Section 33 of the Electoral Act, 2010 a political party shall substitute its candidate only upon withdrawal by the candidate or death.

It was further submitted on behalf of the Respondents that the cases of Ombugudu Vs CPC (supra) and Eligwe Vs Okpokiri (supra) cited by the Appellants are distinguishable from the facts of the instant case. That the two cases are concerned with petitioner’s who have not participated in all the stages of an election and forbids the Tribunal or Court from declaring such a

person as winner. The cases are therefore supportive of the position of the 2nd Respondent and not the Appellants who are asking to be declared winner of the election as Section 141 is against the Appellants in this regard. Finally on this score the Respondents submitted that the 1st Respondent participated in the entire election from the beginning based on participation and accrued interest of his political party.

RESOLUTION OF ISSUE THREE

Appellants issue three could be considered from the point of view of the pleadings, the evidence, the circumstances as well as the position of the law on the ensuing issues of facts. For example, it is not in dispute between the parties that INEC the electoral body asked the 2nd Respondent to substitute its candidate on the death of Prince Abubakar Audu even as it declared the gubernatorial election in Kogi State inconclusive.

Meanwhile, none of the parties ever challenged the decision of INEC, the electoral body which asked the 2nd Respondent to substitute its candidate in the election.

?The decision of INEC to substitute the candidate of the 2nd Respondent rightly or wrongly was the beginning of the

legal conundrum which culminated into this appeal. The real question in this issue is whether the ensuing factual circumstances could be sustained by the law.

The Appellants insisted that it was wrong to merge the 240,867 votes of the late Prince Abubakar Audu who was hitherto candidate of the 2nd Respondent to the 6,885 votes scored by the 1st Respondent in declaring the 1st Respondent the winner in the election. They argued that votes are meant for candidates and not political parties and that the decision of the Tribunal was in breach of Sections 179 and 221 of the 1999 Constitution (as amended) as well as Sections 69 and 141 of the Electoral Act 2010 (as amended). By the Constitutional provisions on the ground that the votes enure only in favour of particular candidates and not the parties and by Section 141 of the Electoral Act that the 1st Respondent did not fully participate in all the stages of the election.

?The Respondents on the other hand insisted that Section 33 of the Electoral Act provides a valid window of substitution of candidate consequent on the withdrawal or death of a candidate without any time limit as contained in Section 36 of

the Electoral Act.

That Section 221 of the Constitution of the FRN 1999 (as amended) indeed makes it clear that votes cast at elections belong to the political parties that sponsored candidates and that it was in the spirit of Section 221 of the Constitution that the Supreme Court decided the landmark case of Amaechi vs INEC (2008) 5 NWLR (part 1080) 227 at 317 – 318 and the recent decision in the case of Agbaje vs Ambode (2016) 4 NWLR (part 1501) 151 at 166.

The Respondents contended further that the provision of Section 147 of the Electoral Act is not applicable to the facts and circumstances of the present case. This according to them is not just because of the window of substitution under Section 33 of the Electoral Act but also because they as Respondents in the Tribunal and in this Court are not seeking any order to be declared winner of the election.

?In the instant case I do agree with the Respondents that the provision of Section 33 of the Electoral Act 2010 (as amended) indeed provides a window for substitution on the death of the then gubernatorial candidate of the APC and that the choice of the 1st Respondent as substitute candidate

not only belongs to the 2nd Respondent but also constitutes an intra-party matter of the 2nd Respondent.

Furthermore and in relation to Section 141 of the Electoral Act the decision of the Supreme Court in the case of Jev. Vs Iyortom (2015) LPELR – 24420 (SC) page 22. Supported the Respondents case to the extent that the provision of Section 141 is directed at an Election Tribunal or Court engaged in the hearing and determination of election petitions arising from elections conducted by INEC. Indeed it is the Tribunal that cannot declare winner a petitioner who is seeking a declaration as winner if he had not participated in all the stages of the election.

The Section is not directed at a Respondent who is not seeking any such order having been declared winner by INEC.

The next important point to consider here is who owns the votes?

Learned senior counsel for the Appellants strenuously canvassed the position that only the word ‘candidate’ was used and is relevant to the exclusion of the words.

‘Political party’ in Section 179 of the 1999 Constitution and in Section 69 of the Electoral Act. Also that even though Section 221 of the

Constitution recognizes that votes can only be canvassed by political parties the votes would only enure in favour of the candidate.

In this respect, the Respondents rightly in my view held on to the judicial interpretation of the same Section 221 of the Constitution in the cases of Amaechi Vs INEC (supra) and Agbaje Vs Ambode (supra) that “without a political Party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 of the Constitution it is only a party that canvasses for votes, it follows that it is a party that wins an election. Whereas candidate may change in an election but the parties do not.

It is within reason and contemplation of Section 221 of the Constitution therefore that Section 44 of the Electoral Act 2010 (as amended) has mandatorily prescribed that the format of ballot papers shall include the symbol adopted by the political party……”.

The Tribunal was therefore right when it held at pages 3758 – 3760 Vol. V of the printed record as follows:

“It is true that the political party that canvasses for votes through the instrumentality

of its candidate.

It is not in any doubt that the 1st Respondent was sponsored for the 05/12/2015 election by the 2nd respondent within meaning of Section 31 (1) of the Electoral Act, and equally that the late prince Audu was sponsored by APC, the 2nd Respondent.

Also pertinent is the fact that the ballot paper used for the election contains the names of only political parties and their logos and not the name of candidates.

It is therefore safe to conclude that the votes of 240,867 scored by Prince Audu in the 21/11/2015 election belongs to the APC (2nd Respondent) on whose Platform the votes were secured as well as the 6885 votes scored by the 1st respondent in the Supplementary election of 5/12/2015, hence making a total number of votes to be 242,782 against 204,877 scored by PDP through Captain Idris Wada in both the 21/11/2015 and 5/12/2015 election.

There is therefore no doubt in the mind of this Tribunal that the 3rd respondent was legally in order in collating the votes of the late prince Audu in the inconclusive election and merging same with that of the 1st respondent to arrive at the total votes scored for the 2nd respondent APC.

There is equally no doubt in the mind of this Tribunal that the total number of 247,782 scored by APC through its candidate Yahaya Bello as against the 204,877 scores by the PDP through its candidate captain wada, belong to APC and PDP respectively.

To that end it is considered view of the Tribunal that the 1st respondent was qualified to contest in the election to the office of governor of Kogi State and returned as duly elected as done in the instant case and we so hold.”

Indeed in civil matters (including Election matters)

“Substitution of a party simply means a designation of a person or thing to take the place of another or thing. It is the process by which one person or thing takes the place of another person or thing etc.”

See Black’s Law Dictionary page 147, UGWU V. ARARUME (2007)12 NWLR (pt. 1048) 365, A-G ANAMBRA V. A-G FED. (1993) 6 NWLR (Pt.302) 692.

?The authorities are agreed that in every situation on where there is a substitution the party being brought in inherits all rights privileges, liabilities and encumbrances accumulated or accomplished by the previous representative.