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Home » Nigerian Cases » Court of Appeal » Barrister Vincent Osakwe V. Independent National Electoral Commission (Inec) & Ors (2005) LLJR-CA

Barrister Vincent Osakwe V. Independent National Electoral Commission (Inec) & Ors (2005) LLJR-CA

Barrister Vincent Osakwe V. Independent National Electoral Commission (Inec) & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship and Legislative House Election Petition Tribunal, Anambra State of Nigeria delivered on the 28th day of October, 2003 in petition No. EPT/AN/HA/70/03 in which it dismissed the petition of the appellant against the return of the 5th respondent as the duly elected member of Anambra State House of Assembly representing Dunukofia Local Government Area constituency following an election conducted on the 3rd day of May, 2003.

It is the case of the appellant that he was nominated by the Peoples Democratic Party a.k.a. PDP as its candidate for the Anambra State House of Assembly election of 3/5/03 in Dunukofia Constituency. That his name, along with other PDP candidates, was forwarded to the 1st respondent as candidate for that election. That following the receipt of the list containing the name of the appellant, the 1st respondent, also known as INEC duly published the list for the election. That no subsequent publication was made by 1st respondent after that of 15/3/03. That the appellant contested the said election of 3/5/03 and scored the highest number of valid votes cast at that election but rather than declare him the winner, the 1st-4th respondents returned the 5th respondent, who according to the appellant, was not PDP sponsored candidate and who never contested the said election, as the winner thereof.

The appellant was not satisfied with the action of the 1st to 4th respondents and instituted the petition against the respondents claiming as follows:

“(i) That the petitioner be declared validly elected and or returned and not the 5th respondent having polled the highest number of lawful votes cast at the said election and duly declared as winner and issued with Form EC8E by the returning officer to wit: (sic) House of Assembly Dunukofia Constituency.

(ii) That the 1st – 4th respondents (particularly the 4th respondent) have no power whatever to announce and or declare anybody else particularly Honourable Paul C. Okeke as the winner of Anambra State House of Assembly representing Dunukofia Constituency.

(iii) That the petitioner be declared validly and/or returned having polled the highest number of lawful votes cast at the said election and not the 5th respondent.

(iv) That the 5th respondent was not duly elected/returned and did not participate in the said election and should not have been declared as duly returned or elected at the said election.

(v) An order of this honourable Tribunal declaring the said judgment/order obtained in suit No. FHC/ABJ/CS/176/03 and on the 11th day of April, 2003 as a nullity having offended the express provisions of the Electoral Act, 2002, Federal High Court (Civil Procedure) Rules, 2000 and also in breach of one of the cardinal principles of natural justice audi alteram partem.”

On the other hand, the case of the 5th respondent is that on the 27th day of December, 2002 the PDP held primary election for the Dunukofia Constituency which 5th respondent won after which his name was forwarded by the executive of the party in the Local Government to the PDP, State Headquarters for ratification, which was done and the list containing the name of the 5th respondent was subsequently forwarded by the said State Executive of PDP to the National Secretariat of PDP for further ratification. That by letter dated 10th February, 2003 the National Secretariat of PDP forwarded the Party’s list of candidates to the 1st respondent. That following an attempt by a group of people to jettison the duly constituted list of the PDP vide a list of 6th March, 2003 which list contained the name of the appellant, the PDP sent another list of the same date i.e. 6/3/03 revalidating the initial list of 10th February, 2003. That the revalidation list contained the name of the 5th respondent. That the list was published and 5th respondent was invited at the 1st respondent’s office at Awka and was screened and cleared to contest the election. That at the end of the election 5th respondent was declared winner and was duly returned having polled 17,562 votes and issued with Form EC8E and a Certificate of Return. These documents were tendered, admitted and marked as exhibits at the trial.

At the conclusion of trial the Tribunal delivered a judgment, in which it dismissed the appellant’s petition, holding that the judgment in suit No. FHC/ABJ/CS/176/2003 represented an action by PDP whose prerogative it was to sponsor candidate and by virtue of which 5th respondent was the candidate so sponsored for the said election.

The appellant dissatisfied with that judgment has appealed to this court. Learned senior counsel for the appellant, Chief (Dr.) Chimezie SAN in the appellant’s further amended brief of argument deemed filed on 18/1/05 has formulated three issues for determination. The issues are as follows:

“(1) Whether the learned trial Tribunal was right when it made an order dismissing the petition of the petitioner/appellant?.

(2) Whether the learned trial Tribunal was correct when it held that the decision in suit No. FHC/ABJ/176/2003 (sic) should apply to this case?.

(3) Whether the trial Tribunal’s decision purporting the 5th respondent as PDP’s candidate for the said election as well as the person returned as the winner of the election is not perverse?.”

In arguing the appeal, learned senior counsel for the appellant argued issues 1 and 2 together. He referred the court to the pleadings of the appellant and the evidence he produced in support thereof and submitted that the Tribunal erred in its judgment in holding that the PDP list containing the 5th respondent’s name following the judgment of 11/4/03 is the authentic list of candidates and that the Tribunal is bound to apply the decision in FHC/ABJ/CS/176/2003 as regards the candidate of PDP for the House of Assembly election with respect to Dunukofia Constituency. That the above holding was in conflict with the earlier holding by the said Tribunal and in any event, erroneous and should be set aside. Learned senior counsel referred the court to Agbomeji v. Bakare (1998) 9 NWLR (Pt. 564) 1 and submitted that the decision of the Tribunal is perverse.

That in dismissing the petition the Tribunal took into account what it ought not to have taken into account by stating that the decision in FHC/ABJ/CS/176/03 indirectly confirmed that the 5th respondent was the candidate sponsored by the PDP.

That neither the appellant nor the 5th respondent was a party to Suit No. FHC/ABJ/CS/176/03 which fact, learned senior counsel submitted, was accepted by the Tribunal when it held thus-

Various cases were filed in respect of the 1st of candidates published by INEC. Neither the petitioner nor the 5th respondent was a party to any of the cases…”

That having so found, the Tribunal should have gone on to hold that that judgment was applicable relying on Co-op. Bank Ltd. v. Obokhare (1996) 8 NWLR (Pt. 468) 579 at 587; Okonkwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301 at 325.

That the appellant and 5th respondent cannot also be described as privies of any of the parties in suit No. FHC/ABJ/CS/176/03. Learned counsel then referred to page 1196 of Blacks Law Dictionary, 6th Edition for the definition of privy and the case of Gbadamosi v. Dairo (2001) 6 NWLR (Pt. 708) 137 at 167; Coker v. Sanyaolu (1976) 9 – 10 SC 203.

That there is nothing on the face of suit No. FHC/ABJ/CS/176/2003 to show that both the appellant and 5th respondent partook in it; that the appellant knew about the pendency of it; that the appellant had interest in it, that the appellant acquired any interest in the subject matter after the rendition of this judgment; and that the election was taken for and on behalf of all those whose names appeared on the list tagged revalidation list. That the appellant and 5th respondent are therefore not bound by that decision.

Referring to the case of Obasanjo v. Buhari (2003) 17 NWLR (Pt. 850) 510 at 568 learned senior counsel submitted that the law recognises the individual rights of the party and a candidate in presenting a petition before an election Tribunal and this cannot therefore be held to be one and the same – relying on section 133(1) of the Electoral Act, 2002.

Learned senior counsel further submitted that the judgment in suit No. FHC/ABJ/176/03 was inapplicable to the case because it was given contrary to the provisions of sections 21(9) and 24 of the Electoral Act, 2002; which stipulate that an action to challenge the decision of the 1st respondent shall commence within five working days and be disposed of not later than one week before election. That suits No. FHC/ABJ/CS/176/03 sought to challenge the decision of the 1st respondent in refusing to act on PDP’s letter of 6/3/03 and the list of candidates attached thereto. That the action was to compel 1st respondent to allow Chudi Ofodile who was 2nd plaintiff therein, to contest the House of Representative’s Election scheduled for 12/4/03 on the platform of PDP. That the judgment was delivered on 11/4/03 being a day to the National Assembly Election scheduled for 12/4/03 and which was so held. That the said judgment was therefore given in contradiction of section 21(9) of the Electoral Act and therefore null and void, learned senior counsel further submitted. That the suit was commenced on 2/4/03 while appellant’s name was published on 15/3/03. That the principal relief sought was to compel 1st respondent to accept and act upon the list of 10/2/03. That if 1st respondent indeed accepted and acted on the said list of candidates upon the judgment delivered on 11/4/03, the learned counsel submitted, 1st respondent must have violated the provision of section 23 of the Electoral Act, 2002 in that any such action based on the said judgment could not be effected 30 days before the day of the election.

That the alleged list attached to the letter of 6/3/03 was not published as mandatorily required by section 24 of the Electoral Act, 2002. Learned counsel referred to the case Enemuo v. Duru (2004) 9 NWLR (Pt. 877) 75 at 102 – 105 and submitted that the list upheld in that case was the PDP list of candidates published on 15/3/03 by 1st respondent which is the same list in which appellant’s name is found. That the 5th respondent’s name is not on that list. That if the Tribunal was to rely on any other list it was the duty of the 5th respondent to have produced a letter written by PDP after 15/3/03 re-submitting his name as its candidate for the election but there was none. That any alteration of the list after the judgment of 11/4/03, could not be said to have been statutorily done 30 days before the day of the election relying on Abana v. Obi (2004) 10 NWLR (Pt. 881) 319 at 368 which learned counsel submits is on all fours with the present case. Referring to the case of Onuora v. Okafor (1983) SCNLR Vol. 2, 244 learned senior counsel submitted that neither the court nor INEC has the power to choose a candidate for a political party. That section 23 of the Electoral Act gives political parties the power to change their candidates for any election provided that they do so by signifying their intention in writing to the Commissioner not later than 30 days to the date of election. That where the political party does not make the change within the stipulated time the right of the particular candidate (as in this case) becomes absolute irrespective of court order. Senior counsel also cited and relied on Wike v. Icheonwo (1999) 4 NWLR (Pt.600) 618 at 629. Counsel urged the court to follow the decision in Wike v. Icheonwo, and Ibrahim v. INEC and hold that the appellant having been nominated, screened and cleared and his name published on 15/3/2003 that both PDP and INEC cannot validly stop him from contesting having failed to comply with their requirement of the mandatory provision of section 23 of the Electoral Act, the judgment of the Federal High Court notwithstanding particularly as the judgment did not declare section 23 unconstitutional. That this court should not follow the decision in Okon v. Bob (2004) 1 NWLR (Pt. 854) 378 which states that a political party has the right to change its candidate even 24 hours to the election.

That the decision of the Tribunal is perverse and in conflict with its findings and evidence. That the judgment of the Tribunal when considered as a whole amounts to a miscarriage of justice as same is against the weight of evidence adduced and accepted by the Tribunal. That the Tribunal failed to apply the decision in Mogaji v. Odofin (1978) 4 SC 91 at 93 in dismissing the petition of the appellants. That being the case learned senior counsel urged the court to interfere with the decision of the lower court and set it aside. Learned senior counsel then urged the court to resolve issues 1 and 2 in favour of the appellant.

On his part, learned counsel for the 1st – 11th respondents Chukwudi C. Okaa Esq., in a brief filed on 1/2/05 on behalf of the said respondents submitted three issues for determination. The issues are as follows:

“(i) Whether the Tribunal below was right in holding that the 5th respondent was a sponsored candidate’ of the PDP who contested the election and was returned?.

(ii) Whether the Tribunal was right in holding that the judgment in suit No. FHC/ABJ/CS/176/03 constitutes issue estoppel?.

(iii) Who as between the 5th respondent and the appellant contested the election and who was validly elected and returned?.”

A close look at the above issues reveals that issues 1 and 3 as formulated are the same. However in arguing issue No.1, learned counsel for the 1st – 4th respondents submitted that the issue as to whether 1st – 4th respondents did or did not challenge the evidence of PW1 should be discountenanced in that it does not arise from the judgment appealed against – relying on Bango v. Ohado (1998) 9 NWLR (Pt. 564) 139 at 148. That the issue was not raised in any of the grounds of appeal relying on Ozobia v.Anah (1999) 5 NWLR (Pt. 601) 1 at 7; Chinwuba v. Alade (1997) 6 NWLR (Pt. 507) 85 at 94. Commissioner for Finance v. Ukpong (2000) 4 NWLR (Pt. 653) 363 at 387. That an issue not raised in the lower court will not be entertained by an appellate court relying on NMB Plc v. Onabolu (1999) 12 NWLR (Pt. 630) 302, Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172. That the appellant never raised the issue of the 1st – 4th respondent not cross examining witnesses or calling evidence. That it is not the law that once a party does not cross examine a witness, the evidence given by the witness will become unchallenged irrespective of the cross-examination by other parties and irrespective of evidence led by the respondents which materially contradicts the witness on the issues at the trial.

That 1st – 4th respondents did not only challenge the evidence led but gave unchallenged evidence that the appellant was not a candidate. That PW3 who testified at page 80 of the record stated that 5th respondent was the candidate for the election. That PW3 testified for the petitioners in the consolidated petition and that his evidence was an admission against the interest of the appellant relying on Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20. That with that admission no further evidence is required. That 1st – 4th respondents went further to call DW13 who conducted the election who also confirmed that 5th respondent was the candidate for PDP for the election. That the said evidence was not challenged. That it was for the appellants to challenge the primary and positive evidence of PW3 and DW 13 and that his failure meant his acceptance of same and that it was not for the Tribunal to ignore such evidence learned counsel further submitted. That the Tribunal’s finding that the 5th respondent was the candidate of PDP who contested and won the election was fully supported by the evidence properly adduced before it. That a Court of Appeal will not easily disturb the findings of fact of the trial Tribunal which had the singular opportunity of listening to the witnesses and watching their performance, unless they are shown to be perverse relying on Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251.

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That there is a rebuttable presumption in law that the result of an election declared by the appropriate electoral body is correct and authentic and the onus is on the person who denies the correctness and authenticity to rebut the presumption, relying on Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352 at 386 – 387; Nwobodo v. Onoh (1984) 1 SCNLR 1.

That the failure of the appellant to produce the Statutory Statement of Declaration of Result or Form EC8E issued by the Constituency Returning Officer is an admission that at the conclusion of the election in Dunukofia Constitutency, only one return was made and that was the 5th respondent and by virtue of section 59 of the Electoral Act, the decision of the Returning Officer can only be reviewed in an election petition claiming either that there was an undue election or undue return which the petition in this proceedings is not. That since it is not being disputed that the only person returned and issued with Form EC8E was the 5th respondent who contested the election on election day and was declared elected, the only issue which is to be distilled and which the Tribunal distilled was who between the appellants and the 5th respondent was the PDP candidate. That the issues can only be resolved by the Party (PDP) which was not made a party to the proceedings.

That the law is now settled that even where a political party submits two names or two conflicting lists of candidates to INEC as it is apparent in this petition, it is still within the exclusive prerogative of the party to select which of the two candidates would be its flag bearer for the particular Constituency relying on Ohochukwu v. Emeregwa (1999) 5 NWLR (Pt. 602) 179 at 183 – 184.

That a finding that the list containing the name of the appellant was pasted on the INEC notice board or that it would be deduced that the name of the 5th respondent was not on the lists of candidates, is not synonymous with finding that the name of the appellant was published as required by section 24 of the Act. That the contention that the conclusion of the Tribunal that the 5th respondent was the candidate of PDP was inconsistent with its earlier finding that exhibit P15 indicated that the appellant’s name was pasted on 15/3/2003 can be faulted on many grounds including:

(i) Exhibit P15 and P16 do not meet the requirement of section 24 of the Act.

(ii) Section 24 does not say that once your name is in a list (any list at all) that you have secured nomination nor does it say that such pasting is a conclusive proof of candidacy.

(iii) That a political party, even after INEC might have pasted or published the names, is still empowered by section 23 to change any of the candidates 14 days to the date of election.

(iv) The evidence of the Constituency Returning Officer that it was the name of the 5th respondent that was given to him by the Electoral Officer as the PDP candidate at the election and it was the 5th respondent that he returned was unchallenged.

(v) The presumption of regularity that the Returning Officer’s return was authentic and correct was never rebutted by the petitioner.

That the conclusion that neither the appellant nor the 5th respondent were parties to the suit No. FHC/ABJ/CS/176/03 fails in the face of the facts that:

“(i) The petitioner and the 5th respondent are members of the PDP both claiming sponsorship by the party through various lists.

(ii) The 1999 Constitution and the Electoral Act absolutely granted the PDP the unfettered discretion to choose, change, substitute or withdraw a candidate.

(iii) The 2nd question for determination in the said suit FHC/ABJ/CS/176/03 PDP & Anor. v. INEC & Anor. was whether it is not unconstitutional and ultra vires for the 1st defendant to refuse to accept and act upon the PDP letter dated 6th March, 2003 and the list of candidates attached thereto.

(iv) The subject matter of the said judgment was whether INEC has the authority under the laws to refuse to act, on the list of candidates sent to it by PDP.

(v) The judgment of 11/4/03 was valid and subsisting and has never been successfully appealed against.

(vi) The Tribunal being a co-ordinate jurisdiction with the Federal High Court Abuja was bound by the decision of the latter on the issue of lists of candidates sponsored by the PDP.

(vii) The appellant was bound by the said judgment as he had no distinct right of sponsorship.”

That since the judgment in FHC/ABJ/CS/176/03 was the subject matter as to which of the lists in which the names of the two parties appear was the authentic list, the said judgment was in rem which attaches to the subject matter of the suit, relying on Ogbahon v. Reg. Trustees of Christ Chosen Church of God (2002) 1NWLR (Pt. 749) 675 at 710. That the said judgment pronounced on the status of the authentic lists of the PDP and as such both the appellant and 5th respondent were bound as none of them had distinct right of sponsorship nor are they independent candidates. In any event, that INEC has no discretion in the matter except to obey the said Judgment otherwise it would amount to an invitation to anarchy relying on Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382, 434; Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129.

On the sub-issue as to whether the judgment in FHC/ABJ/CS/176/03 was in breach of section 21 of the Electoral Act, learned counsel submitted that the said decision remains valid until set aside and the Tribunal lacked the jurisdiction to set same aside by sitting on appeal over that judgment relying on Nworgu v. Njoku (2001) 14 NWLR (Pt. 734) 539 at 546 – 550.

That the judgment in FHC/ABJ/CS/176/03 constitutes issue estoppel on the list of candidates as between PDP, INEC and all PDP members and privies relying on Eloshuba v. Orakwe, appeal No. CA/E/EPT/2/04 delivered by this court on 8/12/04 at page 18 thereof.

That the decision in Wike v. Icheonwo (supra) is not relevant to this case as that decision was based on the provision of paragraph 7(2) of the 4th Schedule to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which provision is not contained in the Electoral Act applicable to this case, relying on Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt. 854) 406 at 429; Okon v. Bob (2004) 1NWLR (Pt.854) 378 at 399. Learned counsel, then urged the court to resolve the issues in favour of the respondents.

In his reply brief to the 1st – 4th respondents’ brief filed on 7/2/05 learned senior counsel for the appellant submitted that it is erroneous for his learned friend to submit that it was the appellant who subpoenaed PW3 – the Electoral Officer – and that under cross-examination PW3 admitted that the 5th respondent was the candidate of PDP. That the said submission is misleading. That PW3 was rather summoned by the petitioner in another petition, to wit, EPT/AN/HA/53/2003. That appellant’s PW3 was one Patrick Ekwenugo whose evidence is at pages 47 to 48 of the record.

Learned senior counsel for the 5th respondent, Dr. L. Onyechi Ikpeazu, SAN in the 5th respondent’s brief of argument filed on 1/2/05 submitted two issues for determination. These are as follows:

“(1) Whether the Tribunal was right in holding that the 5th respondent was the duly recognised candidate of the Peoples Democratic Party (hereinafter called PDP) who contested the election for House of Assembly, Dunukofia Constituency and who was rightly returned as the duly elected candidate?.

(2) Whether the Tribunal was right in holding that the judgment in suit No. FHC/ABJ/CS/176/2003 was not statute barred ‘as contained by the appellant?.’

In arguing issue No.1 which according to learned senior counsel encompasses appellant’s issues 1 and 2, counsel submitted that it is trite law that grounds of appeal must be based on the judgment of the court. That where there is a part of a judgment which is against the appellant but which appellant failed to file a ground of appeal on, the judgment in that respect is deemed subsisting, relying on Agidigbi v. Agidigbi (1992) 2 NWLR (Pt. 221) 98. That no complaint was filed against the Tribunal’s failure to hold that the absence of evidence by the 1st to 4th respondents in substantiation of their case was fatal to the entire case of the respondents. That the appellant’s brief is not the appropriate forum for raising such issues and argument for the first time. That every argument not related to the grounds of appeal go to no issue and should be discountenanced by this court relying on Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt. 39) 1, (1986) 9 SC 41; Olusanya v. Olusanya (1983) 3 SC 41, (1983) 1 SCNLR 134.

That ground 1 of the grounds of appeal which related to the particulars thereof shows that the complaint was that the Tribunal’s decision was inconsistent with findings of fact made by them and that the Tribunal took into account matters which ought not to have been considered. That ground is against positive actions of the Tribunal and not negative acts as would be the case in a complaint of non direction. That the other ground dealt with the effect accorded to the decision of the Federal High Court in FHC/ABJ/CS/176/03 and the finding that the 5th respondent was duly returned as elected. That issues for determination not related to or based on the grounds of appeal are not only incompetent but valueless and must be ignored, learned counsel submitted, relying on Omo v. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) 444, (2000) 7 SC (Pt. 11) 1; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298, (2000) 7 SC (Pt. 11) 145.

That grounds of appeal couched in generic terms are not at large as they can not be used to raise issues of law which must be raised as separate and distinct grounds of appeal and not made adjunct to the general grounds relying on Calabar East Co-op Society v. Ikot (1999) 14 NWLR (Pt. 638) 225, (1999) 12 SC (Pt. 11) 133. That since the court cannot sift through the argument of appeal to separate argument based on issues properly arising from the grounds and those that do not, the court should dismiss the two issues argued together by the appellant relying on Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372 at 380.

In the alternative, learned counsel submitted that the argument of his learned friend failed to draw a distinction between evidence of a party which was unchallenged at the trial and failure by one adversary to give evidence challenging assertion which had been contradicted by a co-adversary. Those issues were joined on the pleadings and that the central issue in the case was who, as between the appellant and the 5th respondent was the PDP candidate who contested the election and was returned as the duly elected candidate.

That the appellant in an attempt at proving that he was the candidate pleaded that he initially contested and won the sponsorship of the PDP which is an issue within the competence of PDP which ought therefore to have been made a party to the action.

On the sub-issue as to whose name was published on 15/5/03, that the Tribunal held that it was the name of the appellant. That if one should follow the said argument of the appellant it follows that failure of the 1st – 4th respondents to offer evidence to challenge the assertion should be treated by the Tribunal as an admission which would make the Tribunal bound to hold that the appellant established his case in that regard, there can be no error for which a valid complaint may be founded. That the court is not to determine academic questions. That it would amount to academic exercise to examine the implication of failure of 1st – 4th respondents to give evidence on the issue of publication when the findings made were adverse to the appellant’s case.

That parties joined issue as to whether the appellant was the duly elected PDP candidate which allegation can easily be established by production of the Statutory Statement of Declaration of Result in Form EC8E. That by appellant’s own assertion it was the 5th respondent who was issued with Form EC8E by 1st – 4th respondents. That since all the parties agree on this point there was therefore no need for evidence from 1st – 4th respondents to contradict the appellant’s said assertion. That the failure of 1st – 4th respondents to call evidence on that score cannot be said to amount to any error, learned counsel further submitted. That it is clear that the only person issued with Form EC8E is the person who contested the election and was returned thus raising the issue still of who the PDP candidate for that election really was. That the appellant and 5th respondent to answer the issue must produce evidence to satisfy the Tribunal that the party acted in a particular way. That in arriving at a just conclusion the Tribunal must have due regard to the PDP letters of 10/2/03, 6/3/03 substituting a list which was not mentioned, 6/3/03 revalidating the list of 10/2/03, 12/3/03 supplying the reason for the substitution and 2/4/03 further clarifying the PDP list. That these documents that were tendered before the Tribunal had nothing to do with the activities of 1st – 4th respondents. That the Tribunal held that the PDP clarified the issue as to who the PDP candidates were in FHC/ABJ/CS/176/03 which is a legal issue which may only be arrived at by due evaluation of the import and significance of the judgment itself.

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That where a party to an action fails to call evidence, he is at liberty to rely on evidence tendered in the matter by his opponent as well as correspondents and is fully entitled to address the court on law. That 1st – 4th respondents were entitled to rely on evidence led in the case by any of the parties on matters in support of their pleadings.

That the finding that the 5th respondent’s name was not on the list of candidates of PDP published by INEC on 15/3/03 is not synonymous with a finding that the 5th respondent’s name was not published by INEC. That what the Tribunal said was that 5th respondent’s name was not in the list published on a particular day. That what the law requires is publication of nomination not a list of sponsored candidates. That it is the duty of the appellant if he is relying on due nomination to establish that he complied with section 24 of the Electoral Act and must do so by credible evidence. That a finding that the list containing the name of the appellant was “pasted” or that 5th respondent’s name was not on the published list is not synonymous with a finding that the name of appellant was published by INEC as required by section 24 of the Electoral Act. That the fact that the Tribunal found that exhibit P16 indicated that appellant’s name was pasted on 15/3/03 did not advance the case of the appellant and did not legally preclude the Tribunal from arriving at the conclusion that the appellant’s case lacked merit. That both conclusions or finding are not inconsistent. That section 24 does not say that provided that mere pasting of names amounted to due nomination, nor does any section of the Act provide that such pasting of names is a conclusive proof that the person whose name appeared indeed was a candidate at the election. That the totality of the finding of the Tribunal was that it was the list containing the 5th respondent’s name that was the authentic list; relying on the concluding segment of the judgment of the Tribunal. That the findings of the Tribunal are not inconsistent for the reason that the Tribunal never found that the appellant was duly nominated.

Learned senior counsel submitted that the Tribunal was right in dismissing the petition. That there is no doubt that the appellant predicated his petition on the premise that he was the candidate of the PDP whose name was forwarded by the party to represent the party at the election. Learned counsel then cited and relied on the decision of this court in CA/E/EPT/2/04 delivered on 8/12/04 and submitted that it is very relevant to the facts of this case in that both cases deal with the same list in relation to the State House of Assembly Election. That it is a common ground that a party wishing to change the names of its candidates must do so at least 30 days before the date of the election. That the revalidation list which embodied the names of the 5th respondent was dated 6th March, 2003. That the effect was that as at that date, PDP was authenticating the list of candidates already forwarded on 10th February, 2004, both dates being in excess of 30 days preceding the date of the election, and that section 23 of the Electoral Act was fully complied with.

That the case of Abana v. Obi (supra); Enemuo v. Duru (supra) which appeared to disregard the effect of the judgment in FHC/ABJ/CS/176/03 involved the election which took place on 12/4/03, a day after the said judgment was delivered. That there was no evidence in the two cases that INEC, before the election, acted on the revalidation as against the substitution which suit No. FHC/ABJ/CS/176/03 was designed to prevent. That in the present case, the effect of the judgment was to confirm that revalidation on 6th March, 2003 of the list of 10 February, 2004 and was in existence 30 days preceding the date of the election.

That PDP instituted the action to enforce its list for the election and with respect to the State Assembly Election, INEC elected to be bound by the judgment and the list which the PDP sought to enforce.

That there is no evidence that the revalidation list was not published. That in any case the petition is not based on non-publication of the revalidation list. It was not a point on which issues were joined. That examination of the relief sought discloses that the petition was simply based on the contention that the appellant was validly elected.

That the Tribunal was right in holding that the judgment in which PDP was a party was material to the determination of the case, whether or not appellant was a party thereto. That appellant’s case is similar to a situation where one alleges that he was validly nominated but wrongly excluded in which case he could institute a petition under section 134(1)(d) of the Electoral Act.

That the argument on the bindingness on non parties of a judgment is academic which hardly arises. That the list of nominated candidates belong to the party and until declaration of results are made, no distinct rights are acquired against the party which a person is entitled to its preservation. That all those in the list of the party are bound by that list and what the party makes of it. That the judgment of the Federal High Court is a judgment in rem which attaches to the subject matter of the suit, which is determination of the authentic list of PDP. Learned senior counsel referred the court to the definition of the ‘in rem” in Blacks Law Dictionary, 5th Edition.

Learned senior counsel urged the court to resolve the issue against the appellant.

In his reply brief to the 5th respondent’s brief filed on 7/2/05, learned senior counsel submitted that argument of the appellant on issues 1 and 2 does not fall outside the said issues and therefore the cases cited and relied upon by counsel for 5th respondent are irrelevant.

That contrary to the contention of learned counsel for the 5th respondent, the central issue between the parties is not who, as between the appellant and the 5th respondent, was PDP candidate nominated for the election but that the return of the 5th respondent by the 1st to 4th respondents was undue in that the 5th respondent neither contested the said election nor polled the highest number of lawful votes cast in the election. That the issue therefore does not border on intra party dispute as contended by his learned friend. That PDP could therefore not be joined in the petition.

That the judgment in suit No. CA/E/EPT/2/2004 relied upon by learned counsel for the 5th respondent is not on all fours with this case in that:

“(a) The facts and circumstances of the said case are not the same.

(b) The nature of the evidence led in the said matter and the findings of facts made thereon are not the same as the ones in this case.”

That the case of Okon v. Bob (supra) is inapplicable having regards to the facts. That appellant’s case is not that of wrongful exclusion but undue return of the 5th respondent.

That it is wrong to contend that the judgment in FHC/ABJ/CS/176/03 is a judgment in rem. That it is rather a judgment in personam referring to Blacks Law Dictionary 6th Edition at page 875 on the definition of judgment in rem. That the judgment was not even pleaded as an estoppel contrary to law and practice, relying on Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241, (1986) 5 SC 152 at 171. Learned senior counsel again urged the court to resolve the issues in favour of the appellant.

In resolving the issues under consideration, it is clear that the following facts are not disputed:

(a) That in December 2003, primaries election of PDP were conducted to select PDP candidates for election into various positions including the National Assembly and Anambra State House of Assembly members.

(b) That following that primaries a PDP list of candidates for the elections were forwarded by the National Secretariat of that Party to the 1st respondent vide a letter dated 10/2/03.

(c) That while the name of the appellant was not in that list that of the 5th respondent was.

(d) That another letter from the National Secretariat of PDP dated 6/3/03 submitted a substituted list of sponsored candidates for the various elections in which the name of the appellant was included and that of the 5th respondent was not.

(e) That following protests by members of PDP affected adversely by the substituted list of 6/3/03 another letter again written by the National Secretariat of PDP to 1st respondent revalidated the earlier list dated 10/2/03 in which the name of the appellant never featured but that of the 5th respondent did.

(f) That both parties agree that it is the exclusive preserve of a political party to choose its candidate for any election.

(g) That following the confusion arising from the lists of PDP candidates, the party – PDP – instituted suit No.FHC/ABJ/CS/176/03 to compel 1st respondent to use the list of 10/2/03 for the elections in which judgment was delivered on 11/4/03 in favour of PDP.

(h) That a day after the judgment, that is 12/4/03 was the election into the House of Representatives.

(i) That the election giving rise to this case was the State House of Assembly election which took place on 3/5/03.

(j) That both the appellant and 5th respondent claim to be the candidate sponsored by PDP for the election into the Anambra State House of Assembly so held and that they won same.

It is the contention of the appellant that the return of the 5th respondent amounts to undue return since the 5th respondent never contested the said election. The appellant went on to plead in paragraph 10(D) as follows:

“That the 5th respondent who did not contest the said election was declared duly elected and returned by the 1st – 4th respondents without compliance with the provisions of the Electoral Act, 2002 but rather in compliance with the judgment of the Federal High Court Abuja delivered on the 11th day of April, 2003 in suit No. FHC/ABJ/CS/176/03 which is now in the Court of Appeal…”

It is trite law that it is the exclusive responsibility of the political party to determine its candidates to any election – see Onuoha v. Okafor (1983) 2 SCNLR 244, (1983) 10SC 118; Balonwu v. Chinyelu (1991) 4 NWLR (Pt. 183) 30; Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530 at 549.

That being the case, I am of the considered view that even though it is the contention of learned counsel for the appellant that the central issue in this appeal is that the return of the 5th respondent by the 1st to 4th respondent was undue in that the 5th respondent neither contested the election nor polled the highest number of lawful votes cast at the election, when one looks at the totality of the pleadings and evidences before the court, it is clear that the central issue is who between the appellant and the 5th respondent was the PDP candidate at the said election. This point is made clearer when one realizes that one has, by law, to be a candidate sponsored by a political party before he can contest and win an election. There is no doubt that both the appellant and 5th respondent are members of PDP who claim to have contested the election in issue under the platform of that party and won.

I am of the strong view that a resolution of that primary issue one way or the other will resolve the matter in controversy between the parties. It is only after determining who the candidate is that we can proceed to determine whether his candidature is in conformity with the Electoral Act, 2002 or not.

As stated earlier in this judgment there is evidence that there were two PDP lists issued by PDP at different times. That the name of the appellant and 5th respondent’s appeared in the separate lists not jointly. That being the case, it follows that since it is the PDP that has the prerogative of determining who its candidate is and the said party has produced two lists of candidates the question therefore becomes which of the two lists is the authentic one used in conducting the election in issue. It is obvious and natural that both contestants would contend as they did that the list in which their names appeared must be the authentic PDP list.

So we have the appellant resting on the substituted list of 6/3/03 and the 5th respondent for the 10/2/03 list as revalidated on 6/3/03. Faced with this problem the Tribunal decided that –

“… they are of the view that the decision in FHC/ABJ/CS/176/2003 should apply to this case as regards the candidate of PDP for the House of Assembly election with respect to Dunukofia Constituency. That decision indirectly confirm that the 5th respondent was the candidate sponsored by the PDP.”

See also  M.C. Agbamu V. D. K. Ofili (2003) LLJR-CA

It is important to note that the judgment in FHC/ABJ/CS/176/2003 confirmed the revalidated list containing the name of the 5th respondent as the authentic PDP list of sponsored candidates and in fact ordered the 1st respondent to use the said list for the elections.

Learned senior counsel for the appellant has submitted that granted that the list with the name of the 5th respondent herein is the proper list and having regard to the fact that the judgment in relation thereto was delivered on 11/4/03, it follows that, that list was not forwarded to the 1st respondent thirty days to the election of 3/5/03 and therefore the alleged candidacy of the 5th respondent is incompetent since it is contrary to the provisions of the Electoral Act, 2002 particularly section 23 thereof.

Now section 23 of the Electoral Act, 2002 provides as follows:

“23. Any political party which wishes to change any of its candidates for any election under this Act may signify its intention in writing to the Commission not later than 30 days to the date of election.”

The above provision is very clear and unambiguous and therefore needs no interpretation. The question then is whether PDP complied with that provision in regards to the election in question. Learned senior counsel for the appellant, in answer to that question submitted thus:

“… the principal injunctive reliefs sought in exhibits P11 to P11 (4) was to compel INEC to “accept and act upon” the list of 10th February, 2003. Therefore, if INEC indeed accepted and acted upon the list of candidates based on the said judgment delivered on 11/4/2003 then INEC must have violated the provision of section 23 of the Electoral Act, 2002 in that any such action based on the judgment could not possibly be affected 30 days before the day of the election.”

With utmost respect to the learned senior counsel, I am of the view that the facts of this case do not support that submission. There is evidence on record that the revalidation list which includes the name of the 5th respondent was dated 6/3/03. As at that date, the PDP was authenticating the list already sent to INEC on 10/2/03. It is clear that the revalidation list of 6/3/03 was a substitute for the list of 6/3/03 which included the name of the appellant which in turn was a substitute list for the list of 10/2/03. The question then is whether the revalidation list complied with the provisions of section 23 of the Electoral Act. It is very clear that from 6th of March, 2003 when the revalidation list was submitted to INEC to the day of the election in issue being 3/5/03 is more than 30 days as required by the Law in question. The error of learned senior counsel for the appellant stems from the fact that he regards the judgment No. FHC/ABJ/CS/176/03 delivered on 11/4/03 as the signification of PDP’s intention to INEC to change its candidates and therefore started to calculate the 30 days required from the date of the judgment i.e. 11/4/03 whereas the list had been with INEC since 6/3/03 when it was submitted. The judgment is not the substitution of the list but ordered INEC to comply with the list submitted on 6/3/03. That being the case, it is my view that section 23 of the Electoral Act, 2002 was complied with in this case as it relates to the revalidation list of PDP of 6/3/03 for the election in issue.

There is also the argument that since that list was never published by INEC as required by section 24 of the Electoral Act, 2002 but the list containing appellant’s name was published, the revalidation list is therefore invalid. In other words what PDP did amounted to an exercise in futility.

Section 24 of the Act provides as follows:

“24. The Commission shall, at least fourteen (14) days before the day of the election, publish by displaying or causing to be displayed at the place or places appointed for the delivery of nomination paper and in such other places as it deems fit, a statement of the full names of all candidates standing nominated and the persons nominating them with their respective addresses and occupations.”

The above is clearly a duty imposed on 1st respondent and I am of the view that such a publication does not constitute a condition precedent to the validity of an otherwise valid party nomination list particularly when one remembers that it is the law that nomination of a candidate for any election is the prerogative of the political party and that even the courts have no jurisdiction in the matter.

That apart, going through the pleadings no issue was joined by the parties on publication of the list in question neither did the Tribunal give an opinion thereon. In any event, I hold the view that the revalidation list of PDP dated 6/3/03 which was submitted to 1st respondent in compliance with section 23 of the Electoral Act, 2002, even if not published as required by section 24 of the said Electoral Act, 2002 is in substantial compliance with the law and therefore competent for the election in issue. It must be noted that we are dealing with an election matter in a democracy which involves the people’s votes or mandate and that section 135(1) of the Electoral Act, 2002 provides as follows:

“135(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act, if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

I therefore hold the view that the above provision is wide enough to accommodate a situation such as has arisen in this case. This holding is clearly in the alternative to there being issues joined on publication of the said list, which I very much doubt, anyway.

There is the argument that the judgment of the Federal High Court in the said suit No. FHC/ABJ/CS/176/03 is invalid for inter alia failure to comply with the provisions of section 21(9) of the Electoral Act, 2002 particularly that the suit which allegedly challenged the decision of INEC was not instituted within 5 days of the decision of INEC. It is my considered view that the law remains sacrosanct that

“a judgment of a court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for enforcement of judgment are also obliged to enforce it unless it is declared a nullity or set aside by a court of competent jurisdiction.”

Per Bello, CJN (as he then was) in Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 471. Though the appellant pleaded that the judgment in question had been appealed against, there is no evidence on record of the outcome of that appeal so it is safe to presume that the judgment subsists and I so hold. It was an exercise in futility for the appellant to approach the Tribunal with a prayer for it to declare or set aside the judgment of the Federal High Court, being a court of co-ordinate jurisdiction. In any event, since there is no order from a court of competent jurisdiction setting aside that judgment, the same remains valid and binding.

Learned counsel for the appellant also argued that the Tribunal was inconsistent in the holdings regarding the candidature of the appellant regarding the election.

I have carefully gone through the record and cannot find material conflicting findings or holdings in this case. The important point is that the Tribunal never found that the appellant was nominated by the PDP to contest the election in issue before proceeding to find, inter alia, that

“… that decision indirectly confirmed that the 5th respondent was the candidate sponsored by the PDP.”

The next point I have to consider is the sub-issue as to whether the judgment in FHC/ABJ/CS/176/03 is in personam or in rem and whether it constitutes estoppel. In a case similar to this one, Appeal No. CA/E/EPT/2/04 delivered on 8/12/04 at page 18 of the judgment, this court, per Mika’ilu, J.C.A. stated thus:

“I do not quarrel with the decision of the Tribunal that the decision in suit FHC/ABJ/CS/176/03, exhibit 231 and 235 binds all the parties as members of PDP and INEC and it constitutes issue estoppel on the list of candidates as between PDP, INEC and all PDP members and privies since it is still valid and subsisting. A candidate cannot nominate himself, it is the prerogative of the party…”

I have no reason to disagree with the views of my learned brother (supra). There is no disputing the fact that the appellant and 5th respondent are members of PDP both of who claim to be the duly nominated candidate of that party to contest the election in issue. That the action in that suit is to compel 1st respondent in this appeal to act on the revalidation list of 6/3/03 as the authentic list of nominated PDP candidates for the elections and that the 1st respondent was ordered accordingly. The appellant is contending that since he was not a party to that action he was not bound by the decision therein. Fine, but the decision is on the authentic list of PDP nominated candidates so if the appellant is not bound by the list of his party he may be bound by his own list – unfortunately he was not claiming as an independent candidate which does not exist anyway. Appellant can only be sponsored by a political party which must nominate him. Seriously speaking the sub issue is academic particularly since there is no disputing the fact that INEC – 1st respondent in this appeal – is bound by that decision and as such cannot conduct the election with any other list except the revalidation list of 6/3/03 and which was accordingly used in the election in issue, as the list of PDP nominated candidates for the election. PDP, the party that sponsored the candidates has not complained.

Learned senior counsel for the appellant has urged the court to apply the decision of this court in the case of Enemuo v. Duru (2004) 9 NWLR (Pt. 877) 75; Abana v. Obi (2004) 10 NWLR (Pt. 881) 319 to the facts of this case and decide it as decided in those cases. I am of the firm view that the facts of this case are very distinguishable from the facts of those two cases cited and relied upon by learned senior counsel. Apart from the fact that the two lists of PDP nominated candidates giving rise to the judgment in FHC/ABJ/CS/176/03 are the same with the lists in this case, the elections involved were different and they took place on different dates. Whereas the National Assembly elections were involved in those cases which had to take place just a date after the judgment in FHC/ABJ/CA/176/03, INEC in those cases first issued a certificate of return to one person which it later cancelled and issued same to another person as candidate of PDP, following the confusion which arose from the existence of the two PDP lists at the same time. Most importantly, the action of INEC in canceling the Form EC8E issued to one person and re-issuing it to another is contrary to the provisions of section 59(c) of the Electoral Act, 2002 and consequently subject to be set aside by the court of law.

The said section 59(c) provides as follows:

“59 The decision of the Returning Officer on any question arising from or relating to –

(c) declaration of scores of candidates and the return of a candidate, shall be final subject to review by a Tribunal or court in all election petition proceedings under this Act.”

In the present case, no incident of issuing Form EC8E to two different persons occurred and the election involved was that of State House of Assembly which took place more than 30 days of the revalidation lists of PDP.

I therefore resolve issues 1 and 2 against the appellant.

On issue No.3, learned counsel for the appellant submitted that the Tribunal’s findings that the 5th respondent was PDP’s candidate for the election as well as the person returned as the winner of that election are perverse and have occasioned a grave miscarriage of justice.

That the finding as to the return of the 5th respondent is without foundation. Learned senior counsel went on to repeat his argument on bindingness of the judgment in FHC/ABJ/CS/176/03; publication of the name of 5th respondent by INEC.

On his part, learned counsel for 1st – 4th respondents submitted that the appellant and his witnesses did not establish the fact that he contested and won the election. That none of the witnesses of the appellant was a voter at the said election contrary to DW1 – DW12 who were all registered voters in the Constituency who also tendered their voters cards. That they testified that it was 5th respondent who won the election.

From the record, I am of the view that there is sufficient evidence in support of the finding of the Tribunal that the 5th respondent contested the election and was returned as the winner. There is evidence at page 80 of the record to the effect that “Hon. P. C. Okeke was the PDP candidate for the election in Dunukofia Local Government” which evidence came from an Electoral Officer who conducted and supervised the election in issue. That apart, DW13 and – the Constituency Returning Officer, stated inter alia:

“I declare Hon. P. C. Okeke as the winner having scored the highest number of the votes cast at the election. This is the copy of the Form EC8E…”

From the totality of the evidence on record, it is clear that the judgment of the Tribunal is not perverse and I hold accordingly.

In conclusion, I find no merit in this appeal which is accordingly dismissed with N10,000.00 costs in favour of each set of respondents, against the appellant.

Appeal dismissed.


Other Citations: (2005)LCN/1690(CA)

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