Ocheja Emmanuel Dangana & Anor V. Hon. Atai Aidoko Ali Usman & Ors (2012)

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OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

The two appeals now before this court as SC.480/2011 and SC.11.2012 emanated from the judgment of the Court of Appeal Abuja delivered on the 13th of December 2011. They are based on the same records of appeal transmitted to this court on 18/1/2012.

The parties in SC.480/2011 are Ocheja Emmanuel Dangana as appellant and Hon. Attai Aidoko Ali Usman; All Nigeria Peoples Party (ANPP); Peoples Democratic Party (PDP); Independent National Electoral Commission (INEC); Dr. S.A. Abolusoro (Returning Officer Kogi East Senatorial District) as 1st – 5th respondents. In appeal SC.11/2012, the appellant is Peoples Democratic Party (PDP) and Hon. Atai Aidoko Ali Usman; All Nigeria Peoples Party (ANPP); Ocheja Emmanuel Dangana; Independent National Electoral Commission (INEC); Dr. S. A. Abolusoro (Returning Officer Kogi East Senatorial District) as respondents. In preparation for the 2011 General Elections, the Independent National Electoral Commission (INEC) published its timetable for all the election activities, Primaries were held by parties contesting in the election during which the appellant and 1st respondent in the appeal SC.480/2011 became .the senatorial candidates for their respective parties – Peoples Democratic Party and All Nigeria Peoples Party. On the 9th of April, 2011, the Kogi East Senatorial District Election was conducted by INEC. The appellant was sponsored by his party, PDP and the 1st respondent by ANPP. They both contested with candidates of six other political parties. The appellant won the election by scoring 131,386 votes. He defeated the 1st respondent who came second with 16,600 votes. Certificate of return was issued to him by INEC. The 1st respondent being dissatisfied with the outcome of the election filed a petition on the 27th of April 2011 at the Election Petition Tribunal sitting at Lokoja to challenge the declaration and return of the appellant. In the judgment delivered on the 18th of October 2011, the Tribunal held amongst other things that the 1st and 2nd respondents predicated their petition on the fact that the appellant was not qualified to contest the election as he was not lawfully and validly sponsored to contest the election as a candidate for his party as required by Section 65 (2) (b) of the 1999 Constitution and Section 138 (1) (a) of the Electoral Act 2010 (as amended). The Tribunal identified flaws in the conduct of P.D.P. primaries which took place in Anyigba instead of Idah the Senatorial constituency headquarters for Kogi East on 28th January 2011. The Tribunal dismissed the petition of the 1st and 2nd respondents by identifying the issues raised as pre-election. The 1st and 2nd respondents appealed to the Court of Appeal, Abuja.

In the judgment of the court delivered on the 13th of December 2011 the appeal was allowed on the sole ground that the appellant was not qualified to contest at the time of the election as envisaged by Section 65 (2) (b) of the 1999 Constitution and Section 138 (1)(a) of the Electoral Act 2010. Consequently, any votes allegedly credited to him at the said election were wasted votes in the eyes of the law. The appellant lodged an appeal to this court to express his dissatisfaction as his contention was that the Court of Appeal exceeded its jurisdiction to delve into pre-election issues of the senatorial primaries conducted on the 28th January 2011. The Court of Appeal directed the 4th respondent to withdraw the Certificate of Return issued to the appellant and instead issued the 1st respondent a Certificate of Return. Vide pages 1127-1151 Vol.2 of the Record.

The appellant filed two separate Notices of Appeal. The learned counsel later withdrew the Notice of Appeal filed on 15th December 2011 and relied on the Notice filed on 23rd December 2011. At the hearing of the appeals, the appellant relied on the brief and the reply brief and formulated four issues for determination as appellant 3rd respondent as follows:-

1. Whether having regard to the correct interpretation of the combined , provisions of Section 65 (2) (b) and 246 (1) (b) (i) of the Constitution of Federal Republic of Nigeria 1999 as amended vis-a-vis sections 85 (1), 87 (a) and 138 (1) of the Electoral Act 2010 (as amended) as well as the pleadings filed and exchanged and evidence adduced, the judgment of the Court of Appeal which nullified the election of the appellant predicated on a pre-election matter to wit invalidity of senatorial primary conducted on 28th January, 2011 is not altogether a nullity for want of jurisdiction and denial of fair hearing.
2. Whether the Court of Appeal was right in admitting the letter dated 24th January 2011 as Exhibit P21 and relying heavily on same to nullify the election of the appellant.
3. Whether having regards to the doctrine of stare decisis in the circumstances of this case the Court of Appeal was right in declining to follow the decision of this Honourable court in Senator Julius Ali Ucha v. Dr. Emmanuel Onwe & 4 Ors (2011) 4 NWLR (pt.1237) pg.386 on the ground that it was distinguishable from the present case.
4. Whether the Court of Appeal was right in overruling the preliminary objections against the appeal before it.

The 1st and 2nd appellants raised three issues for determination as follows:-

1. Within the con of Section 65 (2) (b) of the 1999 Constitution and Section 138 (1) (a) of the Electoral Act 2010, is the issue of qualification of a person to contest a senatorial election a pre-election outside the jurisdiction of the National Assembly Election Tribunal.
2. Whether the Court of Appeal was right in admitting in evidence the letter dated 24th January 2011 as Exhibit P21 and relying on same to nullify the election of the appellant.
3. Whether the Court of Appeal rightly overruled the preliminary objection of the appellant against the competence of the appeal below.

The 3rd respondent/appellant – the Peoples Democratic Party (PDP) raised two issues as follows:-

1. Whether the Court of Appeal was not in grave error and its judgment a nullity when it assumed jurisdiction in an election petition to determine the validity and actually determined the validity of the primary election which produced the appellant as candidate of 3rd respondent for the Kogi East Senatorial District election of 9th April 2011.
2. Was the lower court right when it nullified the primaries election of the 3rd respondent in an election petition when –

a. The 1st and 2nd respondents are not members of the 3rd respondent.

b. When the 1st and 2nd respondents did not plead or raise the issue of 21 days notice which formed the kernel of the judgment.

c. And the 3rd respondent was not heard on the unpleaded fact of 21 days notice which the lower court raised suo motu.

The learned counsel for the 4th and 5th respondents, Mr. Raji Ahmed withdrew the joint brief at the hearing of the appeal in that the respondents conceded the appeal without filing a cross-appeal. The traditional role of a respondent in an appeal is to defend the judgment.

Before the argument in the substantive appeals, the learned senior counsel for the 1st and 2nd respondents in the two appeals raised a preliminary objection to the competence of the two appeals. He mentioned that this honourable court has no jurisdiction to entertain any appeal from the final decision of the Court of Appeal in respect of appeals arising from the National and State House of Assembly Election Petitions Tribunal. The grounds for the preliminary objections in both appeals are similar and in fact the eight grounds in the appeal SC.11.2012 are subsumed in the ten grounds raised in appeal SC.480/2011. I shall consider the preliminary objection in the two appeals together.

The learned senior counsel Mr. Ikwueto predicated the preliminary objection on ten grounds as follows –

1) By the provision of Section 246 (3) of the 1999 Constitution the decision of the Court of Appeal in respect of appeals arising from the National and State House of Assembly Election Petitions shall be final.