Uzodinma & Anor V. Ihedioha & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

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

The 1st appellant and the 1st respondent were candidates of the 2nd appellant (APC) and the 2nd respondent (PDP) respectively in the Governorship Election conducted in Imo State on 8th March, 2019 along with 68 other candidates. The 1st respondent was returned as the winner of the election. The 1st appellant was dissatisfied with the return of the 1st respondent and filed a petition challenging the said return on two grounds:

(a) The 1st respondent was not validly elected by majority of lawful votes cast; and

(b) The declaration and return of the 1st respondent is Invalid by reason of non-compliance with the Electoral Act.

​He sought several reliefs including the nullification of the 1st respondent’s return and the declaration of the 1st appellant as the winner of the said election. It was the appellant’s contention, inter alia, that election held in 27 local governments area, 305 electoral Wards and 3, 523 polling units. That the 3rd respondent cancelled the election in 252 polling units, collated results from 2,883 polling units and excluded results from 388 polling units, It was the appellants’ contention that they scored an overwhelming majority in the 388 polling units, the result of which was excluded from ward collation result (Forms EC8B). Furthermore, the appellants contend that the total votes due to the appellants but unlawfully excluded from the 388 polling units is 213,695 while the 1st respondent is entitled to 1,903 votes from the same 388 polling units. It was also contended that the 1st respondent was returned based on a wrong computation of votes collated from 2,883 polling units.

The respondents filed replies to the petition, called witnesses and tendered documents in support of their respective positions. After considering written addresses of counsel, the trial Tribunal found no merit in the petition and dismissed it.

​Dissatisfied, the appellants appealed to the lower Court. In a majority decision of 4:1, the lower Court dismissed the appeal on 19/11/2019. The appellants are still dissatisfied and have further appealed to this Court. The parties duly filed and exchanged their respective briefs which were duly adopted and relied upon in support of argument of their positions.

The 1st respondent filed a motion on notice on 10/1/2020 seeking to strike out the appeal on the ground that this Court had delivered a judgment in SC. 1384/2019: Ugwumba Uche Nwosu v. Action Peoples Party (APP) & Ors. delivered on 20/12/2019 on the nomination of the appellant therein as candidate of two political parties and held that the nomination was invalid, null and void and in violation of Section 37 of the Electoral Act, 2010 (as amended). It is the 1st respondent’s contention that the judgment is a judgment in rem and is therefore binding on all parties. That in the instant case, the 2nd appellant also nominated the 1st appellant as its candidate for the same election with the effect that two candidates were projected for the 2nd appellant in the same election.

​In their counter affidavit and written address in opposition, the appellants argued, inter alia, that the judgment in SC.1384/2019 is in respect of the validity of the nomination of the 1st appellant by the 2nd appellant, which is a pre-election matter for which jurisdiction is vested in the High Court. It is also argued that the applicant was not a party in the 2nd appellant’s primary election which gave rise to the nomination of the 1st appellant. It is further contended that the issue as to who was the validly nominated candidate of 2nd appellant was laid to rest in the judgment of the High Court of Imo State in suit No. HOW/756/2018: HE Prince Madumere v. APC (2) Ugwumba Uche Nwosu delivered on 21/11/2018.

I have considered the submissions of learned counsel on either side as contained in their written addresses. My first observation is that the issue raised in the 1st respondent’s application is a fresh issue being raised for the first time in this Court without prior leave having been sought and obtained. Failure to seek and obtain the requisite leave renders the issue so raised incompetent, See: A.I.C. Ltd. v. NNPC (2005) 5 SCNJ 316, (2005) 11 NWLR (Pt. 937) 563; Rockonoh Prop Co. Ltd. v. NITEL Plc (2001) 14 NWLR (Pt.733) 468; Ukachukwu v. P.D.P. (2014) 17 NWLR (Pt. 1435) 134 @ 81, E-F.

​Furthermore, leave to raise a fresh issue is limited to the case of the parties as pleaded, the evidence on record in support of the parties’ contending positions and the judgment of the Court in respect thereof. The issue cannot be at large, otherwise it would constitute an instrument of ambush against an opponent. See:Adeosun v. Governor of Ekiti State (2012) 4 NWLR (Pt. 1291)581. The rationale for this principle was explained in the case of: Bankole & Ors. v. Mejidi Pelu & Ors. (1991) LPELR-749 (SC) @36 C-F, (1991) 8 NWLR (Pt. 211) 523 as follows:

“The rationale for these principles is the consideration that a trial Court is generally required to make primary findings of fact. Where there are such findings by the Court of trial, the appellate Court will not lightly depart from them. The appellate Court relies on the opinion of the Court below for its determination of the appeal before it. Besides, the jurisdiction of the Court is confined to the correction of the errors of the Court from which it hears appeals. It can only do so where the points argued before it consist of allegation of errors made by the Court below. In such a circumstance the point must have been raised in the Court below, and that Court should have expressed its opinion… Since the appeal is against the judgment of the Court below, the appellate Court is entitled to the opinion of the Court below on every allegation of error raised before it against the judgment of that Court.”

The parties to this application are ad idem that the judgment in SC.1384/2019 was in respect of the issue of double nomination in the 2nd appellant’s primaries. The 1st to 3rd respondents in the appeal had by way of originating summons, challenged the nomination of Ugwumba Uche Nwosu as the Governorship candidate of the Action Alliance Party on the ground that the said nomination was made during the pendency of a similar nomination of the same Ugwumba Uche Nwosu by the All Progressives Congress. The contention in that case was that Uche Nwosu had “knowingly” allowed himself to be nominated by more than one political party in breach of Section 37 of Electoral Act, 2010, as amended, which therefore rendered his nomination as the Governorship candidate of the Action Alliance null and void. The trial Court and the Court of Appeal declared Uche Nwosu’s nomination null and void and of no effect. This Court in SC. 1384/2019 upheld the concurrent findings on the ground that the said Uche allowed himself to be “knowingly” nominated by two political parties for, the same position at the same time.

The opening sentence of the judgment reads. “This appeal deals purely with the issue of double nomination.” It is instructive to note that in the application under consideration the applicant is not contending that the 1st appellant knowingly allowed himself to be nominated by more than one political party.