IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 21ST DAY OF DECEMBER, 2023
BEFORE THEIR LORDSHIPS:
O.E. WILLIAMS-DAWODU JUSTICE, COURT OF APPEAL
MUHAMMAD I. SIRAJO JUSTICE, COURT OF APPEAL
ABDUL-AZEEZ WAZIRI JUSTICE, COURT OF APPEAL
APPEAL NO: CA/ABJ/EP/HR/IM/154/2023
BETWEEN:
AND
(INEC)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
On the 27th day of October, 2023, the National and State Houses of Assembly Election Petition Tribunal for Imo State, sitting at Mararaba, Nasarawa State, presided by Honourable Justice Salisu Umar (Chairman), Honourable Justice Temitope Adedipe (Member I) and Honourable Justice Musa Usman (Member II), delivered its judgment in the Petition No: EPT/IM/HR/63/2023, filed by the Appellants, then Petitioners, wherein the Tribunal found that the Petition filed by the Appellants was devoid of any merit and dismissed it. The Appellants were aggrieved by the said decision and had initiated the instant appeal vide the 13-grounds Notice of Appeal filed on 11th November, 2023, and reproduced in pages 970-992 of the Record of Appeal. The Appellants, in line with the Rules and Practice Directions of this Court in Electoral Matters, also filed the Appellants’ Brief of Argument on 20th November, 2023, raising therein four (4) issues for determination, which read as follows:
The 1st Respondent, filed the 1st Respondent’s Brief of Argument, dated and filed on 24th November, 2023, setting down four (4) issues for determination in the appeal thus;
(a) Whether the Honourable Tribunal was correct when it held that the Appellants do not have the locus standi to challenge the qualifications of the 1st and 3rd Respondents to contest the election based on the facts/pleadings in support of Ground 1 of their Petition, and thereby declined jurisdiction to entertain ground 1 of the Petition
(b) Whether the Honourable Tribunal was correct when it struck out the Appellants' Relief (A)- that the 1st to 3rd Respondents were allegedly not qualified to contest the election, which is tied to Ground 1 of the Petition
(c) Whether the Honourable Tribunal was right in law when it held that the Appellants failed to prove the Grounds of their Petition and thereby affirmed the declaration and return of the 1st Respondent as the winner of the 25th February 2023 election
(d) Whether the Honourable Tribunal adopted and applied a technical approach in the interpretation of the phrase "THE ELECTION IS INCONCLUSIVE" allegedly used by the Returning Officer in making the declaration in INEC Form EC8E(ii) and thereby arrived at the conclusion that the election was not declared inconclusive.
Also, the 2nd Respondent in the appeal, filed its Brief of Argument, in opposition to the submission in the Appellants’ Brief. The 2nd Respondent’s Brief of Argument was filed on 21st November, 2023 with two (2) issues distilled for determination in the appeal, as follows;
Also filed in the instant appeal, is the 5th Respondent’s Brief of Argument, filed on 23rd November, 2023 wherein four (4) issues were distilled for determination in the appeal, the issues are as follows;
The 3rd and 4th Respondents, though duly served with the Notice of Appeal and all the processes filed together with hearing notice, did not file any Brief in this appeal. They were also not represented at the hearing of the appeal.
TWO MOTIONS ON NOTICE BY THE 2ND RESPONDENT
The 2nd Respondent had filed two Motions on Notice in objection to the instant appeal, the first one was filed on 24th November, 2023, seeking from the Court, the following reliefs;
“AN order striking out Grounds 1, 2, 3, 4, 5, & 6 of the Notice of Appeal dated 10th November, 2023 but filed on the 11th November, 2023 and issues 1 & 2 respectively distilled from these grounds in the Appellants’ Brief of Argument dated 18th November, 2023 but filed on the 20th November, 2023 for being statute-barred and incompetent”.
The second Motion on Notice was filed on 29th November, 2023, praying the Court for; An order striking out Relief (f) contained on the Notice of Appeal dated 10th November, 2023 but filed on the 11th November, 2023 as it does not form part of the Appellants’ reliefs before the court below.
I shall now shall look into the application and determine it in one way or another.
On the motion filed on 24th November, 2023, the 2nd Respondent/Applicant premised its grounds of the application as follows:
Let it be noted that ground 5 above is a repetition of ground 4. The application was supported by an affidavit of 4 paragraphs deposed to by one Ifeoma Igwe, a litigation Secretary from the office of Counsel for the 2nd Respondent/Applicant, a written address was annexed in support of the motion.
The Appellants replied to the Applicant’s objection vide the counter-affidavit filed on the 28th day of November, 2023. The 7-paragraph Counter-affidavit was deposed to by one Theresa Aguda, a litigation officer in the office of counsel for the Appellants. A written address was equally attached to the counter affidavit in opposition to the said 2nd Respondent’s motion on notice.
The sole issue distilled by the 2nd Respondent/Applicant for determination of the application is;
Whether grounds 1, 2, 3, 4, 5 & 6 of the said Notice of Appeal dated 10 November, 2023 but filed on 11th November, 2023 are not in violation of paragraph 6 (1) of the Election Judicial Proceedings Practice Directions, 2023 and should not be struck out together with Issues 1 & 2 respectively distilled from these grounds in the Appellants' Brief of Argument dated 18th November, 2023 but filed on the 20th November, 2023.
It was argued strongly that the afore stated grounds of appeal, as set down by the Appellants in the appeal are incompetent. The Applicant premised its argument on the provision of paragraph 6 (1) of the Election Proceedings Practice Direction, 2023, which mandates an Appellant to file in the Registry of the Tribunal or the Court its Notice of Appeal within 14 days. It was the argument of the Applicant herein, that the decision of the Tribunal delivered on 27th October, 2023, which struck out ground 1 of the Petition before the Tribunal, was an interlocutory decision and that it ought to have been appealed within 14 days of its delivery. Counsel argued, vide the decisions in Nyesom vs. Peterside [2016] 7 NWLR [Pt.1512] 452, Ojokolobo vs. Alamu [1987] 3 NWLR [Pt.61] 377, Adisa vs. Oyinwola [2000] 10 NWLR [Pt.674] 116, that failure of the Appellants to file the Notice of Appeal against the decision of 27th October, 2023 within the 14 days of its delivery goes to the root of the Notice of Appeal on the affected Grounds 1, 2, 3, 4, 5, and 6 in the Notice of Appeal. He urged the Court to strike out the affected grounds of appeal for being statute barred hence, incompetent.
In the same vein, the Applicant contended that issues 1 and 2 distilled from the affected grounds of appeal ought to suffer the same fate with the said grounds. While placing reliance on the decision in Oteri Holdings Ltd vs. Oluwa [2021] 4 NWLR [Pt.1766] 334, counsel submitted that the 2 issues are incompetent and are liable to be struck out for being formulated from incompetent grounds of appeal. He referred to the decision in U.A.C vs. Mc-Foy (1961) 8 AELR 1477 in support of the legal preposition.
As stated earlier, and in response to the Applicant’s submission, the Appellants/Respondents, filed their counter affidavit annexed with a written address, wherein two (2) issues for determination were distilled thus:
a. Whether the 2nd Respondent/Applicant's Motion on Notice dated the 22nd of November 2023 and filed on the 24th of November 2023 is competent.
b. Whether the Grounds 1, 2, 3, 4, 5, 6, and 7 of the Notice of Appeal, including Issues 1 and 2 distilled thereof and argued in the Appellants/Respondents' Brief of Argument, is competent.
In arguing issue 1, the Appellants/Respondents cited the provision of Order 10 Rule 1 of the Rules of this Court to contend that the Applicant’s motion on notice filed on 24th November was incompetent for being in breach of the Rules of the court. While relying on the decisions in Ajuwon vs. Governor of Oyo State (2021) 16 NWLR (Pt.1803) @ 519, Para. A-B; Sani vs. Ademiluji (2003) 3 NWLR (Pt.807) 381 @ 402, Paras. F-G, counsel argued that the Applicant’s motion is incompetent and liable to be struck out in limine.
On Issue 2, counsel submitted that grounds 1, 2, 3, 4, 5, and 6 of the Notice of Appeal are competent, together with the issues 1 and 2 distilled therefrom. Counsel adverted the attention of the Court to the fact that the Tribunal's decision on the 1st and 2nd Respondents' interlocutory application against the competence of the Appellants/Respondents' ground 1 of their Petition, was delivered together with the substantive Petition, thereby creating an exception to the 14-day rule for appealing against an interlocutory ruling under the Electoral Practice Directions. Counsel cited and relied on the decisions in Ikyernum vs. Lorkumbur (2002) 11 NWLR (Pt.777) 52 at 78 - 79, Paras. F-A, Okpokiri vs. Okpokiri (2000) 3 NWLR (Pt. 649) 461 at 475, paras. B- C to submit that Appellants/Respondents' grounds 1, 2, 3, 4, 5, and 6 of the Notice of Appeal and Issues 1 and 2 of distilled from the said Grounds of Appeal are competent for all intent and purposes. He urged the Court to resolve this issue in favour of the Appellants/Respondents. It was further argued that the ruling of the Tribunal on the interlocutory application in the final judgment, being contested in the instant application is a final decision, maintaining that there remains nothing more left to be done in the Petition by the Tribunal after the delivery of the decision thereof. Counsel in conclusion pray the Court to dismiss the instant application.
In its reply on point of law filed on 30th November, 2023, Applicant’s counsel responded that order 10 rule 1 is inapplicable in that the Applicant’s objection is aimed at some of the grounds of the Notice of Appeal and issues therefrom but not targeted at the Notice of Appeal itself. Counsel cited the decision in Odunukwe vs. Oformata (2010) 18 NWLR (Pt.1225) 404; NDIC vs. Oranu (2001) FWLR (Pt.82) 1974 and submitted that the objection of the Appellants/Respondents was misconceived and the authorities cited were inapplicable in the instant case. Counsel reiterated that the affected grounds of appeal were incompetent with the issues distilled therefrom.
The law remains that objection to some grounds of appeal, while other grounds are agreed by parties to be competent, the appropriate procedure must be by an application by way of motion on notice to strike out the alleged incompetent grounds. The Supreme Court in Polaris Bank Ltd vs. Forte Oil Plc (2022) LPELR-58598 (SC), restated the law with finality when it stated thus:
"It is the law that the essence of preliminary objection is to terminate the suit or appeal in limine as a result of some incurable fundamental defects. Preliminary objection is certainly not the proper procedure to adopt where some of the grounds of appeal are valid. A single ground of appeal on law and law alone is capable of sustaining an appeal, one ground of appeal is sufficient to sustain an appeal. See CHROME AIR SERVICES LIMITED & ORS V. FIDELITY BANK (2017) LPELR-43470 (SC) and NWAOLISA V. NWABUFOR (2011) NWLR (Pt. 1268) 600 at 625, and ABUBAKAR V. DANKWAMBO (2015) 18 NWLR (Pt. 1491) 213 at 244.
The objection of the Appellants/Respondents to the competence of the Applicant’s motion on notice filed on 24th November, 2023, on the strength of the foregoing authority is hereby overruled.
On the Applicant’s issue 1 which borders on the competence of the stated grounds of appeal, to wit; grounds 1, 2, 3, 4, 5, and 6 of the Notice of Appeal together with the issues 1 and 2 distilled therefrom, I am unable to see the merit in the argument canvassed by the Applicant. It is the norm, especially in electoral matters that every ruling that is capable of terminating an election Petition in limine be it a Preliminary Objection or an interlocutory issue touching on the jurisdiction or competence of the Court must be deferred or suspended until the final judgment, when both would be rendered together, see: Abia vs. INEC & Ors (2019) LPELR-48951(CA); APP vs. Obaseki & Ors (2921) LPELR- 58374(SC).
It is my respectful view and in agreement with the Appellants/Respondents that where the interlocutory ruling is taken together with the substantive judgment, same could be appealed against as a final decision thereon. I am in agreement that the 21-days window of the final decision will inure to the advantage of the party seeking to appeal the interlocutory decision delivered via a final judgment of the substantive Petition. In view of this, I find the Applicant’s application vide the motion on notice filed on 24th November, 2023, unmeritorious and liable to be dismissed. I hereby dismiss it. I also find that the grounds 1, 2, 3, 4, 5, and 6 of the Notice of Appeal filed on 11th November, 2023, together with issues 1 and 2 in the Appellants’ Brief of Argument are competent. I so hold.
The 2nd motion on notice filed on 29th November, 2023, by the 2nd Respondent/Applicant, and brought pursuant to Oder 6 Rule 1(a) & (b) of the Court of Appeal Rules, 2021, prays the court for the following relief:
“An order striking out relief (f) contained on the Notice of Appeal dated 10th November, 2023 but filed on 11th November, 2023 as it does not form part of the Appellants’ reliefs before the court below”
The grounds of the motion on notice are as reflected on the face of the motion paper. There is a 4-paragraph affidavit in support of the motion, which was deposed to by one Ifeoma Igwe, a litigation secretary in the office of counsel for the Applicant. There is also a written address in support. Counsel for the Applicant set down a sole issue for determination in the application thus;
"Whether Relief (f) on the Notice of Appeal dated 10th November, 2023 but filed on the 11th November, 2023 should not be struck out”.
The Applicant contended mainly that the relief in question, i.e., relief “f” in the Notice of Appeal, did not stem from the reliefs sought by the Appellants in their Petition before the Tribunal. Counsel argued, vide the decisions in Ize-Iyamu vs. A.D.P [2021] ALL FWLR [Pt.1098] 386 @ 431; Ladoja vs. Ajimobi (2016) 10 NWLR (Pt.1519) 87 @ 129 and unreported decision in the Appeal No. CA/OW/436/2022 – Aloysius Igwe vs PDP & Ors delivered on 30th November, 2022, that the Appellants cannot validly raise a relief not before the Tribunal. It was contended that the Appellants are bound by the case of the parties as litigated upon before the Tribunal. The Court was urged to allow the instant application.
In the Appellants’ counter affidavit filed against the Applicant’s motion of 29th November, 2023, the Appellants/Respondents, distilled a sole issue in the written address in support of the counter-affidavit, the issue being that;
“Whether the 2nd Respondent/Applicant's motion on notice dated the 28 of November 2023 and filed on the 29th of November 2023 is meritorious”
It was contended that the case of Ladoja vs. Ajimobi (supra), relied upon by the Applicant was not applicable to the instant appeal. Counsel submitted that the relief being opposed is materially the same. Counsel highlighted on the reliefs in the Notice of Appeal and related same with the relief being contested herein. It was contended that the objection to the relief in issue lacks merit and ought to be dismissed. The Court was urged to resolve the sole issue in favour of the Appellants/Respondents.
I have carefully scrutinized the reliefs of the Appellants, who were the Petitioners at the trial Tribunal, both in their Petition and in the Notice of Appeal being contested. The relief “f” in the Notice of Appeal being contested in the instant application is reproduced hereunder as follows;
"An Order of the Honourable Court mandating the 5th Respondent to conduct a Supplementary Election for the Isu/Njaba/Nkwerre/Nwangele Federal Constituency, in accordance with the provisions of the Electoral Act 2022, and the INEC Regulations and Guidelines for the conduct of the 2023 elections."
See pages 988-989 of the Record.
I find it apt also to reproduce the reliefs sought in the Petition filed by the Appellants/Respondents herein as follows:
a That it may be determined that the 1st Respondent - Ozurigbo Ugonna and 3 Respondent - Uwugo Ozurumba V. where not qualified to contest for the election for the seat of ISU/NJABA/NKWERRE/NWANGELE Federal Constituency in the National Assembly held on the 25th February, 2023.
b. That it may be determined that the 1st Respondent - Ozurigbo Ugonna was not duly elected and return by majority of the lawful vote cast at the election for the seat of ISU/NJABA/NKWERRE/NWANGELE Federal Constituency in the National Assembly held on the 25th February, 2023.
c. That it may be determined that the 1st Petitioner is returned as duly elected in the election for the seat of ISU/NJABA/NKWERRE/NWANGELE Federal Constituency in the National Assembly held on the 25th February, 2023.
d The Certificate of Return issued to the 1st Respondent be declared null, void and withdrawn
OR IN THE ALTERNATIVE TO PRAYERS A, B, C AND D ABOVE:
e. An Order nullifying the election for the seat of ISU/NJABA/NKWERRE/NWANGELE Federal Constituency in the National Assembly held on the 25th February, 2023 since the election is invalidated by reason of corrupt practices and/or non- compliance with the Electoral Act, 2022 and INEC Guideline
which non-compliance substantially affected the result or the outcome of the election.
f. An Order of this Honourable Tribunal directing the 5th Respondent to conduct fresh election in line with the provisions of S. 136(1) of the Electoral Act, 2022 with the exclusion of the 1, 2, 3rd and 4th Respondents.
OR IN THE ALTERNATIVE TO PRAYERS A, B, C, D, E AND F ABOVE:
g. That it may be determined that the 5th Respondent should conduct supplementary election in all of the polling units where the 5th Respondent failed to hold election or where the election could not hold/cancelled because of emergencies and disruptions in accordance with the Electoral Act, 2022 and INEC Guideline.
h. That it may be determined that the results from the polling units affected by non-compliance with the provisions of the Electoral Act, 2022 and INEC Guideline be nullified and supplementary election be conducted by the 5th Respondent in all the affected polling units.
i. The Certificate of Return issued to the 1st Respondent be declared null, void and withdrawn.
A cursory look and comparison between the relief “f” being contested in this application and the twain reliefs G and H of the reliefs sought in the Petition filed at the Tribunal by the Appellants, reveals that they are principally and materially the same. While in relief “f”, the Appellants seek the Court for an order “… mandating the 5th Respondent to conduct a Supplementary Election for the Isu/Njaba/Nkwerre/Nwangele Federal Constituency…” , the reliefs in the petition either prayed the Tribunal:
“… that the 5th Respondent should conduct supplementary election in all of the polling units where the 5th Respondent failed to hold election or where the election could not hold/cancelled because of emergencies and disruptions in accordance with the Electoral Act, 2022 and INEC Guideline.
Or that:
“… that the results from the polling units affected by non-compliance with the provisions of the Electoral Act, 2022 and INEC Guideline be nullified and supplementary election be conducted by the 5th Respondent in all the affected polling units…”
(Underlining for emphasis)
The relief sought in all the paragraphs, whose excerpts were reflected as in the foregoing, has been constant, it is to the effect that the 5th Respondent- Electoral Commission, be ordered to conduct supplementary election to selected areas, where the elections were either cancelled or did not hold.
I agree that the duo of the Applicant’s applications were brought malafide and capable of wasting the scarce judicial time. In view of this, I find no merit in the instant application, as in the initial one, I am inclined to and I hereby dismiss same. The motion on notice filed on 29th November, 2023 is dismissed for it lacks merit.
PARTIES’ SUBMISSION ON ISSUES FOR DETERMINATION IN THE APPEAL
It is apparent that the issues for determination as set down by the parties in the instant appeal, are materially the same. I shall take the liberty available to this Court to review and resolve issues 1 and 2 as distilled by the Appellants, as they are the diverse faces of the same coin, the rest of the issues, to wit, issues 3 and 4 shall thereafter be considered separately, if need be. To this end, issues 1 and 2 are reviewed as follows:
The Appellants canvassed a robust argument against the decision of the trial Tribunal which dismissed ground 1 of the Appellants’ Notice of Appeal for being a pre-election matter to which the Tribunal lacked jurisdiction. Learned counsel for the Appellants cited the provision of sections 65 and 285 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and section 134 (1) (a) and (3) of the Electoral Act, 2022 and the decisions in Mato vs. Hember (2018) 5 NWLR (Pt.1612) 298; Peoples Democratic Party vs. Saror & Ors. (2022) 11 NWLR (Pt.1842) 591 @ 603, Paras. D-F; 604, Paras. AC; Alagboso vs. INEC & 2 Ors (2023) 8 NWLR (Pt.1885) 115, and Appeal No. SC/CV/1441/2022- Between- HON. AMADI THANKGOD EZIEANI vs. JONES ONYERERI & 2 Ors (Unreported); Cole vs. Jibunoh (2016) 4 NWLR (Pt.1503) 499 @ 531-532, Paras. H- E; Oyetola vs. INEC (2023) 11 NWLR (Pt. 1894) 125 @ 180- 181, Paras. E-F, to submit that the Tribunal erred in its decision, which counsel termed to be a breach of the mandatory provisions of the Constitution and the Electoral Act. The Court was urged to so hold, citing in support of the assertion, the decisions of the Court in Appeal No. CA/ABJ/EP/HR/IM/89/2023 – Okeke Jonas & Anor vs. INEC & Ors, delivered on the 4th day of November 2023, similar in every manner with the instant appeal, and also Appeal No. CA/KN/EP/GOV/KAN/34/2023.
Counsel argued that the provisions of sections 77 (2) & (3); 82 and 83 of the Electoral Act, 2022 were flagrantly breached in the circumstance of the case, affirming that the Register of Members of political party submitted to the 5th Respondent- INEC, is a public document by virtue of the provision of sections 77 (3) and 102 of the Evidence Act, 2011. Counsel cited the decision in Abdullahi vs. FRN (2016) ALL FWLR (Pt.843) 1770 @ 1795-1796. Paras F-E; Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) 547 @ 577, Para. D; Odinakachukwu vs. PDP & Ors. (2022) LPELR-59013, and submitted that the certified true copies of the said Register obtained from INEC is a means of establishing a person’s membership of a political party.
Counsel relied on the decisions in Jegede vs. INEC (2021) 14 NWLR (Pt.1797) @ 633-634, Paras. H–C; PDP vs. Sylva & Ors (2012) LPELR-7814 (SC) and Okeke Jonas & Anor vs. INEC & Ors (supra), to contend that the Appellants, being participants in the election of 25th February, 2023 ought to be seised with the locus to challenge same, stating that the Tribunal was seised with the jurisdiction to grant the Appellants’ relief sought in the Petition. The Court was urged to resolve the issue in favour of the Appellants.
On issue 2, counsel argued that the Appellants have sufficiently pleaded facts in paragraphs 22 to 27 of their Petition, that the 3rd Respondent was not a member of the 4th Respondent at the close of nomination for the 25th February 2023 election for the Isu/Njaba/Nkwerre/Nwangele Federal Constituency, submitting that Appellants are entitled to the declaration they sought from theTribunal. The decisions in Agagu vs. Mimiko (2009) 7 NWLR (Pt.1140) 342 @ 431, Paras. C-G; 432, Paras. B-C; Makinde vs. Adekola (2022) 9 NWLR (Pt.1834) 13; Onyero vs. Nwadike (2011) 18 NWLR (Pt.1279) at 980, Paras. A C.; PDP vs. Saror & Ors. (supra); Mato vs. Hember (supra), were further cited to submit that the Tribunal ought to grant the relief sought by the Appellants, failure of which this Court become seised with the jurisdiction to grant the Appellants’ relief.
In response to the Appellants’ contention in their Brief of Argument, learned counsel for the 1st Respondent argued that the Tribunal was correct to hold that Appellants lacked locus standi to challenge the qualification of the 1st and 3rd Respondents to contest the election of 25th February, 2023. Counsel argued that the 1st Appellant, being a member of another political party distinct from that of the 1st and 3rd Respondents, cannot validly challenge the qualification of the members of other parties to contest in an election.
Mato vs. Hember (2018) 5 NWLR (Pt 1612) 298 para E - F, PDP vs. Saror & Ors (2022) 11 NWLR (Pt.1842) 591 @ 603 and the decisions in SC/CV/1440/2022- Hon. Jerry Alagboso vs. INEC & 2 Ors reported as (2023) 8 NWLR (Pt 1885) 115 as well as Appeal No.SC/CV/1441/2022 - Ezeadi vs. Jones Onyereri & 2 Ors have been overruled in APC vs. INEC (2023) ALL FWLR (Pt 1181) 356 @ 378 para. C-H, 379 para A-H, @ 380 para A-C @ 381 para. F - H,
Counsel stated that decisions in AB]/EPT/HR/IM/89/2023 - Okeke Jones & Anor vs. INEC & Ors and CA/KN/EP/GOV/KAN/34/2023 appear to be affront of the decision in APC vs. INEC (supra) as well as the recent judgment of this Honourable Court in Appeal No. CA/ABJ/EP/HR/IM/80/2023 - Darlington Amaechi vs. Hon. Raphael Nnanna Igbokwe & 4 ors.
The provision of section 285 (9) (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and decisions in EL-Tijani v. Saidu (1993) 1 NWLR (Pt.268) 246; N.B.C. Plc vs. Olarewaju (2007) 5 WLR (Pt.1027) and Jitte vs. Okpulor [2016] 2 NWLR (Pt.1497) 542 @ 567 PARA F–G, were relied on to contend that the 2nd Petitioner at the Tribunal initiated Suit No. FHC/OW/CS/03/2023 challenging the Primary Election of the 2nd Respondent in the said election, same was struck out, that the Appellants herein having withdrawn suit No. FHC/CS/03/2023 have lost the opportunity to question the said election. Counsel relied on the decision in Adeleke vs. Oyetola (2023) 11 NWLR (Pt.1894) 71 @ 107 Para A-B, to contend that the Appellants failed to prove the issuance of the certified true copies of the said Exhibits "PE3"', "PE4" and "PE5" which were in contention. The Court was urged to discountenance same.
The decision of the Supreme Court in Oretuga O. Owolabi vs. Adesanya Sun & 2 Ors (2023) 11 NWLR (Pt.1896) 539 @ 557 was relied upon to drive home their argument on the issue of pre-election matters.
It was learned counsel submission that the argument that the 3rd Respondent was not qualified to contest the election as his name was not contained in the 4th Respondent’s Register was misconceived. That the said contention was not a constitutional requirement. Reliance was placed on the case of APM vs. INEC (2023) 9 NWLR (Pt.1890) 419 @ 514- 517 para E-G. and APM V. INEC (2023) 13 NWLR (Pt.1846) 159 @ 182 para. G-H.
Relying on the case of Enang vs. Asuquo (2023) 11 NWLR (Pt 1896) 510 @ 536 PARA G, counsel contended that there was nothing preventing a political party from updating its membership register at any point in time. The Court was urged to resolve issue 1 in favour of the 1st Respondent.
On issue 2 learned counsel contended that the trial Tribunal was correct when it struck out the Appellants' Relief (A) which challenged the 1st and 3rd Respondent’ qualification to contest the election in issue. Learned counsel adopted the 1st Respondent’s arguments on issue one and submitted that complaints which border on non-qualification of a candidate to contest a general election can only be entertained and determined by the Federal High Court and not by an Election Petition Tribunal, submitting, in the circumstance, that the Tribunal rightly held it lacked jurisdiction to entertain same.
It was the 1st Respondent’s contention that he sufficiently controverted the averments of the Appellants at the Tribunal. He argued that nothing was proved requiring the Respondents to contradict. While relying on decisions in MTN Nig. Comm. Ltd vs. Corporate Comm. Inv Ltd (2019) 9 NWLR (Pt.1678) 427 @ 456 para A–C; Adeleke vs. Oyetola, supra, Gbafe vs. Gbafe [1996] 6 NWLR (Pt. 455) 417 @ 432 PARAGRAPHS D-F, and Murtala Isa v. PAC & 2 Ors (2023) 11 NWLR (Pt.1896) 479 @ 496 para E-H, counsel urged the Court to resolve issue two in favour of the 1st Respondent and to dismiss the appeal.
The 2nd Respondent, similarly contended that the Tribunal rightly struck out the ground 1 of the Appellants’ petition.
Counsel for the 2nd Respondent argued vide the provisions of sections 66 & 67 of the Constitution of Federal Republic of Nigeria, 1999, as amended; sections 130 (1) and 134 (1) of the Electoral Act, 2022 and decisions in Buhari vs. Yusuf (2003) 14 NWLR (Pt.1) 446; Okereke vs. Yar'adua & Ors (2008) LPELR-2446 (SC) paras. A-A, to submit that the Appellants could not competently challenge the qualification of the 1st and 3rd Respondents as done in the Appellants’ Petition.
Counsel stated that in an election petition, issue of whether or not any candidate is qualified or not, is regulated on the constitutional provisions in Sections 66 & 67, and not Sections 84 (5) (c) (i) and 84 (13) of the Electoral Act, supra. The decisions in Oni & Anor vs. Oyebanji & Ors (2023) LPELR-60699 (SC) @ 24, 27-29, 44-47; Shinkafi vs. Yari (2016) 7 NWLR (Pt.1511) 340 (SC); Wada vs. Bello (2016) 17 NWLR (Pt.1542) 374 @ 447; and the decision in Appeal No: CA/ABJ/EP/HR/IM/68/2023 between PDP vs. Hon. (Dr.) Paschal Obi & Ors; Nworka vs. Ononeze-Madu & Ors (2019) LPELR-46521 (SC) @ 7-11; and also, Appeal No: CA/ABJ/EP/HR/IM/68/2023 between PDP vs. Dr. Chika Benson Abazu & Ors delivered on 8th November 2023, were referred to when submitting that issue of validity of nomination or sponsorship of the candidate of a political party is a pre-election matter upon which the Tribunal was not seised with jurisdiction thereon. Counsel contended, vide the provision of Section 84 (14) of the Electoral Act, that the right of action to challenge the nomination and sponsorship of a candidate by a political party inure only to members of the party who were aspirants in the primary election. The cases of Uba vs. Moghalu & Ors (2022) LPELR 57876 (SC); Uba v. Ozigbo & Ors (2021) LPELR 566672 (SC); amongst others, were cited to buttress the submission.
Counsel stated that the decisions in Mato vs. Hember and PDP vs. Saror, cited by counsel to the Appellants, were inapplicable to the facts of this case. The following decisions were relied on in support; INEC & Anor vs. Ray [2004] 14 NWLR (Pt.892) 129; A-G, Cross-Rivers State vs. A- G, Federation [2012] 16 NWLR [Pt.1327] 425 @ 520. Counsel also referred to the decisions of this Court in Appeal No: CA/ABJ/EP/HR/IM/68/2023 between PDP vs. Hon. (Dr.) Paschal Obi & Ors; PDP vs. Dr. Chika Benson Abazu & Ors, supra delivered on 8th November 2023, said to have followed the decision of the apex Court in Oni vs. Oyebanji, supra, remains the position of the law in this regard.
The decisions in Osulu vs. Osulu [2003] 11 NWLR [Pt. 832] 608 @ 642, Mogaji vs. Odofin [1978] 4 SC 91 were referred to in submitting that it is not a deserving situation for the Court to interfere with the finding of the Tribunal.
The Court was urged to resolve the issue in favour of the 2nd Respondent and against the Appellants.
In the same vein, and without the fear of sounding unnecessarily repetitive, the 5th Respondent argued in line with the previous Respondents in the appeal, to the effect that the Tribunal was very right in dismissing ground I of the Appellants Petition which sought the disqualification of the 1st and 3rd Respondents, on the ground that they were not qualified to contest the election of 25th February, 2023 into the House of Representatives for the Isu Njaba/Nkwere Federal Constituency of Imo State. Counsel emphasized that the matter remains that of a pre-election matter. On the strength of the decisions in UDUMA VS ARUNSI (2012) 7 NWLR (Pt 1298) 55 @ 131 Paras B-D: ANPP VS USMAN (2008) 12 NWLR (Pt 1100) 1 and AMECHI VS INEC (2008) 5 NWLR (Pt 1080) 227; PDP VS ONWE (201) 4 NWLR (Pt 1236) 166 @ 174 Paras C–D; AL-HASSAN VS ISHIAKU (2016) 10 NWLR (Pt 1520) 230 @ 239 Para A–D; LADO VS CONGRESS FOR PROGRESSIVE CHANGE & ORS (SC/157/2011) delivered on 16th December, 2011) and OSIGBO VS PDP (2010) 9 NWLR (Pt 1200) 601 @ 649 Paras F-H
counsel submitted that the tribunal has no power to investigate matters which took place before the conduct of an election, as in the instant case. The Court was urged to hold that the Tribunal rightly held so.
Counsel also cited the provisions of the Section 65 (2)(b) of the Constitution and Section 84(14) of the Electoral Act 2022 to drive home his point that the Appellants lacked the locus to meddle into the affairs of the 2nd Respondent-party, not being a member of the said 2nd Respondent, taking into cognizance the decisions of the Supreme Court in Nagogo vs. CPC (2012) 53 NSCOR 485 @ 532 SC, Emeka vs Okadigbo (2012) 51 NSCOR 220 @ 262 263, especially its most recent decisions in Alhaji Atiku Abubakar & Anor vs. Alhaji Bola Ahmed Tinubu & Ors, Appeal No. SC/ and Peter Obi & Anor vs. Bola Ahmed Tinubu, Appeal NO. SC/ /2023.
Learned counsel, while referring to the decisions in Modibbo vs. Usman (2020) 3 NWLR (Pt.1712) 420 @ 500, 515 and PDP vs INEC & Ors (2023) LPELR-59840 (CA) 40-43 Para F, urged the Court to resolve both issues 1 & 2 as formulated by the Appellants against the Appellants and uphold the Tribunal findings in this regard.
In the Appellants’ Replies to each of the 1st and 2nd Respondents’ submissions in their respective Briefs of Argument, Appellants’ counsel veered off and was indeed rehashing the argument already canvassed in the Appellants’ Brief of Argument, which is not the intendment of the Reply Brief which is neither a repair kit nor an avenue to open another vista of argument on issues already exhaustively canvassed.
RESOLUTION OF ISSUES 1 AND 2
The Appellants filed their Petition against the declaration of the results of the election conducted on the 25th February, 2023 in which the 1st Respondent was returned duly elected as the Member, Federal House of Representatives, for the Isu/Njaba/Nkwerre/Nwangele Federal Constituency of Imo State. The Petition was filed on 18th day of May, 2023, wherein the Petitioners sought from the Tribunal the following reliefs;
OR IN THE ALTERNATIVE TO PRAYERS A, B, C AND D ABOVE:
OR IN THE ALTERNATIVE TO PRAYERS A, B, C, D, E AND F ABOVE:
The three grounds upon which the Petition was premised, as set down in page 6 of the Record are:
Issues 1 & 2 now under consideration challenges the qualification of the 1st and 3rd Respondents to contest the election. The two issues therefore traced their root to ground 1 of the Petition. I will first treat the challenge to the qualification of the 1st Respondent before considering the issue of qualification of the 3rd Respondent.
The Appellants’ case against the 1st Respondent is that the 1st Respondent was not validly included in the ballot for the election as the 2nd Respondent (PDP) primary election which produced the 1st Respondent was not valid, has been nullified and could not have produced a valid candidate. The Appellants submitted that the 1st Respondent was not validly sponsored by virtue of the judgment of the Supreme Court in the case of Hon. Jerry Alagbaoso vs. INEC & 2 Ors (2023) 8 NWLR (Pt.1885) 115, and Appeal No. SC/CV/1441/2022 - Between- Hon. Amadi ThankGod Ezeani vs. Jones Onyereri & 2 Ors, delivered on the 13th of January 2023, in which the Supreme Court voided the entire primary election of the 2nd Respondent in Imo State which held at Aladinma Shopping Mall Plaza, Owerri, outside the Federal Constituency in question. It was the said voided primary election that produced the 1st Respondent as a candidate in the election. Appellants maintained that the said decision of the Supreme Court in the two cases cited supra is a decision in Rem, and binds the 1st, 2nd and 5th Respondents, including all the candidates that purportedly emerged from the said primary election.
According to the Appellants, with the nullification of the primary election conducted at Aladinma Shopping Mall Plaza, Owerri, the 1st Respondent had no foundation or basis to stand or to have participated in the election as the foundation was removed by the judgments of the Apex Court in Alagbaoso vs. INEC & 2 Ors, supra and Ezeani vs. Onyereri & 2 Ors, supra which found that the 2nd Respondent failed to comply with the relevant provision of the Electoral Act. That the 2nd Respondent held its primary election in preparation for the election for Isu/Njaba/Nkwerre/Nwangele Federal Constituency of Imo State outside the venue specified by Section 84(5) (c) (i) of the Electoral Act, 2022 at Aladinma Shopping Mall Plaza, Owerri, instead of within the Federal Constituency. The Appellants tendered Exhibit PE3, the INEC Report of the 2nd Respondent’s primary election to show that it was held at Aladinma Shopping Mall Plaza, Owerri, outside Isu/Njaba/Nkwerre/Nwangele Federal Constituency. Appellants also placed reliance on Section 65(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Sections 133(1)(a)(b) and 134(1)(a) and (3) of the Electoral Act, 2022.
The 1st, 2nd and 5th Respondents argued in opposition that the substance of ground 1 of the Petition is pre-election in nature as it concerns the 2nd Respondent’s primary election. That the said ground bordered on the sponsorship of the 1st Respondent which is the domestic affair of the 2nd Respondent which divested the Tribunal of jurisdiction as the Appellants lacked the locus standi to challenge the 1st Respondent’s candidacy. The 1st, 2nd and 5th Respondents argued further that the issue of venue for the conduct of primary election is also a pre-election matter outside the jurisdiction of the Tribunal. That by Section 285(14) of the 1999 Constitution issue of party primaries for the nomination of candidates, being a pre-election matter, must be litigated upon within 14 days.
For ease of reference and appreciation of the relevant provisions of the law, I shall reproduce hereunder the relevant sections of the Constitution and the Electoral Act. Section 65 of the 1999 Constitution (as amended) provides:
Subject to the provisions of section 66 of this Constitution, a person shall be qualified for election as a member of- a the Senate, if he is a citizen of Nigeria and has attained the age of thirty-five years; and b the House of Representatives, if he is a citizen of Nigeria and has attained the age of twenty-five years; 2 A person shall be qualified for election under subsection (1) of this section if- a he has been educated up to at least School Certificate level or its equivalent; and b he is a member of a political party and is sponsored by that party.
By dint of the above constitutional provision, membership of a political party and sponsorship of candidate for election by a political party, are among the constitutional requirements for qualification to contest election into any elective office. Being a constitutional requirement, a candidate of another political party whose name appear on the ballot for an election has the requisite locus standi to challenge the election of the declared winner, on account of his membership of a political party or on account of statutory defects in the process of his nomination. With the conclusion of election, such matters, being constitutional requirements, are outside the confines of pre-election matters, especially that the aggrieved candidate is not a member of the party of the candidate that was returned elected. In this regard, I find the decision of the trial Tribunal on the locus standi of the Appellants to challenge the qualifications of the 1st and 3rd Respondents unacceptable. I will shed more light on this position in due course.
Section 134(1)(a) and (3) of the Electoral Act, 2022 provides:
(1) An election may be questioned on any of the following grounds—
(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(3) With respect to subsection (1) (a), a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of sections 65, 106, 131 or 177 of the Constitution and he is not, as may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution.
It is pertinent to state that Section 134(3) of the Electoral Act emphasizes the provision of Section 65 of the Constitution. Section 134(3) is a new legislative clause to the Electoral Act. In other words, Section 138 of the Electoral Act, 2010 which is similar to Section 134(1) of Electoral Act, 2022 does not contain similar provision as in Section 134(3) of 2022 Act. The mischief intended to be cured by the new provision, in my considered view, is that if any candidate escapes qualification matter in primary election, his qualification can still be challenged under Section 65 of the Constitution and Section 134(1) (a) and (3) of the Electoral Act 2022. Thus, in finding out whether someone was qualified to stand for election, it must be shown that there is no impediment whatsoever standing on his way to contesting election into any particular office including the office of a Member, House of Representatives. Such a person or aspirant in the true sense of it must be a member of a political party and must be sponsored by that political party as its candidate. The candidate and the political party sponsoring him must ensure that they comply with the provisions of Sections 82 and 84 of the Electoral Act i.e., all political parties intending to sponsor candidates for a particular office must conduct primary elections.
The Appellants have argued that the issue of the 1st Respondent’s qualification is affected by the venue of the primary election that produced him and the fact that the Apex Court had nullified the 2nd Respondent’s primaries and therefore the Appellant was unqualified to have contested the election. The 1st, 2nd and 5th Respondents, on the other hand, have argued that the issue of the 1st Respondent’s primaries cannot affect the Appellant’s qualification and ought not to be brought as a ground of Petition and that the Tribunal had no jurisdiction to entertain it.
Now, Section 84(5)(c)(i) of the Electoral Act 2022 provides as follows:
(5) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined-
( c) In case of nominations to the position of a Senatorial candidate, a Member of the House of Representatives and a Member of State House of Assembly, the political party shall, where it intends to sponsor candidates-
The firm and settled position of the law as clearly stated in plethora of authorities was recently restated by the Apex Court in the case of Alagbaoso vs. INEC & 2 Ors (2023) LPELR-59702 (SC), a case concerning the conduct of PDP primaries in Imo State. I shall quote the learned law Lord, Ogunwumiju, JSC, in extenso, to buttress the position of the Nigerian judicial oracle on the conduct of party’s primaries outside designated venue and the effect of non-compliance with constitutional requirements for qualification of candidate as it relates to sponsorship. His Lordship postulated at pages 31-37 of the E-Report, thus:
‘’The law is settled that where a statute lays down a clear path, process and procedure for doing an act, that path and procedure must be followed to the letter. See DR. ABDU HO V. MUSTAPHA ABUBAKAR & ORS (2016) LPELR - 41635 (CA).
The Court's interpretation of a statute must not defeat its intent. The general rule in the interpretation of statutes is that where the words of a statute are plain, clear and unambiguous, the Courts should give effect to their literal meaning so long as the interpretation would not be absurd. See HON. IFEDAYO ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY (2015) 4 SCNJ 179. Since Section 84(5)(c)(i) of the Electoral Act is not ambiguous, resort must be had to the literal rule to ensure strict observance. Nothing can be added to a law by utilizing the golden rule of interpretation of statutes to expand the law beyond the intendment of the legislature. When a provision in a statute is clear, the Court's power at construing it is limited. See ALH. ADO IBRAHIM V. ALH MAIGIDA LAWAL (2015) 6 SCNJ 1. You can only have recourse to other canons of interpretation when the law is not clear enough. When provisions in a statute appear harsh in practice, it is not the function of the Courts to bend backwards to sympathize with affected parties by giving it a soothing interpretation. MOHAMMED ABACHA V. FRN (2014) 1SCNJ 37, KRAUSS THOMPSON v. NIPSS (2004) 17 NWLR Pt. 901 Pg. 44
This Court in MATO V. HEMBER (supra) interpreted similar provisions strictly. The Supreme Court interpreted Section 87(4) of the Electoral Act (2010) as amended, which is in pari materia with Section 84 (5)(c)(i) of the Electoral Act 2022. In that case, this Court held that the other contestant at the primary election which was declared null and void and in violation of the Electoral Act and the party (APC) constitution was not a valid or authentic member of the party. Even though the primary election was declared void, the party's appeal panel having validated the complaints of the only valid candidate of the party, the said candidate was ordered to be given the party's ticket and be sworn in as the authentic candidate of the party. The decision was guided by the fact that this Court found that the Appellant was the only valid candidate of the party, so the Court took cognizance that in law she had been returned unopposed. The pronouncements of this Court is apt in this regard. ONNOGHEN JSC (as he then was) held as follows:
"The facts deposed in paragraphs 3 and 4 of the affidavit in support of the Originating summons show that the said primary election was held at HAF Haven Hotel, Makurdi quite outside the headquarters of the federal constituency. So apart from the irregularities catalogued in exhibits 4 and 2 reproduced above, the holding of the primary was contrary to the Electoral Act 2010 (as amended) and the constitution of the 2nd Defendant. As a corollary to the above provision, Article 12.11 of the 2nd defendant's constitution provides that every member shall assemble as their respective federal constituency headquarters and voting shall be by secret ballot. A combined reading of these two provisions reveal that it is mandatory for the political parties to hold their congress for the purpose of electing their candidates in the headquarters of the constituency. As was pointed out by learned Counsel for the Appellant in their written address, the Electoral Act and the 2nd Respondent's Constitution make detailed provisions for the way and manner by which primary elections are to be conducted. This is to ensure a level playing field for all aspirants- Any contravention of the Act and Constitution of the party in this regard would be regarded as a plot to negate the principle of due process of law enshrined therein. It is trite that where a statute provides for a means of doing a thing, no other means or manner shall be permitted. Both the Electoral Act and the constitution of the 2nd Defendant make it mandatory that the primaries be conducted in the headquarters of the constituency. The failure to comply with these provisions makes the entire exercise null and void. See NWABUEZE V. OKOYE (1988) 4 NWLR Pt. 91 Pg. 664, EZEOLI V. NZEKA (1989) 1 NWLR Pt. 98 Pg. 478"
There is no argument that the guidelines for primaries of the 2nd Respondent state specifically that the primaries should be held in the Senatorial District. There is also no doubt that Section 84(5)(i) of the Electoral Act provides that the Primary Election under consideration should have been held within the Senatorial District. Therefore, both the statute and the party guidelines had at its heart, the policy to hold the primary election at a location near the people of the constituency. The statutory provision made it mandatory by using the word "shall". If it had the word "shall" but went further to put a proviso or an exception, then the word "shall" might be construed to be merely directory. INEC decided to ignore or water down or create exceptions in respect of a mandatory provision in the Electoral Act made by the National Assembly which gave it the power to undertake, organize and supervise all elections in the elections in the country including the supervision of party primaries.
The National Assembly represents the people and the party representing party faithfuls in 2022 chose to draw up an Act and guidelines respectfully to protect internal democracy in the political party by ensuring that everyone is included in the democratic process so that voting at all levels of the process is done as much as possible at the grassroots level. INEC and a party cannot collude to frustrate public policy. In OKONKWO V. OKAGBUE (1994) 9 NWLR Pt. 386 Pg. 301, the Supreme Court defined public policy as the ideals which for the time being prevails in any community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest. Public policy holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against public good which may be termed as it sometimes has been, the policy of the law or policy in relation to the administration of law. In this case, obviously, the provision for delegates at primaries to vote within the confines of the senatorial district is to ensure a free and fair primary election at the grass root so to speak.’’
See also the case of Ezeani vs. Onyereri & 2 Ors (supra).
On whether, the issue of qualification of a candidate to contest an election can be question in an Election Tribunal, I think the Electoral Act has settled that in section 134(1)(a). There are plethora of authorities to that effect. See PDP vs. Saror (supra) and Mato vs. Hember (supra). Where, therefore, a political party conducts its primary election outside the confines of the Constituency, such a primary election would be voided for contravening the provision of the Electoral Act and the candidate selected in that primary election will be unqualified to contest the election. That is the import of the decision in Alagbaoso vs. INEC 2 Ors (supra).
It has been argued by the Respondents that the decisions in Alagbaoso and Ezeani’s cases only concerns the primaries of their respective Constituencies, as the said decisions are not judgments in rem. A judgment in rem binds all persons, whether parties to the proceedings or not. In Cole vs. Jibunoh (2016) LPELR-40662 (SC), the Supreme Court, Per Kekere-Ekun, JSC, stated thus-
A iudgment in rem is a iudgment of a court of competent iurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the "res" in the way of condemnation, forfeiture, declaration, status or title. The feature of a iudgment in rem is that it binds all persons, whether party to the proceedings or not. It stops anyone from raising the issue of the status or person or persons or things, or the rights or title to the property litigated before a court of competent iurisdiction. It is conclusive aguinst the entire worid in whatever it settles as to status of the person or property. All persons whether partv to the proceedings or not are estopped from averring that the status of persons is other than the court has by such judgment declared or made it to be."
In order to determine whether a judgment is in rem or in personam, one has to read the entire judgment to discover its purport. A careful reading of the judgment in the case of Alagbaoso vs. INEC & 2 Ors (supra) will reveal that the order of the Court was not restricted to the conduct of primary election for Imo West Senatorial District, but the entire conduct of the PDP primaries in Aladinma Shopping Mall Plaza, Owerri in contravention of statutory provision as encapsulated in section 84(5)(c)(1) of the Electoral Act. At the risk of repetition, I again reproduce an excerpt of the judgment of Ogunwumiju, JSC, in Alagbaos’s case (supra):
It is trite that where a statute provides for a means of doing a thing, no other means or manner shall be permitted. Both the Electoral Act and the constitution of the 2nd Defendant make it mandatory that the primaries be conducted in the headquarters of the constituency. The failure to comply with these provisions makes the entire exercise null and void.
By declaring the entire primaries of the 2nd Respondent conducted at Adadinma Shopping Mall Plaza, Owerri, null and void for non-compliance with statutory provisions, the judgment of the Supreme Court in Alagbaoso vs. INEC & 2 Ors, is a judgment in rem, having determined the status of the said primary election. The said judgment therefore affects and binds all candidates of the 2nd Respondent whose primaries were conducted in Owerri, outside the confines of their constituencies, including the 1st Respondent herein. I so hold.
The 2nd Respondent, having not held a valid primary election for the selection of its candidate for the election in Isu/Njaba/Nkwerre/Nwangele Federal Constituency, could the 1st Respondent be said to have been validly sponsored for the election? The answer is an emphatic No. The validity of an election of a person encompasses all conditions precedent that will make that person to be qualified or disqualified to contest the election in issue. With the provision of Section 285(1) of the Constitution, it cannot be said that the issue of sponsorship of a candidate is solely a pre-election matter because it is one of the things that can affect the validity of an election or return of the candidate based on qualification threshold of Section 65 of the 1999 Constitution read together with Section 285(1) of the Constitution. In other words, an invalid sponsorship is antithetical to valid qualification of a candidate. Borrowing the language of Eko, JSC, in Jegede vs. INEC & Ors (2021) LPELR-55481 (SC), “a defective sponsorship denies the qualification to contest the election.” Consequently, I hold the strong view that with regard to Section 285(1) of the 1999 Constitution, the National and State Houses of Assembly Election Tribunal has jurisdiction to entertain any issue relating to or pertaining to the validity of the qualification of a candidate in an election, including the validity of his sponsorship. The trial Tribunal was therefore wrong in declining jurisdiction to inquire into the constitutional requirement of qualification of the 1st Respondent as it relates to the validity of his sponsorship as provided under section 65 of the Constitution. In the circumstances of this case, I find that the sponsorship of the 1st Respondent was invalid, consequently, the votes scored by him during the election are nothing but wasted votes or votes thrown away. See Jegede vs. INEC & Ors (supra).
I shall now move on to the determination of the Appellants’ challenge to the qualification of the 3rd Respondent. For purposes of refreshing our memory, the 3rd Respondent contested the House of Representatives election for Isu/Njaba/Nkwerre/Nwangele Federal Constituency under the Platform of the 4th Respondent, the Labour Party. The 3rd Respondent came 2nd in the election with 9,372 votes while the 1st Appellant came 3rd with 8,991 votes.
The case of the Appellants against the qualification of the 3rd Respondent to contest the election is that the 3rd Respondent’s nomination and sponsorship by the 4th Respondent is invalid, same being not in compliance with the provisions of Section 65(2)(b) of the 1999 Constitution, in that the 3rd Respondent was not a member of the 4th Respondent at the material time. In proof of this allegation, the Appellants tendered certified true copy of the 4th Respondent’s Register of Members in Imo State submitted to INEC, 30 days before the election in compliance with the provision of Section 77(2) and (3) of the Electoral Act, 2022, which renders the said Register a public document by virtue of Section 102 of the Evidence Act. The Membership Register was marked as Exhibit PE6.
According to the Appellants, the name of the 3rd Respondent is not on the Imo State Membership Register of the 4th Respondent. The trial Tribunal declined jurisdiction to entertain the Appellants’ challenge to the qualification of the 3rd Respondent on the ground that it is a pre-election matter outside the scope of the jurisdiction of Election Petition Tribunal.
Appellant’s counsel submitted that the law on proof of membership of a political party for the purpose of the conduct of an election can only be done in compliance with the provisions of Sections 77 (2) and (3) of the Electoral Act, 2022 by the production of the original membership register submitted to the 5th Respondent or a certified true copy thereof, citing Odinakachukwu vs. PDP & Ors. (2022) LPELR – 59013 (CA) and Jegede vs. INEC (2021) 14 NWLR (Pt. 1797) at 633 – 634.
As explained earlier, the 3rd and 4th Respondents did not file any Brief. That notwithstanding, however, the 1st 2nd and 5th Respondents, out of overzealousness and desperation, made submissions in their respective Briefs contending that the 3rd Respondent was qualified to contest the election, without stating how they came by their knowledge. They failed to demonstrate through Exhibit PE6 that the name of the 3rd Respondent is on the 4th Respondent’s Membership Register for Imo State. What is more, the 1st, 2nd and 5th Respondents are busy bodies as it relates to the case of the 3rd and 4th Respondents, totally bereft of locus standi to make submissions on behalf of the 3rd and 4th Respondents. They cannot cry more than the bereaved who decided to move away with his life. In the circumstance, all submissions made by the 1st, 2nd and 5th Respondents canvassing the qualification of the 3rd Respondents are hereby discountenanced.
It is the law that membership of a political party is a prerequisite for any person to contest for the office of Member, House of Representatives under its platform. See Section 65(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Where an election is questioned on the ground of qualification of a candidate as it relates to his membership of a political party that sponsored him, such a challenge is a post-election matter within the jurisdiction of an Election Tribunal. The trial Tribunal was therefore wrong in declining jurisdiction to entertain ground 1 of the Appellants’ Petition, as the said ground is grounded in section 65(2) of the Constitution. On proof of membership of a political party, this Court in Odinakachukwu vs. PDP & Ors. (2022) LPELR – 59013 (CA) held that; "the only way by which any person can be verified as a bona-fide member of the 1st Respondent or any other political party for that matter is the production of the given party's Membership Register, which Appellant failed woefully to do".
The Appellants pleaded at paragraphs 23 and 24 of their Petition, copied at page 8 of the Record as follows:
23. The 3rd Respondent was not a member of the 4th Respondent as at the close of nomination for the election; the 4th Respondent cannot in law validly sponsor the 3rd Respondent who was not a member of the 4th Respondent as at the close of nomination for the election. The Petitioners would at the hearing of this Petition relied on the CTC of Imo State membership register of the 4th Respondent as at the close of the nomination for the nomination, the 5th Respondent is put on notice to produce at the hearing of this Petition.
24. The 4th Respondent having failed to comply with the law in its nomination and sponsorship of the 3rd Respondent, the 3rd Respondent stood disqualified to participate in the said election and the 5th Respondent ought not to have allowed the 3rd Respondent to participate in the said election.
In response to these averments, the 3rd and 4th Respondents pleaded at paragraph 9(a) of their joint Reply to the Petition copied at page 246 Vol.2 of the Record, that the 3rd Respondent was at all material time a member of the 4th Respondent. One interesting aspect of the pleading of the parties is that while the Appellants pleaded the Membership Register of the 4th Respondent for Imo State and proceeded to tender a certified true copy of same in evidence as Exhibit PE6, the 3rd and 4th Respondents neither pleaded, listed nor frontloaded the Membership Register, even though the law requires them to do so under paragraph 12(3) of the First Schedule to the Electoral Act, 2022. This means that even at the point of pleadings, the 3rd and 4th Respondents were unable to meet the case of the Appellants on the 3rd Respondent’s membership of the 4th Respondent. During the hearing of the Petition before the trial Tribunal, while the 1st Appellant tendered the 4th Respondent’s Membership Register and spoke to it through his written statement on oath, and was duly cross-examined by all counsel, including counsel to the 3rd and 4th Respondents, as borne out by pages 917-920 of Vol.2 of the Record, the 3rd and 4th Respondents neither called any witness nor tendered any document in evidence. On the preponderance of evidence, therefore, the Appellants have succeeded in proving their averments that the name of the 3rd Respondent is not on the Membership Register of the 4th Respondent. Little wonder then, that the 3rd and 4th Respondents failed, refused and neglected to join issues with the Appellants in this appeal. On the basis of my observations above, I have no hesitation in holding that the 3rd Respondent was not qualified to contest the election in question under the platform of the 4th Respondent having not being a member of the 4th Respondent. I also hold that the trial Tribunal was in grave error in declining jurisdiction to entertain ground 1 of the Petition.
In view of my finding on the non-qualification of the 3rd Respondent to contest the election, all votes credited to him by the 5th Respondent are wasted votes. In the result, I resolve issues 1 and 2 in this appeal in favour of the Appellants and against the Respondents.
In view of my decision on the question of qualification of the 1st and 3rd Respondents, the need to consider issues 3 & 4 has been obviated, as the determination of issues 1 and 2 has effectively resolved the appeal. Consequently, I hereby allow the appeal and set aside the judgment and orders of the trial Tribunal in Petition No. EPT/IM/HR/63/2023. In their place, I make the following orders:
No order is made as to costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
A.I. Nwachukwu with Nas Ogunshakin for the Appellants.
K.C. Nwufo, SAN, with U.N. Isaac for the 1st Respondent.
N.A. Nnawuchi, SAN, with I.K. Ujah for the 2nd Respondent.
Nwabueze Nwankwo for the 5th Respondent.
