PEOPLES DEMOCRATIC PARTY V EZEONWUKA

PEOPLES DEMOCRATIC PARTY V EZEONWUKA


IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, 7TH APRIL, 2017.


APPEAL NO: SC.521/2015
[SC.846/2015](CONSOLIDATED)

CITATION: SC (2017) 4 LLIR 4

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

MUSA DATTIJO MUHAMMAD, J.S.C.

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

EJEMBI EKO, J.S.C.

SIDI DAUDA BAGE, J.S.C.


BETWEEN

1. PEOPLES DEMOCRATIC PARTY (PDP)
2. ALHAJI ADAMU MU’AZU
(sued for himself and representing the National Executive Committee and the National Working Committee of the Peoples’ Democratic Party)
3. MR. ALAYE TREMIE JNR.
The Chairman, PDP National Assembly Electoral Panel for Anambra State.
4. RODNEY AMBAIOWEI
(The secretary, PDP National Assembly Electoral Panel for Anambra State, sued for themselves and as representing other Members of PDP National Assembly Electoral Panel for Anambra State)
5. HON. BEN NWANKWO
(Granted leave on 20th October 2016 to appeal as a person interested)
[SC.521/2015]

(APPELLANTS)

AND

1. BARR. SOPULUCHUKWU E. EZEONWUKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
[SC.521/2015]

RESPONDENTS


BETWEEN

BARR. SOPULUCHUKWU E. EZEONWUKA
[SC.846/2015]

(APPELLANTS)

AND

1. PEOPLES DEMOCRATIC PARTY [PDP]
2. ALHAJI ADAMU MU’AZU NATIONAL CHAIRMAN PDP
(Sued for himself and representing The National Executive Committee of The Peoples Democratic Party)
3. MR. ALAYE TREMIE JNR.
(The Chairman, PDP National Assembly Electoral Panel for Anambra State)
4. RODNEY AMBAIOWEI
(The Secretary, PDP National Assembly ElectoralPanel for Anambra State)
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
[SC.846/2015]

RESPONDENTS


PRONOUNCEMENTS

A. ACTION
1. Representative Action–Whether a person instituting a representative action can unilaterally withdraw same without the consent of those on whose behalf the action was brought;

As regards the contention of the 5th co-appellant regarding the representative capacity of the 2nd and 4th appellants, I have considered the authority of Otapo Vs Sunmonu (1987) NWLR (Pt.58) 587 relied on by learned senior counsel. The law as espoused in that case is as follows: “a representative plaintiff is the sole plaintiff is Dominus litis until judgment. He can discontinue, compromise, submit to dismissal and other things as he decides during the Court of the proceedings. If he falls out with any of the represented parties for any reason, the Court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ… Where several sue, they have the like power as a single representative plaintiff, but they must act together.” @ 604 F-G per Obaseki, JSC. PER KEKERE-EKUN, J.S.C. (para. 37) READ IN CONTEXT.

B. APPEAL
2. Right of Withdrawal of Appeal–Exercise of right of unilateral withdrawal of appeal under Order 8 Rule 6(1) of Supreme Court Rules, condition precedent for same to be validly exercised;

Order 8 Rule 6 (1) Supreme Court Rules as amended provides for the unilateral withdrawal of an appeal by an appellant. For the rule to apply the following conditions must co-exist:

“(a) There must be an appeal by the appellant;

(b) There must be a withdrawal of the appeal in the words of Form 19 or 20 or such words indicating that there is no intention to further prosecute the appeal;

(c) The withdrawal may be at any time before the appeal is called on for hearing;
(d) Notice of the withdrawal must be served on all parties to the appeal
(e) The notice of withdrawal must be filed with the registrar.” See: Dingyadi Vs INEC (No.2) (2011) 18 NWLR (Pt.1224) 154 @ 205 – 206 H – C; Edozien Vs Edozien (1993) 1 NWLR (Pt. 272) 678 @ 699: Adeagbo Vs Yusuf (1990) 6 NWLR (Pt.158) 588.
PER KEKERE-EKUN, J.S.C. (para. 30) READ IN CONTEXT.

C. COURT
3. Powers of the Court–On the position of the law that a court is entitled to look at the files and records that has formed part of its proceedings in order to substantial justice

The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See: Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 210 @ 229 E; Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378 @ 411-412 H-C; Funduk Eng. Ltd. Vs McArthur (supra); Womiloju vs Anibire (2010) 10 NWLR (Pt. 1203) 545 @ 561 G. The inclusion of these processes in the record transmitted from the Court below presupposes that they form part of the record of proceedings before that Court. PER KEKERE-EKUN, J.S.C. (para. 123) READ IN CONTEXT.

D. ELECTORAL MATTERS
4. Electoral Matters–On the nature of electoral matters, as sui generis;

In resolving this issue, it is necessary to keep two legal principles in mind. The first is that election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See: Hassan vs Aliyu ( 01 ) 17 NWLR (Pt.1223) 547; James vs INEC (2015) 12 NWLR (Pt. 1474) 538. In Orubu vs National Electoral Commission (1988) 5 NWLR (Pt.94) 323 @ 347, His Lordship Uwais, JSC (as he then was) opined thus:


“an election petition is not the same as ordinary civil proceedings. It is a special proceedings because of the peculiar nature of elections, which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in Court.” See also: Obasanya Vs Babafemi (2000) 15 NWLR (Pt.689) 1 @ 17 A – D per Uwais, JSC (as he then was); Abubakar Vs Yar’Adua (2008) ALL FWLR (Pt.404) 1409 @ 1450 E – F. Since primary elections produce the candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis. PER KEKERE-EKUN, J.S.C. (para. 113) READ IN CONTEXT.

5. Section 87(9) of the Electoral Act–Whether a party can rely on Section 87(9) to question the choice of a candidate by a political party without alleging any non-compliance with the electoral laws or the party’s constitution;

My Lords, a careful perusal of the reliefs sought and the averments in the 1st respondent’s supporting affidavit above, particularly paragraph 40 thereof, indicates that the primary election conducted on 7/12/2014 “complied with the provisions of the Electoral Act 2010 (as amended) and was conducted within the dictates of the Electoral Guidelines for Primary Elections 2014 and the Peoples’ Democratic Party (PDP) the 1st defendant on record….” In other words, he is not challenging the conduct of the primary nor is he complaining of non-compliance with the provisions of the Electoral Act or the PDP Electoral guidelines. While seeking declaration that he is the ONLY qualified, authentic, duly elected, validly nominated and duly returned candidate, it was his contention that there was a move by the same party to substitute his name with another. It was on this basis that he sought the reliefs referred to above. It seems to me that having positively averred that there was due compliance with the provisions of the Electoral Act and the PDP guidelines in paragraph 40 of the supporting affidavit, the 1st respondent had effectively removed his claim from the purview of Section 87 (9) of the Electoral Act. The issue of substitution is a different matter altogether. This Court in PDP vs Sylva (supra) at 146 B – E per Chukwuma-Eneh, JSC held: ” … the choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiciable. See Onuoha Vs Okafor and again Dalhatu Vs Turaki (supra) . Furthermore, as a legal proposition also deducible from the case of Onuoha Vs Okafor no member of a political patty has the locus standi to question the party’s prerogative right on the issue of its choice of candidates for elective office not even in the face of breaching of its rules and regulations. I dare say, The redress available to such a member who is aggrieved and who has suffered any damage as a result of refusing him nomination and sponsorship lies in damages against the political party and subject to the provision of the party constitution, rules and regulations.”


See also: Eligwe Vs Okpokiri & Ors. (2014) 12 SC (Pt.1) 33 @ 60 line 35 – 61 lines 1 – 4. In Tukur vs Uba (2013) 4 NWLR (Pt.1343) 90 @ 134 D, this Court held that the political party is the proper body or person to know which of the aspirants it has cleared for the primaries and general election afterwards. It was further held that so long as the guidelines and constitution of the political party are not violated or breached, the Court has no power to question the choice of a party’s candidate presented for election. One of the reliefs sought by the plaintiff in that case at the trial Court was: “A declaration that it is mandatory for the 1st defendant [PDP] to nominate the winner of the primary election as its flag bearer candidate for the purpose of participating and contesting in the National Assembly Election in Kebbi State slated for 2nd April, 2011.” PER KEKERE-EKUN, J.S.C. (para. 101-103) READ IN CONTEXT.

E. FAIR HEARING
6. Pending applications–Whether failure to hear and dispose of pending applications before a court, prior to reaching a final decision in a grave violation of a party’s right of fair hearing;

It is not in dispute and indeed the law is very well settled that a Court of law has a duty to dispense with all pending applications and/or processes before it, before reaching a final decision in a cause or matter. See: Akpan Vs Bob (2010) 17 NWLR (Pt.1223) 421; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 18 NWLR (Pt.852) 346; Irolo vs Uka (2002) 14 NWLR (Pt.786) 195 @ 225. Certainly the failure of a Court to do so, without a valid reason would amount to a violation of the right of the party not heard to fair hearing and as rightly submitted by Paul Erokoro, SAN, such violation would render the proceedings liable to be struck out. PER KEKERE-EKUN, J.S.C. (para. 73) READ IN CONTEXT.

7. Principles of Natural Justice–On the principle that everyone who ought to be a party in a case and who stands to be adversely affected by the decision of a court in a particular case ought to be given the opportunity of making his case and putting up his defence

Natural justice requires that a party to a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY v. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC, in EKIYOR & ANOR. v. BOMOR (1997) 9 NWIR (Pt.519) 1 at 14. Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J, in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NWLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALIU v. TAIWO EGEIBON (1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ. 90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ. 57; (1987) 2 NWLR (Pt.58) 587. PER EKO, J.S.C. (para. paras. 179-181) READ IN CONTEXT.

F. JUDGEMENT AND ORDER
8. Order of Nullity–On the effect of an order of nullity on the proceedings of a lower court by a superior court on appeal

In conclusion I must say that I agree with learned senior counsel for the appellant Mr. Ikwueto that the effect of setting aside an action or order arising from the said action is to render the action or order void ab initio, from the very beginning, as if the action or order had never occurred or transpired. Indeed, learned senior counsel is right that where an incompetent action or order therefrom is set-aside by a competent Court, having been embarked upon or decreed by a Court without the necessary jurisdiction and either or both, thereafter, become(s) an issue, then, in law and for all practical purposes, the incompetent action or the equally null and void order arising from the incompetent action, as erased by the order of the competent Court, will be deemed to have never occurred originally. In Akpamgbo-Okadigbo & ors v. Chidi & 18 ors (No 1) (2015) 3-4 SC (Pt 11) 151, a case the learned senior appositely cited, this Court pointedly stated thus: “A nullification by the Supreme Court of the proceedings of a trial Court means that those proceedings, including all the orders made in the course or consequence of the proceedings, never took place. They are completely… off, rendered extract and deemed never to have existed. And one can only continue with that which is in existence and not otherwise.” PER MUSA DATIJJO MUHAMMAD, J.S.C. (paras. 166-167) READ IN CONTEXT.

G. JURISDICTION
9. Determination of Jurisdiction–On the principle that it is the plaintiff’s claims that determine whether a court has jurisdiction in a matter

The second legal principle is that in order to determine the competence of a suit and the jurisdiction of the Court to entertain it, it is the plaintiff’s claim in a matter begun by writ of summons or the supporting affidavit in a matter begun by originating summons that would be considered. See: Adeyemi Vs Opeyori (1966) 10 SC 31; Amale Vs Sokoto Local Government & Ors. (2012) LPELR-7842 (SC). PER KEKERE-EKUN, J.S.C. (para. 114) READ IN CONTEXT.

10. Determination of Jurisdiction–On the condition precedent before a court can validly assume jurisdiction in a matter, specifically the effect of fialure to join proper and interested parties in the suit;

The issue that arises is whether the suit before the trial Court was properly constituted, bearing in mind the fact that this is a pre-election matter. In the well known decision of this Court in Madukolu Vs Nkemdilim & Ors (1962) 2 ALL NLR 581 @ 589 this Court held that a Court is competent when: “(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

In Okoye vs Nigerian Furniture Construction Co. Ltd. (1991) 22 NSCC (Pt.II) 422; (1991) 6 NWLR (Pt.199)
501 @ 532 B-E, this Court, relying on its decision in Madukolu vs Nkemdilim (supra) at page 596, held per Akpata, JSC, that the irregularity occasioned by the failure to join a necessary party in a suit may be so grave as to affect its fairness and the soundness of the adjudication, which may result in its being set aside on appeal. The unfairness in such circumstance infringes on the right to fair hearing of the party so excluded. In Ikechukwu Vs Nwoye (2015) 3 NWLR (pt. 1446) 367 @ 400, this Court per Galadima, JSC held:

“… the learned counsel for the 1st respondent is saying that the appellant is not a necessary party to that suit because he could have competently prosecuted the action against the 2nd respondent herein (INEC) as the sole respondent. For learned counsel for the 1st respondent to take this stand is to lose sight of the fact that the main purpose of his [1st respondent’s] suit is for the Court to declare him the lawful candidate of the PDP for the election and for him to be accorded all the rights and privileges and entitlements due to the candidate of his party/ PDP. Is the 1st respondent now saying that while approaching the Court to be declared as the lawful candidate, his interest is not competing with that of the appellant? …. The foregoing argument boils down to the fact that the 1st respondent’s action instituted without joining the appellant was not properly constituted.”

See also: Akpamgbo-Okadigbo Vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 @ 205 D – H. A question that arises in the circumstances of this case is what would have been the effect of a judgment in the 1st respondent’s favour if, by the time it was delivered another aspirant had been issued with a certificate of return, bearing in mind the 1st respondent’s contention that there were moves to discard the result and substitute another candidate? As observed by this Court in Ikechukwu Vs Nwoye (supra) the Court would have no jurisdiction to order the 1st respondent to step into the shoes of a person who was never a party to the suit. PER KEKERE-EKUN, J.S.C. (paras. 116-119) READ IN CONTEXT.

11. Jurisdiction–On the radical nature of jurisdiction which makes it valid to raise issue of jurisdiction at any point in a proceedings or on appeal

It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See Omokhafe v Esekhomo (1993) LPELR-2649 (SC) Ukaegbu v. Ugorji (1991) 6 NWLR (Pt 196) 127, Omomeji & Ors v. Kolawole & ors (2008) LPELR-2650 (SC). PER MUSA DATIJJO MUHAMMAD, J.S.C. (para. 159) READ IN CONTEXT.

H. STATUTORY INTERPRETATION
12. Interpretation of Section 87(9) of the Electoral Act–With respect to right of action of a party under the said section; and the scope of the jurisdiction of the courts under the said section;

It has been held in a plethora of decisions of this Court that the Jurisdiction of a Court to entertain a complaint under Section 87 (9) of the Electoral Act falls within a very narrow compass. The complainant must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party. see: Uwazurike vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 526 E-G; PDP vs Sylva (2012) 13 NWLR (Pt. 1316) 85 @ 148 C-D; 149 A-E; Lado vs C.P.C. (2012) All FWLR (Pt. 607) 598 @ 622-623 F-H; APGA vs Anyanwu (2014) 2 SC (Pt.1) 1. The rationale for this position is that the nomination and sponsorship of a candidate for an election is within the domestic affairs of a political party and the Courts have no jurisdiction to nominate a candidate for any party. See: PDP Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 146 A – E: Gwede vs INEC (2014) 18 NWLR (1438) 56 @ 148 – 149 H – B: Onuoha Vs Okafor (1983) 2 SCNLR 244; Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556. PER KEKERE-EKUN, J.S.C. (para. 91) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY KEKERE-EKUN, J.S.C.


  1. This appeal is against judgment of the Court of Appeal, Abuja Division delivered on 26/6/2015 dismissing the appeal filed by the 1st-4th Appellants against the judgment of the Federal High Court, Abuja delivered on 20/2/2015.
  2. The 1st Appellant, the Peoples Democratic party (PDP), conducted primaries for the purpose of nominating its candidate for the Orumba North/South Federal Constituency of Anambra State in the National Assembly Election scheduled for 28/3/2015. The 3rd and 4th appellants were the Chairman and Secretary, respectively of the PDP National Assembly Electoral Panel for the State. The 1st Respondent contested with 5 other aspirants. He asserted that he scored the highest number of votes and was publicly declared winner by the Returning Officer but that his name was not forwarded to the Independent National Electoral Commission (INEC) by the Appellants. He alleged that he got to know that there was an attempt to return someone else as the winner. He therefore filed an Originating Summons at the Federal High Court, Abuja (the trial Court) seeking inter alia, a declaration that he is “the only qualified, authentic and duly elected, validly nominated and duly returned candidate” of the PDP to contest the National Assembly (House of Representatives) General Election into Orumba North/South Federal Constituency scheduled to hold on 14/2/2015 or any other date. None of the other aspirants was made a party to the suit.
  3. In his supporting affidavit he exhibited the 1st Appellant’s result form showing votes said to have been cast for him and 5 other aspirants. Although, PDP filed a counter affidavit opposing the originating summons, it conceded in paragraphs 7 and 15 thereof that the Primary election was conducted in accordance with the law, Constitution and the party guidelines and that the result sheet exhibited by the 1st respondent was correct as to the fact that he scored 55 votes being the highest number of votes. In other words, it conceded the st respondent’s claim.
  4. After a consideration of the various affidavits before the Court, the exhibits annexed thereto and the submissions of learned counsel, the trial Court held that 1st- 4th defendants (now appellants) failed to give any reason for not forwarding the plaintiff’s (1st respondent’s) name to INEC and accordingly entered judgment in his favour. The Court ordered, inter alia:”An order is further made directing the 5th defendant (INEC) to accept the plaintiff’s name as the candidate of the 1st defendant, recognized, publish and print his name in the ballot paper as the authentic candidate of the 1st defendant for the National Assembly (House of Representatives) Election for Orumba North and South Federal Constituency in the scheduled election of 14/2/2015 or any other date.”
  5. The 1st- 4th appellants were dissatisfied with the judgment. They filed (but eventually withdrew) an application to set aside the judgment on grounds of fraud on the basis that the counsel handling the matter compromised their case by making fraudulent admissions against their interests. As the motion was withdrawn it was eventually dismissed. The appellants filed an appeal against the judgment at the lower Court. The appeal was dismissed. The Court made a consequential order that a re-run primary election should be conducted with the 1st respondent as the candidate of the PDP. The 1st – 4th Appellants are aggrieved by the decision and have thus appealed to this Court. One of the grounds for appealing against the judgment is that the order for the conduct of a re-run primary election was made suo motu by the Court without hearing the parties on the issue.
  6. The 1st respondent was also dissatisfied with the part of the judgment of the lower Court ordering a re-run. He filed a separate appeal in SC.846/2016: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP & 4 Ors. As both appeals have the same substratum they were heard together on 25/1/2017.
  7. SC.521/2016.

  8. After the filing of this appeal, there was a development, which has an important bearing on the appeal. By a motion on notice filed on 23/2/2016, one Hon. Ben Nwankwo sought and was granted several reliefs including leave to appeal against the judgment of the lower Court as an interested person and an order joining him as a co-appellant in this appeal. He is currently designated in this appeal as the 5th Co-Appellant. He filed a separate Notice of Appeal on 26/10/2016.
  9. Some of the grounds upon which the application was predicated were that Hon. Ben Nwankwo was an aspirant who participated in, contested and won the Peoples Democratic Party (PDP) primary election for the Orumba North/South Federal Constituency of Anambra State held on 7th December 2014. That the party forwarded his name to the 2nd respondent, (INEC), as its candidate for the said constituency for the 14th February 2015 (later rescheduled to 28th March 2015) General Election to the National Assembly. That the 2nd respondent duly published his name as the candidate of the party and that he campaigned and won the election for the aforesaid constituency. That rather than being declared the winner of the election by the Returning Officer, he was confronted with a letter dated 27/3/2015 notifying him that there was a judgment delivered in Suit No . FHC/ABJ/CS/1013/2014: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP and 4 Ors., directing INEC to include Barr. Ezeonwuka’s name as the candidate of the PDP. That he was not made a party in the suit and was not aware of its existence up to the time judgment was delivered on 20/2/2015. That Barr. Ezeonwuka’s name was never submitted to the 2nd respondent as the candidate of the party and that he was neither screened nor cleared by INEC to contest the said election. In his supporting affidavits he deposed to facts stating the steps he took to challenge the judgment when he became aware of it, including the filing of a similar application at the Court below for leave to be joined as an interested party and to appeal against the judgment as a co-appellant, which was not heard before final judgment was delivered.
  10. That he received a hearing notice to the effect that the application which he filed on 18th June 2016, to be joined in the appeal as interested party at the Court below, was listed for hearing on 8th July 2015. Judgment in the appeal was however delivered on 26th June 2015. The application was therefore withdrawn when it came up for hearing on the said 8th July 2015. The application was strongly opposed by the 1st respondent.
  11. After consideration of all the processes filed in respect of the application, including the supporting affidavits, counter affidavits and several exhibits, the Court was satisfied that the 5th co-appellant had shown sufficient interest in the subject matter of this appeal to warrant being granted the reliefs sought.
  12. All the parties hereto consequently filed and exchanged their respective briefs of argument in support of and in opposition to the appeal. However, there was another twist in this matter.
  13. NOTICE OF WITHDRAWAL OF APPEAL BY 1ST-4TH APPELLANTS

  14. In all the proceedings in this matter up to 25th January 2017, when the appeal was heard, the 1st – 4th appellants were represented by CHIEF ARTHUR OBI OKAFOR, SAN. However, on 25/1/2017, one HON. DAVID K. IORHEMBA, of counsel, drew the Court’s attention to a notice of withdrawal of appeal filed by him on 15th December, 2016 on behalf of the 1st- 4th appellants. The Notice reads:Notice of Withdrawal of Appeal No.SC/521/2015. Peoples Democratic Party (PDP) & Ors Vs Barr. Sopuluchukwu E. Ezeonwuka & Anor, pursuit to Order 8 Rule 6(1), (2), (5) and (6) of Supreme Court (Amendment) Rules 2014.
  15. The 1st-4th Appellants Peoples Democratic Party (PDP) hereby gives notice of its intention to withdraw Supreme Court Appeal No. SC/521/2015, Peoples Democratic Party (PDP) & ors Vs Barr. Sopuluchukwu E. Ezeonwuka & Anor to all the parties in the said Supreme Court Appeal No. SC/521/2015.
  16. And consequently, the said Supreme Court Appeal No. SC.521/2015 is hereby accordingly withdrawn as the party has seen no wisdom in further prosecuting this appeal against a member of the party who has resoundingly won the National Assembly Election conducted on 28/3/2015 under the platform of our party, 1st Appellant (Peoples Democratic Party) to represent Orumba North and South Federal Constituency in the National Assembly (House of Representatives).
  17. Order 8 Rule 6 (1), (2), (4), (5) and (6) of the Supreme Court Rules, as amended provides as follows:”6. 1) An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.(2) If all parties to the appeal consent to the withdrawal of the appeal without order of the Court the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeal by the Court, and in such event any sum lodged in Court as security for the costs of the appeal shall be paid out to the appellant.

    (4) If all the parties do not consent to the withdrawal of the appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.

    (5) An appeal which has been withdrawn under this Rule shall be deemed to have been dismissed.

    (6) Any application under this Rule may be considered and determined by the Court in chambers without oral argument.”

  18. Ordinarily, by virtue of Order 8 Rule 6 (5), the appeal of the 1st – 4th appellants ought to be dismissed without further ado. However, processes were filed in support of and in opposition thereto, which require some consideration. It should be noted that at the hearing of the appeal on 25th January, 17 both Chief Arthur Obi Okafor, SAN and Hon. David Iorhemba announced appearance for the 1st-4th appellants. In support of the notice of withdrawal, Hon. David Iorhemba in his capacity as National Legal Adviser of the National Caretaker Committee (NCC) of the PDP deposed to two affidavits of facts on 13/1/2017 and 16/1/2017 respectively.
  19. Vincent Ottaokpukpu Esq., an associate counsel in the law firm of Arthur Obi Okafor & Associates whose lead counsel is Chief Arthur Obi Okafor, SAN, deposed to a counter-affidavit in opposition to the affidavit of facts deposed to by Hon. David Iorhemba on 13/1/2017. An affidavit of facts in opposition to all the processes filed by Hon. Iorhemba on 15/12/16, 13/1/17 and 16/1/17 was deposed to by Oluwatosin D. Soyebo Esq., a legal practitioner in the law firm of lkwueto representing the 5th co-appellant. On 24/1/2017, Hon. David Iorhemba deposed to a reply to the affidavit sworn to on behalf of the 1st respondent while the 1st – 4th appellants filed a further counter affidavit to Hon. David Iorhemba’s further affidavit of facts on the same 24/1/2017.
  20. Essentially, the affidavit of facts in support of the notice of withdrawal is to the following effect: that by virtue of Hon. Iorhemba’s position as the National Legal Adviser of the NCC of the 1st appellant, it is his duty to engage and disengage counsel, among other responsibilities. That although Chief Arthur Obi Okafor, SAN was briefed by the Chairman and Secretary of the National Caretaker Committee of the PDP to appeal against the part of the judgment of the Court below ordering a re-run election for Orumba North/South Federal Constituency with the 1st respondent as the party’s candidate, and in furtherance of the said instructions did file this appeal No. SC.521/2015, the party had met and decided not only to disengage Chief Arthur Obi Okafor, SAN from further prosecuting the appeal but had also directed him (Hon. David Iorhemba) to withdraw the appeal. The reason for the withdrawal as averred in paragraphs 8,12,13,14,15 and 16 of the affidavit of facts are that the 1st respondent won the National Assembly Primary Election for the Federal Constituency in issue conducted by the National Electoral Committee (NEC) of the party on 7th December 2014 at Mbaraizo Hall, Umunze in Orumba South Local Government Area (LGA) of Anambra State. It is averred that the 3rd and 4th appellants were given ad-hoc assignments as Chairman and Secretary respectively of the 1st appellant’s National Assembly Electoral Panel for Anambra State set up by the NEC of the party. That the 3rd appellant, Mr. Alaye Tremie Jnr., as the Chief Returning Officer for the said primary election, deposed to an affidavit of facts on 25/10/2016 (attached as Exhibit DK3) in response to an order of the Court directing the Inspector General of Police to investigate the emergence of two result sheets emanating from the same primary election in order to determine whether any crime had been committed, to identify who is culpable and to charge such person to Court. This directive arose from conflicting result sheets relied upon by the 1st respondent and the 5th co-appellant, both allegedly emanating from the same primary, which were exhibited by the respective parties in respect of the application of the 5th co-appellant to be joined as an interested person in the present appeal.
  21. In Exhibit DK3, the 3rd appellant, Alaye Tremie Jnr., made the following assertions:(i) that in his capacity as Chief Returning Officer, he appointed all the Returning Officers including Evang. K.G. Enemuo and those who assisted them in the conduct of the Peoples Democratic Party National Assembly Primary Elections in the 3 Senatorial Zones and 11 Federal Constituencies in Anambra State (paragraphs 2 &3);(ii) That the 1st respondent (Barr. Sopulucukwu Ezeonwuka) scored the highest number of votes cast at the primary, scoring 55 votes while the 5th co-appellant, Hon. Ben Nwankwo came second with 12 votes;

    (iii) That the election was duly conducted in accordance with the PDP’s Constitution and Electoral Guidelines 2014 and the Electoral Act 2010, as amended (paragraph 7).

    (iv) That the 1st respondent’s name is correctly inscribed on the result sheet being relied upon by the 1st respondent;

    (v) That the 1st respondent and not the 5th co-appellant won the primary.

    (vi) That all the documents bearing the name of Hon. Ben Nwankwo as the winner of the primary are not genuine;

    (vii) That what gave rise to the suit at the trial Court filed by the 1st respondent was the refusal of the National Headquarters of the Party to accept the 1st respondent as the winner of the primary, as they had their own candidate;

    (viii) That he was not aware of Appeal No. CA/A/179/2015 nor of the pendency of the appeal before this Court before 20/10/2016 and did not instruct Chief Arthur Obi Okafor, SAN to file the instant appeal or to represent him.

  22. In the counter affidavit filed on behalf of the 1st – 4th appellants, but particularly the 1st appellant, PDP, through the Chambers of Chief Arthur Obi Okafor & Associates, apart from challenging the authority and instructions of Hon. David Iorhemba to disengage Chief Arthur Obi Okafor, SAN and to withdraw the appeal, it is averred that the same Mr. Alaye Tremie Jnr. (3rd appellant) had deposed to another affidavit of facts on 22nd April 2015 in respect of an unrelated matter wherein he attached documentary evidence to the effect that it was the 5th co-appellant who won the primary election for Orumba North/South Federal Constituency. The said affidavit of facts was attached and marked Exhibit PDP2. It was denied that any letter of disengagement was served on Chief Arthur Obi Okafor, SAN.
  23. In his reply to the counter affidavit, Hon. David Iorhemba maintained that by virtue of Chapter 4 Part X Paragraph 33 (2) and 5 (e) of the PDP Constitution as amended in 2014 (annexed to the further affidavit of facts deposed to on 16/1/2017), he had the necessary authority as Legal Adviser of the National Caretaker Committee, to run and administer the affairs of the party on all legal matters including the prosecution and defence of legal actions and withdrawal of such actions like the present appeal, where necessary. He maintained that the facts deposed to in his affidavit of facts filed on 25/10/2016 (Exhibit DK3) represents the true state of affairs regarding the primary election conducted on 7/12/2014.
  24. The 5th co-appellant in his affidavit of facts in opposition deposed to on 19/1/2017 also challenged Hon. David Iorhemba’s authority to represent the 1st – 4th appellants and to file the notice of withdrawal. He also exhibited the affidavit of facts deposed to by Mr. Alaye Tremie Jnr. on 22/4/2015 as Exhibit AA (same as Exhibit PDP 2 of Vincent Otaokpukpu Esq.) to which is attached the list of candidates submitted to INEC by PDP, which includes the name of Hon. Ben Nwankwo as the party’s candidate for Orumba North/South Federal Constituency. It is further averred that the 3rd and 4th appellants produced the report of the PDP National Assembly Primary election of 7/12/2014 to which they attached handwritten but signed results/scores of the candidates, which showed that the 5th co-appellant won the primary for Orumba North/South Federal Constituency.
  25. In reply to the counter affidavit and further affidavits of Victor Ottaokpukpu Esq., David Iorhemba Esq. maintained that he has the necessary authority to disengage Chief Arthur Obi Okafor, SAN and exhibited a letter of disengagement signed by Senator Ahmed Makarfi, CON and Senator Ben Ndi Obi, CON, Chairman and Secretary, Peoples Democratic Party National Caretaker Committee respectively, the same persons who briefed the learned senior counsel. He also contended that Exhibit PDP 2 (Exhibit AA) was “concocted by Vincent C. Ottaokpukpu and his cohorts.”
  26. Hon. David Iorhemba urged the Court to dismiss the appeal on the ground that counsel cannot be imposed on the 1st – 4th appellants. That the same persons who engaged Chief Arthur Obi Okafor, SAN are the signatories to the letter of disengagement. In answer to questions put to him by the Court, he said he was unaware of the sister appeal in SC.846/2015: Barr. Sopuluchukwu E. Ezeonwuka Vs PDP & Ors. He stated that he became aware of the order of this Court directing the Inspector General of Police to investigate certain aspects of the case from the affidavit of the co-appellant. He stated that he was aware that the 3rd appellant, one of the parties on whose behalf he sought to withdraw the appeal, is involved in an aspect of the matter referred to the Police for investigation.
  27. In opposing the withdrawal of the appeal, Chief Arthur Obi Okafor, SAN relied on the counter affidavits filed. He maintained that the letter of disengagement attached to Hon. David Iorhemba’s reply was not brought to his attention earlier. He submitted that the action of learned counsel in filing a Notice of Withdrawal of Appeal on the day the appeal is fixed for hearing is not in accordance with the ethics of the profession. He noted that he had handled this matter from the High Court right up to this Court and there was never a complaint that he was unprofessional in his conduct of the case nor had his integrity been impugned.
  28. However, having seen the letter of disengagement annexed to the reply affidavit, he was of the view that in order to preserve not only the integrity of the Court but the legal profession too, it would be unprofessional for him to be involved in a struggle for a legal brief. In other words, he decided not to contest the instructions of Hon. Iorhemba any further.
  29. P.I.N. Ikwueto, SAN opposed the withdrawal of the appeal on the ground that the Notice of Withdrawal is incompetent. He submitted that since the 2nd and 4th appellants were appealing not only on their own behalf but as representing others, they could not withdraw the appeal without notifying the persons they represent. He submitted that there is only one appeal before the Court and that the 5th co-appellant is a co-appellant with the 1st-4th appellants. He also submitted that if it is found that the 3rd appellant deposed to two affidavits that are materially in conflict, this Court should hold that the offence of perjury has been committed.
  30. Paul Erokoro, SAN, learned senior counsel for the 1st respondent and Alhassan A. Umar Esq. for the 2nd respondent left the issue to the Court’s discretion.
  31. I had earlier reproduced the provisions of Order 8 Rule 6 (1), (2), (4), (5) and (6) of the Supreme Court Rules, as amended. I also noted that in the normal course of events, in view of the Notice of Withdrawal of Appeal filed on behalf of the 1st- 4th appellants, the appeal as it concerns them ought to have been deemed dismissed pursuant to Order 8 Rule 6 (5) of the Rules of this Court.
  32. Order 8 Rule 6 (1) Supreme Court Rules as amended provides for the unilateral withdrawal of an appeal by an appellant. For the rule to apply the following conditions must co-exist:“(a) There must be an appeal by the appellant;(b) There must be a withdrawal of the appeal in the words of Form 19 or 20 or such words indicating that there is no intention to further prosecute the appeal;

    (c) The withdrawal may be at any time before the appeal is called on for hearing;
    (d) Notice of the withdrawal must be served on all parties to the appeal
    (e) The notice of withdrawal must be filed with the registrar.” See: Dingyadi Vs INEC (No.2) (2011) 18 NWLR (Pt.1224) 154 @ 205 – 206 H – C; Edozien Vs Edozien (1993) 1 NWLR (Pt. 272) 678 @ 699: Adeagbo Vs Yusuf (1990) 6 NWLR (Pt.158) 588.(back to top?)

  33. For the Notice of Withdrawal to be competent under Rule 6 (1) above, all the parties to the appeal must consent to the withdrawal either by filing documents to that effect directly or, through their legal representatives in which case the appeal is deemed dismissed.(back to top?)
  34. However, Rule 6 (4) provides that where all the parties do not consent to the withdrawal, it shall remain on the cause list to abide the discretion of the Court thereafter. See: Dingyadi vs INEC (No.2) (Supra) @ 206 C-E; In Re Nwude (1993) 3 NWLR (Pt.282) 492; Akuneziri vs Okenwa (2000) 15 NWLR (Pt.691) 526. The appeal shall remain on the list for the hearing of any issue as to costs or otherwise outstanding between the parties and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.
  35. The first objection has to do with the authority of Hon. David Iorhemba to disengage Chief Arthur Obi Okafor, SAN and to issue the Notice of Withdrawal. Hon. David Iorhemba averred in paragraphs 3 & 4 of his affidavit of facts deposed to on 13/2/2017 that he is the National Legal Adviser of the National Caretaker Committee of the 1st appellant (PDP) and that by virtue of his position, in accordance with the Constitution of the Party as amended in 2014, his functions Include:“(a) To advise the party on all legal matters;(b) To conduct all litigation and prosecute and defend actions on behalf of the Party, including its organs and officials in so far as the subject of litigation affects the interest of our party; and

    (c) To interpret the laws, regulations and Constitution of our party in the event of any ambiguities.”

  36. He relied on Chapter 5 Paragraph 42 (1) (A), (B) and (C) at page 79 of the Peoples Democratic Party Constitution (as amended in 2014) attached as Exhibit DK 7 to his further affidavit of facts deposed to on 16/1/2017. He also relied on a letter of disengagement written by him and addressed to Chief Arthur Obi Okafor, SAN dated 13/12/2016 (Exhibit DK 5), said to have been served on the learned Senior Advocate by courier. The reliance by Hon. David Iorhemba on Chapter 5 Paragraph 42 (1), (A), (B) and (C) of the PDP Constitution (as amended) in 2014 was disputed by Chief Arthur Obi Okafor, SAN on the ground that there is no position in the PDP known as National Legal Adviser of the National Caretaker Committee of the party. It was averred that the functions listed in the said provisions are those of the National Legal Adviser of the Party, a position that has been vacant since May 2016. Service of Exhibit DK 5 was also disputed. It was contended that having received instructions from the Chairman and Secretary of the National Caretaker Committee of the Party, they are the only persons with authority to disengage him.
  37. In his reply deposed to on 25/1/2017, Hon. David Iorhemba averred that his appointment as National Legal Adviser of the National Caretaker Committee was made by the National Convention of the Party pursuant to its powers under Part 4 Article 33 (2) (5) (e) of the Peoples Democratic Party Constitution. Also annexed to the Reply is a letter of disengagement dated 23/01/2017 addressed to Chief Arthur Obi Okafor, SAN and signed by Senator Ahmed Makarfi, CON and Senator Ben Ndi Obi, CON, chairman and secretary respectively of the PDP National Caretaker Committee, disengaging the learned Senior Advocate from handling this appeal (Exhibit DK 10).
  38. Upon being served with the Reply of Hon. David Iorhemba and Exhibit DK 10, the learned senior counsel, Chief Arthur Obi Okafor, SAN, while deprecating the manner in which this matter has been handled by the 1st appellant and Hon. David Iorhemba in particular, conceded the issue of his disengagement or debriefing. It is important to note that the issue of the leadership of the PDP is sub-judice and a final decision yet to be given. However for the purpose of the withdrawal of the appeal of the 1st-4th appellants, the disengagement of Chief Arthur Obi Okafor, SAN is in order bearing in mind the fact that a litigant is entitled to counsel of his choice and is equally entitled to withdraw such brief at his discretion. I am satisfied from the affidavit evidence before the Court that having regard to Exhibits DK 5 and DK 10, Chief Arthur Obi Okafor, SAN has been duly disengaged from further participation in this appeal. I am also satisfied that Hon. David Iorhemba has the authority of the 1st – 4th appellants to withdraw the appeal filed on their behalf.
  39. As regards the contention of the 5th co-appellant regarding the representative capacity of the 2nd and 4th appellants, I have considered the authority of Otapo Vs Sunmonu (1987) NWLR (Pt.58) 587 relied on by learned senior counsel. The law as espoused in that case is as follows: “a representative plaintiff is the sole plaintiff is Dominus litis until judgment. He can discontinue, compromise, submit to dismissal and other things as he decides during the Court of the proceedings. If he falls out with any of the represented parties for any reason, the Court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ… Where several sue, they have the like power as a single representative plaintiff, but they must act together.” @ 604 F-G per Obaseki, JSC.(back to top?)
  40. In the instant appeal, the Notice of Appeal at page 661 of the record was jointly filed by the 1st – 4th appellants. The 2nd, 3rd and 4th appellants are all members of the 1st appellant. There is nothing before the Court to suggest that any of the persons represented by the 2nd and 4th appellants object to the withdrawal of the appeal. In the circumstances, I hold that the Notice of Withdrawal of appeal filed on 15/12/2016 on behalf of the 1st – 4th appellants is competent.
  41. Before concluding this issue, it is necessary to address an issue that has arisen from some of the affidavits filed in respect of the Notice of Withdrawal.
  42. Attached to the affidavit of facts in support of the Notice of Withdrawal deposed to on 13/1/20l7 by Hon. David Iorhemba is Exhibit DK 3 with attachments thereto. Exhibit DK 3 is an affidavit deposed to on 25/10/2016 by the 3rd appellant, Mr. Alaye Tremie Jnr. It is titled:”3rd Appellant’s/Respondent’s affidavit of facts in response to the order of the Supreme Court on 20/10/2016 directing the Inspector General of Police to cause a detailed investigation into the incidence of two result sheets in the Peoples Democratic Party (PDP) Primary Election to nominate the PDP candidate who contested and won the House of Representatives seat for Orumba North and Orumba South Federal Constituency of Anambra State held on the 7th of December 2014 at Mbaraizo Hall Umunze, Orunba South Local Government Area of Anambra State so as to determine whether any crime has been committed and who is culpable and charge same to Court for appropriate action.”
  43. Some of the averments have been referred to earlier.
  44. In paragraph 7 (v) and (vi) Mr. Tremie Jnr. averred as follows:”(v) That the applicant, Ben Nwankwo did not win the said primary election conducted by the National Executive Committee of the 1st appellant, PDP at Mbaraizo Hall, Umunze, Orumba South Local Government Area of Anambra State on the 7th of December, 2014.(vi) That I know that Barr. Sopuluchukwu E. Ezeonwuka (the 1st respondent) scored the highest number of votes cast at the said 1st appellant’s PDP primary election for Orumba North and Orumba South Federal Constituency of Anambra State conducted on 07/12/2014 at Mbaraizo Hall, Umumze, Orumba South Local Government Area of Anambra State by scoring 55 votes not Hon. Ben Nwankwo who came second with 12 votes followed by Barr. Handel Okoli with 10 votes Hon. Uche Obi with 9 votes and Godwin Uchime with 7 votes.”
  45. Attached to Exhibit DK 3 is Exhibit TJ 3 – the result of the PDP National Primary Election dated 7/12/2014. Therein the 5th co-appellant, Hon. Ben Nwankwo is credited with 12 votes while the 1st respondent is credited with 55 votes.
  46. Attached to the affidavit of Oluwatosin D. Soyebo, a legal practitioner in the firm of lkwueto®, representing the co-appellant deposed to on 19/1/2017 is Exhibit AA. It is an affidavit of facts deposed to on 22/4/2015 by the same Mr. Alaye Tremie Jnr. before the Federal High Court Abuja. In paragraphs 22 and 24 reference is made to Exhibits D and F respectively as representing the correct state of affairs as regards the outcome of the PDP Primaries conducted on 7th December 2014.
  47. Exhibit D is the list of PDP candidates for 2015 National Assembly Elections submitted to INEC. On page 2 of the House of Representatives Final list, the name of Hon. Ben Nwankwo appears as the 9th name under Orumba North/South Constituency. Also attached is Exhibit F – The Report of the Electoral Committee of which Mr. Alaye Tremie Jnr, was the chairman. It states inter alia that Hon. Ben Nwankwo scored 71 out of the total 78 accredited votes and emerged winner of Orumba North/South Federal Constituency. The report is signed by the 3rd and 4th appellants.
  48. The effect of these observations is that there are two affidavits deposed to by the same person, Mr. Alaye Tremie Jnr. that are diametrically opposed to one another. Clearly the averments in one of the affidavits must be false.
  49. The bedrock of our democratic process is the sanctity of the electoral process. It must be borne in mind at all times that the outcome of an election goes far beyond the individual candidates who contest for different positions. They carry on their shoulders the mandate of the electorate, which should never be tampered with for personal or political gain.
  50. In view of the conflicting averments in the affidavits deposed to by Mr. Alaye Tremie Jnr. on 26/10/2016 and 22/4/2014 respectively and the irreconcilable discrepancies in the documents attached thereto, it is hereby ordered that the Inspector General of Police shall conduct a detailed investigation into the affidavits deposed to by Mr. Alaye Tremie Jnr. in order to determine whether any crime, such as perjury, has been committed; and if so, to charge him to Court for appropriate action.
  51. Subject to this order, the appeal of the 1st – 4th appellants is hereby dismissed pursuant to Order 8 Rule 6 (5) of the Rules of this Court, as amended.
  52. Determination of SC.521/2016

  53. Upon being granted leave to join in this appeal as a co-appellant and leave to appeal against judgment of the lower Court, the 5th co-appellant herein filed his Notice and Grounds of Appeal dated 26/10/2016 on the same day. The 5th co-appellant’s appeal is therefore subsisting and shall be determined accordingly.
  54. As the appeal of the 1st-4th appellants has earlier been dismissed, the 5th co-appellant shall henceforth be referred to as the appellant.
  55. In the appellant’s brief filed on 17/11/2016, adopted and relied upon by P.I.N. Ikwueto, SAN, the following 3 issues were identified for the determination of the appeal:”(a) Whether the lower Court had the jurisdiction to deliver the judgment dated 26 June 2015 without considering and determining the pending Motion on Notice dated 18 June 2015 filed by the co-appellant and seeking for leave to appeal against the judgment of the learned trial Court as a party interested. (Distilled from Ground 1)(b) In the light of the established jurisprudence in this country, was the Court below entitled to determine who should be the sponsored candidate of the 1st appellant (PDP); and thereby, impose the 1st respondent on the political party as its candidate. (Distilled from Grounds 2, 3, 4 and 6)

    (c) Whether the lower Court was justified in upholding the decision of the learned trial Court that the PDP and INEC were the only persons entitled to be joined/sued by the 1st respondent in the instant suit. (Distilled from Ground 5)

  56. The 1st respondent’s brief was deemed properly filed on 25/1/2017. Paul Erokoro, SAN adopted and relied on the said brief wherein 2 issues were formulated as follows:(a) Did the Court of Appeal deliver its judgment when the 5th appellant’s motion for leave to appeal was pending in that Court? (Ground 1)(b) In view of the unchallenged evidence before the trial Court and the admission of the plaintiff’s claim by the defendants, was the Court of Appeal not right to affirm the decision of the trial Court, which had found for the plaintiff (1st respondent herein)? (Grounds 2, 3, 4, 5, 6 and 6)
  57. The 2nd respondent did not file a brief in this appeal.
  58. It is pertinent to note that the 1st respondent raised and argued a preliminary objection at pages 3-8 of his brief. The grounds of objection are as follows:1. The 5th appellant filed 2 Notices of Appeal when he was not appealing as of right contrary to law.
    2. The 5th appellant’s Notice of Appeal dated 25th October 2016 and filed on the 26th October, 2016 on which he predicated his brief of argument contained grounds of appeal different from those on which he was granted leave to appeal by the Supreme Court.
  59. The objection must be resolved before delving into the merit or otherwise of the appeal.
  60. Relying on the authority of Ogembe Vs Usman (2011) 17 NWLR (Pt.1277) 639 @ 658 E – F and Section 233 (5) of the 1999 Constitution, as amended, PAUL EROKORO, SAN submitted that a party granted leave to appeal as an interested person such as the appellant herein, does not enjoy the same liberty as a party initially on record, to file several notices of appeal. Relying on the case of F.R.N. Vs Dairo & ors. (2015) 6 NW R (Pt.1454) @ 167 B – D he submitted that the filing of two notices of appeal by the appellant is unconstitutional and that his election to rely on one of the Notices does not cure the defect.
  61. On the second ground of objection the complaint is that the Notice of Appeal dated 25/10/2016 and filed on 26/10/2016 on which the appellant has elected to rely is different from the proposed notice of appeal attached to the appellant’s application for leave to appeal as an interested party as Exhibit A and is therefore incompetent.
  62. He noted that the proposed Notice of Appeal had 6 grounds of appeal numbered consecutively while the substantive Notice of Appeal has 7 grounds not numbered consecutively, as there are two Ground 6 contrary to Order 8 Rule 2 (3) of the Supreme Court Rules. He submitted that Ground 6 in the proposed Notice of Appeal is completely different from each of the two Grounds 6 in the Notice of Appeal sought to be relied upon in this appeal. He noted that in first Ground 6 in the Notice of Appeal being relied upon, there are four particulars numbered (i) – (iv) while the second Ground 6 contains particulars (i), (ii) and (iii) whereas Ground 6 of the proposed Notice of Appeal contained only one particular numbered (iii). He argued that it is not an innocent blunder or clerical error as the particulars in the elected Notice of Appeal feature prominently in the submissions in the appellant’s brief particularly under Issue On the incompetence of a notice of appeal filed after leave to file same has been obtained, which is different from the proposed Notice of Appeal on which the Court relied to grant leave, he relied on the case of Ogambe Vs Usman (supra) at 658 – 659 G -C and Re: Otuedon (1985) 4 NWLR (Pt.392) 655 @ 668 A in urging the Court to strike out the appeal. He urged the Court to strike out issue 2 argued in the appellant’s brief which is predicated on several grounds of appeal including Ground 6, which is incompetent.
  63. In reaction to the preliminary objection, P.I.N. IKWUETO, SAN submitted orally that the Notice of Appeal signed by Miss Prisca Ozoilesike upon which the appellant has elected to rely is the same, verbatim as Exhibit A attached to the motion on notice filed on 23/2/2016 for leave to appeal as an interested person. He conceded that the appellant filed two notices of appeal but maintained that the Notice of Appeal relevant to this appeal is the one signed by Miss Prisca Ozoilesike just referred to and signed on 26/10/2016. He urged the Court to discountenance the objection.
  64. I have carefully examined the proposed Notice of Appeal attached to the appellant’s motion filed on 23/2/2016 and compared it with the Notice of Appeal sought to be relied on in this appeal filed on 26/10/2016 and signed by Prisca Ozoilesike. It is correct that there are two Grounds 6 in the Notice of Appeal filed on 26/10/2016 while there is only one Ground 6 in the proposed Notice of Appeal. However in the proposed Notice of Appeal Ground 6 therein is the same as the first Ground 6 in the elected Notice of Appeal. Ground 6 in the proposed Notice of Appeal has only particular (iii).
  65. The first Ground 6 in the elected Notice of Appeal complains of the order for a re-run election made by the lower Court. The particulars (i) – (iv) thereunder expatiate on the complaint by contending that it was the appellant who was the validly nominated candidate of the party and who contested and won the election and that the 1st respondent was not nominated and did not contest the primary and general election.
  66. The second Ground 6 on the elected Notice of Appeal complains of the order of the lower Court directing the 2nd respondent, INEC to include the 1st respondent name as the candidate of the PDP in the re-run election thereby imposing the 1st respondent on the PDP. The particulars of error thereunder refer to the right of a political party to sponsor a candidate for an election and the fact that the 1st respondent was neither sponsored nor nominated by the PDP as its candidate for the Orumba North/South Federal Constituency of Anambra State in the 2015 general election.
  67. In the proposed Notice of Appeal, while Ground 6 is the same as the first ground 6 in the elected Notice of Appeal, particular (iii), which is the only particular that appears on the following page is clearly the particular (iii) relating to the 2nd Ground 6 of the elected Notice of Appeal which complains about the order to include the 1st respondent as the candidate of PDP in the re-run election.
  68. In other words, it is clear to me that there was an error in the compilation of the proposed Notice of Appeal attached to the motion with a portion inadvertently omitted. I am unable to agree with learned senior counsel for the 1st respondent that there was a deliberate attempt to mislead the Court.
  69. I have read the decision of this Court in Ogembe Vs Usman (supra) relied upon by learned counsel for the 1st respondent in respect of the two notices of appeal filed by the appellant. In Ogembe’s case, the appellant, after being granted leave to appeal as an interested party proceeded to file a notice of appeal that was quite different from the one attached to the application for leave to appeal. That is not the situation in this case where a genuine error was made.
  70. Furthermore, the Court made the point that a party seeking leave to appeal as an interested party is not at liberty to file several notices of appeal from the final decision of a High Court or Federal High Court within 14 days or 3 months of the ruling or judgment as the case may be. Rather he is required to obtain leave to appeal within the prescribed period. The emphasis is on the need for the interested party to obtain leave within the time prescribed by the law.
  71. In the circumstances, I hold that the objection is not well founded and cannot be sustained. It is accordingly overruled. I hold that the Notice of Appeal dated 25/10/2016 and filed on 26/10/2016 signed by Miss Prisca Ozoilesike of counsel, is competent.
  72. I shall adopt the issues formulated by the appellant in the resolution of this appeal.
  73. Issue 1

  74. Whether the lower Court had the jurisdiction to deliver the judgment dated 26th June 2015 without considering and determining the pending motion, a notice dated 18 June 2015 filed by the co-appellant and seeking for leave to appeal against the judgment of learned trial Court as a party interested.
  75. Learned senior counsel for the appellant, P.I.N. Ikwueto, SAN, submitted that a Court of law has a duty to hear and determine all applications before it, before delivering judgment, even where an application is filed at a time when the judgment has been prepared but yet to be delivered. He contended that the failure of the Court below to consider the application pending before it as at 18th June 2015 before delivering its judgment on 26th June 2015 amounted to a breach of the appellant’s right to fair hearing, which vitiates the entire proceedings and the proceedings ought to be set aside. On the duty to hear and determine all pending applications, he relied on several cases, including; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 12 SC (Pt.II) 50 @ 89; Mokwe vs Williams (1997) 11 NWLR (Pt.528) 309 @ 321 A; Eriobuna vs. Obiora (1999) 8 NWLR (Pt. 616) 622 @ 642. On the nullity of proceedings conducted in breach of the right to fair hearing, he cited: Afro-Continental Nig. Ltd. & Anor. Vs Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815) 303; Ovunwo vs Woko (2011) 17 NWLR (Pt.1277) 522 @ 548 A-D; Akpambgo-Okadigbo vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 @ 223 D-E.
  76. In reaction, Paul Erokoro, SAN, noted that as admitted by the appellant, he filed two applications. That the first application for leave to appeal, as can be seen from pages 625 – 626 of the record, was struck out on 8th June 2015 on the day the appeal was heard. That by the appellant’s showing, the second application was filed after the appeal had been reserved for judgment. He submitted that in the circumstances, learned counsel for the appellant had a duty to draw the Court’s attention to the pending application. Learned senior counsel noted that in paragraph 4.3 of his brief, the appellant gave the number of the appeal in which the motion was filed as CA/179A/15 while the judgment in respect of this appeal as Appeal No. CA/179/15. He submitted that in the circumstances, the authorities cited on the duty of the Court to determine all pending applications before judgment are inapplicable. He submitted that where the appellant seeks to rely on evidence not contained in the record of appeal, he must seek leave to adduce fresh or additional evidence, which he failed to do. He referred to Order 2 Rule 12 of the Supreme Court Rules. He submitted further that the application has been overtaken by events, as this Court has since granted the leave sought for by the said application and he has nothing to gain by a resolution of this issue in his favour.
  77. RESOLUTION

  78. It is not in dispute and indeed the law is very well settled that a Court of law has a duty to dispense with all pending applications and/or processes before it, before reaching a final decision in a cause or matter. See: Akpan Vs Bob (2010) 17 NWLR (Pt.1223) 421; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 18 NWLR (Pt.852) 346; Irolo vs Uka (2002) 14 NWLR (Pt.786) 195 @ 225. Certainly the failure of a Court to do so, without a valid reason would amount to a violation of the right of the party not heard to fair hearing and as rightly submitted by Paul Erokoro, SAN, such violation would render the proceedings liable to be struck out.(back to top?)
  79. I have carefully examined the record of appeal before the Court. In paragraph 4.3 of the appellant’s brief, learned senior counsel submitted that “it is common ground that the co-appellant filed a motion on notice numbered as CA/A/179A/2015 on 18th April 2015 seeking for leave to appeal against the judgment of the learned trial Court in this suit. The said motion on notice numbered as CA/A/179A/2015 was struck out on 8th June 2015; whereupon the co-appellant filed another Motion on Notice still seeking for leave to appeal against the Judgment of the learned trial Court. This later motion was filed on 18 June 2015.”
  80. It is the motion filed on 18th June 2015 that is said to have been pending at the time judgment was delivered on 26th June 2015. As rightly observed by learned senior counsel for the 1st respondent, the proceedings of the lower Court on 8th June 2015 are at pages 625 – 626 of the record. The proceedings are in respect of Appeal No. CA/A/179/2015. There is no reference to any application filed on 18th April 2015 by the appellant herein. There is no record of the said application being struck out. This is not surprising, as the application, according to the appellant, had a different number i.e. CA/179A/2015. The record of that date i.e. 8th June 2015 however shows that the appeal No. CA/A/179/2015 was heard and judgment reserved. The judgment of the Court was delivered on 26th June 2015. It spans pages 582-615 of the record. At the foot of the lead judgment at page 611, the names of learned counsel involved in the appeal are endorsed. There is nothing to show that any counsel appeared on behalf of the appellant on that day or that the Court’s attention was drawn to any pending application. The application purportedly filed on 18th June 2015 with Appeal No. CA/A/179/2015 does not form part of the record of appeal before the Court. The Court is bound by its record.
  81. The effect of the observations above is that the appellant has failed to show that there was an application pending before the Court below in respect of the appeal before it, which it failed to consider before delivering its judgment on 26th June 2015. This issue is accordingly resolved against the appellant.
  82. Issue 2

  83. In light of the established jurisprudence in this country, was the Court below entitled to determine who should be the sponsored candidate of the 1st appellant (PDP) and thereby impose the 1st respondent on the political party as its candidate?
  84. Relying on several decided authorities of this Court, including PDP Vs Sylva (2012) 13 NWLR (Pt. 1316) 85 @146; Gwede vs INEC & Ors. (2014) 10 SC 1 @ 43 and Onuoha vs Okafor (1983) 2 SCLNR 244, P.I.N Ikwueto, SAN, submitted that no Court has jurisdiction to compel a political party to sponsor or submit the name of any aspirant as its sponsored candidate. He submitted that a careful examination of the 1st respondent’s reliefs in the originating summons, particularly relief 1, would reveal that the substratum of the suit is to compel the PDP to forward the 1st respondent’s name to INEC as its sponsored candidate on the ground that he scored the highest number of votes at the primary election for the selection of the party’s candidate for the Orumba North/South Constituency. He submitted that beyond the fact that the Court lacks jurisdiction to grant such a relief, is the fact that the Court also lacked jurisdiction to compel a political party to sponsor a candidate outside the mandatory time limit of 60 days before the date appointed for the conduct of a general election prescribed for the submission of the party’s list of candidates by virtue of Section 31 (5) of the Electoral Act. He noted that the 2015 general elections were originally scheduled for 14th February 2015 but later rescheduled to 28th March 2015 while the judgment of the trial Court compelling the PDP to forward the 1st respondent’s name as its candidate for the election was delivered on 20th February 2015. He noted that the 60 days had elapsed even before the suit was mentioned at the trial Court. Relying on Madukolu vs Nkemdilim (1962) 2 NSCC 374 and Western Steel Works Ltd. Vs Iron & Steel Workers Union (No.2) (1986) 3 NWLR (Pt.30) 617, he submitted that any feature of the case, which prevents the Court from exercising its jurisdiction affects not only the competence of the trial Court to adjudicate but also affects the jurisdiction of an appellate Court to entertain an appeal therefrom. He submitted that the originating summons in the instant case was inherently defective.Learned senior counsel sought to rely on the Affidavit of Facts deposed to on behalf of PDP filed on 18/10/2016 pursuant to an order of this Court in the course of hearing the appellant’s application for leave to be joined as an interested party in the appeal on the ground that the affidavit forms part of the Court’s record, and that the Court is at liberty to look at and utilize documents in its file even though such document was not tendered and admitted as an exhibit at the trial in order to do substantial justice between the parties. At paragraph 4.29 of his brief he listed 8 documents attached to the said affidavit of facts which show that the PDP in fact submitted the appellant’s name to INEC as its sponsored candidate. He reiterated his earlier reliance on PDP vs Sylva (supra) to the effect that no member of a political party has the locus standi to question the party’s prerogative to choose its candidates for elective office.

  85. He submitted that a cursory look at some of the averments in the supporting affidavit and the exhibits annexed thereto revealed certain falsehoods that render the averments incapable of persuading the Court of the cogency of the 1st respondent’s claims. For example, he referred to contradictions in the averments in paragraphs 33 and 35 of the supporting affidavit regarding the number of accredited delegates and number of votes cast. That the total number of votes cast as per paragraph 33 is 93 while the number of accredited delegates as shown in Exhibit H is 108. He contended that in the circumstances the result being relied upon by the 1st respondent tells an obvious lie and is completely against his case. He submitted that where an affidavit, even though uncontradicted, tells an obvious lie, the Court ought not to rely on it. He submitted that the concurrent findings of the two lower Courts that the 1st respondent proved his claim of being the winner of the primary election is not supported by the evidence on record. He submitted that the report of the PDP National Assembly primary Election for all the Federal Constituencies in Anambra State, including Orumba North/South Federal Constituency at page 256 of the record and the primary election result sheet at page 250 of the record show the appellant as the winner of the election.
  86. He also referred to page 287 of the record, which contains an extract of the minutes of the meeting of the National Working Committee of the PDP at which the appellant’s nomination as the party’s candidate was approved. He submitted that all the documents referred to were before the Court below.
  87. He submitted that in affirming the judgment of the trial Court, which directed the PDP to forward the 1st respondent’s name to INEC as the authentic, duly elected, validly nominated and duly returned candidate of the PDP to contest the House of Representatives election for the constituency, the lower Court had no jurisdiction to order a re-run primary election in the absence of such relief being claimed by any of the parties and particularly without hearing any of the candidates of other political parties who would be affected. He referred to: Ekpenyong Vs Nyong (1975) 2 SC (Reprint) 65 @ 73 – 74 lines 40 – 45. He submitted that such order made without jurisdiction is a nullity. He referred to: Akpamgbo-Okadigbo & Ors. Vs Chidi & Ors. (No.1) (2015) 3-4 SC (Pt. II) 48 @ 83 lines 5-33; (2015) 10 NWLR (pt.1466) 171 @ 205 D-H.
  88. He submitted that since the orders of the trial Court were made without Jurisdiction, anything proceeding therefrom would also amount to a nullity. He submitted that in the circumstances the parties ought to revert to the status quo ante bellum. He submitted that the status quo ante bellum in this case is that the appellant’s name had been submitted to INEC by PDP as its candidate having won the primary election. He sought other reliefs, which will be addressed if the need arises.
  89. In reaction to the above submissions, Paul Erokoro, SAN, learned senior counsel for the 1st respondent argued that the issue before this Court is to determine whether the lower Court decided the case correctly and not to determine the appeal as if it were the Court of first instance. He submitted that this Court is only entitled to consider the evidence upon which the two lower Courts based their decisions. He submitted that the Affidavit of Facts deposed to on 18/10/2016 was in respect of an application that has been disposed of and therefore cannot be used in this appeal without the consent of the parties. He relied on Sambo vs The State (1993) 6 NWLR (Pt.300) 399; Waziri vs The State (1997) 3 NWLR (Pt. 496) 689 @ 20 B, and stated that the 1st respondent does not consent to the use of the affidavit in this appeal. He identified various aspects of the documents annexed to the 1st – 4th appellants’ application to set aside the judgment of the trial Court at pages 250 – 258 of the record and contended that they were concocted during the pendency of the case. He submitted that the documents attached to the Affidavit of Facts and to the affidavit in support of the application for leave to appeal as an interested party are not part of the record of appeal and that this Court cannot go outside the record before it.
  90. He relied on: Funduk Eng. Ltd. Vs McArthur (1995) 4 NWLR (Pt.392) 640 and veepee Ind. Ltd. Vs Cocoa Ind. Ltd. (2008) 4 – 5 SC (Pt.1) 116 @ 134 line 25: (2007) 4 SCNJ 485 @ 495; that by Order 2 Rule 12 of the Rules of this Court, leave must be sought and obtained to adduce fresh evidence on appeal, which was not done in this appeal; that the averments in the said affidavits were not in the grounds of appeal considered by the lower Court and are therefore inadmissible as evidence in this appeal. He referred to Aroh vs DP & Ors. (2013) 13 NWLR (Pt.1371) 235; that the affidavit of facts was not deposed to on behalf of all the former appellants, as the deponent averred that he had the consent of only the 1st appellant, PDP. He argued that PDP could not file a process on behalf of the present appellant, who is ably represented by a learned senior counsel.
  91. He submitted that this Court having ordered the Inspector General of Police to investigate the issue of conflicting results emanating from the same primary to determine whether a crime has been committed, cannot now prefer one set of conflicting claims to the other. He noted that the appellant had the opportunity to challenge the judgment of the trial Court when he filed an application to set aside the judgment but later withdrew it. He submitted further that it is inconceivable that when served with the originating summons the former 1st – 4th appellants would not have notified the present appellant and advised him to join in the suit. He contended that by paragraph 19 of the affidavit in support of the application to set aside the judgment at page 248 of the record, it was evident that the appellant was aware of the judgment of the trial Court as at 23/2/2015 but took no steps to set it aside preferring to allow the party to pursue the matter on his behalf.
  92. He submitted that the appellant cannot make a case before this Court different from the case made by the former co-appellants before the trial Court. He submitted that the allegation that the former counsel compromised their case was vigorously denied by the said counsel at pages 288 – 292 of the record. He contended further that in any event, the said counsel having full control of his client’s case was entitled to compromise same if he deemed it expedient to do so. He referred to: Ibori Vs Agbi & Ors. (2004) 6 NWLR (Pt.868) 78 @ 125 A – F.
  93. On the alleged discrepancy between the number of accredited voters and the total number of votes cast as contained in Exhibit H attached to the supporting affidavit, he submitted that what the law requires is substantial compliance and that the fact that the number of people who voted was less than the number accredited is a common occurrence in elections and not fatal.
  94. On whether the two lower Courts imposed a candidate on the PDP, learned senior counsel submitted that from the processes filed before the trial Court, the defendants did not deny that the appellant was an aspirant for the 2015 House of Representatives primary election for the constituency, which was held on 7/12/2014. He submitted that in the circumstances, the Court acted under Section 87 (9) of the Electoral Act 2010 (as amended). He submitted that the 1st respondent, being an aggrieved aspirant, properly invoked the jurisdiction of the trial Court to entertain his claim and the Court rightly granted his reliefs. On the scope of Section 87 (9) of the Electoral Act, he referred to: Nobis-Elendu Vs INEC & Ors. (2015) LPELR- 25127 (SC); also reported in (2015) 16 NWLR (Pt. 1485) 197; Shinkafi vs Yari & Ors. (2016) LPELR-40083 (SC); also reported in (2016) 7 NWLR (Pt.1511) 340. He contended that all the grounds of appeal in the appellant’s notice of appeal filed on 26/10/2016 are predicated on facts which do not form part of the record of appeal but were contained in processes filed after the judgment of the trial Court, such as the former 1st – 4th appellants’ application before the trial Court to set aside the judgment on grounds of fraud and affidavits in support of the interlocutory motions before this Court. He submitted that the 1st respondent had filed an affidavit on 19/10/2016 challenging the inclusion of the application as part of the record of appeal. He noted that in any event, the trial Court dismissed the said application and there was no appeal against the decision. He referred to pages 377 – 382 of the record.
  95. RESOLUTION

  96. In my considered view the appropriate starting point in determining this issue is to ascertain the nature of the 1st respondent’s claim before the trial Court. While the appellant contends that suit seeks to invite the Court to interfere in the internal affairs of a political party in determining who its candidate should be, which, on the authorities of this Court is not justiciable, it is the contention of the 1st respondent that the claim is within the purview of Section 87 (9) of the Electoral Act, 2010, as amended and within the jurisdiction of the Court to hear and determine. In arguing this issue, both learned counsel have made submissions in respect of both the competence of the suit and its merits. Certainly it must first be determined whether the suit was properly before the Court.
  97. Section 87 (1), (4) (c) and (9) of the Electoral Act, 2010 (as amended) provides:87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions,(4) A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined below:

    (c) in the case of nomination to the position of a candidate to the Senate House of Representatives and State House of Assembly, a political party shall, where it intends to sponsor candidates:

    (i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre on specific dates; and

    (ii) the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party.

  98. (9) Notwithstanding the provisions of this Act or Rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”
  99. It has been held in a plethora of decisions of this Court that the Jurisdiction of a Court to entertain a complaint under Section 87 (9) of the Electoral Act falls within a very narrow compass. The complainant must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party. see: Uwazurike vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 526 E-G; PDP vs Sylva (2012) 13 NWLR (Pt. 1316) 85 @ 148 C-D; 149 A-E; Lado vs C.P.C. (2012) All FWLR (Pt. 607) 598 @ 622-623 F-H; APGA vs Anyanwu (2014) 2 SC (Pt.1) 1. The rationale for this position is that the nomination and sponsorship of a candidate for an election is within the domestic affairs of a political party and the Courts have no jurisdiction to nominate a candidate for any party. See: PDP Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 146 A – E: Gwede vs INEC (2014) 18 NWLR (1438) 56 @ 148 – 149 H – B: Onuoha Vs Okafor (1983) 2 SCNLR 244; Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556.(back to top?)
  100. In his originating summons, the 1st respondent sought 6 reliefs upon the determination of the several issues submitted for determination. For the purpose of this judgment, I reproduce hereunder reliefs 1, 3 & 4;“1. A DECLARATION that the plaintiff is the only qualified, authentic, duly elected, validly nominated and duly returned candidate of Peoples’ Democratic Party (PDP), the 1st defendant to contest the National Assembly General (House of Representatives Elections) Elections for Orumba North and Orumba South Federal Constituency scheduled to hold on 14/02/2015 or any other date.3. An ORDER OF INJUNCTION restraining the 1st, 2nd, 3rd and 4th defendants from submitting to the 5th defendant any name in whatsoever manner other than the name of the plaintiff as the only qualified, authentic, duly elected, validly nominated and duly returned candidate of the 1st defendant for Orumba North and Orumba South Federal Constituency National Assembly (House of Representatives Election) Election scheduled to hold on 14/02/2015 or any other date.

    4. AN ORDER of the Court restraining the 1st, 2nd, 3rd and 4th defendants from substituting and/or changing the result of the National Assembly (House of Representatives) Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze by the Returning Officer, Evan. K.G. Enemuo wherein the plaintiff polled the highest votes cast as declared publicly by the said Returning Officer, Evan. K.G. Enemuo on the said 07/12/2014 or supplanting or substituting and/or changing in whatsoever manner the plaintiff and/or the name of the plaintiff who is the only qualified, authentic, duly elected, validly nominated and duly returned candidate of the 1st defendant with any other name and/or person whatsoever for the National Assembly General (House of Representatives Elections) Elections for Orumba North and Orumba South Federal Constituency scheduled to hold on 14/02/2015 or any other date.”

  101. and paragraphs 32, 33, 34, 39, 40, 42, 4 , and 48 of the affidavit in support:”32. That I am one of the aspirants who contested the said House of Representatives Primary Election at Mbaraizo Hall Umunze on 07/12/2014 and that other aspirants that contested the said primary election with me are, Mr. Godwin Uchime, Barr. Handel Okoli, Vin Okolo, Hon. Ben Nwankwo and Uche Obi who was not physically present at the venue of the said primary on 07/12/2014 at Mbaraizo Hall, Umunze but she scored votes in proxy.
  102. 33. That at the end of the voting and counting of votes scored by each aspirant by the Returning Officer, Evan. K.G. Enemuo, Viz; Hon. Uche Obi scored 9 votes; Mr. Godwin Uchime scored 7 votes; Barr. Handel Okoli scored 10 votes: Vin Okolo scored 15 votes; Hon, Ben Nwankwo scored 12 votes and I scored 55 votes to emerge as an aspirant that polled the highest number of votes cast at the said Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze, the Constituency Headquarters of Orumba North and Orumba South Federal Constituency.
  103. 34. That at the end of voting by the delegates and counting of the votes scored by each aspirant, the Returning Officer, Evan. K.G, Enemuo announced all the results polled by each aspirant publicly and thereafter recorded the results on the official result sheet, Form-Code PD004/NA in accordance with PART V, Paragraph 30 (a) of the 1st defendant’s Electoral Guidelines for Primary Elections, 2014.
  104. 39. That the result of the Primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze as declared publicly and recorded on Form-Code PD004/NA by the Returning Officer, Evan. K.G. Enemuo is the only legitimate result that emanated from the only legitimate House of Representatives Primary Election conducted by the 1st defendant on 07/12/2014 at Mbaraizo Hall, Umunze.
  105. 40. That the Primary Election conducted on 7/12/2014 at Mbaraizo Hall, Umunze by the said returning officer, Evang. K.G. Enemuo complied with the provisions of the Electoral Act 2010 (As Amended) and was conducted within the dictates of the Electoral Guidelines for Primarv Elections 2014 and the Peoples’ Democratic Party (PDP), the 1st defendant on record in this suit.
  106. 42. That the Returning Officer, Evang. K.G. Enemuo, informed me at Don Ritz Hotel Udoka Housing Estate Awka, Anambra State at about 3:30pm on 07/12/2014 that the 3rd defendant, Mr. Alaye Tremie jnr refused to collect and sign Form-Code D004/NA when he, the Returning Officer, Evan K.G. Enemuo returned Form-Code PD004/NA, the result sheet to Mr. Alaye Tremie jnr as the Chief Returning Officer and/or the Returning Officer of the National Assembly Primary Election for Anambra State who shall declare the aspirant that polled the highest votes cast nominated or elected immediately after the election, telling the Returning Officer, Evan. K.G. Enemuo, that they will not collect, sign and declare the result because Abuja had directed them on whom they will return as elected whereas he (Evan, K.G. Enemuo) had returned a different person contrary to Abuja directives and I verily believed him to be true.
  107. 43. That the Returning Officer, Evan. K.G. Enemuo further informed me at Don Ritz Hotel Udoka Housing Estate Awka, Anambra State at about the same 3:30pm on 07/12/2014 that the 3rd defendant, the Chairman of the National Assembly Electoral Panel for Anambra State, Mr, Alaye Tremie jnr, the 3rd defendant on record and the Secretary of the said Electoral Panel, Rodney Ambaiowei, the 4th defendant on record told him (the Returning Officer, Evan. K.G. Enemuo) that the result sheet Form-Code PD004/NA (Plaintiff’s Exhibit “H”) which they came to Anambra State with which he (Returning officer, Evan. K.G. Enemuo) used in conducting the said Primary Election is discarded and therefore will not be used, that they will be given another result sheet, Form-Code PD004/NA the moment they go back to Abuja for them to rewrite the result the way and manner Abuja people want them to rewrite the result and I verily believed him to be true.
  108. 48. That I am the aspirant that emerged as the winner from the only legitimate primary Election conducted on 07/12/2014 at Mbaraizo Hall, Umunze by Evan. K.G. Enemuo (the Returning Officer) who conducted the said Primary Election of the 1st defendant on 07/12/2014 at the said Mbaraizo Hall, Umunze having polled the highest number of votes cast.” (Emphasis mine)
  109. My Lords, a careful perusal of the reliefs sought and the averments in the 1st respondent’s supporting affidavit above, particularly paragraph 40 thereof, indicates that the primary election conducted on 7/12/2014 “complied with the provisions of the Electoral Act 2010 (as amended) and was conducted within the dictates of the Electoral Guidelines for Primary Elections 2014 and the Peoples’ Democratic Party (PDP) the 1st defendant on record….” In other words, he is not challenging the conduct of the primary nor is he complaining of non-compliance with the provisions of the Electoral Act or the PDP Electoral guidelines. While seeking declaration that he is the ONLY qualified, authentic, duly elected, validly nominated and duly returned candidate, it was his contention that there was a move by the same party to substitute his name with another. It was on this basis that he sought the reliefs referred to above. It seems to me that having positively averred that there was due compliance with the provisions of the Electoral Act and the PDP guidelines in paragraph 40 of the supporting affidavit, the 1st respondent had effectively removed his claim from the purview of Section 87 (9) of the Electoral Act. The issue of substitution is a different matter altogether. This Court in PDP vs Sylva (supra) at 146 B – E per Chukwuma-Eneh, JSC held:
  110. ” … the choice of candidates by political parties for elective office being a political issue is governed by the rules, guidelines and constitution of the political party concerned and is a matter of internal affairs of the political party concerned. It is not to be questioned before any Court as it is non-justiciable. See Onuoha Vs Okafor and again Dalhatu Vs Turaki (supra) . Furthermore, as a legal proposition also deducible from the case of Onuoha Vs Okafor no member of a political patty has the locus standi to question the party’s prerogative right on the issue of its choice of candidates for elective office not even in the face of breaching of its rules and regulations. I dare say, The redress available to such a member who is aggrieved and who has suffered any damage as a result of refusing him nomination and sponsorship lies in damages against the political party and subject to the provision of the party constitution, rules and regulations.”
  111. See also: Eligwe Vs Okpokiri & Ors. (2014) 12 SC (Pt.1) 33 @ 60 line 35 – 61 lines 1 – 4. In Tukur vs Uba (2013) 4 NWLR (Pt.1343) 90 @ 134 D, this Court held that the political party is the proper body or person to know which of the aspirants it has cleared for the primaries and general election afterwards. It was further held that so long as the guidelines and constitution of the political party are not violated or breached, the Court has no power to question the choice of a party’s candidate presented for election. One of the reliefs sought by the plaintiff in that case at the trial Court was: “A declaration that it is mandatory for the 1st defendant [PDP] to nominate the winner of the primary election as its flag bearer candidate for the purpose of participating and contesting in the National Assembly Election in Kebbi State slated for 2nd April, 2011.”(back to top?)
  112. In the instant case, the 1st respondent’s complaint is not that the party’s constitution, Electoral Guidelines or the provisions of the Electoral Act had been violated but that the party had indicated an intention to sponsor a different candidate. In such circumstance, where evidence of an actual substitution was not even before the Court, I am of the view, and I do hold that the purport of the claim before the trial Court was to compel his party to sponsor him as its candidate. The trial Court had no jurisdiction to grant such a relief, which is within the internal affairs of the party.
  113. In affirming the judgment of the trial Court, the Court below made an order directing the 2nd respondent, INEC, to conduct a re-run election for the Orumba North/South Constituency of the House of Representatives with the 1st respondent as the candidate of the PDP. I am in full agreement with learned senior counsel for the appellant that the lower Court lacked jurisdiction to make such an order. In the first place, as held above, the Court has no jurisdiction to impose a candidate on a political party. Secondly there was no such relief claimed by any of the parties before it. Thirdly all the parties who would have been affected by the order, including the other political parties who had already selected and nominated their candidates, were not parties in the appeal before it. The effect of an order made without jurisdiction is that it is a nullity. See: Odofin Vs Agu (1992) NWLR (Pt.229) 350: Nidocco Ltd. Vs Gbajabiamila (2013) 14 NWLR (pt.1374) 350; Ekpenyong Vs Nyong (1972) 2 SC (Reprint) 65 @ 73 – 74 lines 40 – 45. In effect, this issue is resolved in favour of the appellant.
  114. ISSUE 3

  115. Whether the lower Court was justified in upholding the decision of the learned trial Court that the PDP and INEC were the only persons entitled to be joined/sued by the 1st respondent in the instant suit.
  116. Learned senior counsel referred to the observation of the learned trial Judge at page 397 of the record to the effect that the failure to submit the 1st respondent’s name to INEC could not be explained since there was no contention by the 1st – 4th defendants (former 1st – 4th appellants herein) that they had forwarded the name of a different aspirant to the commission. He argued that by this observation, the trial Court appreciated that there were other aspirants who participated in the primaries. He submitted that having regard to the specific nature of the 1st respondent’s claim of being the ONLY qualified, authentic and duly elected, validly nominated and duly returned candidate, the implication was that there were other candidates who participated in the election. Learned senior counsel argued that having averred that other candidates took part in the primary election, those aspirants ought to have been joined in the suit, particularly the appellant, who, to his knowledge was the party’s sponsored candidate. He argued that the lower Court erred in upholding the finding of the trial Court on this issue.
  117. He argued that the joinder of the other aspirants would have enabled the Court properly determine whether the appellant was the ONLY qualified candidate. He argued that if the Court below had taken into consideration the averments of the 1st respondent in his affidavit in support of the originating summons to the effect that he had been informed by the Returning Officer that the result sheet for the primary election given to all the aspirants was discarded, it would have concluded that the other aspirants ought to have been joined in the suit. He contended further that having regard to Section 31 (1) of the Electoral Act and the Timetable and Schedule of Activities for the General Election established by the 2nd respondent, INEC, which was attached as an exhibit to the affidavit in support of the originating summons, the learned trial Judge, as at the date of judgment on 20/2/2015 could not rightly have closed his eyes to the fact that the party would have submitted the name of its candidate. He submitted that even in the face of documents before it showing that the appellant’s name had been submitted by the party to INEC as its sponsored candidate, the lower Court glossed over it thereby rendering its judgment perverse.
  118. Relying on the authority of Okoye Vs Nigeria Construction and Furniture Co. Ltd. (1991) 22, NSCC (Pt.II) 422 and Oloriode Vs Oyebi (1983) SCNLR 390 @ 392, he submitted that where any person against whom a right claimed exists or who claims a right for which an action is instituted is not made a party to the suit, the action will be improperly constituted and the Court will have no jurisdiction to entertain it in the absence of the affected party.
  119. He submitted that the political party having submitted the appellant’s name to INEC as its sponsored candidate, he had acquired a vested right in the subject of the PDP candidate for the Orumba North/South Federal Constituency. On the meaning of “vested right”, he referred its definition in Black’s Law Dictionary, 6th edition, which was adopted with approval by this Court in Ndayako Vs Dantoro (2004) 13 NWLR (Pt.889) 187 @ 216. He urged the Court to resolve the issue in the appellants’ favour.
  120. Learned senior counsel for the 1st respondent reacted to the above submissions in paragraph 6.18 of his brief having subsumed the appellants’ issues 2 & 3 in his issue 2.
  121. He submitted that there was no law breached by the failure to join the appellant in the suit having regard to the facts contained in the originating summons. He submitted that the 1st respondent had no claim against him. That the 1st respondent’s claim was simply that he won the primary and that the 1st – 4th appellants (whose appeal has since been withdrawn and dismissed) had indicated an intention to alter the result and submit someone else’s name. According to learned senior counsel, the people who had wronged the 1st respondent were the original 1st – 4th appellants and were the persons properly sued. He noted further that the said appellants (as defendants) admitted that the 1st respondent won the primaries. He submitted that in view of the defendants’ admission, the trial Court was justified in not ordering the joinder of the other aspirants and there was no reason for the lower Court to disagree. He submitted that joinder of parties depends on the plaintiff’s claim and urged the Court to resolve this issue in favour of the 1st respondent.
  122. RESOLUTlON

  123. In resolving this issue, it is necessary to keep two legal principles in mind. The first is that election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See: Hassan vs Aliyu ( 01 ) 17 NWLR (Pt.1223) 547; James vs INEC (2015) 12 NWLR (Pt. 1474) 538. In Orubu vs National Electoral Commission (1988) 5 NWLR (Pt.94) 323 @ 347, His Lordship Uwais, JSC (as he then was) opined thus:

    “an election petition is not the same as ordinary civil proceedings. It is a special proceedings because of the peculiar nature of elections, which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in Court.” See also: Obasanya Vs Babafemi (2000) 15 NWLR (Pt.689) 1 @ 17 A – D per Uwais, JSC (as he then was); Abubakar Vs Yar’Adua (2008) ALL FWLR (Pt.404) 1409 @ 1450 E – F. Since primary elections produce the candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis.(back to top?)

  124. The second legal principle is that in order to determine the competence of a suit and the jurisdiction of the Court to entertain it, it is the plaintiff’s claim in a matter begun by writ of summons or the supporting affidavit in a matter begun by originating summons that would be considered. See: Adeyemi Vs Opeyori (1966) 10 SC 31; Amale Vs Sokoto Local Government & Ors. (2012) LPELR-7842 (SC).(back to top?)
  125. I had earlier in this judgment reproduced some of the reliefs sought by the 1st respondent in his originating process and some of the paragraphs of the supporting affidavit. By his relief 1 he sought to be declared the ONLY qualified, authentic, duly elected, validly nominated and duly returned candidate of the PDP to contest the National Assembly (House of Representatives) Elections for Orumba North/South Federal Constituency scheduled to hold on 14/02/2015. In paragraph 48 of the supporting affidavit he averred that he emerged winner of the ONLY LEGITIMATE primary election conducted on 7/12/2014. These facts show clearly that there is at least one other aspirant who is laying claim to victory or who has been sponsored by the party. This fact is even more pertinent having regard to Section 31(1) of the Electoral Act which requires a party to submit its list of candidates not later than 60 days before the date appointed for the general election. ln this case, the election was originally scheduled for 14th February 2015 while the originating summons was filed on 15th December 2014. In paragraph 33 of the supporting affidavit (infra), he listed other aspirants, including the present appellant, Ben Nwankwo, who contested the Primary election with him. At the very least, it would have been necessary for those aspirants to be included in the suit, as the outcome would likely affect their interest. In other words, in the event that the appellant was successful, the outcome would be binding on every other aspirant, including the appellant and would have conclusively determined that none of them was the qualified and authentic candidate of the party.
  126. The issue that arises is whether the suit before the trial Court was properly constituted, bearing in mind the fact that this is a pre-election matter. In the well known decision of this Court in Madukolu Vs Nkemdilim & Ors (1962) 2 ALL NLR 581 @ 589 this Court held that a Court is competent when:”(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

    3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

  127. In Okoye vs Nigerian Furniture Construction Co. Ltd. (1991) 22 NSCC (Pt.II) 422; (1991) 6 NWLR (Pt.199)
    501 @ 532 B-E, this Court, relying on its decision in Madukolu vs Nkemdilim (supra) at page 596, held per Akpata, JSC, that the irregularity occasioned by the failure to join a necessary party in a suit may be so grave as to affect its fairness and the soundness of the adjudication, which may result in its being set aside on appeal. The unfairness in such circumstance infringes on the right to fair hearing of the party so excluded.
  128. In Ikechukwu Vs Nwoye (2015) 3 NWLR (pt. 1446) 367 @ 400, this Court per Galadima, JSC held:” … the learned counsel for the 1st respondent is saying that the appellant is not a necessary party to that suit because he could have competently prosecuted the action against the 2nd respondent herein (INEC) as the sole respondent. For learned counsel for the 1st respondent to take this stand is to lose sight of the fact that the main purpose of his [1st respondent’s] suit is for the Court to declare him the lawful candidate of the PDP for the election and for him to be accorded all the rights and privileges and entitlements due to the candidate of his party/ PDP. Is the 1st respondent now saying that while approaching the Court to be declared as the lawful candidate, his interest is not competing with that of the appellant? …. The foregoing argument boils down to the fact that the 1st respondent’s action instituted without joining the appellant was not properly constituted.”
  129. See also: Akpamgbo-Okadigbo Vs Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 @ 205 D – H. A question that arises in the circumstances of this case is what would have been the effect of a judgment in the 1st respondent’s favour if, by the time it was delivered another aspirant had been issued with a certificate of return, bearing in mind the 1st respondent’s contention that there were moves to discard the result and substitute another candidate? As observed by this Court in Ikechukwu Vs Nwoye (supra) the Court would have no jurisdiction to order the 1st respondent to step into the shoes of a person who was never a party to the suit.
  130. (back to top?)

  131. I had observed earlier that pre-election matters just like election matters are sui generis. In other words they are of a special breed. Where a party is claiming to be the only qualified, legitimate, duly elected and validly nominated candidate of the party for the primary election, the action cannot be properly constituted in the absence of the other aspirants. The 1st respondent contended that he had no grouse against the other aspirants. However, since this is a pre-election matter, there is no doubt that the interests of the other aspirants would certainly be affected by the outcome of the suit. The view of the lower Court at page 610 of the record that there was no need for the other aspirants to have been made parties to the suit because the 1st respondent had no claim against them and no particular order was made against them, with respect, cannot be correct. A declaration that the 1st respondent is the only legitimate candidate of the party has the effect of disqualifying any other aspirant whose name might actually have been submitted to INEC by the party.
  132. In the circumstances of this case, I am of the view and I do hold that the 1st respondent’s suit was not properly constituted and this is a feature that has adversely affected the competence of the Court to adjudicate on it. I agree entirely with learned senior counsel for the appellant that the manner in which the suit was constituted has occasioned a grave miscarriage of justice and amounts to a breach of his right to fair hearing. This issue is accordingly resolved in favour of the appellant.
  133. In conclusion, having resolved both issues in favour of the appellant, the appeal succeeds and is hereby allowed. The judgment of the lower Court delivered on 26/6/2016 is hereby set aside for being a nullity, having exceeded its jurisdiction by granting a relief not sought by the parties before it. Having held that the suit before the trial Court was incompetent for not being properly constituted and for lack of jurisdiction to grant the reliefs sought, it follows that the judgment of the Federal High Court, Abuja delivered on 20/2/2015 was delivered without jurisdiction and is a nullity. It is accordingly set aside. The Originating Summons filed on 15/12/2014 in FHC/ABJ/CS/1013/14 is hereby struck out.
  134. The consequence of the above orders, as rightly submitted by learned counsel for the appellant is that the parties shall revert to the status quo ante i.e, the state of affairs before the suit was filed at the trial Court. In the course of determining the appellant’s application for leave to be joined in the appeal as an interested person, this Court directed Chief Arthur Obi Okafor, SAN, who was representing the then appellants to depose to an affidavit stating the position of the 1st Appellant (PDP) regarding the primary election conducted on 7/12/2014. Therein it was averred that the appellant was the candidate screened, cleared and sponsored to contest the election. The averments in that affidavit are in tandem with the affidavit in support of the motion to set aside the judgment of the trial Court dated 24/2/2015. Particular reference is made to pages 250 – 258 of the record wherein it is shown that the appellant, BEN NWANKWO, won the primary election with 71 votes, confirmed by the Report of the PDP Electoral Panel for Anambra State (at pages 251 – 256 of the record, particularly page 255) signed by Mr. Alaye Tremie Jnr. and Engr. Rodney Ambiowei (former 3rd and 4th appellants) as chairman and secretary respectively of the National Assembly Primary Election Panel for the State and the list of the names of candidates for the House of Representatives Election submitted to INEC by PDP. The appellant’s name appears as number 9 on the list under Orumba North/South Constituency at page 258 of the record. The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See: Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 210 @ 229 E; Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378 @ 411-412 H-C; Funduk Eng. Ltd. Vs McArthur (supra); Womiloju vs Anibire (2010) 10 NWLR (Pt. 1203) 545 @ 561 G. The inclusion of these processes in the record transmitted from the Court below presupposes that they form part of the record of proceedings before that Court.(back to top?)
  135. Thus the existing position before the 1st respondent filed his suit at the trial Court was that not only was the appellant’s name submitted to INEC as its candidate representing Orumba North/South Federal Constituency in the National Assembly (House of Representatives) elections scheduled for 28th March 2015, he in fact contested and won. It was at the point of being issued with a Certificate of Return that he was confronted by a letter conveying the order of the trial Court per the judgment delivered on 20/2/2017.
  136. In the circumstances it is hereby ordered:1. That the appellant, HON. BEN NWANKWO being the candidate duly sponsored by the Peoples Democratic Party (PDP) for the National Assembly (House of Representatives) Elections representing Orumba North/South Federal Constituency of Anambra State conducted on 28th March 2015 and having duly won the said election, is entitled to be issued with a certificate of return in respect of the said election.2. The 2nd respondent is hereby ordered to issue the said HON. BEN NWANKWO, a Certificate of Return in respect of the said National Assembly (House of Representatives) Elections held on 28th March 2015 FORTHWITH.

    3. The 1st respondent is hereby ordered to vacate the seat of the Orumba North/South Federal Constituency of Anambra State in the National Assembly FORTHWITH.

    4. It is further ordered that the 1st respondent, BARR. SOPULUCHUKWU E. EZEONWUKA shall refund to the National Assembly all monies collected by him by way of salary/allowances, whatsoever and however described since he took his seat in the said National Assembly representing Orumba North/South Federal Constituency of Anambra State, within 90 (ninety) days of this order.

  137. Costs of N500,000.00 are awarded in favour of the appellant against the 1st respondent.
  138. Appeal allowed.
  139. SC.846/2016

  140. In the introductory part of the judgment in C.521/2015, I noted that this appeal, No. SC.846/2016 arose from the same judgment appealed against in SC.521/2015. The appeal is against the part of the judgment of the Court below ordering INEC to conduct of a re-run election for the Orumba North/South Federal Constituency of Anambra State for the House of Representatives in the National Assembly. Having set aside the judgment of the lower Court, there is no more live issue in this appeal. It is accordingly discountenanced.
  141. The parties shall bear their respective costs in the appeal.
  142.  
    ONNOGHEN, J.S.C.:

  143. I have had the benefit of reading in draft the lead judgment of my learned brother, KEKERE-EKUN, JSC just delivered.
  144. I agree with his reasoning and conclusion that the appeal of the 5th co-appellant be allowed.
  145. The facts of the case have been stated in detail in the lead judgment of my learned brother making it unnecessary for me to repeat them herein except as may be needed for the point being made or under consideration.
  146. From the record, it is not disputed that HON BEN NWANKWO was the duly nominated candidate of PDP for the election in issue and that his name was officially forwarded to INEC by PDP as the duly nominated candidate following a primary election conducted by PDP which he, HON. BEN NWANKWO won.
  147. By the provisions of Sections 33 and 36 of the Electoral Act 2010 as amended, a political party is prohibited from changing or substituting its duly nominated candidate for an election whose name had been duly submitted to INEC in accordance with the provisions of Section 31 of the said Electoral Act, 2010 as amended except the said nominated candidate either died or withdrawn from the contest in accordance with Section 35 of the said Act.
  148. In the instant case, HON BEN NWANKWO, the duly nominated candidate of the party neither died nor did he withdraw his candidature for the election in question. His name was however, substituted with that of the 1st respondent by an order of Court!! In the circumstance, he remained the candidate of PDP for the election in question in accordance with the provisions of the law. It is therefore very clear from the facts disclosed in the record that as at the time/date the judgment of the Federal High Court in suit No FHC/ABJ/CS/1013/2014 was delivered. HON. BEN NWANKWO as the candidate of PDP was and is still alive and kicking. To make matters worse, HON BEN NWANKWO was never made a party to the action nor was he aware of its existence until after Judgment had been delivered by that Court even though some of the reliefs, particularly the essential ones, directly affected his interest as the duly nominated candidate of PDP for the election in question.
  149. Looked at every angle, the appeal has merit and is accordingly allowed by me.
  150. In respect of SC/846/2015 which arose from the same judgment already set aside by this Court, I agree that it has thereby become spent as no live issue remains to be dealt with; same is hereby discountenanced.
  151. In conclusion. appeal No SC/521/2015 of the appellant/5th co-appellant is allowed and the judgments of the lower Courts set aside.
  152. I abide by the consequential orders made in the said lead judgment including the order as to costs.
  153. Appeal allowed.
  154.  
    MUSA DATTIJO MUHAMMAD, J.S.C.:

  155. The 1st respondent commenced suit No. FHC/ABJ/CS/1013/2014 at the Federal High Court sitting in Abuja by way of originating summons seeking several declaratory and injunctive reliefs against the 1st-4th appellants and the 2nd respondent upon the determination of certain questions. 1st respondent’s case in the very suit is that he contested the primary election conducted by the 1st appellant with the view to nominating its candidate for the Orumba North/South Federal Constituency of Anambra State. Five other aspirants contested the primary election with the 1st respondent as well. Inspite of scoring the highest number of votes and his being declared the winner of the primary election by the returning officer, 1st respondent further claims, the 1st-4th appellants refused to forward his name to the Independent National Electoral Commission (INEC). Being “the only qualified, authentic and duly elected, validly nominated and duly returned candidate of the 1st appellant” to contest the National Assembly General Election for the Orumba North/South Federal Constituency seat, he commenced the instant suit at the trial Court to secure his victory at the primary election. He annexed 1st Appellant’s result sheet indicating the votes scored by him and the five other aspirants.
  156. The 1st appellant in paragraphs 7 and 15 of its counter-affidavit filed in opposition to 1st respondent’s originating summons, conceded that in the primary election which was conducted in accordance with the law, Constitution and its guidelines, the 1st respondent having scored fifty five votes, has the highest number of votes thereby admitting 1st respondent’s claim. None of the five other aspirants, whose scores are reflected in the result sheet the 1st respondent annexed to the affidavit in support of his originating summons, is made a party to his claim. The 5th appellant is one of the aspirants.
  157. The trial Court entered judgment in favour of the 1st respondent and directed the 2nd respondent to recognize him as the authentic candidate of the 1st appellant and to facilitate his participation as such in the National Assembly (House of Representative) Election for Orumba North and South Federal Constituency scheduled for 14th February 2015.
  158. 1st-4th appellants’ effort to have the trial Court’s judgment set-aside for having been fraudulently induced by the counsel who handled their case was aborted. Their application for that purpose at the trial Court, on being withdrawn, was dismissed. In dismissing their appeal against the trial Court’s decision, the Court of Appeal, Abuja Division, consequentially ordered a re-run of the 1st appellant’s primary election.
  159. Aggrieved by the lower Court’s decision, 1st-4th appellants have appealed to this Court. Following his application filed on 23/2/2016 in that regard, Mr. Ben Nwankwo was granted leave by this Court joining him in the appeal as an interested party against the judgment of the lower Court.
  160. He filed his separate Notice of Appeal, sequel to Court’s order, on 6th October 2016.
  161. Before and up to 25th January 2017 when this appeal was to be heard, Chief Arthur Obi Okafor SAN had represented the 1st-4th appellants in the proceedings in the instant matter. At the commencement of hearing of the appeal, however, Hon. David K. Iorhemba, Esq., drew the Court’s attention to the notice of withdrawal of the instant appeal he filed on 15th December 2016 on behalf of the 1st-4th appellants. The notice is given pursuant to Order 8 Rule 6(1) (2) (5) and (6) of the Supreme Court Rules as amended. Hon. David K. Iorhemba deposed to two affidavits of facts in support of the Notice of withdrawal. Mr. Vincent Ottaokpukpu Esq., a counsel in the firm of Arthur Obi Okafor SAN relied on the counter-affidavit deposed to by the lead counsel to oppose the notice of withdrawal of the appeal. Mr. P.I.N. Ikwueto SAN for the 5th co-appellant relied on the counter-affidavit deposed to by Oluwatosin D Soyebo Esq., a counsel from his firm, to oppose the Notice of withdrawal of appeal. Confronted with the letter disengaging him from further representing the 1st-4th appellants annexed to the reply affidavit filed in further support of the notice of withdrawal, Mr. Arthur Obi Okafor SAN abandoned his opposition to the notice of withdrawal of the appeal filed by Hon. David Iorhemba. P.I.N Ikwueto, SAN insists that the notice of withdrawal is incompetent and that it be discountenanced. Mr. Paul Erokoro SAN would not be bothered what decision the Court takes on the issue.
  162. In my humble and considered view, Mr. P.I.N. Ikwueto, SAN is not competent to challenge Hon. David Iorhemba’s authority on how to conduct his client’s case. The rule here is that Hon. David Iorhemba having announced appearance on behalf of the 1st-4th appellants, the authority to challenge his representation lies with his clients alone. It is now trite that none other than the client, not even the Court, enquires into a counsel’s authority once he has announced appearance for the party. See FRN v. Adewunmi (2007) 10 NWLR (Pt 1042) 399 at 416-417 and in Afegbai v. AG Edo State (2001) 7 SC (Pt 11) 1, this Court per Karibi Whyte at page 39-40 cited with approval paragraph 1181 Laws of England, 4th Edition, on the scope and amplitude of authority of counsel acting on behalf of his client, except where the authority is expressly limited, to include compromising his client’s entire case.
  163. In the case at hand where 1st-4th appellants entire appeal is being withdrawn by counsel who appears for them and, there is nothing on record and/or to our knowledge expressly limiting counsel’s authority, the appeal, following the notice filed by counsel for its withdrawal and, in the absence of “any issues as to costs or otherwise outstanding between the parties”, is hereby dismissed under Order 8 Rule 6(5) of the Rules of this Court. Resultantly, Appeal No. SC.521/2015 survives only by virtue of the 5th co-appellant’s Notice of Appeal filed, sequel to the order of this Court joining him in the appeal as an interested party, on 26th October 2016.
  164. Parties, the 5th co-appellant, now the lone appellant and the 1st respondent, have filed and exchanged their respective briefs of arguments. The 2nd respondent remains nominal, neutral and unconcerned urging nothing on the Court as to the fortunes of the appeal. P.I.N. Ikwueto SAN who settled the appellant’s brief adopted and relied on their brief as arguments in the appeal. Paul Erokoro SAN settled the respondent’s brief. He adopted and relied on the brief as their arguments in the appeal.
  165. I adopt the resolution of the preliminary objections raised and argued in the respondent’s brief as to the competence of the appeal contained in the lead judgment. I align myself with my learned brother Kekere-Ekun JSC in overruling the objection. I shall proceed to consider the merit of the appeal to emphasise the conclusion arrived at in the lead judgment only.
  166. The third of the three issues distilled by the appellant that particularly caught my fancy for its potency reads:-“(C) Whether the lower Court was justified in upholding the decision of the learned trial Court (sic Judge) that the P.D.P and INEC were the only persons entitled to be joined/sued by the 1st Respondent in the instant suit.” (Distilled from Ground 5).
  167. Arguing the issue in the appellant’s brief and orally in elaboration, P.I.N. Ikwueto SAN submits that it is evident from the processes before the Court, particularly the respondent’s originating summons and all the annexures accompanying the affidavit in support of same, the respondent was not the only candidates in the primary election which informs the commencement of the suit. It should have occurred to the trial Court that its effectual determination of the suit is impossible without the appellant herein and the other aspirants being made parties to the suit and their being heard. The lower Court, it is submitted, is equally wrong in its affirmation of the trial Court’s finding in the absence of the parties necessarily required for the complete determination of the suit.
  168. The joinder of the other aspirants, including the appellant, it is argued, is necessary in the determination of the respondent’s claim that he is the only authentic candidate having scored the highest number of votes in the primary election. The Respondent himself by the score sheet he annexed to the affidavit in support of his originating summons, it is submitted, has shown that he was not the only candidate at the primary election. Respondent’s action, it is further submitted, is improperly constituted and the Court has no jurisdiction, in the absence of an affected parties, to determine the suit. The submission of the name of the appellant by he parties, P.D.P, as the candidate it sponsored for the Orumba North/South Federal Constituency seat, has vested in the appellant a right to secure his candidature. Learned senior counsel relies on Okoye v. Nigeria Construction and furniture Co Ltd (1991) 22 NSCC (pt. 11) 422, Oloride v. Oyebi (1983) SCNLR 390 at 392 and Nadyako v. Dantoro (2004) 13 NWLR (pt 889) 187 at 216, and urges that the issue be resolved on his behalf and the appeal to be allowed.
  169. Appellant’s 3rd issue appears subsumed in respondent’s 2nd issue. Arguing the latter issue in respondent’s brief as expatiated in his oral arguments, learned senior counsel Mr. Paul Erokoro submits that the purpose of the instant appeal is to find out whether or not the lower Court decided the case correctly or not. It is not for this Court to try the case as if it were the Court of first instance. The Court, it is further submitted and correctly too, can only consider the evidence on record the two Courts below based their decisions. The appellant, it is argued, cannot without consent of parties which the respondent readily refuses, rely on facts in the affidavit in support of his application for leave to join in the appeal being facts the two Courts never considered in arriving at their judgment. It is inequitable to indulge the indolent appellant who had stayed away from the fray till now.
  170. 1st respondent’s claim that comes within the purview of Section 87(9) of the Electoral Act, it is further submitted, cannot be said to be incompetent. The two Courts by virtue of the special provision assumed jurisdiction properly and determined the case correctly. In support of his submissions, learned senior refers inter-alia on Nobis Elendu v. INEC & Ors (2015) LPELR-25127 (SC), Shinkafi & anor v. Yari & ors (2006) LPELR-40083 (SC). Concluding, it is submitted that no law is breached by the respondent for not joining the appellant in the suit. The respondent whose case simply is that he has been wronged by his party, has nothing against the appellant and will not be bothered to make him a party to the claim. The two Courts not having erred in their concurrent decisions, it is submitted, this Court should further affirm both judgments.
  171. My lords, I think learned senior counsel to the respondent Paul Erokoro SAN seems to underestimate the potency of the submissions advanced by P.I.N. Ikwueto SAN for the appellant. The latter is challenging the competence of respondent’s action!
  172. Both Courts, it is argued, wrongly proceeded on respondent’s improperly constituted claim.
  173. It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See Omokhafe v Esekhomo (1993) LPELR-2649 (SC) Ukaegbu v. Ugorji (1991) 6 NWLR (Pt 196) 127, Omomeji & Ors v. Kolawole & ors (2008) LPELR-2650 (SC).(back to top?)
  174. Now, a Court is said to have jurisdiction when:-(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another.(2) The subject matter of the case is within its jurisdiction.
    (3) There is no feature in the case which prevents the Court from exercising its jurisdiction and
    (4) The case comes before the Court initiated by due process of law and fulfillment of any of the condition precedent to the exercise of jurisdiction.

    See Madukolu & ors v. Nkemdilim (1962) NSCC 374 at 379 to 380 and Chief Ikechi Emenike v. P.D.P. & ors (2012) LPELR-7802 (SC).

  175. In the case at hand, it is very glaring from the record of this appeal that 1st respondent had contested his party’s primary election for the particular Federal Constituency seat along with others including the appellant. He sought declaratory and injunctive reliefs from the trial Court for being “the only qualified, authentic and duly elected, validly nominated and duly returned candidate” of the P.D.P. Yet in Exhibit H, the result sheet he annexed to the affidavit in support of his originating summons, candidates other than the respondent, the appellant being one of them, are indicated to have participated in the primary election and scored the votes reflected against their names. It is preposterous to suggest that a decision may be taken one way or another by the trial Court without impinging on the rights of any of the other contestants to be heard. Section 36(1) of the 1999 Constitution as amended provides:-
  176. “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
  177. Inspite of the foregoing constitutional guarantee it is argued for the respondent that both Courts have rightly assumed jurisdiction and determined his claims without any opportunity extended to the appellant for him to be heard in a matter that he clearly has a right. It cannot be!
  178. Both Courts may have jurisdiction, under Section 87(9) of the Electoral Act, to determine respondent’s action but, ex facie, since the rights of others in the very res must necessarily be countenanced, given the constitutional guarantee the rights are given, there is then a feature in the case that makes the assumption of jurisdiction impossible. Having not offered the appellant the opportunity to put his own side of the story, 1st respondent’s case cannot be said to have been initiated by due process of the law and in fulfillment of a fundamental precedent to the exercise of jurisdiction by both Courts below. It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See AG, Rivers State v. Ude & ors (2006) 17 NWLR (Pt 1008) 436, and Nicholas Chukwujekwu Ukachukwu v. People’s Democratic Party & ors (2014) LPELR-22115 (SC). In the instant case it is appellant’s burden, having alleged breach of his right to be heard, to prove the facts and circumstances leading to the breach he alleges. It is my considered view that he has discharged this burden and within the context of the facts contained in the record of the appeal.
  179. Resultantly, the proceedings as well as the decisions of both Courts below, undertaken and given in breach of appellant’s constitutionally guaranteed right to be heard and, therefore, without jurisdiction, are hereby set aside. 1st respondent’s incompetent suit is hereby struck out.
  180. In conclusion I must say that I agree with learned senior counsel for the appellant Mr. Ikwueto that the effect of setting aside an action or order arising from the said action is to render the action or order void ab initio, from the very beginning, as if the action or order had never occurred or transpired. Indeed, learned senior counsel is right that where an incompetent action or order therefrom is set-aside by a competent Court, having been embarked upon or decreed by a Court without the necessary jurisdiction and either or both, thereafter, become(s) an issue, then, in law and for all practical purposes, the incompetent action or the equally null and void order arising from the incompetent action, as erased by the order of the competent Court, will be deemed to have never occurred originally. In Akpamgbo-Okadigbo & ors v. Chidi & 18 ors (No 1) (2015) 3-4 SC (Pt 11) 151, a case the learned senior appositely cited, this Court pointedly stated thus:-

  181. “A nullification by the Supreme Court of the proceedings of a trial Court means that those proceedings, including all the orders made in the course or consequence of the proceedings, never took place. They are completely… off, rendered extract and deemed never to have existed. And one can only continue with that which is in existence and not otherwise.”(back to top?)
  182. In the case at hand it is the appellant the P.D.P recognized, having won its primary election, as its candidate for the election for the Orumba North/South Federal Constituency seat and forwarded his name as such to the 2nd respondent. It is appellant’s candidature, the status quo ante bellum in the instant case, the state of affairs existing before the filing of 1st respondent’s incompetent suit, which persists. See First African Trust Bank Ltd v. Basil Ezegbu (1993) 6 NWLR (Pt 297) 20 and Oronti v. Onigbanjo (2012) 5 SC (Pt 1) 1 at 86. On the party winning the election with the appellant being its candidate at the election, it follows that it was the appellant and not the 1st respondent that won the election. See Ugwu v. Ararume (2007) 12 NWLR (Pt 1048) 367 and Amaechi v. INEC & ors (2007) LPELR-8079 (SC).
  183. Further consideration of any issue arising from the null and voided decision of the lower Court is unnecessary. However, if I must, reliance is placed on the elaborate reasons and conclusions thereon in the lead judgment of my learned brother Kekere-Ekun JSC in resolving the outstanding issue, if any, against the respondent and allowing the appeal.
  184. I abide by all the consequential orders made in the lead judgment including the order on costs.
  185. SC.846/2015

  186. It has been agreed that this appeal shall abide the decision in Appeal No. SC.521/2015. I order that it does.
  187.  
    EKO, J.S.C.:

  188. I read in draft the Judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN, JSC, in these two appeals. The judgment represents my views in the appeal. I hereby adopt it.
  189. I will only add a few comments of mine. The facts have been adroitly summarised in the said judgment.
  190. Notwithstanding the disgraceful ambivalence of the 1st Appellant, the People’s Democratic Party (PDP) in these appeals and facts leading to them, one fact is indubitable: the PDP conducted one primary election in Orumba North/South Federal Constituency to elect its candidate for the general election originally scheduled to hold on 14th February, 2015. From the primary election the Returning officer made return and submitted the report of his activities to the Electoral Committee of which Mr. Alaye Tremie Jnr (3rd appellant/respondent) was the Chairman. In the unfolding litigations from a single primary election of the PDP Mr. Alaye Tremie Jnr found himself speaking in tongues in the most contemptuous double-speak, all calculated to mislead the Courts.
  191. In one breath Mr. Alaye Tremie jnr. would speak piously on oath that the primary election was won by Barr. Sopuluchukwu E. Ezeonwuka (the 1st respondent) with 55 votes to beat the Hon. Ben Nwankwo (the 5th Co-Appellant) who allegedly scored 12 votes. The same Mr. Tremie Jnr., earlier in his Report of the Electoral Committee, Exhibit F, had stated that Hon. Ben Nwankwo won the primary election with 71 votes out of the total of 78 votes cast. The Report was jointly signed by himself (3rd appellant) and the 4th appellant. This Report informed the PDP’s inclusion of the name of Hon. Ben Nwankwo in the list of PDP candidates nationwide for the 2015 National Assembly Elections submitted to INEC. The list is Exhibit D. In this unholy double-speak, truth of course was the victim. In all these unwholesome acts of lying, the major actors (Mr. Alaye Tremie Jnr inclusive) appeared to be perpetrating falsehood for some ulterior purpose. As it was stated in CLARKE v. MOLYNEUX (1897) 3 Q.B. 237 at 247;“lf a man is proved to have stated that which he knew to be false, no one need enquire further. Everybody assumes from thenceforth that he was malicious, that he did a wrong thing for some wrong motive”.
  192. This takes me to the suit filed by Barr. Sopuluchukwu E. Ezeonwuka which had Mr. Alaye Tremie Jnr’s malicious falsehood as its power house. He claimed inter alia in that suit at the Federal High Court, Abuja that he was “the only qualified, authentic and duly validly nominated and duly returned candidate” of the PDP to contest the National Assembly (House of Representatives) General Election in Orumba North/South Federal Constituency scheduled for 14th February, 2015. By the reliefs sought, Barr. Sopuluchukwu E. Ezeonwuka, as the plaintiff, implicitly admitted that one or two “impostors” existed and were contesting with him though they were not, as he alleged “qualified, authentic and duly, validly nominated and duly nominated candidate” of the PDP to contest the seat with him in the House of Representatives from the same Orumba North/South Federal Constituency. None of these unknown and unnamed “impostors” was made a party in his suit as a defendant.
  193. Judgment in Barr Sopuluchukwu E. Ezeonwuka’s suit No. FHC/ABJ/CS/1013/2014 was delivered on 20th February, 2015. The election scheduled to hold on 14th February, 2015 had been re-scheduled to 28th March, 2015. All these while and since the date the PDP primary election in Orumba North/South Federal Constituency was conducted, Hon. Ben Nwankwo had been in the field campaigning as the PDP candidate. There was no effort made to join him as a party or defendant in the Barr. Sopuluchukwu E. Ezeonwuka’s suit No. FHC/ABJ/CS/1013/2014. The plaintiff in that suit, also a lawyer himself, cannot be heard to say that Hon. Ben Nwankwo was not a necessary party (as a defendant) in that suit, he being the impostor claiming to be also the only authentic, qualified and duly elected person as PDP candidate for Orumba North/South Federal Constituency.
  194. By this ingenious contraption the suit was conceived ab initio to do some mischief. That is, to deny Hon. Ben Nwankwo fair hearing, a fundamental right guaranteed to him by Section 36 (1) of the 1999 Constitution, as amended.
  195. Natural justice requires that a party to a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY v. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC, in EKIYOR & ANOR. v. BOMOR (1997) 9 NWIR (Pt.519) 1 at 14.
  196. Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J, in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NWLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALIU v. TAIWO EGEIBON (1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ. 90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain.
  197. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ. 57; (1987) 2 NWLR (Pt.58) 587. (back to top?)
  198. The instant suit was conceived in the guise of Jankara practice; the aim of which is the abuse of judicial process. Time was when a landlord in Jankara area of Lagos would engage a lawyer to evict a tenant by resort to sharp practice. The tenant named on writ would be served through a pseudo tenant, a false proxy tenant. The pseudo tenant would sign the processes acknowledging “service”. On the return date, the Court or Tribunal “satisfied that the processes were duly served” and there being no defence to suit entered judgment summarily evicting the tenant, who heard of the suit against him for the first time when bailiffs arrived to evict him. This sharp practice gradually, through a process of corrupt evolution, metamorphosed through the agency of politicians in the 1980’s and 1990’s, who resorted to ex parte injunctions to truncate meetings or party conventions that they perceived likely to be unfavourable to them. Nigerians derisively called these “black market injunctions”. The instant suit seems to be a variant or specie of abuse of judicial process designed to produce “black market injunctions”, and it did. Just on the eve of the election rescheduled to 28th March. 2015, the 5th co-appellant, Hon. Ben Nwankwo, was for the first time notified through a letter on 27th March, 2015 that there was a judgment delivered in suit No. FHC/ABJ/CS/1013/2014 BARR. SOPULUCHUKWU E. EZEONWUKA v. PDP & ORS, directing INEC to exclude him, and to include Barr. SOPULUCHUKWU E. EZEONWUKA as the PDP candidate.
  199. The suit of Barr Sopuluchukwu E. Ezeonwuka be it a gagging suit, or Jankara suit, had one ulterior purpose: to produce a black market injunction or order for the benefit of its creator. It was clearly an abuse of Court process. Equity, acting in personam, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to the temple of justice with dirty hands.
  200. For these reasons and the fuller reasons contained in the lead judgment of my learned brother, K.M.O. KEKERE-EKUN, JSC, which I hereby adopt, I allow the appeal of the 5th co-appellant, Hon. BEN NWANKWO. Judgment and orders made in the suit No. FHC/ABJ/CS/1013/2014 are hereby set aside. All other orders made in the lead judgment are hereby adopted.
  201. I have looked at Sections 33 and 36 of the Electoral Act, 2010, as amended, and one thing is clear. As at the date of the Judgment of the Federal High Court and even now, Hon. Ben Nwankwo, as the candidate of the PDP was/is still alive. He has not died. Section 33 of the Electoral Act prohibits a political Party from changing or substituting its candidate, whose name had been submitted to INEC pursuant to Section 31 of the Act, except in the case of death or withdrawal by the candidate under Section 35 of the Act. The Federal High Court should have been guided by these provisions in its final order.
  202.  
    BAGE, J.S.C.:

  203. I have had the benefit of reading in draft the lead Judgment of my learned brother, K.M.O. Kekere-Ekun, JSC. in these two appeals. I agree with his reasoning and conclusion and I hereby adopt it.
  204. I will add a few words of my own in total support to the lead Judgment. The report of the Electoral panel of the primary election shows that BEN NWANKWO, won the primary election with 71 votes. The report which was at pages 250-285 was endorsed by the third Appellant Mr. Alaye Tremie Jnr. which was eventually forwarded to INEC by the P.D.P. as the duly nominated candidate.
  205. His name was later substituted with that of the 1st Respondent by order of the Court.
  206. Sections 33 and 36 of the Electoral Act, 2010, as amended clearly prohibited a political party from changing or substituting its duly nominated candidate for an election whose name has been duly submitted to INEC.
  207. The only exception to the provision above is where the duly nominated candidate either died or withdrawn from the context. As at the date of the Judgment of the Federal High Court and even now, the 5th Co-Appellant Hon. Ben Nwankwo as the candidate of the P.D.P was/is still alive. He has not died. The 5th Appellant has also not withdrawn from the contest.
  208. From the foregoing, act of substituting the name of Hon. Ben Nwankwo to that of the 1st Respondent is contrary to the provisions of Sections 33 and 36 of the Electoral Act 2010 and therefore rendered the act illegal.
  209. For the detail reasons contained in the lead judgment, the appeal has merit and is accordingly allowed by me. Judgment of the lower Court is set aside.
  210. In respect of SC/846/2015 which arose from the same Judgment already set aside by this Court, is hereby discountenance as no live issue remains to be dealt with.
  211. I abide by the consequential orders made in the lead judgment.