Chief Okechukwu Ambrose Ahiwe & 1ORS Vs. Independent National Electoral Commission.  Respondent & 2ors, Judgment Delivered by Uwani Musa Abba Aji JSC, IN SC/CV/1250 / 2023

SC/CV/1250 / 2023

JUDGMENT
(DELIVERED BY  UWANI MUSA ABBA AJI, JSC)

On 18th March 2023, the Independent National Electoral Commission (INEC), the first Respondent, conducted an election for the Governorship seat of Abia State. On the 22nd March 2023, it declared the second Respondent who was sponsored by the third Respondent as the winner of the election. The first Appellant sponsored by the second Appellant came second.  Dissatisfied with the outcome of the election, the Appellants on 11th April 2023 presented a petition challenging the return of the second Respondent on three grounds, to wit: (1) The non-qualification of the second Respondent. (2) Lack of majority of lawful votes cast, (3) Corrupt practices and non-compliance with provisions of Electoral Act, 2022. Hearing commenced on 26th July, 2023. The petitioners called 22 witnesses and tendered exhibits P1 to P191. The first and second Respondents called one witness each. The second Respondent tendered exhibits D1 to D16. The third Respondent did not lead evidence. On 6th October 2023, the Honourable Tribunal delivered a judgement dismissing the petition of the Appellants. On appeal to the Court of Appeal, the lower court on 2nd December 2023 dismissed the appeal. Miffed, the Appellants have filed this appeal before the Apex Court.

After exchange of briefs by parties, the Appellants, through their lead Counsel, Alade Agbabiaka, SAN, nominated these issues for determination in the brief filed on 23rd December 2023:

1. Whether the lower Court was right when it affirmed the Honourable Tribunal’s decision that the Appellants failed to prove that the second Respondent was not qualified to contest the elections?
2. Whether the Lower Court was right when it affirmed the striking out by the Honourable Tribunal of paragraph 30 to 44 of the petition on the ground that they are pre-election complaints? 3. Whether the decision of the lower Court on the matters of pleadings, evidence, and formulation of issues for determination in an appeal are correct in law and not perverse?
3. Whether, in the particular circumstances of this case, the Appellants can be rightly said to have had a fair hearing and or a fair trial at the Honourable Tribunal.

  J.T.U Nnodum, SAN, the lead Counsel to the first Respondent formulated these issues for determination in their brief of argument filed on 30 December 2023:

(a) Whether the lower court was right when it affirmed the Tribunal’s decision that paragraphs 32 to 44 of the petition were incompetent being concerned with pre-election matters and, in the alternative, that the Appellants did not prove non-qualification of the second Respondent.

(b) Whether the lower Court was right when it affirmed the Tribunal’s decision that PW4, PW16, PW17, PW18 and PW22 were incompetent witnesses and that the Appellants did not prove the second and third grounds of their Petition.

(c) Whether the lower  court infringed on the appellant’s right to fair hearing in the determination of their appeal.

  A.J OWONIKOKO, SAN, with his team representing the second Respondent, filed their brief of argument on 6th January 2024 and distilled these issues:

1. Whether the Court of Appeal was not right when it affirmed the trial Tribunal’s decision, striking out paragraphs 30 to 41, 43 to 44 of the petition for being pre-election issues, and, in the alternative, ultimately dismissed the Appellants’ complaint on the merits against the qualification of the second Respondent to contest in the gubernatorial election held on 18th day of March 2023 for want of credible evidence in proof of same?
2. Whether having regard to the prescription of the law on allegations of non-scoring of majority of lawful votes, corrupt practices and non-compliance, failure of the Appellants to (i) tender and demonstrate relevant documents, and (ii ) call necessary/ credible witnesses who can give direct evidence on the allegations, the Court of Appeal did not rightly affirm the decision of the trial Tribunal that the Appellants did not prove these allegations and establish how they substantially affected the outcome of the election?

3. Whether upon proper consideration and resolution of all the relevant issues raised in the petition and on appeal before the lower court, the Court of Appeal infringed on the Appellants’ right to fair hearing when it affirmed the decision of the Election Tribunal which dismissed the petition for lacking in merit?

DR ONYECHI IKPEAZU, SAN, on behalf of his legal team, representing the third Respondent, nominated its issues thus in the brief filed on 29th December 2023:

1. Whether the Court of Appeal was correct to affirm the decision of the Tribunal striking out paragraph 30 to 44 of the Petition on the ground that the allegations of disqualification therein contained were founded on facts over which the Tribunal had no jurisdiction.
2. Whether the Court of Appeal was correct to affirm the decision of the Tribunal to the effect that the Appellants failed to prove that the second Respondent was not qualified to contest the election.
3. Whether the Court of Appeal was correct to affirm the decision of the Tribunal that the Appellants abandoned the complaint against the striking out of the evidence of PW4, PW16, PW17 and PW22 by the Tribunal and failed to prove the acts of non-compliance and corrupt practices alleged in the Petition.
4. Whether the Court of Appeal was correct to hold that the Appellants did not identify the applications which they claimed the Tribunal failed to pronounce upon and did not show how the length of the second Respondent’s final written address occasioned a miscarriage of justice and affected the judgment of the Tribunal.

Resultantly, the Appellants separately filed reply briefs on point of law to the Respondents’ briefs on 5th and 10th January, 2024.

ISSUES FOR DETERMINATION

I shall consider the Appellants’ issues one and two together while their issues three and four shall be considered together. Issues one and two shall be retouched as follows:

 ISSUE ONE :

Whether the lower court was wrong to hold that the Appellants did not prove the issue of disqualification of the second Respondent.

   The learned Silk to the Appellants submitted that by the decision in ENGR NELSON OSELOKA ONUBOGU V IFEYINWA ANAZONWU & 2 ORD (2023) LPELR 60288 (SC), where however the complaint borders on non-qualification on account of breach of the Constitution of the Federal Republic of Nigeria, Electoral Act, Party Guidelines, it can be accommodated. He argued that the second Respondent was not a member of the third Respondent when he ran for the office of Governor of Abia State and could not have sponsored by the third Respondent. In other words, the Appellants’ contention is that there was a breach of Section 177 (C) of CFRN 1999 as amended. That the pivotal importance of this qualifying factor made the Electoral Act 2022 to donate the locus standi on a petitioner to challenge the qualification of a declared winner of the election as provided for under Section 134(1) of the Electoral Act, 2022.

     Furthermore, that the lower Court fell into a grave error, when it classified the Appellants’ challenge to the qualification of the second Respondent as arising from the non-compliance by the second and third Respondents with the mandatory provisions of Section 77(2) and (3), 82(1) and 84(1) and 7 of the Electoral Act, as a specie of pre-election matter within the internal affairs of the third Respondent. That the lower court failed to appreciate that the allegation or question as to whether or not the second Respondent who had contested the election is a duly registered member of the third Respondent in compliance with Section 77(2) and (3) of the Act and is founded on the constitutional requirement of membership of a political party as a qualifying factor, under Section 177(c) of the Constitution and Section 134(1)(a) of the Electoral and so outside the internal affairs of the third Respondent. He therefore urged this Court to resolve this issue in favour of the Appellants.

    The learned Senior Counsels to the 1st, 2nd, and 3rd Respondents in their respective turns submitted that although the 2nd Respondent duly participated in the APC Governorship primary election and lost it, he defected to the Labour Party few days to the Labour Party’s Governorship primary election in Abia State, which was held on 8th June 2022. That the grouse of the Appellants squarely relate to the events which happened prior to the Governorship election of 18th March 2023. He submitted that this honourable court in APP V. OBASEKI 2022) 13 NWLR (PT. 1846) 1 held that an election petition whose sole ground is based on events that occurred prior to the election day, is squarely a pre-election matter by the provision of Section 285(14) (c) of the 1999 Constitution (as amended) and not an election matter to which Section 138(1)(d) of the Electoral Act 2010 is applicable. Finally, that the Appellants not being members of the third Respondent have no locus standi to question it. They placed reliance on ONI V. OYEBANJI (2023) 13 NWLR (PT. 1902) 554 PARAS A-D. They prayed that this issue be resolved against the Appellants.

RESOLUTION OF ISSUE

  The summary of the gravamen of the Appellants in paragraph 30-44 of the petition is that the second Respondent was not a member of the third Respondent at the time of the election since his name was not contained in the membership register of the third Respondent, which the the third Respondent failed to submit to the first Respondent 30 days before the conduct of its primary election. That the second Respondent was a governorship aspirant under the All Progressive Congress(APC) and participated in the Governorship primary election of that party on the 26th of May 2023. Their case is that the second Respondent defected to and joined the third Respondent few days before the third respondent conducted his primary election on 8th June 2023. That unless the name of the second Respondent was on the membership register submitted by the 3rd Respondent (Labour Party) to the 1st Respondent (INEC)  30 days before the holding of its primary election, the 3rd Respondent could not validly and lawfully sponsor the 2nd Respondent as its candidate for Abia State Governorship election.

   It is on record that the 2nd Respondent duly participated in the APC governorship primary election and lost it, he defected to the Labour Party few days to the Labour Party’s Governorship primary election in Abia State, which was held on 8th June 2022. I suppose here that the Appellants have made the issue of the sponsorship of the 2nd Respondent by the 3rd Respondent their issue. Whether there was the need to submit the name of the candidate of the third Respondent within 30 days or not as provided by Section 77 of the Electoral Act 2022, it is not the Appellants that should complain or cry out since they were not in internal contest with the Appellant. In essence, the first Appellant was not in contest with the second Respondent for the party sponsorship and nomination. Thus, he cannot be making a case for the Respondents. If the second and third Respondents were also in default and disobedient to the provision of Section 77 of the Act. It is for them to go after, interfere or go to court on their behalf. Actually, the courts will have no jurisdiction over the membership of a political party that has been fielded for general election except the issue of membership is within an internal. See ENANG VS ASUQUO (2023) LPELR 60042(SC), SANIBV. GALADIMA (2023) LPELR 60183(SC), ONUBOGU V. ANAZONWU (2023) LPELR 60288(SC).

   This issue must be resolved against the Appellants and is hereby held so.

ISSUES THREE AND FOUR:

 Whether the decision of the lower Court on the Matters of Pleadings, Evidence, and Formulation of Issues for determination in an appeal, are correct in law and not perverse?

Whether in the particular circumstances of this case, the Appellants can be rightly said to have had a fair hearing and or a fair trial at the Honourable Tribunal.

 The learned Silk to the Appellants argued that the lower court failed to avert its mind to a critical aspect of  Exhibit P38 tendered by PW4, being the original counterpart copy of the result in Obingwa LGA and that it carries a higher probative value than Exhibits P38, the original number of votes credited to the Appellant was 108,000 votes, while the original number credited to the second and third Respondents was 27,000 votes. That it was wrong for the lower court to rely on the technical point that the witness statement on oath of PW4 did not accompany the petition at the date of filing pursuant to paragraph 4(5) of the first Schedule of the Electoral Act 2022. Again, that the lower court was wrong to refuse the motions dated 3rd August 2023, which applications of the Appellants were dismissed, hence abandoned them. They prayed these issues to be resolved in their favour.

RESOLUTION OF ISSUES:

The Appellants have queried the evaluation of the evidence done by the lower court, bordering especially on “pleadings, evidence, and formulation of issues for determination in an appeal”. Noticeable in the record, particularly page 9063, Vol. 6, is that the Appellants at the lower court complained against the striking out of the evidence of PW1, PW16, PW17 and PW22. Nevertheless, this was bereft and not distilled in their issues for determination. Since no issues were distilled from the said grounds of appeal, they are deemed abandoned. It is trite that formulation of the issues must be circumscribed by the grounds of appeal and contains only such issues as have been raised. See Per KARIBI-WHYTE, JSC in ONYESOH V. NNEBEDUN & ORD (1992) LPELR -2742(SC) (PP. 16 PARAS. B). This did not escape the prying eyes of the lower court when it held at page 9063 of the record that “none of the six issues for determination was formulated from the complaints of the Appellants in Grounds 11, 12, 18, and 19 of the Notice of Appeal. The necessary consequences of this failure to formulate issue from these four Grounds of Appeal are deemed abandoned and they are hereby struck out… Achonu vs. Okuwobi (2017) LPELR 42102(SC), Adekin Records vs. Musical Copyright Society of Nigeria (Ltd) (2018) LPELR 45300(SC)”.

     The Appellants again attacked the ratio decidendi of the lower cut, stating that the Exhibit P38 tendered by PW4, being the original counterpart copy of the result in Obingwa LGA, carries a higher probative value than Exhibit P188, being a certified true copy. It is possible for Exhibit P38 to be an original document but may be infected with virus of inadmissibility. No matter how vital and potent a document or Exhibit may be, it must lose its power when rejected or rendered inadmissible. This was actually the case with Exhibit P38. It does not have the foundation to stand or be admitted by the court. Thus, the lower court was right to accord pride of place and more probative value to Exhibit P188, although a certified true copy.

Exhibit P38 tendered by PW4 is said to be the result of election in Obingwa Local Government Area of Abia State. However, it has been on record that the witnesses’ statements on oath of PW4, though a subpoenaed witness, who tendered that said Exhibit P38, was filed without accompanying the petition. Election petition being sue generis and time-bound does not permit piecemeal filing and presentation of petition. Election petition is akin to going to war prepared and equipped with all your weapons and bullets ready for battle or shooting the opponent. All witnesses, whether subpoenaed or not, should have their statements and evidences ready before the petition is filed, since there will not be time again to allow for such substantial amendments. This is, in fact, the intent and spirit in Section 285 (5)of the 1999 Constitution (as amended) and Paragraph 4 (5), First Schedule to the Electoral Act 2022. This Court in SC/CV/935/2023: ABUBAKAR ATIKU & ANOR V.I.N.E.C & OTHERS (unreported) delivered on 26 October 2023, settled on the incompetence and impropriety of a petitioner calling witnesses, by subpoena, whose written statement on oaths did not accompany the petition. At page 81 of the judgment, it held among others that “a combined reading of section 285 (5)  of the Constitution shows that the time limit for the filing of written statements on oath of witnesses in election petition proceedings is 21 days from the date of declaration of the results…due to the sue generis nature of election proceedings, amendment to the petition or calling of witnesses will not be entertained after statutory time limit for the filing of the petition has expired. Thus, a petitioner cannot present his case in bits, otherwise, the Respondent’s right to fair hearing will be breached”.

Consequently, Exhibit P38, having been rejected and expunged as inadmissible, and the time no longer available for its admissibility or consideration, this court does not have the power to reconsider or pry into it.

On the alleged breach of the appellant’s right to fair hearing in not considering their motions, dated 3rd August 2023, it is on record that the motions were never dated or brought to the attention of the lower courts. Although all applications on motions ought to be considered by the court one way or the other, no matter how frivolous they may be, lawyers or parties must bring them to the attention of the court, otherwise, they are considered abandoned, if not moved. In the instant case, the lower court explained:

    However, neither in the issue for determination nor in the argument canvas thereon did the appellant identify the specific interlocutory applications refused and granted by the lower court by their dates of filing or by the prayers sought on them. Counsel merely referred to them as the Appellants’ applications and the Respondents’ applications. The records of appeal show that the parties filed several applications and which were heard and ruled upon by the lower courts. It is not for this Court to go searching in the records for applications of the Appellants that were refused by the lower Court and those of the Respondents that were granted. It was for the Appellants to identify the specific applications complained about. The fourth issue for determination formulated by Counsel to the Appellants is imprecise and does not make for easy comprehension. It is hereby struck out along with the arguments canvassed thereon by the parties.

     The doctrine of substantial compliance is that its consideration will only arise where the partitioners have succeeded in establishing substantial non-compliance with the principles of the Electoral Act etc or, in the alternative, substantial effect on the election result of any infraction of the said Act etc no matter how minuscule the transgression may be. See Per NWEZE, JSC in OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR – 24803(SC) (PP.69 PARAS. B.).

It must be noted that this appeal sprang from the concurrent findings of the two courts below. I have not discovered perverseness in the two judgments to tamper with the judgment of the lower court. Besides, no proof of substantial non-compliance has been done to tamper with the judgment of the lower court.

 This issue is resolved against the Appellants. The appeal is hereby dismissed and the judgment of the Court of Appeal is affirmed. Parties are to bear their respective costs.

UWANI MUSA ABBA AJI

JUSTICE, SUPREME COURT

APPEARANCES:

Alade Agbabiaka, SAN with Dr. Joseph Nwobike, SAN, Prof. Paul Ananaba, SAN Uche Iheduwa, SAN and Chief Theo Nkure, Esq. for the Appellants.

J.T.U Nnodum, SAN, with him, K.C Nwufo, SAN and E.A. John Nwosu, Esq. for the 1st Respondent.

A.J Owonikoko, SAN appears with Prof J.O Olatake, SAN, Chief Hakeem Afolabi, SAN, Ken Ahia, SAN and Olusola A. Dare, Esq for the 2nd Respondent.

Dr. Onyechi Ikpeazu, SAN with Chief Umeh Kalu, SAN, Dr. Sunny Ajala, SAN, Echezona Etiaba, SAN and Valentine Offia, Esq for the 3rd Respondent