In The Court of Appeal

(Owerri Judicial Division)

On Monday, the 27th day of February, 2012

Suit No: CA/OW/EPT/45/2011(REASONS)

Before Their Lordships

 Between

 And

REASONS FOR JUDGMENT

HARUNA M. TSAMMANI, J.C.A.: This court pronounced judgment on this appeal on the 25th day of November, 2011. By that pronouncement, this appeal was adjudged to have merit and was consequently allowed. We equally exercised the special powers granted this court under section 16 of the Court of Appeal Act, 2004 to enter judgment on the merit of the petition, by annulling the election conducted by the 2nd Respondent on the 9th day of April, 2011, and consequently ordered a fresh election to be conducted within 90 days (ninety days) with the 1st Appellant as a candidate. We also reserved reasons to be given for the decision to a latter date. I now give those reasons hereunder.

The appeal emanated from the judgment of the National and State Assembly Election Petition Tribunal (now referred to as the "Tribunal") sitting at Owerri, Imo state. The Appellants in this appeal were the petitioners in the Tribunal, while the Respondents were the Respondents.

A summary of the events that led to this appeal is that, on the 9th day of April, 2011, the 2nd Respondent conducted election to occupy the seat of member to represent Ahiazu/Ezinihitte Federal constituency in the House of Representatives of the Federal Republic of Nigeria. At the conclusion of the said election, the 1st Respondent was declared by the 2nd Respondent as duly elected. The Petitioners/Appellants were not satisfied by the declaration and return of the 1st Respondent and thus filed a Petition before the Tribunal on the sole ground that: 

"The 2nd petitioner's candidate; the 1st petitioner, was validly nominated but was unlawfully excluded from the election".

The Petitioners/Appellants then claimed as follows:

Whereof the Petitioner/Appellants prays (sic) the Honourable Tribunal to declare that the 1st petitioner was validly nominated but was unlawfully excluded from the election held on the 9/4/11 for member of Ahiazu/Ezinihitte Constituency for the House of Representatives.

They then sought for the order(s) of the Tribunal:

(a) That the election of the 1st Respondent is void

(b) That the 2nd Respondent orders a fresh election in the Ahiazu/Ezinihitte Federal Constituency in which the 1st Petitioner shall be a candidate.

Upon being served the petition, the 1st and 2nd Respondents filed separate replies thereto. The Petitioners then filed replies to the Respondents' respective replies. The pre-hearing session was held and the petition went to full trial. At the close of evidence, the parties filed and exchanged written Addresses and the matter was consequently adjourned to the 13/9/2011 for adoption of the written addresses. However, before the 13/9/2011, precisely on the 8/9/2011, the 1st Respondent filed an application challenging the competence of the Tribunal to determine the petition on the ground that the petition was not signed as required by law. The said motion was heard and the written addresses adopted the same day and adjourned for ruling/judgment on the application and the substantive petition. 

However, on the 29/9/2011, the Tribunal delivered judgment, limiting itself to the application only, while avoiding any pronouncement on the substantive petition. By it's ruling, the Tribunal struck out the Petition for want of jurisdiction, on the ground that it was not signed as required by Paragraph 4(3) (d) of the First Schedule to the Electoral Act, 2010 (as amended). Being dissatisfied with the decision, the petitioners/Appellants filed a Notice of Appeal before this court. The Notice of Appeal which is dated and filed the 17 /10/2011 is premised upon five (5) grounds of appeal. The Grounds of Appeal without their particulars are as follows:

1. The Election Petition Tribunal erred in law when it assumed jurisdiction to hear a preliminary objection to the competence of the petition filed after the conclusion of substantive hearing of evidence in the petition with written addresses filed and date fixed for adoption of the addresses.

2. The Election Petition Tribunal erred in law when it held that there was no copy of the petition signed by the petitioners' counsel in the file of the Tribunal.

3. The Election Petition Tribunal erred in law when it held that it was of the firm view that the cases of OKEREKE v. YAR'ADUA (2008) 12 NWLR (Pt.1100) Pg.120-121; AGAGU v. MIMIKO (2009) 1 NWLR (Pt. 1140) Pg. 342, and BUHARI v. OBASANJO (2003) 17 NWLR (Pt. 850) Pg. 432 at 475- 484 of which the Tribunal was aware, did not apply to the facts of the present case, following which their Lordships refused to be bound by those decisions. 

4. The Election petition Tribunal erred in law when it struck out the Petition No: EPT/IM/NASS/HR/01/2011 as incompetent. 

5. The Election Petition Tribunal erred in law when Their Lordships failed to grant the petition when there was uncontroverted evidence that the 1st Petitioner who was the undisputed candidate of the 2nd Petitioner was excluded from the election held on the 9th April, 2011.

As it is demanded by the Rules of this Court, parties filed and exchanged briefs of argument. The appeal was then heard on the 24/11/2011. It is pertinent to point out at this stage that the 1st and 2nd Respondents filed separate 

Notices of Preliminary Objection to the hearing of the appeal. For easier understanding and articulation of the issues in the Notices of Preliminary Objection, I propose to reproduce them here. The 1st Respondent's Notice of Preliminary Objection reads thus:

GROUND ONE: the Notice of Appeal as formulated by the Appellants is incompetent.

PARTICULARS:

1. In the Notice of Appeal particularly the Paragraph describing the part of the decision complained of, the Appellants stated that they were appealing against the "whole petition."

2. The Appellants did not state whether they are appealing against the whole or part of the decision of the Tribunal contrary to the mandatory provisions of Order 6 Rule2(1) of the Court of Appeal Rules.

GROUND TWO: Ground 5 of the Grounds of Appeal is incompetent.

PARTICULARS: 

1. The Appeal is against the Ruling contained at pages 369-391 of the record of Appeal whereby the objection to the competence of the petition was sustained.

2. No decision was given in respect of the substantive petition. 

3. Ground 5 of the Grounds of Appeal does not relate to or attack any ratio of the ruling delivered on the 29th day of September, 2011.

GROUND THREE: The "Supplementary Record" of Appeal compiled and filed by the Appellant is incompetent. 

PARTICULARS:

1. Additional or "Supplementary Record" is compiled by the respondents.

2. The Additional or "supplementary Record" of Appeal herein was compiled by the Appellants.

The 2nd Respondents' Notice of Preliminary Objection reads as follows:

TAKE NOTICE that the 2nd respondent herein named intends, at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you, viz: "an order of the Honourable Court striking out the Notice of Appeal, Ground 5 of the Grounds of Appeal and the Supplementary Record of Appeal for being incompetent." 

AND TAKE NOTICE that the grounds of the said objection are as follows:

(1) That Notice of Appeal is incompetent as the appellant did not complain against the decision of the tribunal wholly or partly but against the Petition.

(2) Ground 5 of the Grounds of Appeal is incompetent in that it did not complain against any part of the Ruling of the Honourable Tribunal but relates to the substantive petition

(3) Supplementary Record of Appeal is not known to both the Practice direction and the Court of Appeal Rules.

It would be clearly seen that the issues raised in the two Notices of preliminary Objection filed by the 1st and 2nd Respondents in this appeal, are similar in substance and context. In that respect, I propose to consider them together, but specifically on the Notice of Preliminary Objection raised by the 1st Respondent. In that respect a resolution of the preliminary Objection raised by the 1st Respondent would suffice as the resolution of the Notice of Preliminary Objection filed by the 2nd Respondent. 

Now, the 1st Respondent's Notice of Preliminary Objection has been argued at pages 5-11 of the 1st Respondent's Brief of Argument, while the 2nd Respondent argued his Preliminary objection at pages 2-5 of the 2nd Respondent's Brief of Argument. On the 1st Ground of the objection, learned counsel (silk) for the 1st Respondent contended that, order 6 Rule 2(1) of the Court of Appeal Rules, 2011 makes provision for the contents of a Notice of Appeal. That a notice of appeal is the foundation of an appeal, and therefore if it is defective, the court of Appeal has inherent power to strike it out on the ground that it is incompetent. The cases of AMADI v. OKOLI (1977) SC Pg. 57; CLEN JOSH LTD v. TOKIMI (2008) 13 NWLR (Pt. 1104) Pg. 422 at 439; AKINLOYE v. ADELAKUN (2005) 5 NWLR (Pt. 657) Pg. 530 at 535 and BILAM DAMBAM v. ARDO LELE (2000) 11 NWLR (pt. 673) pg. 413, were cited to emphasise the crucial position of a Notice of Appeal. Learned silk for the 1st  Respondent went on to rely on the case of UDENIGWE v. EMENALO (2009) ALL FWLR (pt. 454) pg. 1544 to submit that, a valid notice of appeal must therefore comply with the provisions of order 6 rule 2(1) of the Court of Appeal Rules, 2011.

It is the further contention of the 1st Respondent on this issue that, a look at the Notice of Appeal at pages 392 of the record of Appeal discloses that the Appellants stated thus:

"2. Part of the petition Appealed Against whole petition." That this means that the Appellants are appealing against "the whole petition" and not against any decision, either partly or wholly as mandatorily required by Order 6 rule 2(1) of the Court of Appeal Rules, 2011. It was therefore submitted that the Notice of Appeal is defective as this court cannot go on a voyage of discovery to find out whether the Appellants are appealing the whole or part of the decision of the 29/9/2001. We were then urged to strike out the Notice of Appeal on that score. It should be noted that the 2nd Respondent argued in a similar vein.

Learned senior counsel for the Appellant, while conceding to a typographical error in typing "petition" instead of "decision" in paragraph 2 of the Notice of Appeal, submitted that, to determine whether the notice of Appeal shows what is complained about, the entire document needs to be construed. He relied on the case of AQUA LTD v. ONDO SPORTS COUNCIL (1988) 4 NWLR (Pt.91) Pg. 622 at 641 to further submit that Paragraph 1 of the Notice of Appeal shows that the complaints is about "the decision of the Election Petition Tribunal... sitting at Owerri on 29tn day of September, 2011 striking out the petition. That no doubt has been created in any reasonable mind as to what the complain is all about. 

Learned counsel (silk) for the Appellant further submitted that, the complaint of the Respondents is as to form and does not becloud the points in issue in the appeal, and therefore cannot render the appeal incompetent. That once a careful reader will not be misled or left in reasonable doubt as to what the appellant's compliant is about, incompetency would not arise. The case of ADEROUNMU v. OLOWU (2000) 4 NWLR (Pt. 652) Pg. 253 at 255 was cited in support. That by the decision in ABUBAKAR v. YAR'ADUA (2008) 4 NWLR (Pt. 1078) Pg. 465 at 511 Para B, the typographical error can be corrected. We were then urged to dismiss this ground of the objection.

Now, Order 6 rule 2(1) of the Court of Appeal Rules, 2011 stipulates that:

"All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called "the notice of appeal") to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sough ...".

It is therefore clear from the above stated rule of the Court of Appeal Rules, that a notice of appeal is the process that originates an appeal, and therefore, the very foundation of an appeal. Accordingly, if it is defective, it is likely to be struck out by the Court of Appeal as being incompetent. See AMADI v. OKOLI (1977) 7 SC Pg. 57; NWANWATA v. ESUMEI (1998) 8 NWLR (Pt. 563) Pg. 630 at 667 and KOREDE v. ADEDOKUN (2001) 15 NWLR (Pt. 736) Pg. 483 at 495-496. That being so, it is a requirement of order 6 r 2(1) of Court of Appeal Rules, 2011 that, a valid notice of appeal must state the decision of the court complained of; whether it is the whole decision or a part thereof. Thus, any notice of appeal which fails to state or specify that part of the decision or judgment complained of is incompetent. See NIGER CONST. LTD v. OKUNGBEMI (1937) 4 NWLR (Pt. 67) pg. 787 and OSEYOMON v. OJO (1993) 6 NWLR (Pt. 299) Pg. 344. 

In the instant appeal, the complaint of the Respondents, as I understand it is that, what the Appellant complains of is on "the petition" and not "the decision" of the Tribunal. True enough, a cursory reading of paragraph 2 of the Notice of Appeal would show that, what the Appeal complaints against is "the whole petition" and not "the whole decision". The issue now is, would that be such as to render the appeal incompetent. To answer this poser, I would agree with learned counsel for the Appellants that, the whole of the Notice of Appeal should be considered in construing Paragraph 2 of the Notice of Appeal. If that is done, it would be obvious that, what occurred in the said paragraph 2 is either an oversight of counsel or a typographical error. In either case, that vice should not be allowed to render the appeal incompetent especially when the operative or opening part of the Notice of Appeal clearly indicates that the appeal is against the decision of the Election petition Tribunal ... sitting at Owerri on the 29/9/2011.  

Surely, the dictum of the Supreme Court, per Niki Tobi; JSC in ABUBAKAR v. YAR'ADUA (Supra) should assuage the Respondents when he said at Pg. 511 Para. B of the Report that:

"It is a known "fact that blunders must take place in litigation process and because blunders are inevitable, it is not fair, in appropriate cases to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case".

I think that settles this issue. In that respect, ground 1 of the Respondents objection lacks merit and is accordingly discountenanced. On the second Ground for the objection, it is the contention of the Respondents that Ground 5 of the Notice of Appeal is incompetent. It is therefore submitted that grounds of appeal must be derived from and/or attack the ratio decidendi of the decision of the lower court in the ruling or judgment appealed against. Referring to the cases of CHRISTABEN GROUP LTD v. ONI (2010) ALL FWLR (Pt. 504) Pg. 1439; OBI v. INEC (2007) 7 S.C. Pg.268; NWANKWO v. ECUMENICAL DEV. CO-OP. SOCIETY (EDCS) U.A (2007) 1-2 S. C. Pg.145; OWIE v. IGWIWI (2005) 5 NWLR (Pt.917) Pg. 184 at 217 amongst others, the Respondents submitted that, any ground of appeal which does not arise from the judgment appealed against is incompetent and liable to be struck out. It was therefore submitted that, the Ruling of the Tribunal was confined to the motion challenging the competence of the petition only, and nothing was said by the Tribunal on the substantive petition. That Ground 5, which challenges the failure of the Tribunal to grant the petition is therefore incompetent, as it does not flow from the ruling appealed against. We were then urged to strike it out.

Learned senior counsel for the Appellants contended that, Ground 5 is predicted on the special powers granted to the Court of Appeal under section 15 of the Court of Appeal Act, 2004, to do what the trial court could have done or ought to have done, but failed to do. He relied on the case of OBI v. INEC (2007) 11 NWLR (pt. 1046) pg. 565 at 639 paras F-C, which he contends has brought section 15 of the Court of Appeal Act in tandem with section 22 of the Supreme Court Act. See also OKEREKE v. YAR'ADUA(2008) 12 NWLR (Pt.1100)Pg.95 at 120 paras F-G, whereof, learned silk contends, the Supreme Court assumed jurisdiction on a point upon which the Court of Appeal had made no pronouncement, but which could have been made. That the authorities cited by the 1st Respondents save for OBI v. INEC (supra) do not support the Respondents.

It is trite law that, a ground of appeal must not be formulated in abstract, but must arise or relate to the judgment appealed against. In other words, a ground of appeal must be against a ratio decidendi of the decision relating to the judgment appealed against. Accordingly, a ground of appeal must be connected with the controversy between the parties. See EGBE v. ALHAJI (1990) NWLR (pt. 128) pg. 546 at 590; M. B. N. PLC v. NWOBODO (2005) 14 NWLR (Pt.945) Pg.379 and IKENTA BEST (NIG) LTD v. A.G. RIVERS STATE (2008) 6 NWLR (Pt. 1084) P. 612. Where a ground of appeal does not relate to the ratio decidendi of the decision appealed against, it is liable to be struck out.

I have given Ground 5 of the Notice of Appeal a very liberal and careful consideration. Therein, the complaint of the Appellants is against "the failure" of the Tribunal to grant the petition, and not it's "refusal" to grant same. Surely "failure" to do an act is not the same as "refusal" to do same. I agree that the said Ground 5 has been poorly drafted, but I am satisfied that considering the whole circumstances of the case, Ground 5 is a complaint against the "failure" of the Tribunal to determine on the substantive Petition. That informs the call on us by the Appellants, to invoke Section 16 of the Court of Appeal Act, to do what the Tribunal failed to do. Ground 5 is therefore competent and is accordingly sustained.

The 3rd Ground for the objection challenged on the competence or propriety of the Supplementary Record of Appeal. On that ground, it is the contention of the Respondents that, the Supplementary Record is incompetent as it does not comply with Order 8 rule 6 and 7 of the Court of Appeal Rules, 2011. That it is only the Respondents that can compile and transmit additional or supplementary record, and not the Tribunal Secretary or the Appellant. 

It is also the contention of the Respondents that the Supplementary Record does not comply with Order 8 rule 7 of the Court of Appeal Rules, 2011, as it does not contain the particulars set out in the said Order 8 rule 7. That as leave of this court was not sought and obtained before compiling and transmitting the Supplementary Record of Appeal, it is incompetent pursuant to order 20 rule 2 and 3(1) and (2) of the Court of Appeal Rules, 2011. We were therefore urged to strike out the Supplementary Record of Appeal.

It is the contention of the Appellants that, while the complaint of the Respondents is against the Supplementary Record allegedly filed by the Appellants, the Respondents' brief of argument is against a Supplementary Record compiled and transmitted by the Secretary of the Tribunal. That since the argument is at variance with the purported notice of preliminary objection, it should be struck out. That ex abundanti cautela, the Appellants did not file any additional record of appeal as put forward by the Respondents. That there is nothing in the Court of Appeal Rules prohibiting the Registrar of a trial court transmitting an omitted process to the appellate court. We were then urged to dismiss this ground of Preliminary Objection. 

I have carefully perused the provisions of order 8 rule 6 of the Court of Appeal Rules, 2011. Clearly, that provision deals with compilation of additional record by a respondent. It has nothing to do with an Appellant or the Secretary of the trial Tribunal. It is trite law that, it is the duty of an appellant through the Registrar or Secretary, as the case may be, to produce the records which he seeks to challenge in court. I agree with learned Appellant's senior counsel that there is nothing under the rules of this court prohibiting the Secretary or Registrar, to compile and transmit a Supplementary Record, where such has been omitted in the original compilation made and transmitted. The objection on this ground has certainly not been made out. It is also dismissed. That done, the entire preliminary objections of the 1st and 2nd Respondents have no merit and are accordingly dismissed. I now move to the substantive appeal.

I had earlier pointed out that parties filed and exchanged briefs of argument. The Appellants' Brief of Argument is dated the 1/11/2011 and filed the 9/11/2011. The Appellants also filed a Reply to the 1st Respondent's Brief of Argument, and it is dated the 22/11/2011 and filed the 23/11/2011. The 1st Respondent's Brief of Argument is filed the 22/11/2011 while that of the 2nd Respondent is dated the 22/11/2011 and deemed filed the 24/11/2011 vide Motion on Notice filed the 22/11/2011.

In arguing the appeal, the Appellants formulated four (4) issues for determination as follows:

A. Whether at the time the Election Petition Tribunal entertained the Preliminary Objection filed by the 1st Respondent, the Tribunal still had the vires to entertain the motion. Grounds 1 & 3.

B. Whether the conclusion of the Election Petition Tribunal that the petition was not signed is correct.

Ground 2.

C. Whether the striking out of the petition as incompetent is correct.

D. Whether the Appellants did not prove their complaint of exclusion from election to entitle them to the judgment of the tribunal. Ground 5.

The 1st and 2nd Respondents adopted the four issues for determination formulated by the Appellants.

This issue (issue one) queries the competence of the tribunal to entertain the application leading to the striking out of the Appellants' petition. Arguing this issue, Chief M. I. Ahamba, SAN of learned counsel for the Appellants began by questioning the conclusion of the Tribunal at 390 of the record of appeal, which he submits is not correct and sustainable in law. He then raised two posers, which he answered by submitting that, the motion for dismissal was heard after full hearing and exchange of written addresses by the parties, and that it was done without the leave of the Tribunal being first sought and obtained.

Chief Ahamba, SAN of learned counsel for the Appellants then submitted that in that circumstance, by Paragraph 47(1) of the First Schedule to the Act, (Supra), the hearing of that application by the Tribunal at the time it did, is null and void. He relied on the case of OKEREKE v. YAR'ADUA (2008) 12 NWLR (Pt. 1100) Pg. 95 at 120 Paras. F-G, which was determined on Paragraph 6(1) of the Practice Direction, 2007, a provision in pari materia with Paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010, to submit that since the application was not heard at the pre-hearing session or with leave of the Tribunal, but after conclusion of substantive hearing, it was null and void, and should be set aside.

Learned senior counsel went on to submit that, the refusal of the Tribunal to follow that decision and the cases of AGAGU v. MIMIKO (2009) 1 NWLR (Pt. 1140) Pg. 392 and BUHARI v. OBASANJO (2003) 7 NWLR (Pt. 850) Pg. 423, was erroneous and unsustainable in law, for the reasons given by the Tribunal at pages 390 of the record of appeal. That the three decisions are on all fours with the instant case, on the relevant facts and perspectives, and being decisions of the Supreme Court and the Court of Appeal, the decision of the lower Tribunal was given per incuriam. That Paragraphs 53(2) and (5) of the First Schedule to the Electoral Act, 2010 (as amended) are in pari materia with Paragraphs 49(2) and (5) of the Electoral Act, 2006 on which the cases of AGAGU v. MIMIKO (supra) and BUHARI v. OBASANJO (supra) were decided, and therefore the interpretation in those cases remain binding on the Tribunal until overruled by the Supreme Court.

It is also the contention of learned senior counsel that, Paragraphs 53(2) and (5) of the First Schedule to the Act (supra) have placed some limitation on the general rule that in an election petition proceeding issues of jurisdiction may be raised at any stage of the proceedings, even at the appeal level. He relied on the decision of this court in INEC v. ACTION CONGRESS (2009) 2 NWLR (Pt. 1126) Pg. 524 at 601 Paras. H-B per Salami, JCA (as he was then was). That by those decisions, the law is firmly settled that, a Petition Tribunal has no vires to entertain an application to set aside a petition as incompetent whether for irregularity, or for nullity, where the applicant has taken steps in the proceeding after being aware of the perceived irregularity.

That based on the cases cited above, it was erroneous for the Tribunal to refuse to be bound by the law that, no application should be brought without leave outside the pre-hearing session, and that no party should bring an application to set-aside an election petition for irregularity or for nullity, once he has taken fresh steps after becoming aware of such defect. We were then urged to resolve this issue in favour of the Appellants.

Sir Bon Nwakanma, SAN of learned counsel for the 1st Respondent contended that, the law is that, where a point or issue relates to jurisdiction, it can be properly raised and argued with or without the leave of court. He relied on the cases of YAHAYA v. ABDULLAHI (2006) ALL FWLR (Pt. 336) Pg. 298 at 307 per Ba'aba, JCA; RIRUWAI v. SHEKARAU (2009) ALL FWLR (Pt.461) Pg. 975 at 990 and ENUGWU v. OKEFI (2000) 3 NWLR (Pt. 650 at 634. He also contended that, the Appellants quoted and used the case of OKEREKE v. YAR'ADUA (supra) out of context, as the Supreme Court explained itself properly at pages 134 Paras. B-H of the Report. That since the preliminary objection raised by the 1st Respondent before the Tribunal was an issue of jurisdiction, the Tribunal had the vires to entertain it at the time it did. We were then urged to answer this question in favour of the Respondents.

Dr. U. U. Chukwumaeze of learned counsel for the 2nd Respondent argued in a similar vein as that of the 1st Respondent. He also submitted that, the case of OKEREKE v. YAR'ADUA (supra) relied on by the Appellants does not support their case, but that of the Respondents, as therein the Supreme Court restated the age-long principle of law that, the issue of jurisdiction can be raised at any stage of a proceeding or even at the appellate courts. Learned counsel then submitted that, the jurisdiction of the Tribunal is constitutionally enshrined and therefore can not be derogated from by Paragraph 47(1), 53(2), (3) and (5) of the First Schedule to the Electoral Act, 2010 (as amended), The case of A. G. ABIA STATE v. A. G. FEDERATION  & 33 ORS (2006) ALL FWLR (Pt. 38) pg. 604 was at 703 paras. B-C  was cited in support. Learned counsel then urged us to resolve this issue in favour of the Respondents. 

Responding on points of law, Chief Ahamba, SAN of learned counsel for the Appellants submitted that, no matter the coloration the 1st Respondents may give the dictum of Tabai, JSC in OKEREKE v. YAR'ADUA (supra) at pg.134 paras.  B-H, it is a fact that the learned justice did not dissent to the lead judgment of Mohammed, JSC to the effect that motions may only be entertained during pre-hearing session in an election petition proceedings. That the Supreme Court followed that decision in NWANKWO v. YAR'ADUA (2010) 12 NWLR (Pt.1209) Pg.518 at 559 and ABUBAKAR v. NASAMU (unreported) APPEAL No. SC/350/2011 delivered on the 9/11/2011 at Pg. 27 per Tabai, JSC.

I think the resolution of this issue borders on the interpretation of Paragraphs 47(1) and 53(2) and (5) of the First Schedule to the Electoral Act (supra). Accordingly, I find it necessary to produce those provisions here.

"47 (1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or court.

53.(2) Application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect.

(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings".

Now, Paragraph 47(1) of the First Schedule to the Electoral Act (supra) clearly stipulates that, all motions shall be heard at the prehearing session. Despite this provision, the Respondents insist that since their motion or objection before the Tribunal concerned the jurisdiction of the Tribunal to hear and determine the petition, it was properly taken before the Tribunal at the time it was taken. They also contend that the said paragraphs 47(1), 53(2) and (5) cannot take away their right to raise the jurisdictional issue, which they can exercise at anytime and anyhow. I wish to point, out here that, the Respondents' objection before the Tribunal was on the competence of the petition. Surely, the general effect of an incompetent petition is that it automatically divests a tribunal of jurisdiction and brings the matter at an end. In that case, it is not a matter of mere irregularity or defect, but that of jurisdiction. I point out this fact considering the nature of the objection raised before the Tribunal. It was on the issue of signing of the petition, which is a requirement to the competence of the petition under Paragraph 4(3) (b) of the First Schedule to the Electoral Act (supra). Signing of a petition is therefore a condition precedent to the validity or competence of the petition, and thus an issue of jurisdiction. See EMEJE v. POSITIVE (2010) 1 NWLR (Pt. 1174) Pg. 48 at 71.

I think it is on that score that the Respondents have relied heavily on the dictum of Tabai, JSC in OKEREKE v. YAR'ADUA (supra) on the nature of jurisdiction. I wish to most humbly point out that the statement was made by His Lordship in contribution to the lead judgment delivered by Mohamed JSC. Delivering the lead judgment in that case, Muhamad, JSC said;

"The Paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained."

That case was decided under Paragraphs 6(1) of the Practice Direction, 2007, which is in Pari materia with Paragraph 47(1) of the First Schedule to the Electoral Act, 2010 (supra). As rightly pointed out by Chief Ahamba, SAN of learned counsel for the Appellants, despite his dictum in the case, His Lordship, Tabai, JSC did not dissent to the lead decision quoted above. Indeed, the Supreme Court reiterated that position as postulated by Muhammad, JSC in the case of NWANKWO v. YAR'ADUA (2010) 12 NWLR (Pt. 1209) Pg. 518 at 599. Therein, the Supreme Court in the lead judgment delivered by Onnoghen, JSC, confirmed this position when he pointed out at pg. 559 paras. B-D that, motions or objections on points of law in an election petition, can only be taken and determined at the pre-hearing session, and that any motion or preliminary objection raised in an election petition not taken and determined at the pre-hearing session is done without jurisdiction and therefore null and void. Incidentally, Tabai, JSC agreed with that position in the recent case of ABUBAKAR & ORS v. NASAMU & ORS (supra) cited by learned senior counsel for the Appellants.

It is therefore clear that the learned trial Tribunal was in error when it ignores those lucid decision of the apex court of this land, and proceeded to hear and determine on the motion or objection of the 1st respondent filed outside the pre-hearing session. Indeed, sadly so, it was taken after conclusion of the pre-hearing and hearing of the substantive petition, and even when parties had filed and exchanged written addresses. The action of the Tribunal accordingly led to clear injustice to the Appellants.

Furthermore, it is obvious that the 1st respondent filed objection, and the Tribunal took and acted on same to the detriment of the Appellants in clear violation of Paragraph 53(2) of the First Schedule to the Act (supra). The Respondents had filed replies to the petition, filed a motion to have the petition struck out and actively participated at the pre-hearing session. Indeed, they had also participated at the hearing by cross-examining the Petitioners/Appellants' witnesses, and called witnesses of their own and the hearing concluded. Written Addresses were ordered by the Tribunal and the Respondents complied by filing and exchanging same with the Appellants. Clearly therefore, they had taken, not only a fresh step, but several fresh steps without raising the objection. They are therefore caught by Paragraphs 53(2) of the First Schedule to the Act. On the whole therefore, the trial Tribunal's action clearly occasioned injustice to the Appellants. This issue is therefore resolved in favour of the Appellants.

The 2nd and 3rd issues (B and C) were argued together. Therein, after reproducing a summary of the findings of the Tribunal at pages 389-390 of the Record of Appeal, learned senior counsel for the Appellants, referred us to the Supplementary record of appeal, wherein the original copy of the petition is contained. He then submitted that the petition speaks for itself as it shows the signature of Chief M. I. Ahamba, SAN, KSC signed by hand. It was then submitted that, the finding of fact that there was no original copy of the petition signed by counsel to the Petitioners is not consistent with the facts on record, and that this is an appropriate case wherein this court is as good as the trial Tribunal to enter the correct finding in substitution of that made by the trial Tribunal. We were then urged to find as a fact and to hold that there is an original copy of the petition signed by the petitioners, counsel in the court's file.

It is also the submission of the learned senior counsel for the Appellants that, where the original copy of the petition in the court's file is signed, by the counsel, it suffices. The case of BALONWU v. IKPEAZU (2005) 13 NWLR (Pt. 942) pg. 479 at 520 per Galadima, JCA (as he then was) and UDENWA & ANOR v. CHIEF HOPE UZODINMA & ANOR (unreported) APPEAL No: CA/OW/EPT|27/2011 delivered on 17/10/2011 were cited in support. On this issue, learned counsel for the 1st Respondent contended that, the issue of whether or not the petition is competent when signed as done in this case was settled by this court in the case of ANTHONY OLUFUNSO WILLIAMS V. BOLA AHMED TINUBU (unreported) APPEAL No: EPT/CA/L/003/03 delivered on the 18/7/2003, wherein this court was confronted with a similar situation as in this case. That the law is that, a trial court is entitled to take a judicial and judicious look at any document in its file, even when such document was not tendered or admitted as exhibit in the proceedings. See OYEWOLE v. AKANDE (2009) ALL FWLR (pt. 491) pg. 813; W.A.P.I.N v. NIG. TOBACCO CO. LTD (1987) 2 NWLR (pt. 56) Pg. 299 and SCOA v. BOURDEX LTD (1987) 4 NWLR (pt. 65) pg. 489. That based on the foregoing, the Tribunal confirmed from its record and came to the conclusion at page 390 of the record of appeal that, the petition was not signed in compliance with paragraph 4(3) (b) of the First Schedule to the Act (supra). Learned senior counsel for the 1st Respondent then submitted that, the above finding by the Tribunal is justified as the petition contained at pages 1-34 of the record of Appeal was not signed as required by law. That the Appellants did not discharge the burden on them to prove that there was a copy of the petition in the Tribunal file actually signed by the Petitioners' counsel, as the Supplementary Record cannot provide such proof it being invalid before the court. We were then urged to resolve this issue in favour of the Respondents.

Learned counsel for the 3rd Respondent contended that as the petition was singed "original copy signed Chief M. I. Ahamba, KSC, SAN" it did not comply with Paragraph 4(3) (b) of the First Schedule to the Act (supra). He also urged us to resolve this issue in favour of the Respondents.

Now, Paragraph 4(3) (b) of the First Schedule to the Electoral Act, 2010 (as amended) provides that:

"The election petition shall further- 

(a) ...

(b) be signed by the Petitioner or all Petitioners or by the Solicitor, if any, named at the foot of the election petition. " 

By paragraph 4(3) (b) of the First Schedule to the Act therefore, it is a mandatory requirement, and thus a condition precedent that, the petition be signed by either the petitioner or all the petitioners, or by the solicitor, if any, named at the foot of the petition. In determining the relevant petition in case of a dispute on whether the petition is signed, it is the original copy of the petition filed or lodged in the Tribunal's Registry, and on which necessary fees have been assessed and evidence of payment of the fees for the petition have been endorsed, that will be considered. See BALONWU v. IKPEAZU (2005) 13 NWLR (pt.942) PG. 479 at 520.

In the instant case, it is true that the copy or copies of the petition relied on by the Tribunal in determining the 1st Respondent's objection had on the signature column, "original signed by me, Chief M. I. Ahamba KSC, SAN". In the case of WILLIAM v. TINUBU (supra) cited by the 1st Respondent, where a similar situation arose, this court held the petition incompetent, as it tantamounts to the petition not being signed at all. However, in the case of CHIEF ACHIKE UDENWA & ANOR v. CHIEF HOPE UZODINMA & ANOR (unreported) No: CA/OW/EPT/27/2011 delivered on the 17/10/2011, this court had recourse to the original petition filed before the Tribunal to resolve the issue. In the same manner, we have considered the Supplementary Record of Appeal filed before us on the 9/11/2011, containing original petition. It is clear that the original petition as filed in the Tribunal Registrar was duly signed by chief M.I. Ahamba, KSC, SAN. There is no dispute on that fact. In that respect, I see no reason for over-flogging the issue. I accordingly hold that the petition in this case was duly signed as required by paragraph 4(3) (b) of the First Schedule to the Act (supra). This issue is thus resolved in favour of the Appellants.

The last and final issue deals in my view, with whether considering the whole circumstances of this case, it will be appropriate for us to invoke the power of this court under section 16 of the court of Appeal Act, 2004. Arguing this ground, learned senior counsel for the Appellants submitted that, in view of the prevailing circumstance of the case, as an election appeal, the appropriate and just step to take is for us to assume full jurisdiction over the whole proceeding as if the proceedings had been instituted in the court of Appeal as court of first instance, and to rehear the case in whole by considering the evidence and the addresses filed by the parties and to deliver judgment in the matter.

Learned senior counsel for the Appellant went on to submit that, this court has the status of finality in the matter, the matter being in respect of a Legislative House election. That this court can competently follow what the Supreme Court did in OKEREKE v. YAR'ADUA (supra) at Pg. 129 paras. E-F, and consider the evidence and the addresses filed by the parties and deliver judgment in the matter pursuant to section 16 of the Court of Appeal Act, 2004. He relied on the case of OBI v. INEC (2007) 11 NWLR (Pt. 1046) Pg. 565 at 639 paras. F-C to state that the five conditionalities for the exercise of such power exist in the present appeal. Learned counsel then submitted that, there are documentary evidence which show that the 1st Appellant was the undisputed candidate of the Labour Party who could not be voted for because he was unlawfully excluded by the 2nd Respondent by the failure to include the Labour Party emblem in the ballot paper. 

We were then urged to consider the addresses of counsel already filed, vis-a vis the exhibits before the court and to enter a just decision in this matter, which is to nullify the election and order a fresh one in which the 1st Respondent would be voted for.

It is the contention of chief Bon Nwakanma, SAN of learned counsel of the 1st Respondent that, this is not an appropriate situation for the invocation of this court's special powers under Section 16 of the Court of Appeal Act, 2004 as there is no such prayer in the Notice of Appeal. That by order 6 rule 2(1) of the Court of Appeal Rules, 2011 and the case of F.A.A.N. v. GREENSTONE LTD (2009) ALL FWLR (Pt.500) Pg.741, an appellant is bound by his notice of appeal and the relief sought therein. That relief 4(b) on the Notice of Appeal is to the effect that this court orders the Tribunal to determine the merit of the appeal based on the evidence and addresses of the parties already adopted by the parties, and that it is not this court that the Appellants prayed to determine the merit of the appeal. It is therefore submitted by learned senior counsel that, the Appellants cannot abandon the reliefs sought in the Notice of Appeal and seek a fresh relief in the Appellants' Brief of Argument.

It is the further submission of Chief Nwakanma, SAN for the 1st Respondent that as enunciated in the cases of JADESIMI v. OKOTIE EBOH (1986) 1 NWLR (pt. 16); EJOWHOMU v. EKOKETER MANDILAS LTD (1986) 5 NWLR (pt. 39) Pg. 1; ADEAGBO v. YUSSUF (1993) 6 NWLR (Pt. 301) Pg. 623; the Appellants have not satisfied the conditions for the invocation of Section 16 of the Court of Appeal Act, 2004. He restated the conditionalities for the exercise of such power as enunciated in the case of OBI v. INEC (supra) and submitted that the 1st, 2nd and 3rd conditionalities do not exist in the present appeal. On the first conditionality, he referred to Section 285(6) of the 1999 Constitution (as amended) and the cases of ALHAJI KASHIM SHETIMA & ANOR v. ALH. MOHAMMED GONI & 4 ORS; and ALL NIG PEOPLE PARTY v. ALH MOHAMMEL GONI & ANOR v. ALH. KASHIM SHETTIMA & 3 ORS (unreported) APPEAL No: SC .332/2011; SC.333/2011 and SC.352/2011 (consolidated judgments delivered on the 31/10/2011, to submit that this court cannot assume jurisdiction over the petition under Section 16 of the Court of Appeal Act, 2004 to deliver judgment since the petition had lapsed on the 25/10/2011. The cases of P.D.P. V. C.P.C. and DR.  GOODLUCK JONATAHTN v. C.P.C (unreported) in consolidated APPEAL No: SC/272/2011 and SC/276/2011, delivered on 31/10/2011 were further cited in support.

On the 2nd and 3rd conditionalities, it is the submission of learned senior counsel that, the real issue raised up by the claim of the Appellants at the Election Tribunal cannot be distilled from the grounds of appeal, as the real issues in controversy in the substantive election petition cannot be distilled from the five grounds of appeal.

That in any case, all the necessary materials are not available for consideration. That from the record of appeal (Pg 314-358) thereof, oral evidence was given at the trial in which this court did not have the opportunity of hearing and observing their demeanour in the witness box. We were in that respect, urged to decline invitation of the Appellants to exercise our special power under Section 16 of Court of Appeal Act, 2004.

The arguments of learned counsel for the 2nd Respondent are essentially on similar chord with that of the 1st Respondent.

Now, Section 16 of the Court of Appeal Act grants this court special powers which include, the power to assume full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance. Such power extend to the power to rehear the case in whole by considering the evidence or material, and the addresses filed by the parties before the lower court or Tribunal in order to deliver judgment in the matter as the justice of the case demand. However, before this court can exercise such special powers, certain conditions must exist. Such conditions were stated in the case of OBI v. INEC (supra) at Pg. 639 Paras. F-C per Aderemi, JSC.

one of such conditions is that, the lower court must have had the legal power to adjudicate in the matter before the appellate court can entertain it. In other words, the court below must have got the jurisdiction to entertain the suit. The Respondents contend that, we cannot exercise the special powers granted by section 16 of the court of Appeal Act, because the lower tribunal had no jurisdiction to hear the petition at the time we pronounced judgment, the petition having lapsed on the 25/10/2011. I have carefully read and reflected on the Supreme Court decisions cited by learned senior counsel for the 1st Respondent on the issue. I wish to point out that before the full reasons of this court could be given for the judgment in this appeal, the Respondents filed a motion before us seeking that our judgment be set aside. The said motion was filed on the 29/11/2011.This court delivered ruling on the said motion on the 10/2/2011. My learned brother M. A. Owoade, JCA, who delivered the lead ruling in his usual erudition held thus: 

"The circumstances of the SHETTIMA v. GONI interlocutory appeal is different from that of the present case where (1). we are concerned with a situation of the judgment of the Court of Appeal from a final decision of the Election Petition Tribunal; 

(2) Given the result unlike the SHETTIMA v. GONI case (supra), that the Election Petition Tribunal became functus officio and has indeed totally put its hand off the "filed petition". In this respect, unlike the SHETTIMA v. GONI case, any reversal or corrective order by the Court of Appeal has nothing to do with the 'filed petition" which has infact been disposed off by the Tribunal. Here, the combined effect of the provision of Section 246 and 6(1) of the 1999 Constitution (as amended), Section 15 of the Court of Appeal Act and Order 4 Rule 9 of the Court of Appeal Rules, 2011 empower the Court of Appeal to make fresh orders in relation to the "filed petition".

My learned brother, Owoade, JCA went on to positively postulate as follows:

"In order words, a community reading and harmonious interpretation of Sections 285(6) and 246 of the constitution would produce the following:

(i) ..

(ii)In the operation or application of Section 246 of the 1999- Constitution (as amended) the Court of Appeal is entitled to exercise all the judicial powers of the Federation as vested in it by Section 6(1) of the Constitution. The judicial powers of the Court of Appeal include power to rehear the case in whole or in part pursuant to Section 15 of the Court of Appeal Act and order 4 Rule 9 of the Court of Appeal Rules" See AGBAKWURU & ANOR v. IGBOKWE (unreported) No: CA/OW/45M/2011 delivered on the 10/2/2011 at pages 11-12. 

I adopt the reasoning of my learned brother in the resolution of this issue. I therefore hold that this court has the jurisdiction to exercise its special power under Section 16 of the Court of Appeal Act, 2011 to rehear and determine this petition, the lower Tribunal having failed to do so.

On the 2nd and 3rd conditionalities, I wish to point out that, the issue as to whether or not the real issue raised by the claim of the Appellants can be distilled on the ground of appeal, has been effectively dealt with in the preliminary objection. It suffices to state that, from the record of appeal, there are sufficient materials at pages 314-358 of the said record upon which the substantive matter can be determined.

Accordingly, we invoke our powers under Section 16 of the Court of Appeal Act, 2004 and accordingly proceed to consider issues in the substantive petition filed by the Appellants at the trial Tribunal. Now, I have carefully perused the record of appeal. The petition of the Appellants filed before the trial Tribunal is at pages 1-5 of the Supplementary Record of Appeal transmitted by the Tribunal Secretary. The Grounds for the petition is contained in Paragraph 3 of the petition. It is to the effect that:

"The 2nd Petitioner's candidate, the 1st Petitioner, was validly nominated but was unlawfully excluded from the election." The facts grounding the petition are as stated in Paragraphs 4A-41 of the petition.

At the trial, the Petitioner/Appellants called two witnesses one of who was the 1st Petitioner/Appellant. The 1st Respondent also testified for himself, while the 2nd Respondent called one Mrs. Olachi Nwugo, a Legal Officer in the 2nd Respondent's office. Several documents were tendered by the parties and admitted in evidence. At the close of evidence, parties filed and exchanged Written Addresses and the matter adjourned for adoption of those written addresses.

I had pointed out that the ground for the Petition is that the 1st petitioner/Appellant was validly nominated but was unlawfully excluded. That falls within Section 138 of the Electoral Act, 2010 (as amended). It stipulates as follow:

138. (1) An election may be questioned on any of the following grounds that is to say:-

(a) ...

(b) ... 

(c) ...

(d) that the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election. 

That is why, the 1st Respondent in his final address before the Tribunal, which is contained at pages 172-190 of the record of appeal, contended that in his view, the main issue that arose for determination in the petition is:

"Whether the 1st Respondent was validly nominated to contest the April 2nd (now 9th) 2011 election."

The Respondents therefore questioned the emergence of the 1st Appellant as candidate for the 2nd Appellant for the election. That, it was one Anthony Okeiyi who emerged as the winner of the 2nd Appellant's primary election and therefore the substitution of his name for that of the 1st Appellant was in breach of Section 33 of the Electoral Act.

It should however, be noted that, it is only a member of the same political party that has a right of action or locus standi to sue for being wrongly or unlawfully substituted or changed. The right to sue on that ground is not a global right, but is one restricted as a purely domestic affair between members of the same political party and INEC to sort out in a court of law, if need be. See ZARAIYDA v. TILDE (2008) 10 NWLR (Pt. 1094) Pg. 184 at 207. The Respondents therefore have no right to question the nomination of the 1st Appellant on this ground. In any case, the said Anthony Okeiyi has not contested such substitution. 

Furthermore, an over-view of the submissions of the Respondents in their Written Addresses vis-a-vis the evidence led at the trial show clearly that, the Labour Party (2nd Appellants) duly nominated the 1st Appellant as its candidate for the election. The 1st Appellant duly filed the requisite Nomination Form and forwarded same to INEC. 

Furthermore, the 2nd Appellant entered into various correspondences with the 2nd Respondent, whereof the name of the 1st Appellant was listed as the candidate of the 2nd Appellant. See Exhibits C, D, and H. To further support the Appellants, the said Chief Anthony Okeiyi who won the Labour Party primaries had withdrawn his candidate vide Exhibit G. It is clear therefore that the 2nd Respondent is bound by the contents of Exhibit E and H which contain the name of the 1st Appellant as the candidate of the 2nd Appellant for the House of Representative seat to represent Ahiazu/Mbaise/Ezinihitte Federal Constituency. There is no evidence on the record to show that any person ever challenged the candidature of the 1st Appellant before the election. There is also nothing to indicate that the 2nd Respondent had rejected the candidacy of the 1st Appellant. Indeed, exhibits E and H proof otherwise.

I accordingly, find proved or established from the evidence on the record that, the 1st Appellant was validly nominated by the 2nd Respondent to contest the election in question. 

Having thus found, Exhibit "J" which is a ballot paper used at the election show that the 2nd Appellant and its candidate (1st Appellant) were excluded from the election. A cursory perusal of the said Exhibit "J" show clearly that the logo of Labour Party (2nd Appellant) is conspicuously missing on the ballot paper. The Appellants timeously complained to the 2nd Respondent vide Exhibit "K" and "L", but the said Respondent did not react. I therefore hold that the omission by the 2nd Respondent to indicate the Logo of the 2nd Appellant on the Ballot paper amounted to exclusion of the Appellants from the election. The Appellants have therefore been able to establish from the evidence on the record that 1st Appellant was validly nominated but was unlawfully excluded from the election.

It is for the above stated reasons that on the 25/11/2011, we pronounced judgment on this appeal, annulling the election conducted on the 9/4/2011 and ordered the 2nd Respondent to conduct a fresh election with the 1st Appellant as a candidate within 90 days. We however made no order as costs.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading before now the reasons for the judgment given by my learned brother, H. M. Tsammani, JCA. I agree entirely with the reasoning and conclusion of my learned brother which I also adopt that the appeal is meritorious and it is also allowed by me. I also endorse the consequential order made therein including order as to costs.

MOJEED A. OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Tsammani, J.C.A. I agree with the reasoning and the conclusion. I also abide with the consequential orders.

Appearances