IN THE COURT OF APPEAL (PORT HARCOURT JUDICIAL DIVISION)
OTHER CITATION: WIKE V. ICHEONWO (1999) 4 NWLR (PART 600)
SUNDAY AKINOLA AKINTAN JUSTICE, COURT OF APPEAL
SYLVANUS ADIEWERE NSOFOR JUSTICE, COURT OF APPEAL
ABOYI JOHN IKONGBEH JUSTICE, COURT OF APPEAL
EZENWO NYESOM WIKE APPELLANT
1. SAMUEL ROGERS ICHEONWO RESPONDENTS
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
NSOFOR, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision, on the 20/2/99 of the Local Government Election Tribunal for Rivers State of Nigeria, (hereinafter to be referred to as the tribunal, simply, for short) holden in Port Harcourt.
In the Obio/Akpo Local Government Council Chairmanship election held on the 12/12/98 the contestants in the election included (a) Ezenwo Nyesom Wike contesting on the platform of Peoples Democratic Party (PDP); Cyprian Chukwu for the Alliance for Democracy (AD) and Cyprian Tasie Wike. He contested on the platform of All Peoples Party (APP). At the conclusion of the election exercise, the votes as scored and as recorded for the political parties respectively were as follows:-
(1) 40,370 votes for PDP
(2) 11,441 votes for AD and
(3) 6,833 votes for APP.
But in making a return of the candidate who won the election by scoring the majority of lawful votes, the Independent National Electoral Commission (INEC) (the body statutorily responsible for conducting the elections and the 2nd respondent herein) declared Samuel Rogers Ichenwo (the 1st respondent) the winner. The 1st respondent was or is himself of the Peoples Democratic Party (PDP). Dissatisfied with the return made by the INEC - (2nd respondent), the petitioner challenged the return by filing an election petition.
The petition is copied at pages 1 to 9 of the record. The 1st respondent filed a reply. It is copied in pages 11 to 14 of the record. The 2nd respondent's reply is contained in pages 21 to 22 of the record. There was also filed a rejoinder (i.e. reply to the 2nd respondent's reply to the petition) by the petitioner.
The petitioner has challenged the return of the 1st respondent on the grounds that:-
"(1) the 1st respondent Samuel Rogers Ichenwo was not a candidate at the election having not been sponsored by any political party and was at the time of the election not qualified or disqualified from being elected.
(ii) the 1st respondent was not duly elected by a majority of valid votes cast at the election, the 1st respondent not being a candidate sponsored by any political party instead it was the petitioner who was duly elected by a majority after valid votes cast at the said election. Alternatively:-
The petitioner was validly nominated but was unlawfully excluded from the election". The petitioner, therefore, prayed for the following reliefs:-
"that it may be determined that the said Samuel Rogers Ichenwo (1st respondent) was not duly returned/elected and that the petitioner, Ezenwo Nyesom Wike ought to have been returned and should accordingly be returned.
"that it be determined that the purported election of Samuel Rogers Ichenwo - 1st respondent, is void and that a bye-election be conducted in respect of the Local
Government Chairmanship Election with the petitioner as the nominee or candidate sponsored by the Peoples Democratic Party"
The petition came on before the tribunal on the 26/1/99. A full scale trial started then. At the trial, a number of documents were received as evidence in evidence from the Bar and with the consent of counsel. Some of these were:-
(i) Exh. A: "INEC Form C.F.00I" dated or made, "/6/11/98".
(ii) Exh. A1: "Submission of list of candidates by political party". dated "16/11/98"
(iii) Exh. A3: "INEC screening of Chairmanship candidate for the 5th December 1998 Local Government Election " dated" 21st November 1998"
(iv) Exh. A4: "PDP submission of list of Chairmanship candidates" dated "25th November 1998".
(v) Exh. G: "INEC Form C.F. 003" dated "26/11/98"
(vi) Exh. L; "Memorandum" dated "4//2/98"
(vii) Exh. D; Letter dated 27/11/98.
I shall deal in some details with these Exhibits later in the judgment.
At the conclusion of all the evidence - oral and documentary - and after receiving written addresses by the counsel. the tribunal in a reserved and considered decision, struck out the petition. In reaching its conclusion, the tribunal expressed itself at page 72 of the record, inter alias, thus:-
"Based on the authorities cited and the evidence adduced before us we are inclined to hold that we lack jurisdiction to resolve the issue as to who was sponsored by PDP to contest the
Chairmanship position on platform (sic) at PDP for Obio/Akpor Local Government during the 5/2/98 and 12/12/98 Local Government election.
Not satisfied, indeed dissatisfied with the decision, the petitioner has appealed from the decision to this court on four grounds. The notice of appeal together with the grounds of appeal was copied in pages 74 to 77 of the record. I decline to reproduce the grounds of appeal. In my view, the issues as formulated for determination adumbrated them fully.
In this court, the petitioner' is the appellant. I shall be referring to the 1st respondent at the trial as the respondent herein; the 2nd respondent at the trial not having filed a brief in the appeal and not having participated in the appeal-case proceedings.
The appellant filed an appellant's brief of argument on the 4/3/99. The respondent filed the "1st respondent's brief of argument" on the 10/3/99. The appellant at page 2 of the appellant' brief identified three issues for determination to wit:-
"(i) Whether the Election Tribunal had no jurisdiction to entertain the petition,the subject matter of the appeal.
(ii) Whether the petitioner was duly screened and cleared or whether he merely received a provisional clearance.
(iii) Whether the petitioner was not entitled to judgment based on the evidence."
For the respondent, counsel in the "1st respondent's brief of argument" at page 3 thereof, formulated two issues. They are:-
"1. Whether the honourable tribunal was right in holding that it had no jurisdiction to hear this matter.
2. Whether in the circumstance of this case, the petitioner can rely on section 84(1)(d) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 hereinafter called Decree No. 36 of 1998 to bring this petition and ask that he be returned as having won the election the subject matter of the petition."
At the hearing of the appeal, counsel on either side had adopted his brief of argument. On the one hand, Mr. Ukala for the appellant urged us to allow the appeal and on the other hand counsel for the respondent urged us otherwise.
Dealing with Issue No.2 firstly, Mr. Ukala had referred to paragraphs 2 and 3 of the 4th Schedule to the Decree No. 36 of 1998. It was the contention by the counsel in the brief that the 2nd respondent (INEC) received both Form CF 001 (Exh. A) and CF 002 (Exh. A1) in respect of the appellant but neither Form CF 001 nor Form CF 002 was received by the INEC in respect of the 1st respondent.
As the counsel argued, the receipt of the Forms CF 001 and CF 002 is a precondition to a person being screened or cleared to contest the election if not rejected as per paragraph 3(2) to the 4th Schedule to the Decree. Counsel referred to Exh. A3 in which the appellant was mentioned, "eo nomine", as "No. 7" and to the testimony of the P.W.1. The appellant, it was submitted, could not be submitted with any other candidate to contest the election.
Arguing the issue No. 1, counsel contended in the appellant's brief that the tribunal was in error in divesting itself of jurisdiction to entertain the petition, relying on the decision in the older cases including Onuoha v. Okafor (1983) 8 SC 52 and Balenwu v. Chinyelu (1991) 4 NWLR (Pt.183) 30. He drew attention to the pleadings - paragraph 3(a) of the petition.
Counsel referred to and relied on section 81(1)(a) of Decree No. 36 of 1998, the evidence by the P.W.2 and Exhibits A and A1. Reliance was further placed on paragraph 7(2) 10 Schedule 4 to the Decree No. 36 of 1998.
It was, therefore, submitted that there being evidence that the petitioner was screened and cleared to contest the election he could no longer be substituted with the respondent. The tribunal had the jurisdiction to determine who, between the appellant and the respondent, was nominated to contest the election.
Referring to Exhibit D, counsel submitted that it (Exh.D) dated the 27/11/98 was made several days after the appellant had been duly screened and cleared to contest the election. The purported substitution of the appellant with the 1st respondent was an exercise in futility. It was a void action at law. The respondent could not, therefore, derive any legitimacy from the void recognition of him as a candidate for the election by the INEC.
Similarly, the 1st respondent could not rely on Exh. G which was ineffectual having been made in the absence of Form CF 001 and CF 002.
Concluding, counsel urged the court to resolve the issues in favour of the appellant. Learned counsel for the 1st respondent in his brief has submitted that the tribunal was justified in declining jurisdiction to entertain the petition. It raised questions of sponsorship of candidates to contest the election, Such intra-party disputes or matters, it was contended, fall outside the jurisdiction of the tribunal, as prescribed in or by section 84(1) of Decree No. 36 of 1998. Learned counsel cited a long line of cases including Onuoha v. Okafor (1983) 8 SC 52 at Pp. 154-156; Balonwu v. Chinyelu ( 1991) 4 NWLR (Pt.183) 30 at P. 39: Bakam v. Abubakar (1991) 6 NWLR (Pt.199) P. 564 to mention just a few.
Learned counsel then drew attention to the evidence by the R.W.1 and to Exhibits B, C, G, H and J. It was submitted, based on these Exhibits that the PDP could no longer substitute the 1st respondent with the appellant.
Counsel further contended at page 9 of the 1st respondent's brief that the appellant could not rely on section 84(1)(d) of Decree No. 36 of 1998 to bring the petition unless he was unlawfully excluded from contesting the election. It was the submission by the counsel in the brief that the candidate for the election statutorily cleared to contest the election was the 1st respondent to whom Exhibit G was issued. Without Exhibit G, counsel argued that the appellant could not be heard to say that he was substituted.
Now, an issue of the jurisdiction of a tribunal or court is basic. It is fundamental. A determination by any tribunal without jurisdiction confers no right. It creates no obligations; only because it was a decision without jurisdiction.
The question, therefore, arises: Was the matter before the tribunal a mere matter of an intra-party dispute as contended by counsel for the 1st respondent relying on Onuoha v. Okafor (supra) and its other line of cases? And this leads me to look, firstly, at the petition itself. Before doing that, let me pause here for a while for a comment or two for the purpose of completeness to put the point aside. The Onuoha v. Okafor case (supra) was decided on its own set of facts. And it is the facts and the circumstance of any given case that frame the decision in the particular case. Unless the facts and circumstances in the Onuoha v. Okafor case be similar with the fact of the present case in hand, then in my view, the Onuoha v.
Okafor case (supra) would be inapplicable here and, so has been cited out of its proper context. Afterwards, these cases decide principles not rules and there is a distinction to be drawn between a rule and a principle.
Now, paragraph 3(1)of the petition pleaded inter alia:- "the 1st respondent was not a candidate at the election not having been sponsored by any political party and was at the time of the election not qualified or disqualified from being elected".
Some of the facts pleaded includes, (see paragraph 3 (viii) of the petition): "The petitioner was screened and cleared to contest the election on the platform of the Peoples Democratic
Party by the 2nd respondent who at the end of the exercise submitted the names of cleared candidates to the Director of the State Security Service for vetting largely for the purpose of determining if the cleared candidates had any criminal records .............The petitioner says that the State Security Service had no objection to his clearance as a candidate at the said election. The petitioner will at the trial found on the 2nd respondent's letter ref. No.
INEC/RS/399/7 dated 21st November. 1998 containing the petitioner's name therein as No.7 a PDP candidate cleared to contest the Chairmanship election in Obio/Akpor Local Government Council. The 2nd respondent is hereby given Notice to Produce the Same." Then comes paragraph 3(x) of the petition which pleaded that:- "the petitioner will at the trial contend that having been screened and cleared the 2nd respondent had no lawful authority to prevent him from contesting the election".
To complete the circle, I, now, advert to the testimony of the Senior Legal Officer of 2nd respondent (INEC) (Uche Elekwe.) He testified as the P.W.1 His evidence is contained at pages 39 to 41 of the record. Part of the testimony of the P.W.1 in-chief read as follows:- "I was posted to Rivers Stale for the purpose of screening Chairmanship candidates for December 1998 election. The candidates were screened ..I participated in the screening exercise up to 24/11/98. The petitioner was screened ... I screened the petitioner. After the screening exercise we cleared the petitioner and sent list of cleared candidates to State Security Services for vetting .. There was no objection as regards any of the candidates".
Section 81(1) of the Decree No. 36 of 1998 which establishes in each State of the Federation and the Federal Capital Territory, Abuja, one or more Election Tribunals to be known as Local Government Election Tribunal stipulates, inter alia:
"[that the tribunal] shall have original jurisdiction to hear and determine any question as to whether:
"(a) any person has been validly elected at an election under this Decree".
And section 83(1) of the Decree provides that
"An election petition may be presented by one or more of the following persons
(a) person claiming to have had a right to contest or be returned at an election;
I, now pass over to 4th Schedule to Decree No. 36 of 1998. Paragraph 7(2) of the 4th Schedule which is relevant. It reads:-
"(2) No candidate who has been screened and cleared to contest an election shall be prevented from contesting the election except the candidate dies or voluntarily withdraws his candidature".
Now, at the date of the Chairmanship election on the 12/12/98, the appellant was alive - not dead. He did not "voluntarily withdraw his candidature".
It is my respectful opinion, in view of paragraph 7(2) of the 4th Schedule to the Decree (supra), that once a person "has been screened and cleared to contest an election" the political party to which he belongs no longer has a power to stop him from contesting the election. Any question or dispute about his sponsorship ceases to be a matter within his political party to determine. Indeed, I shall make bold to say that his sponsorship becomes a non-issue either as between him and the political party or, as between him or any other person within the same party to which he belongs. Put in another form, any question about that person's eligibility to contest the election on the platform of the political party ceases to be a matter of intra party dispute. No. Why? Because the political party cannot stop him from contesting the election.
In my respectful opinion, unless I be wrong, there was no provision in the Electoral Act similar to paragraph 7(2) of the 4th Schedule to Decree No. 36 of 1998 (supra) when the Onuoha v. Okafor's case (supra) was decided. And this, again, in my view respectfully, makes all the difference and distinguishes further the circumstance of the present appeal case-proceedings from the Onuoha v. Okafor's case (supra).
I now revert to some of the Exhibits I referred to above and promised to deal with in some details later in this judgment. And a good starting point for their consideration, it seems to me is to refer, firstly, to Schedule 4 of the Decree No. 36 of 1998. Again, paragraph 2 of the 4th schedule is vital. It provides inter alia;
"2(1) Every political party shall, on such day as may be specified by the Commission before the date appointed for an election, deliver to the Commission -
(a) in Form C.F. 001 set out in Schedule 6 to this Decree, the personal particulars of their candidates for the election as supplied by the candidates;
Pausing here for a while, in order to achieve a logical sequence, it is necessary to say, Immediately, that Exh. A (supra) is the "Form C.F. 001" in respect of the appellant. and "(b) in Form C.F. 002 set out in Schedule 6 to this Decree a list of candidates the political party [PDP] proposes to sponsor at the election".
(the square brackets with their contents are supplied).
Again, I pause here to point out straight-away that Exhibit A1 (supra) is the PDP's list of the candidates submitted to the INEC pursuant to its (PDP's) mandatory obligation under paragraph 2 of the 4th Schedule to the Decree No. 36 of 1998 (supra). It exhibit A1, was submitted in respect of the candidate therein mentioned.
"eo nomine". He was the appellant. "Wike Ezenwo Nyesom".
For the purposes of completeness in treatment, it is desirable to carry paragraph 2(2) of Schedule 4 to the Decree. The paragraph provides:-
"(a) in Form C.F. 003 set out in Schedule 6 to this schedule a list of the candidates who are adjudged qualified to contest the election and.
It is my respectful opinion that unless and until a political party complied with the provisions of paragraph 2(1)(a)and (b)(supra) the Commission would not consider paragraph 2(2)(a) (supra), Put in another form, a political party must first, comply with paragraph 2(1)(a) and 2( 1)(b) of Schedule 4 to the Decree No.36 of 1998 in respect of any candidate for the election before ever the Commission would act pursuant to paragraph 2(2)(a) of the 4th Schedule (supra).
Note: (1) For the avoidance of a doubt, Exhibit A and Exhibit A1 were each dated "/6/11/98". And Exhibit A3 is dated "21st Nov. 1998".
Now, to Exhibit G to which the counsel in the 1st respondent's brief referred:
It (Exhibit G) is dated "26/11/98". It is later in time than Exhibits A, A1 and A3.
It (Exhibit D) is in Form C.F. 003. But the Independent National Electoral Commission Letter reference No. INEC/RS/389/7 of 21st November, 1998,(Exhibit A.3) in its paragraphs 2 and 3 read as follows:
"Pursuant to the above request therefore, the attached list of cleared candidates are being sent to you. Your office is however requested to send black the vetted list to us within three (3) hours please".
Now, paragraph 2 sub-paragraph (3) of the 4th Schedule to Decree No. 36 of 1998 stipulates a follows:-
"(3) Where a candidate is rejected the Commission shall afford the political party an opportunity to substitute the candidate with a fresh candidate provided that the substitution is made within a reasonable time or as may be directed by the Commission". This question now arises. Was there any evidence showing that the appellant after being "screened and cleared" was rejected by the INEC? No. But assume, argumento, it did reject the appellant, then, in my view respectfully, the political party would necessarily comply with paragraphs 2(1)(a) and 2(1)(b) of schedule 4 to the Decree before it (INEC) would issue Exhibit G.
It follows, in my respectful opinion that whatever the PDP purported to do or, did after the appellant had been screened and cleared to contest the Chairmanship election of 12/12/98, was a futile exercise, It was a violent and fragrant violation of the statutory provisions of paragraph 7(2) (supra).
Counsel for the 1st respondent in the brief referred to Exhibit B. It (Exhibit B) is "Declaration of result of Chairman of Council" showing the 1st respondent as scoring 40,370 votes. It is this very declaration that the appellant by his petition set out to challenge because the 1st respondent could not and would not be substituted for him (appellant) to contest the election. By the substitution(sic), null and void at law as I hold, the people of the Obio/Akpor Local Government Area had been denied and deprived of a right to express their will through the ballot box and their votes in the choice of the Chairman.
I shall, now, proceed to record my resolution of the issues as formulated in the appellant's brief formally. Issues Nos. (1) and (2) ought to be resolved in the favour of the appellant and, eo ipso, against the respondent. I do so resolve them.
Issue No. (3) ought to be answered in the negative, There is some merit in the appeal.
I shall, therefore, order that the Independent National Electoral Commission (INEC) do conduct a bye-election with the appellant (Ezenwo Nyesom Wike) as a candidate for the office of the Chairman of the Obio/Akpor Local Government Council on a date and at a place it (INEC) shall determine.
The appeal is allowed. There shall be costs in favour of the appellant against the respondents fixed at N3,000.00.
AKINTAN, J.C.A,: I agree.
IKONGBEH, J.C.A.: I agree.
E.C. Ukala For the Appelants
E.N. Nwonodi (holding the brief of E.C. Aguma) For the Respondents