I. T. MUHAMMAD, J.S.C.

(Delivering the Leading Ruling): I consider it pertinent to

reproduce from the record of appeal, background facts giving rise to the appeal on hand
from which stemmed the application under consideration.

The Independent National Electoral Commission (INEC), 1strespondent, herein, commenced

preparations in April, 2011, towards holding gubernatorial elections in Kogi State as well as
in other affected states. The elections were scheduled to take place in such states on the
26th of April, 2011. Meanwhile, the former Governor of Kogi State, Alh. Ibrahim Idris, who
was then the incumbent Governor of the State, instituted an action at the Federal High
Court, Abuja (trial court), against the 1st respondent claiming inter alia, an injunction
restraining the 1st respondent from conducting any gubernatorial election in Kogi State in
April, 2011, until the expiration of his four-year tenure on April, 2012.

In its judgment of 23/02/2011, the trial court held that the tenure of the then Kogi State
Governor which commenced from5th April, 2008, shall terminate on 5th April, 2012.
Consequent upon that, the 1st respondent halted; cancelled and abandoned all preparations
concerning the proposed gubernatorial election in Kogi State.

On an appeal to the Court of Appeal, Abuja Division, the decision of the trial court was
affirmed.

There was a further appeal to this court by the 1st respondent which was later consolidated
with other appeals on similar issues.

In the meantime, 1st respondent conducted fresh gubernatorial election for Kogi State on
the 3rd of December, 2011 in which the3rd respondent emerged winner of the election.

This court delivered its judgment on the consolidated appeals before it on the 27th of
January, 2012 holding that the terms of office of the then incumbent Governor of Kogi State,
Ibrahim Idris, had indeed lapsed in May, 2011 and that he should vacate office immediately.
This paved way for the swearing in of the 3rdrespondent on 27th January, 2012 on the basis
of his victory at the December 3rd, 2011 poll.

On the 7th of March, 2012, the appellant in the appeal on hand and the 8th respondent
commenced an action at the Federal High Court via an originating summons which was later
amended. Each of the 1st, 2nd and 3rd respondents filed a preliminary objection challenging
the jurisdiction of the Federal High Court to determine the 6th and 7th respondents’ suit as
it was not a pre-election matter, and that the appellant lacked the locus standi to maintain
the action. The preliminary objections were upheld and the 6th and 7threspondents’
amended originating summons was struck out. On appeal to the Court of Appeal, the appeal
was dismissed by that court and it affirmed the decision of the Federal High Court that the
latter lacked jurisdiction to entertain the appellant’s case. The present appeal, now before
this court, stemmed from the Court of Appeal’s dismissal of the appellant’s appeal.

My lords, the true picture of the whole episode will remain incomplete, if I omit to capture
the new facts that emerged later, and that is: at the time of filing of the suit by the
appellant, an Election Tribunal had been set up for Kogi State to deal with all challenges
relating to the December 3rd 2011, election, and pending before the Tribunal was an
election petition filed against the 3rd respondent and others. At the end of trial, the Election
Tribunal found and held that the gubernatorial election of December 3rd 2011, in Kogi State,
was properly conducted and that the 3rd respondent was validly elected as Governor of Kogi
State. On 14th July, 2012, Court of Appeal affirmed the judgment of the Election Tribunal,
holding that the 3rdrespondent was duly elected as Governor of Kogi State. On further
appeal to the Supreme Court, the court affirmed the judgment of the Court of Appeal.

I should now consider the application before this court. It is to be recalled, however, that the
pending appeal is on the decision of the Court of Appeal which affirmed the trial court’s
decision that it (the trial court) lacked jurisdiction to entertain the appellant’s case.

On the date scheduled for hearing the appeal (9/10/14), several applications including
preliminary objections were filed by the respective senior counsel and other counsel in the
matter. Some of the applications were withdrawn and struck out; other harmless ones were
granted right away.

Mr. Okutepa, SAN, sought to move his motion on notice which he said was dated 2nd of
October, 2014 and filed on the 3rdof the same month. He said the motion on notice prays
for an order substituting the appellant, Congress for Progressive Change (CPC)with the
applicant, All Progressives Congress (APC) are for same substitution to appear wherever CPC
appears.
Soon thereafter, Mr. Uche, SAN, for the 3rd respondent, stood up to say that he filed a notice
of preliminary objection and counter-affidavit. Mr. Ajana, for 2nd respondent, stated that he
too filed a notice of preliminary objection. None of the other counsel for the respondents
filed any objection. This court granted permission to the objectors to proceed with their
objections first. The trite law is that where there is an objection against
consideration/continuation of a process that objection should be determined first. See:
Ogoja L.G. v. Offoboche (1996) 7 NWLR (Pt. 458) 48; Katto v. C.B.N. (1991) 9 NWLR (Pt. 214)
126; A.N.P.P. v. R.O.A.S.S.D.
(2005) 6NWLR (Pt.920) 140.

While moving his objection, Mr. Uche, SAN, stated that he filed the notice of objection on
the 3rd of October, 2014 (dated same day). That it was accompanied by a 7-paragraph
affidavit deposed to by one Mr. Kanayo Okafor. Four exhibits were attached, marked as
exhibits “A, B, C, and D”. Referring to some of the depositions made in the affidavits in
support of exhibits “B” and “C” in particular, Mr. Uche, SAN, stated that the appellant
deposed that the certificate of registration of CPC was withdrawn and that inground 2 of the
grounds in support of the said motions as in exhibits “B” and “C” it was admitted by the
appellant that CPC ceased to exist by the withdrawal of its Certificate of Registration. That
having admitted the nonexistence of the appellant, Mr. Okutepa, SAN can’t be heard
speaking from both sides of his mouth.

Mr, Uche, SAN, stated that he also filed a counter-affidavit to which exhibit “E”, which is the
Certificate of Registration for the merger of CPC and other political parties was attached.
Exhibit “E” shows the effective date of the merger to be 31/07/2013. He drew the court’s
attention to note that although the appellant reacted to the counter-affidavit, it failed to
exhibit any document in support of its case. Mr. Uche, SAN, urged this court further to take
cognizance that the appeal on hand was filed on the 7th day of August, 2013(seven days
after the death of the appellant). He urged us to dismiss the appeal on hand and the
incompetent motion as it will serve no useful purpose.

Mr. Ajana of counsel for the 2nd respondent, stated that he too, filed a notice of preliminary
objection, premised on almost same grounds like that of the learned senior counsel for the
3rd respondent/objector. He said that he aligned himself with the submissions made by Mr.
Uche, SAN, for the 3rd respondent/objector and that he had nothing useful to add. He urged
that the appeal be dismissed.
Messrs. Fatogun, Abalaka, Ekpa, Mathew and Eshomegie, each of them stated that he did
not file any notice of preliminary objection on behalf of the party he represents.

Making oral submission in response to the notices of preliminary objections filed, Mr.
Okutepa, SAN, stated that the appeal filed by the appellant (CPC) is competent. He argued in
a paradoxical manner that, the notices of preliminary objections filed by Mr. Uche, SAN, and
Mr. Ajana, would suffer the same fatal consequence if indeed the appellant (CPC) is dead
and, the processes filed by them are also dead.

Mr. Okutepa, SAN, argued that APC (the applicant) is the party in the application before this
court but not a party to the preliminary objections now moved by the 2nd and 3rd
respondents. He argued further that the issue now before this court on whether or not CPC
(the appellant) died on 31/07/13 or on 8/8/13, can only be resolved by reference to the law,
i.e. the Electoral Act, 2010 (as amended), sections 78(1); 80 and 84(5) thereof. Mr. Okutepa,
SAN, submitted that before the merger, CPC was a registered political party. The death of
CPC will only become conclusive on the date INEC issued certificate to the merged political
parties and INEC issued that merger certificate on 8/8/2013. He sounded the point that until
the issuance of the certificate of merger, each of the political parties to the merger only
became sick and not yet dead.

The death of each of the merged parties came on the 8/8/2013.He cited in support, the case
of Corporative Commerce Bank Nig. Ltd v. Alex Onwuchekwa (2000) 3 NWLR (Pt.647) 65.
Learned SAN urged that this court should hold that since the certificate of merger was
issued on the 8/8/2013 and the appeal on hand filed on 7/8/13, when CPC was yet to be
wound up as a political party, the appeal on hand is competent by virtue of section 80 of the
Electoral Act, 2010 (as amended) and that the objections should be overruled.

It is significant to state from the out-set, my Lords, that an objection ordinarily is that (act)
which is said or felt in opposition or disagreement; the reason or cause for disagreeing, or
disputing. It is an adverse reason or argument. It is a way of saying that one does not like or
agree with what the other wants to do, or has indeed started doing it or has even done it. In
legal parlance, however, objection represents a formal statement opposing something that
has occurred, or is about to occur in court and the objector is seeking court’s immediate
ruling on the point. It may be in general or specific form. An objection is general where no
grounds in support of the objection are given. It is specific if it is supported by one or more
grounds. Anything “preliminary”, denotes anything coming and usually leading up to the
main part of that thing or something else. Thus, a preliminary objection in a case/suit before
a court of law or tribunal is that objection which if upheld would render further proceedings
before that court or tribunal impossible or unnecessary. An example which readily comes to
mind is an objection to the courts or tribunal’s jurisdiction to entertain a matter placed or
raised before it by any of the parties. It is the duty of the court to consider that objection
and give a ruling on it without much a do. The importance of such an approach has been re-
stated severally by this court. At the risk of being immodest, permit me, my lords, to quote
what I said in the case of: Efet v. I.N.E.C. (2011) 1 SCNJ 179at page 194; (2011) 7 NWLR (Pt.
1247) 423 at 444, para. A:
“The aim/essence of a preliminary objection is to terminate at infancy, or as it were,
to nip it at the bud, without dissipating unnecessary energies in considering an
unworthy or fruitless matter in a court’s proceedings. It, in other words, forecloses
hearing of the matter in order to save time.”

See further: Yaro v. Arewa Construction Ltd. & Ors. (2007) 6 SCNJ418; (2007) 17 NWLR (Pt.
1063) 333; Sani v. Okene L.G.T.C. (2008) 5 SCNJ 246; (2008) 12 NWLR (Pt. 1102) 691.

My Lords, I think the fundamental issue to be determined in this application as raised by the
learned SAN for the applicant is whether or not CPC, the appellant, died on 31/7/13 or on
8/8/13.

In his grounds in support of the objection the 3rd respondent stated as follows:
“(2) The appellant on record, Congress for Progressive Change (CPC) ceased to exist
on 31st July, 2013 as admitted by the appellant on oath upon the withdrawal
of its certificate of registration by the Independent National Electoral
Commission on the said 31st July, 2013.

The cancellation of the registration certificate of the appellant on 31st July, 2013 is
confirmed by a certified (3) true copy of an official letter from the Independent National
Electoral Commission to the appellant on 31st July, 2013.

Though, the judgment was delivered on 10th July,2013 by the Court of Appeal, no appeal
was filed by the deceased appellant before its demise on 31st July, (4) 2013.
This appeal was filed on 7th August, 2013, after the (5) death of the appellant.
(6) The appeal is grossly incompetent

The appeal as constituted robs the honourable court of (7) jurisdiction to

enter (sic) same.”

In the counter-affidavit filed by the 3rd respondent, some of the facts above have been
repeated whereas other vital depositions were made as follows:
2. That the present appeal was filed on 7th August, 2013and I annex a copy of
the notice of appeal exhibit “A”.
3. That in court on 2nd October, 2014, we were served with a copy of a fresh
motion for substitution filed by the appellant in the name of the All
Progressives Congress (APC), and I have gone through the said process with
our lead counsel, Gordy Uche, Esq.
4. That prior to filing of the present motion, the appellant had previously filed
two similar motions on notice for substitution before this honourable court,
namely on24th September, 2013 and on 26th September, 2014, and in both
motions on notice, the affidavit in support was sworn to by the same
deponent, namely, Alhaji Kashim Mabo, and I annex herewith copies of the
said motions on notice as exhibits “B” and “C” respectively.

5. That in paragraph 14 of the affidavit in support of the motion on notice filed

on 24th September, 2013 and in paragraph 14 also of the motion on notice
filed on 26thSeptember, 2014, the appellant through the said Alhaji Kashim
Mabo had deposed “That the certificate of CPC was withdrawn on the 31st of
July, 2013.
6. That also in ground No. 2 of the grounds in support of the two motions on
notice, the appellant had stated unequivocally that the Congress for
Progressive Change (CPC) ceased to exist on 31st July, 2013.
7. That most importantly, the cancellation of the registration certificate of the
appellant on 31st July,2013 is confirmed by a certified true copy of an official
letter by Independent National Electoral Commission issued to the appellant
on 31st July, 2013, and I annex herewith the said letter as exhibit “D”.
 8. That the same Alhaji Kashim Mabo has deposed to the affidavit in support of
the present motion for substitution (which is the third one) and has turned
around in paragraph
10 of the affidavit to state that the certificate of registration of CPC was
cancelled on 8thAugust, 2013, after having deposed twice earlier that it was
on 31st July, 2013.
9. That the paragraphs 10 and 12 of the affidavits in support are false.
10. That the appellant deliberately refused to annex and exhibit the certificate of
registration of the All Progressive Congress (APC), notwithstanding that it
referred to it in paragraph 11 of the supporting affidavit.
11. That the said Certificate of Registration of the All Progressive Congress (APC)
is explicit, unambiguous and clear on the fact that the merger producing APC
took effect from 31st July, 2013, notwithstanding that the certificate was
eventually issued on 8th August,2013 as promised in INEC’s letter earlier
annexed herein as exhibit “C” where the Commission stated that thus:
“4. The Commission shall issue a certificate of registration to All Progressive
Congress (APC) indue course.”
12. That I annex the certified true copy of the certificate of registration of the All
Progressive Congress (APC) as exhibit “E”.
13. That I was advised by our lead counsel today at about10am at our aforesaid
office, and I verily believe him, that the present application is incompetent,
and incapable of breathing life into or resurrecting an incompetent appeal.
14. That it is in the interest of justice to dismiss this application as incompetent
and constituting an abuse of court process.”

In the affidavit in support of the preliminary objection filed on11/12/13 by Chief Ajana,
same facts as in paragraphs 2 - 4 from 3rdrespondent’s counter-affidavit as well as from
grounds of objection above, were averred to by the 2nd respondent.

In his reaction to the above depositions, the applicant, through one Mr. O. O. Obla, who
swore to the facts contained in the further and better affidavit filed by the applicant on
8/10/14, made the following averments:
“2. That I was the Deputy National Secretary of the Congress for Progressive Change
(CPC) uptill8th August, 2013 when the merger into APC was concluded and
the certificate of registration issued to All Progressive Change (APC).
3. That I also acted as the Deputy National Legal Adviser of the Congress for
Progressive Change (CPC) uptill8th August, 2013 when the merger into APC
was concluded.
4. That as a result of the above I prayed (sic) a significant role in the processes
that led to the merger of Action Congress of Nigeria (ACN), All Nigeria Peoples
Party (ANPP), Congress for Progressive Change (CPC).

5. That I know as a fact that Congress for Progressive Change (CPC) did not cease
to exist until the certificate of registration of All Progressive Congress (APC)
(exhibit E) was issued and substituted with that of Congress for Progressive
Change (CPC), All Nigeria Peoples Party (ANPP) and Action Congress of Nigeria
(ACN). I am seeing exhibit D attached to the counter affidavit of Kanayo
Okafor for the first time. I know however that the said exhibit D is not a
certificate and cannot be a substitute certificate to that of Congress for
Progressive Change (CPC).
6. That I worked in my office as the Deputy National Secretary of Congress for
Progressive Change (CPC)up till 8th of August when the certificate of
registration of All Progressives Change (APC) was issued substituting same
with the certificate of registration of CPC, ANPP and ACN.
7. That I know as a fact that the power vested on INEC does not include back
dating certificate of registration of any political parties rather the certificate of
APC dated and issued on 8th August, 2013 takes effect from that date.
8. From the above, the 3 legacy parties remained recognized legal entities until
8th August, 2013 when their certificate were substituted.
9. I have also read the affidavit of Alhaji Kashim Mabo and I know as a fact that
he was the Kogi State Chairman of Congress for Progressive Change (CPC)prior
to and until the merger was concluded. I know as a fact that Alhaji Kashim
Mabo not being a lawyer and not being a staff of National Secretariat of
Congress for Progressive Change (CPC) would not know the nitty-gritty of the
steps taken during the merger until the certificate of registration of All
Progressive Change (APC) was issued.
 10. That while reading the counter affidavit of Kanayo Okafor I discovered that he
has exhibited the earlier motions and affidavit sworn to by Alhaji Kashim
Mabo on the 24th September, 2013 and 26th September,2014 to the
counteraffidavit on similar motion for substitution.
11. That I have read inter alia the most recent affidavit of Alhaji Kashim Mabo
swore to on the 3rd October, 2014and I affirm that same is very correct.
However, the earlier ones filed on the 26th September, 2014 and
24thSeptember, 2013 are not correct hence the new motion was filed on the
2nd October, 2014.”

What appears to be apparent from the reaction of the applicant, significantly, are three-fold:
“a. that there was a merger between CPC and other political parties. that the merger
was concluded on the 8th of August, b. 2013. that CPC did not cease to exist until when the
certificate of registration was granted by INEC on the 8th August, c. 2013.”

Earlier, in the affidavit in support of the motion, the applicant averred to the fact of filing the
appeal (on hand) as follows:
“7. On the 10th of July, 2013 the Court of Appeal delivered judgment in respect of
the appeal and dismissed same.
8 The appellant consequently filed an appealed (sic)against the judgment of the
Court of Appeal to this court.
12 That I know as a fact that as at 7th August 2013 when this appeal was filed, CPC as
a political party was still in existence and its certificate was yet to be cancelled
and substituted with the certificate of registration of All progressive Congress
(APC).”

In his oral submission before this court on Thursday the 9th of October, 2014, learned senior
counsel for the applicant argued that in order to determine the existence or otherwise of
the (appellant)CPC, on the date it filed its appeal, reference must be had to the provisions of
the Electoral Act, 2010 (as amended), sections 78(1);80 and 84(5). Permit me my Lords, to
reproduce these sections hereunder:
“78(1) A political association that complies with the provisions of the Constitution
and this Act for the purposes of registration shall be registered as a political
party. Provided that such application for registration as a political party shall
 be duly submitted to the Commission not later than 6 months before a
general election.
80. A political party registered under this Act shall be a body corporate with
perpetual succession and a common seal and may sue and be sued in its
corporate name.
84(5) Where the request for the proposed merger is approved, the Commission shall
withdraw and cancel the certificates of registration of all the political parties
opting for the merger and substitute a single certificate of registration in the
name of the party resulting from the merger.”

My Lords, above are the provisions of the Electoral Act which we were all referred to by the
learned SAN for the applicant. The fundamental question still remains: Is CPC (the appellant
on record), dead or alive, as at the time of filing its appeal to this court? Although the death
of a political party cannot be similar to that of a natural human person, yet its death
resembles, though with dissimilarities, the death of juristic/corporate entity. For instance, a
company is said to have died finally and beyond resurrection when it is completely wound-
up. Mere withdrawal, cancellation or recall of its certificate of registration does not bring its
corporate existence to an end. See: Opebiyi v. Oshoboja (1976) 9 & 10 SC 195; Nzomv. Jinadu
(1987) 1 NWLR (Pt.51) 533; Abekhe v.N.D.I.C. (1995) 7NWLR (Pt. 406) 228 at 240 C - D;

In our later case on similar issues, this court held:

“Now, winding up of a company involves the liquidation of the company/corporation
so that assets are distributed to those entitled to receive them, Campell Black, says,
liquidation is quite distinguishable from dissolution which is the end of the legal
existence of a corporation. Liquidation may precede or follow dissolution (p.839of
Black’s Law Dictionary, 5th Ed.), thus, mere revocation of banking license of a bank,
without more, as claimed by the applicant cannot bring to an end the juristic life of a
bank or corporation. Likewise, where a bank or corporation ceases to operate or
closes its business, that does not determine the legal existence of such a bank or
corporation.”

See the unreported case of Oredola Okeya Trading Co. & Anor v. Bank of Credit & Commerce
International & Anor In Re: Mr. Sikiru& 1 Anor. Appeal No. SC.96/2003 delivered on 17th
January, 2014, (reported as In Re: Omolegbe (2014) 8 NWLR (Pt. 1408) 76).
In this application, the applicant, itself, admitted that the appeal on record was filed by it on
the 7th of August, 2013 (see paragraph 8 of the supporting affidavit to the application). The
bone of contention between the parties, however, is the date when merger of CPC and
other political parties was sanctioned by the INEC. I remind myself here that I have already
set out averments from the affidavits, counter-affidavits, either in support or against the
motion. I took a hard look at all of them and it is my humble view and findings that:
I. There is a pending appeal in this court SC.477/2013, which was filed on the 7th
August, 2013. This fact has been deposed to by the applicant in paragraph 8 of the
supporting affidavit of its motion on Notice filed on 3/10/14. It is also exhibited as
exhibit “A” by the3rd respondent/objector in paragraph 2 of its counter-affidavit filed
on 3/10/14. I had a quick look, curiously, at the record of appeal before this court and
I found the same notice of appeal filed on 7/8/13 (pp.1565, vol. 3 of the record of
appeal).
ii. find that there was indeed a merger of the CPC, ACN and ANPP which gave rise
to a new political party called “All Progressives Congress (APC), the applicant,
herein. This fact is contained in paragraph9 of the affidavit in support of the
applicant’s motion. In fact, the 3rd respondent/objector, not only agreed that there
was such a merger but went on to exhibit certificate of registration of the new
party, APC. It is deposed to and exhibited as exhibit “E” in paragraph12 of the
counter affidavit.
iii. The effective date of the merger, in my honest belief, is the 31st day of July,
2013. My belief is based on the following grounds:

The certificate of registration of CPC was cancelled, which cancellation was confirmed by
INEC through an official letter by INEC, dated and signed by Secretary to the Commission,
one Abdullahi A. Kaigama, on 31st July, 2013.This letter or document was exhibited by the
3rd respondent/objector as exhibit “D” in a paragraph 7 of his counter affidavit.

Permit me my Lords to quote what INEC said in paragraphs 3and 4 of that document:
“3. The registration certificate of Congress for Progressive Change (CPC) is hereby
cancelled and you are therefore requested to submit same to the Commission
immediately.
4. The Commission shall issue a Certificate of Registration to All Progressives
Congress (APC) in due course. (Italicizing by me) That INEC subsequently issued a certificate
of registration of the new party (APC) which INEC named as “Certificate of Merger of
political parties.” That certificate was exhibited in paragraph 12 as exhibit “E” of the counter-
b. affidavit of the 3rd respondent/objector.

However, in paragraph 11 of its affidavit in support, the applicant acknowledged the fact
that the Chairman of INEC signed, dated and issued the Certificate of Registration to APC,
the applicant on the 8th of August, 2013. It is to be noted that the applicant did not exhibit
the said certificate for the court to see. In the said certificate which was exhibited by the3rd
respondent, a lot has been revealed and I find it pertinent to reproduce almost the whole
contents of the said certificate as follows:

“INDEPENDENT NATIONAL ELECTORAL COMMISSION

Certificate of Merger of Political Parties

WHEREAS the Commission having verified the facts and information supplied to it by
ACN, ANPP & CPC Political Parties is satisfied that the said Political Parties have
fulfilled all the necessary conditions for merger as a Political Party.

NOWTHEREFORE, the Commission has, with effect from the 31st day of July, 2013
approved the merger of the aforesaid political parties as a political party to be known
and called All Progressives Congress: pursuant to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) and the Electoral Act,2010 (as amended).

GIVEN under the hand of the Chairman and Seal of the Commission at Abuja.

This 8th day of August, 2013.

SIGNED
PROF ATTAHIRU MUHAMMADU JEGA, OFR,
CHAIRMAN,
INDEPENDENT NATIONAL ELECTORALCOMMISSION”
From the contents of exhibit “E”, my Lords, three things are clear beyond dispute:
1. that having been satisfied with the facts and information supplied to it by
ACN, ANPP and CPC, for their merger into a new party, INEC has, with effect
from 31st day of July, 2013 APPROVED the merger of the said parties into a
political party by name “All Progressives Congress.”

2. that the effective date of the merger of the said political parties including CPC
is 31st day of July, 2013.
 3. that it was on the 8th of August, 2013, when authentic information of the
merger was released by INEC i.e. the date when INEC Chairman appended his
signature on the said Certificate of Merger.

It is, therefore, beyond dispute that the effective date the merger of the said political parties
took place was on the 31st of July, 2013and not as contended by learned SAN for the
applicant, on the 8thof August 2013.

These are the main grounds.

Perhaps I need to be clearer in my reasoning process. Firstly, it is deposed to in paragraph 7

of the affidavit in support of the motion that the Court of Appeal delivered its judgment
which gave rise to the appeal filed by CPC, on the 10th of July, 2013. From that date to the
31st of July, CPC was still alive but it did not file the said appeal within that time (as there is
no evidence to that effect). On 31 July, 2013, INEC passed “death sentence” on CPC which
was to take effect from that date. Thus, anything done by CPC, any day after the 31st of July,
2013, was done by a dead person whether in the grave or in the mortuary (see Exh. “E”).
The position of the law on the status of a dead person has been severally stated by this court
and other courts. I will only cite few instances:

1. In the case of S.G.B. Ltd. v. Buraimoh (1991) 1 NWLR(Pt.168) 428 at p.434, paras.
D-G, it was held that:
“It is settled law that a dead person ceases to exist in the eyes of the law and
any cause or action pending against such a person automatically abates
unless it is one that survives the person.”
2. In the case of Nzom v. Jinadu (1987) 1 NWLR (Pt.51)533 at
p.539, this court, per late Oputa, JSC, held, interalia:
“the dissolution of legal person is analogous to the death of an ordinary
human person .... dead men are no longer legal persons in the eye of the law
as they have laid down their legal personality with their lives at death. Being
destitute of rights or interest they can neither sue nor be sue of.”

Commenting on the above dictum, my learned brother, M. D. Muhammad, JCA (as he then
was), stated that:
 “I unhesitatingly add that such dead man cannot equally appeal against decisions not
in their favour nor can they respond in an appeal, attempting to sustain such
decisions which during their lifespan, favoured them. Whether at trial in first instance
courts or on appeal, dead men lack legal existence which parties must have to give
them the competence. “...See: C.C.B. (Nig.) Plc v. O’Silvawax Int. Ltd. (1999) 7 NWLR
(Pt. 609) 97 atp.103 G - H.”

I agree with Mr. Okutepa, SAN that an appeal or a suit (in some circumstances) can survive
the person that initiated it. That of course is subject to the condition that the person filing or
initiating such an appeal or suit is, from the outset, imbued with competence to do so.
Equally, the subject matter of the appeal or suit must itself pass the test of validity. Where
such conditions are lacking, even if the appeal process or the suit is commenced, it will have
to abate once that militating fact has been brought to the attention of the court. Where Mr.
Okutepa, SAN, missed the point in this application is that, CPC lacks the capacity as the mere
fact of its death before filing the appeal on record deprived it of such competence/capacity.
The courts, too, I am sure, must be wary, loathe, reluctant or scared of accepting the appeal
from a dead person.

My Lords, the learned SAN for the applicant, was himself not denying or doubting the death
of CPC as a party. In applications which he filed before this court for same substitution which
he is asking for now, agreed in his own words, that CPC, before filing the said appeal was
dead. The applications together with their affidavits and attachments were exhibited by the
3rd respondent/objector in this counter affidavit. This was termed as exhibit “B”. In the
written address which accompanied Exh. “B”, the learned SAN opened his argument by the
following words:

“My Lords, the law is settled that this honourable court has the power under Order 8
rule 9(1) to grant an order for substitution of a DEAD PARTY .... We submit that an
incorporated body such as the appellant can only be substituted once it ceases to
exist. We urge your Lordships to so hold .... It is our humble submission that it is
common knowledge the fact that the Action Congress of Nigeria (ACN), All Nigeria
Peoples Party (ANPP) and Congress for Progressive Change (CPC)being erstwhile
Political Parties have merged to come up with All Progressive Congress (APC).
 The membership of these three defunct parties have wholly been transformed to that of
the new emerging party, APC .... As shown in the affidavit in support, the certificate of CPC
after the merger was withdrawn on the 31st of July. 2013.” (Italicizing mine)

There were potent averments in the affidavit accompanying Exh. “B” quoted above on the
status of CPC as a dead/defunct political party. The same thing has been replicated in the
2nd motion exhibited as Exh. “C” along with its affidavit and attachments.

It is to be noted that in paragraphs 10 and 11 of the further and better affidavits of the
applicant (quoted earlier), the applicant, through Barrister Obla, conceded to the filing of
the two motions referred to by the 3rd respondent/objector as captured above. He however,
stated on oath that those motions were not correct hence the new motion which was filed
on 2/10/14 to replace them.

Be that as it may, I am convinced beyond doubt that CPC (the appellant on record) was dead
before the filing of the appeal in its name.

Secondly, throughout the application under consideration and the further affidavit in
support of the motion filed by Mr. Okutepa, SAN, no document was attached as an exhibit to
support what was prayed for. For instance, the documents for merger of the political parties,
the notice of appeal filed; the certificate of registration of the new party, if any, etc are in my
view, strong supporting documents which ought to have been exhibited by the applicant. It
is the practice in all the courts of law that an applicant who fails to furnish the court with all
necessary and vital document(s) for the due consideration of his application does so at his
own peril as his application may likely be refused and he cannot be heard to complain. See:
N.N.S.C. Ltd. v. Alhaji Hammajoda Sabana Co. Ltd. (1988) 2 NWLR (Pt.74) 23; Ogunsola v.
N.I.C.O.N. (1999) 10NWLR (Pt.623) 492.

Not only that, my Lords, I tend to agree with Mr. Uche, SAN, that refusal by the applicant to
exhibit such vital documents such as the certificate of merger may, in fact, tantamount to
withholding of evidence. Section 167(d) .... of the Evidence Act is very clear on that where it
provides that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it. See: Eboh v. Progressive Insurance Co. Ltd.
(1987)2 QLRN 167; George v. State (2009) 1 NWLR (Pt.1122) 325; Akintola v. Anyiam (1961)
1 All NLR 508; Aremu v. Adetoro (2007)16 NWLR (Pt.1060) 244; Awosile v. Sotunbo (1986) 3
NWLR (Pt.29) 471.

Thirdly, I think it stands to reason that where a document has been signed and in it is
provided a specific date of commencement or date when effect is to be given or action to be
taken, that date must be taken to be the ‘effective’ or commencement date irrespective of
the date when the officer signing the document on behalf of the authority appended his
signature. That specific date of commencement can be with retrospective effect, it may
commence immediately after or on the date of signing or it may even be in the future. In
public and civil services and of course, with private corporations, appointments, promotions
or demotions may be done with retrospective effect or immediately. If it is retrospective, the
officers concerned take arrears of their entitlements attached to that office. On the other
hand, if the document is silent on the commencement date, then it will be presumed that
effect is to begiven to it from the date the officer signed the document.

In dealing with enactments generally, the Interpretation Act as contained in Cap. 123, LFN,
2004, section 2 thereof provides:
“2(1) An Act is passed when the President assents to the Bill for the Act whether or
not the Act then comes into force.
(2) Where no other provision is made as to the time when a particular enactment is
to come into force, it shall, subject to the following subsection, come into
force.....

In the case of an enactment contained in an Act of the National

Assembly, on the day when the Acta.is passed;

In any other case, on the day when the enactmentb.is made.

Where an enactment is expressed to come into force on a particular day, it shall be

construed as coming into force immediately on the expiration of the previous (3)
day.”

Thus, the effective date as per exh. “E”, when the collation of the 3 political parties ACN,
ANPP and CPC, metamorphosed into All Progressives Congress (APC), and which signalled
the final death of each of the 3 parties is the 31st of July, 2013. CPC, from that date was no
more a political party and lacked the capacity to carry out any legal business transaction
including filing an appeal.

My noble Lordships, consequent upon the final and irretrievable death of CPC on the 31st of
July, 2013 no appeal or any process for that matter is maintainable in the name of CPC
before any court of law. If there is or (are) then that appeal or processor anything hinged on
the appeal, is afflicted by the death of its initiator (the appellant). Such an appeal or process
is as well dead and lacks legal capacity to be maintained. The well-known dictum of Lord
Denning is that one cannot put something on nothing and expect it to stand. It will certainly
collapse U.A.C. v. Macfoy (1961)3 All E.R. 1169 at p. 1172. The application before this court is
unmeritorious and unmaintainable. It is accordingly dismissed. The pending appeal which is
by this ruling incompetent is hereby struck out. N100,000.00 costs to be paid by the
applicant to each of the 2ndand 3rd respondents.

FABIYI, J.S.C.: I have had a preview of the ruling just handed out by my learned brother, I. T.
Muhammad, JSC. I agree with the reasons therein advanced to arrive at the in-escapable
conclusion that the application is not maintainable and should be dismissed. Afortiori, the
pending incompetent appeal should be struck out.

I seek leave to chip in a few words of my own in support. It beats one’s imagination that the
senior counsel for the applicant opined that if the CPC is dead, the processes filed to
challenge its competence to file appeal are also dead. To put it bluntly, it sounds strange to
me. This is because the Rules of court support the processes filed to persuade the court that
the appeal filed by a dead person is incompetent and should be struck out. Senior counsel
should be careful with respect to any position taken by him as well as his submissions in the
presence of his juniors before this court.

The crux of this matter is the real date the CPC ‘died’. The CPC desired to merge with ACN
and ANPP. The three political parties contacted the 1st respondent - INEC. Section 84(5) of
the Electoral Act, 2010 (as amended) provides as follows:
“(5) Where the request for the proposed merger is approved, the Commission shall
withdraw and cancel the certificates of registration of all the political parties
opting for the merger and substitute a single certificate of registration in the
name of the party resulting from the merger.”
As extant in exhibit D attached to the 3rd respondent’s counter affidavit, the 1st respondent
- INEC took steps to withdraw and cancel the certificate of registration of the CPC on
31/7/2013. With this step taken, it is clear that the CPC became extinct on 31/7/2013,
exhibit E attached to the counter affidavit of the 3rd respondent is the certificate of merger
dated 8/8/2013 wherein it is stated without any shred of equivocation that the merger takes
effect from 31/7/2013.The applicant tried to put up a bold face as it attempted to resile from
its previous position in the applications filed on 24/9/2013 and26/9/2014. That was not
good enough. It cannot be taken seriously for being inconsistent in stating its case. See:
Ajide v. Kelani (1985)3 NWLR (Pt. 12) 248.

It goes without saying that as at 7/8/2013, there was no competent appeal on ground filed
by a ‘living person’. For this reason, I agree that the application filed seeking to substitute
the deceased CPC by APC rests on nothing. It cannot stand, as crafted by Lord Denning. My
learned brother, in the lead ruling, said it all and cited Macfoy v. U.A.C. Ltd. (1961) 3 All ER
1169 at 1172. It is very apt herein. See: also, Skenconsult (Nig.) Ltd. v.
Godwin Ukey (1981) 12 NSCC 1.

For the above remarks and of course the detailed reasons carefully set out in the lead ruling
which I seek leave to adopt, I too, feel that the preliminary objections are, no doubt,
sustainable. They are, accordingly, hereby sustained. The application is hereby dismissed.
The appeal filed by the ‘late’ CPC is incompetent. It is hereby struck out.

I endorse the order relating to costs in the lead ruling of my learned brother.

NGWUTA, J.S.C.: Having had the honour of reading in draft the lead ruling of my Lord,
Muhammad, JSC, I entirely agree with everything that has fallen from His Lordship. I would
like only to add my humble support to the ruling.

A preliminary objection as taken in this case is initiated at the earliest opportunity. See Sanni
v. Okene Local Government Traditional Council & Anor (2008) 5-6 SC (Pt. II) 131; (2008)12
NWLR (Pt. 1102) 691. It is taken if the respondent intends to rely on same to scuttle the
hearing of the appeal on grounds of incompetence. See Ohadugha v. Garba (2000) FWLR (Pt.
16) 2721at 2732-33; (2000) 14 NWLR (Pt. 687) 226. It is a special procedure and its success
spells the end of the appeal. See Galadima v. Tambai (2000) 6 SC (Pt. 1) 196 at 207; (2000)
11 NWLR (Pt. 677) 1.It is the duty of the court to rule on it one way or the other once raised.
See Onyekwuluje v. Animashaun (1996) 3 SCNJ 24 at 35; (1996) 3NWLR (Pt.439) 637.
It is a common ground that the appeal to which this application relates was initiated by the
Congress for Progressive Change (CPC) on 7th August, 2013 und that said party is “dead” and
that the case does not survive its death. The bone of contention is the date of death of the
CPC, that is the date it ceased to be a legal entity with capacity to sue and be sued.

I do not share the view of the learned Silk for the applicant that if the CPC is dead the
processes filed to challenge its competence to file an appeal are also dead. The processes
are meant to persuade the court that the appeal filed by a dead entity is incompetent and
cannot share the same fate with the process sought to be struck out as incompetent.

The question is when did the CPC die? The Certificate of Merger of ACN, ANPP and CPC,
exhibit E, was issued on 8thAugust, 2013. However, the merger is “with effect from the 31st
day of July, 2013. The merging entities - ACN, ANPP and CPC ceased to exist as legal entities
on the date their application for merger was approved by INEC - that is 31/7/2013 and not
on the 8th August,2013 when the Certificate of Merger, exhibit E, was issued.

To argue that the CPC whose merger with other parties was approved on 31/7/2013 remains
alive until 8/8/2013 when the Certificate of Merger was issued is the same as saying that a
man pronounced dead on 31/7/2013 did not die until 8/8/2013 when the death certificate
was issued. Exhibit E issued on 8/8/2013 is evidence that ACN, ANPP and CPC having merged
to form a new entity, APC, have individually ceased to exist from the date their application
for merger was approved and not when the Certificate of Merger was signed.
For the above and the fuller reasons in the lead ruling, I entirely agree that the appeal
commenced on 7th August, 2013 by CPC which ceased to exist on 31/7/2013 is grossly
incompetent and ought to be struck out and ipso facto the application seeking to put
something on nothing as it were will fall like a pack of cards. See U.A.C. v. Macfoy (1961) 3
All ER 1169 appropriately cited and relied on in the lead ruling.

The preliminary objection does not preclude the applicant from starting the process afresh
on an appropriate footing but on the fact of this case that option does not avail the
applicant.

In conclusion, the preliminary objections are sustained. The motion is dismissed for want of
merit. Also, the appeal filed by a dead entity - the CPC - is incompetent and is hereby struck
out.
I endorse the order for costs of N100,000.00 to each of the 2ndand 3rd respondents.
Motion dismissed; appeal struck out.

M.D. MUHAMMAD, J.S.C.: By its motion on notice filed on the3rd of October, 2014, the
applicant seeks the following reliefs:-
“1. An Order of the honourable court substituting the appellant in Appeal No.
SC.477/2003, (CPC) with the applicant, All Progressives Congress. (APC) and
for the same substitution to be made anywhere CPC appeared in the process
(sic) filed in this honourable court.

2. An ORDER striking out the 4th and 6th respondents from the Appeal.

3. Any ORDER or FURTHER ORDERS the honourable court may

deem just to make in the circumstances.”

The application rests on the grounds that:

“(1) By a merger arrangement between the All Nigeria Peoples Party (ANPP), the
Action Congress of Nigeria (ACN) and the Congress For Progressives Change
(CPC), the Independent Electoral Commission registered the All Progressives
Congress (APC) being the result of the merger.

The appellant in this appeal has become part and parcel (2) of the APC by virtue of
the merger.

The applicant is desirous of being substituted in place of the CPC since its rights will be
greatly affected by (3) the outcome of the appeal.

That the substitution sought in this appeal does not (4) affect the substance of the
appeal.

That the respondents will not be prejudiced in anyway (5) by the grant of this
application.

That it is in the interest of justice to grant this (6) application.”

Paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavits in support of the application to which
this ruling relates, being germane to the reliefs the applicant seeks, are hereinunder
reproduced for ease of reference:
“5. On the 7th of March, 2012 the appellant and their candidate in the
aforementioned election – Ocholi James, SAN commenced an action at the
Federal High Court, Abuja. The matter was subsequently transferred to Lokoja
by the honourable Chief Judge of the Federal High Court.
6. On the 24th of September, 2012 the Federal High Court, Lokoja dismissed the
appellant’s claim. The appellant subsequently filed a notice of appeal against
the judgment of the court.
7. On the 10th of July, 2013 the Court of Appeal delivered judgment in respect
of the Appeal and dismissed same.
8. The appellant consequently filed an appealed (sic)against the judgment of the
Court of Appeal to this court.
9. That I know as a fact that ANPP, CAN, and CPC merged to become a new
political party called All Progressives Congress (APC).
10. That the certificate of registration of CPC was submitted to INEC (1st
Respondent) on the 31st of July, 2013 and same was only cancelled on 8th
August, 2013 after the Notice of Appeal in this Appeal was filled (sic).
11. That I know as a fact that the Chairman of the 1strespondent Prof. Attahiru
Jega signed, dated and issued the certificate of registration to All Progressives
Congress (APC), the applicant herein, on 8th August,2013.
12. That I know as a fact that as at 7th August, 2013 when this Appeal was filed,
CPC as a Political Party was still in existence and its certificate was yet to be
cancelled and substituted with the certificate of registration of All
Progressives Congress
(APC).”
(Italicizing supplied for emphasis).

In opposition to the application, the 3rd respondent particularly relies on paragraphs 1, 2, 4,

5, 6, 7, 8 and 9 of his counter-affidavit sworn-to by one Kanayo Okafor, Esq. The paragraphs
are hereinunder also reproduced for their appropriateness:
“1. That I am in the legal team of lawyers representing the 3rd respondent in this
appeal, and as such very conversant with the facts deposed herein, and I
depose to this counteraffidavit with the consent and authority of the 3rd
respondent and on his behalf.
2. That the present appeal was filed on 7th August 2013and I annex a copy of
the notice of appeal as exhibit “A”.
3. That in court on 2nd October 2014, we were served with a copy of a fresh
motion for substitution filed by the appellant in the name of the All
Progressives Congress (APC), and I have gone through the said process with
our lead counsel, Gordy Uche, Esq.
4. That prior to filing of the present motion, the appellant had previously filed
two similar motions on notice for substitution before this honourable court,
namely on24th September 2013 and on 26th September 2014, and in both
motions on notice, the affidavit in support was sworn to by the same
deponent, namely, Alhaji KashimMabo, and I annex herewith copies of the
said motions on notice as exhibits “B” and “C” respectively.
5. That in paragraph 14 of the affidavit in support of the motion on notice filed
on 24th September 2013 and in paragraph 14 also of the motion on notice
filed on 26th September 2014, the appellant through the said Alhaji Kashim
Mabo had deposed ‘That the certificate of CPC was withdrawn on the 31st of
July 2013.
6. That also in ground No. 2 of the grounds in support of the two motions on
notice, the appellant had stated unequivocally that the Congress for
Progressive Change (CPC) ceased to exist on 31st July 2013.
7. That most importantly, the cancellation of the registration certificate of the
appellant on 31st July2013 is confirmed by a certified true copy of an official
letter by Independent National Electoral Commission issued to the appellant
on 31st July 2013, and I annex herewith the said letter as exhibit “D”.
8. That the same Alhaji Kashim Mabo has deposed to the affidavit in support of
the present motion for substitution (which is the third one) and has turned
around in paragraph
10 of the affidavit to state that the certificate of registration of CPC was
cancelled on 8thAugust 2013, after having deposed twice earlier that it was
on 31st July 2013.
 9. That the paragraphs 10 and 12 of the affidavits in support are false.”
(Italicizing supplied for emphasis).

The 2nd ground in support of applicant’s two earlier applications, exhibits “B” and “C”
annexed to 3rd respondent’s counter-affidavit, is herein under reproduced for ease of
reference too.

“Ground(s) in support of the application

2. By the registration of the All Progressives Congress (APC), the trio of ANPP, ACN
and CPC being the appellant in this appeal ceased to exist and function on
their own as individual Political Parties as the Independent National Electoral
Commission (INEC) withdrew their certificate on that 31st of July, 2013.”
(Italicizing supplied for emphasis)

Paragraph 14 common to both affidavits in support of applicant’s two earlier motions reads:
“14. That the certificate of CPC was withdrawn on 31st of July, 2013.”
(Italicizing supplied for emphasis).

Exhibit “D” referred to in paragraph 4 of the 3rd respondent’s counteraffidavit (supra) is

hereinunder reproduced in its entirety for its relevance as well:

“INDEPENDENT NATIONAL ELECTORAL COMMISION

Zunbezi Crescent, Maitama District, P.M.B. 0184,

Garki - Abuja,
Federal Capital Territory Telephone…..
Ref No. INEC/EPM/PPM/504/Vol.l/50
31st July, 2013
The National Chairman,
Congress for Progressive Change (CPC),
Plot 1132, Festus Okotie-Ebo Crescent,
Utako District, Abuja

RE: REQUEST FOR MERGER OF ACTIONCONGRESS OF NIGERIA

(CAN), ALL NIGERIAPEOPLES PARTY (ANPP) AND CONGRESS FORPROGRESSIVES
CHANGE (CPC)
 Your request for merger dated 1st July, 2013 refers.

2. The Commission at it meeting held on 31st July,2013 approve the merger of

Action Congress of Nigeria (CAN), All Nigeria Peoples Party (ANPP)and
Congress for Progressives Change (CPC) as a political party with the name All
Progressive Congress (APC):

3. The Registration Certificate of Congress for Progressives Change (CPC) is

hereby cancelled and you are therefor requested to submit same to the
Commission immediately.

4. The Commission shall issue a Certificate of Registration to ALL

PROGRESSIVECONGRESS (APC) in due course.

5. Please accept the assurance of the Commission’s highest regard.

Congratulations.

ABDULLAHI A. KAUGAMA SECRETARY TO THE

COMMISSION”
(Italicizing supplied for emphasis).

Exhibit “E” also annexed to the 3rd respondent’s counter-affidavit in opposition to the
instant application is hereinunder equally reproduced:

“INDEPENDENT NATIONAL ELECTORALCOMMISSION

Certificate of Merger of Political Parties

WHEREAS the Commission having verified the facts and information supplied to it by
ACN, ANPP &CPC political parties, is satisfied that the said political parties have
fulfilled the necessary conditions for merger as a Political Party.

NOWTHEREFORE the Commission has, with effect from the 31st day of July, 2013
approved the merger of the aforesaid political parties as a political party to be known
and called All Progressives Congress pursuant to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended).
GIVEN under the hand of the Chairman and seal of the Commission at Abuja.

This 8th day of August, 2013.

PROF. ATTAHIRU MUHAMMADU JEGA, OFR

CHAIRMAN
INDEPENDENT NATIONAL ELECTORAL COMMISSION”

Reproduced hereinunder are paragraphs 7 to 11, both numbers inclusive, of the

applicant’s contradictory further and better affidavit filed on 8th October, 2014 for
ease of reference:

“7. That I known as a fact that the power vested on INEC does not include back
dating certificate of registration of any political parties rather the certificate of
APC dated and issued on 8th August, 2013 takes effect from that day.
8. From the above, the 3 legacy parties remained recognized legal entities until
8th August, 2013 when their certificate were substituted.
9. I have also read the affidavit of Alhaji Kashim Mabo and I know as a fact that
he was the Kogi State Chairman of Congress of progressives Change
(CPC)prior to and until the merger was concluded. I know as a fact that Alhaji
Kashim Mobi not being a lawyer and not being a state of National Secretariat
of Congress for Progressives Change (CPC) would not know the nitty-gritty of
the steps taken during the merger until the certificate of registration of All
Progressive Change (APC) was issued.
10. That while reading the counter affidavit of Kanayo Okafor I discovered that he
has exhibited the earlier motions and affidavit sworn to by Alhaji
KashimMabo on the 24th September, 2013 and 26th September,2014 to the
counter affidavit on similar motion for substitution.
11. That I have read inter alia the most recent affidavit of Alhaji Kashim Mabo
swore to on the 3rd October, 2014and I affirm that same is very correct.
However, the earlier ones filed on the 26th September, 2014 and
24thSeptember, 2013 are not correct hence the new motion was filed on the
2nd October, 2014.”
The 3rd respondent also relies on a preliminary objection filed on 3rdOctober, 2014 to urge
the dismissal of appeal no. SC.447/2013 on which the instant application predicates. It is
averred thereby that the appeal which constitutes an abuse of the process of this court is
grossly incompetent. 3rd respondent’s preliminary objection is on the grounds that: -
“(i) The appeal was filed in the name of a deceased party, who had ceased to exist at
the time of the filing of appeal.

The appellant on record, Congress for Progressive Change (CPC) ceased to exist on 31st July,
2013, as admitted by the appellant on oath upon the withdrawal of its certificate of
registration by the Independent National Electoral Commission on the said 31st July, (2)
2013.

The cancellation of the registration certificate of the appellant on 31st July, 2013 is
confirmed by the certified (3) true copy of an official letter from the Independent National
Electoral Commission to the appellant on 31st July, 2013.

Though the judgment was delivered on 10th July 2013by the Court of Appeal, no appeal was
filed by the (4) deceased appellant before its demise on 31st July 2013.

This appeal was filed on 7th August 2013, after the (5) “death” of the appellant.
(6) The appeal is grossly incompetent.

The appeal as constituted robs the honourable court of (7) jurisdiction to entertain
same.” (Italicizing supplied for emphasis).

In paragraphs 2, 3 and 4 in support of 3rd respondent’s preliminary objection it is restated

on oath thus:
“2. That this appeal was filed on 7th August 2013, and I annex a certified true copy of
the notice of appeal as exhibit “A”.
3. That this appeal was filed in the name of Congress for Progressive Change
(CPC) at a time the said party had ceased to exist, which party had ceased to
exist on 31st July 2013 as stated and confirmed by the appellant in ground
No. 2 of the grounds in support of its two applications for substitution, and as
deposed on oath in paragraph 14 of the supporting affidavits of the motions
on notice dated 24th September 2013 and 26th September 2014 respectively,
and I annex the motions herewith as exhibits “B” and “C”.
 4. That I annex the certified true copy of letter of cancellation of the registration
of the Congress for Progressive Change (CPC) herewith as exhibit “D”.
(Italicizing supplied for emphasis).

It is significant to note that other respondents, particularly the1st, the Independent National
Electoral Commission (INEC) and the 2nd, the Peoples Democratic Party (PDP), the Sponsor
of the 3rdrespondent, Captain Idris Ichalla Wada, whose election and return the applicant by
the instant motion on notice essentially seeks to contest, similarly oppose the application
vide their respective counter-affidavits. They further raise preliminary objections to the
competence of the appeal by virtue of which the instant application has been brought. On
the 9th of October, 2014 when applicant’s motion came up for hearing, the court decided to
hear the preliminary objections raised by the 2nd and 3rd respondents against the appeal by
virtue of which the applicant seeks to move the court too. Being on a common jurisdictional
issue, as a matter of practice, the objections were heard first with learned senior counsel for
the applicant thereafter, while responding to the objections, moving his motion as well. The
crucial nature of the issue of jurisdiction in the adjudication process explains the resort to
this procedure. A resort to an otherwise procedure amounts to waste of the time of the
court and the parties should the court lack the jurisdiction to proceed and determine the
appeal on the basis of which the applicant’s motion has been brought. Courts do not indulge
in vain acts. In A.-G., Lagos State v. A.-G., Federation (2014) 3 NWLR (Pt. 1412) 217, this court
at page 249 paras. C-F of the report restated the principle thus:

“Courts including the apex court lack the jurisdiction of entertaining incompetent
claims and/or those that constitute abuse of their processes. They proceed in vain if
they do. Being bereft of the necessary vires or with their processes having being
abused, the decisions which eventually arise lack the authority and so remain
unenforceable no matter how well conducted the proceedings that brought them
about were. A judgment given without jurisdiction creates no legal obligation and
does not confer any rights to any of the parties. Being a challenge to the jurisdiction
of this court to entertain plaintiffs’ action, therefore 1st defendant’s preliminary
objection has to be determined first. Having been raised all proceedings must abate
until the issue is resolved. See Adeyemi v. Opeyori (1976)9 - 10 SC 31; A.-G., Lagos
State v. Dosunmu (1989)3 NWLR (Pt.111) 552; Jeric (Nig.) Ltd. v. U.B.A. Plc. (2000) 12
SC (Pt. II) 133; (2000) 15 NWLR (Pt. 691)447; Nnonye v. Anyichie (2005) 2 NWLR (Pt.
910) 623 and Dapianlong v. Doriye (2007) 8 NWLR (Pt.1036) 332.”
In arguing their preliminary objection, learned senior counsel for the 3rd respondent Chief
Chris Uche further identified, adopted and relied on the written address in support of their
preliminary objection filed on 3rd October 2014. It is submitted that the preliminary
objection is brought pursuant to Order 2 rule 9(1) of the Supreme Court Rules 1999 (as
amended). The preliminary objection, he submits, is accompanied by a seven (7) paragraph
affidavit deposed to on behalf of the 3rd respondent/objector by Mr. Kanayo Okafor. Four
exhibits, namely exhibit “A”, the notice of appeal on which the instant application predicates,
the two motions on notice filed by the “appellant” on 24th September 2013and 26th
September 2014, exhibits “B” and “C” respectively, and exhibit “D” the certified true copy of
the official document from the Independent National Electoral Commission confirming the
cancellation of the registration certificate of the appellant on 31stJuly 2013. Learned counsel
cited the grounds for their objection as well as their counteraffidavit in opposition to
applicant’s motion on notice filed on the 3rd of October 2014 for its substitution of the
appellant in Appeal No. SC.477/2013. The germane aspects of all these documents and/or
averments have earlier been reproduced in this ruling.

It is further submitted by learned senior counsel for the 3rdrespondent/objector that the
appellant on record ceased to exist on31st July 2013 with the cancellation of its registration
certificate, through exhibit “D”, by the Independent National Electoral Commission. This fact,
learned senior counsel further submits, has been admitted by the applicant in paragraph 14
common to the two affidavits in support of applicant’s two earlier applications, exhibits “B”
and “C”, and in the grounds in support of both applications. Exhibit “A”, the notice of appeal,
on which applicant’s motion rests, it is further submitted, was filed on the 7th August, 2013
by which date the purported appellant therein, the CPC, was no longer in existence, its
registration certificate having been cancelled and withdrawn, as evidenced by exhibit “D”, on
31st July, 2013. At the time the notice of appeal, exhibit “A”, was filed, the appellant having
died and ceased to exist, contends learned senior counsel, lacked the vires to file or
authorise the filing of the appeal. The appeal having been filed in the name of a deceased
party is grossly incompetent. The applicant cannot, therefore, argues learned senior counsel
for the 3rd respondent/objector, predicate its motion on notice on a non-existing appeal.
Relying on Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163 at 183 and In Re: Otuedon
(1995)4 NWLR (Pt. 392) 655 at 667, learned senior counsel urges that the incompetent
notice of appeal as well as the application it purportedly carries be dismissed.
Counsel for the other respondents/objectors proffered similar arguments, identified and/or
adopted the foregoing submissions of learned senior counsel for the 3rd
respondent/objector.

In responding to the preliminary objections and simultaneously moving applicant’s motion

for the substitution of the appellant, learned senior counsel J. S. Okutepa relies on the
affidavit in support of the application filed on 2nd October, 2013 and their further and better
affidavit filed on the 8th of October, 2014 and contends that the appeal on which their
application rests is valid and competent. The issue the application raises, learned senior
counsel submits, is whether the Congress for Progressive Change (CPC), the appellant, had
died on 31st July, 2013 or on the 8th of August, 2013. The issue, he submits, can only be
resolved by reference to sections 78(1), 80and 84(5) of the Electoral Act, 2010 (as
amended). The appellant, learned senior counsel argues, enjoyed a distinct juristic
personality before its merger with the other political parties; the Action Congress of Nigeria
(ACN) and the All Nigeria Peoples Party (ANPP). The death of the appellant, it is submitted,
took place on the 8th of August, 2013, the date the merger certificate was issued and not
the 31st of July 2013 as asserted by the respondents. Since the appeal on which the instant
application is brought was filed on the 8th of August 2013, a day before the “death” of the
appellant, the appeal, learned senior counsel contends, survives the appellant. The applicant
having stepped into the shoes of the appellant, learned senior counsel concludes, becomes
a valid substitute. Relying on C.C.B. (Nig) Ltd v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65,
learned senior counsel urges that the preliminary objections be overruled and the order for
the substitution of the appellant by the applicant be granted.

Now, to what extent do the decisions parties herein cited and relied upon avail them?

The principle enunciated by this court in Ezenwosu v. Ngonodi (supra) and in In Re: Otuedon
(supra) which the Court of Appeal applied inter-alia in C.C.B. (Nig) Ltd. v. Onwuchekwa
(supra), is that dead persons whether natural or artificial, lack the vires of initiating and/or
maintaining an action, including an appeal, in the law court. Only living persons do. In Tesi
Opebiyi v. Shittu Oshoboja (1976) 9-10 SC 195 and Nzom v. Jinadu (1987) 1 NWLR (Pt. 51)
533, this court had earlier further stated when an artificial person, a body corporate created
pursuant to the Companies and Allied Matters Act, dies, such a corporate body, the apex
court held, dies at its dissolution.
Learned senior counsel for the applicant, Mr. Okutepa appears to rely on the Court of Appeal
decision in C.C.B. (Nig) Ltd v. Onwuchekwa (supra) in the mistaken belief that it is a
significant and lawful deviation from the Supreme Court’s decisions inter-alia in Ezenwosu v.
Ngonodi (supra) and
In Re: Otuedon (supra). It is not. The position is that C.C.B. (Nig.) Ltd. v. Onwuchekwa(supra)
persists as the intermediate court’s dutiful submission to the apex court’s binding authority.
Having faltered while at the Court of Appeal by holding, contrary to the Supreme Court’s
decisions, in C.C.B. (Nig.) Plc v. O’ Silvawax (1999) 7 NWLR (Pt. 609)97, that the revocation of
the banking licence of company and a court’s order for the winding-up of the company,
rather than the company’s dissolution, constitutes the death of the company, I made a
graceful detour at the earliest opportunity in C.C.B. (Nig.) Ltd. v. Onwuchekwa (supra) at
pages 73 -74 paras. D-E of the report firstly thus:
“This court’s decision in C.C.B. (Nig.) Plc v. O’ Silvawax (Supra) stands in clear and
violent conflict with the Supreme Court decisions in Tesi Opebiyi v. Shittu Oshoboja
(1976) 9 and 10 SC 195 and Nzom v. Jinadu (19870 1 NWLR (Pt. 51) 533 which it
sought to apply. In Nzom v. Jinadu (supra) Oputa J.S.C. as he then was, reiterated
thus: ‘The dissolution of legal person is analogous to the death of an ordinary human
person. Now dead men are no longer persons in the eye of the law as they have laid
down their legal personality with their lives at death. Being destitute of rights or
interest, they can neither sue nor be sued’.”

I dutifully further capitulated thus paras. H-A:

“It is clear from the principle enunciated in Tesi Opebiyi v. Shittu Oshobajo & Anor
(1976) 9 and 10SC 195 and Nzom v. Jinadu (supra) and by virtue of S. 454(1) and (2)
reproduced above, a company dies on it’s dissolution. The revocation of the licence
of that Company where it is a bank, and the further order of court winding same up
may indicate the acute disposition, and extreme position of ineffectiveness of the
Company but not so that fact of it’s “death”. The liquidator who may be likened to an
undertaker, by virtue of the company’s total ill disposition goes into preparation for
the “burial” of the company but the actual “burial” of the company takes place on its
“death” at its dissolution.”

Reiterating the law relevant to the facts of the instant application, I stated in C.C.B. (Nig.) Plc
v. O’ Silvawax (supra) particularly at page 103 G-H of the law report thus:
 “I unhesitatingly add that such dead men cannot equally appeal against decisions not
in their favour nor can they respond in an appeal, attempting to sustain such
decisions which, during their lifespan, favoured them. Whether at trial in first
instance courts or appeal, dead men lack legal existence which parties must have to
give them the competence.”

One hastens to restate that a case is authority for what it actually decided. See: Ibrahim v.
J.S.C. (1998) 14 NWLR (Pt. 584)1 and Dongtoe v. C.S.C., Plateau State (2001) 9 NWLR (Pt.
717)132 at 155. For a previous decision of this court to bind any court, the apex court not
excepted, the facts and the law in the subsequent case must be the same or similar to those
which informed the court’s earlier decision. The decision cited and relied upon by counsel
on both sides in the instant application, therefore, apply to the matter at hand to the extent
that the facts and applicable law in respect of the issue being determined herein are same
or similar to those in the earlier decisions. Decisions of courts must, therefore, irredeemably
relate to the facts which inform them. Justice suffers whenever decisions of courts proceed
not on the basis of the facts which should otherwise inform those decisions. See C.C.B. Plc v.
Onwuchekwa (supra); Okulate v. Awosanya (2000) 2 NWLR (Pt.646) 530; Offoboche v. Ogoja
L.G. (2001) 16 NWLR (Pt. 739) 458and Odogbo v. Abu (2001) 14 NWLR (Pt. 732) 45.

This court in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 266 per
Oputa, JSC of blessed memory opined that “court’s decisions and pronouncements derive
their strength, persuasive potency, inspiration and value as precedents from the facts of the
case as pleaded and as presented” and “consequently, citing those pronouncements without
relating them to the facts that induced them would be citing them out of their proper
context.”

I agree with learned counsel for the respondents/objectors, particularly Chief Chris Uche,
SAN for the 3rd respondent/objector, that the relevant facts in the instant application are
brief and beyond dispute for two main reasons.

Firstly, the averments in the affidavits in support of the 3rdrespondent’s preliminary

objection as well as those in his counter-affidavit in opposition to the application to which
this ruling also relates, remain uncontroverted. This court, it is the practice, has to accept
those averments as true. See Badejo v. Minister of Education (1996) 9-10 SCNJ 51 at 69;
(1996) 8 NWLR (Pt. 464) 15; Amgbarev. Sylva (2007) 18 NWLR (Pt. 1065) 109 and Dokubo-
Asari v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320.

Secondly and much more importantly, facts deposed to by a party and admitted by an
opponent require no further proof from the party who made the deposition. The admitted
facts are deemed established. See Jolasun v. Bamgboye (2010) 19 NWLR (Pt. 1225)285 and
Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562.
Applying the foregoing principles to the issues at hand, the undisputed facts in this matter
are inter-alia as follows:

The appellant, a political party, the applicant by its notice of motion seeks to substitute had
had its registration certificate withdrawn and cancelled by the statutory regulatory authority,
the Independent National Electoral Commission (INEC), vide exhibit (1) “D”, on 31st July
2013.

Appellant’s notice of appeal exhibit “A”, on which the applicant’s notice of motion rests, was
filed on the 7th (2) August, 2013.

The applicant came into being on 31st July, 2013following the merger between the
appellant, the Action Congress of Nigeria (ACN) and the All Nigeria Peoples Party (ANPP) its
subsequent registration and the issuance of its registration certificate, exhibit “E” (3) by INEC
on the 8th August, 2013.

1, 2 and 3 above have been admitted by the applicant herein in paragraph 14 of the
affidavits in support of its earlier motions exhibits “B” and “C”, ground 2 of (4) these same
applications.

Exhibits “D” and “E”, paragraph 14 in exhibits “B” and “C” as well as the 2nd ground thereof
have earlier been reproduced in this ruling.

Mr. Okutepa, learned senior counsel for the applicant, is equally right to insist that the
instant application must be determined within the purview of the Electoral Act 2010 as
amended, the Legislation which empowers the 1st respondent herein, the Independent
National Electoral Commission, (INEC) to register, issue political parties their registration
certificates and, in appropriate cases, deregister them, cancel and withdraw the registration
certificates. Itis undoubtedly the duty of courts to interpret and apply the laws of the land.
Thus, in the case at hand it is necessary, in determining the existence and legal capacity of
the appellant the applicant herein seeks to substitute, to look at the very instrument under
which the former is established. See: Fawehinmi v. N.B.A. (No.2) (1989) 2NWLR (Pt. 105) 558
at 600, 602 and 612. In sections 80, 84 (1), (4) and (5) and 98 of the Electoral Act, 2010 (as
amended), the law (4) provides as follows:

“80. A political party registered under this Act shall be a body corporate with
perpetual succession and a common seal and may sue and be sued in its
corporate name.
84(1) Any two or more registered political parties may merge on approval by the
Commission following a formal request presented to the Commission by the
political parties for that purpose.
(4) On receipt of the request for merger of political parties, the Commission shall
consider the request and, if the parties have fulfilled the requirements of the
Constitution and this Act, approve the proposed merger and communicate its
decision to the parties concerned before the expiration of 30 days from the
date of the receipt of the formal request.

PROVIDED that if the Commission fails to communicate its decision within 30 days, the
merger shall be deemed to be effective.

(5) Where the request for the proposed merger is approved, the Commission
shall withdraw and cancel the certificates of registration of all the political
parties opting for the merger and substitute a single certificate of registration
in the name of the party resulting from the merger.
98. A political party registered by the Commission in accordance with the provisions
of any law in force immediately before the coming into force of the
Constitution and this Act shall be deemed to have been duly registered under
this Act.”

A community reading of the foregoing grants the appellant, being a registered political party,
the corporate status, nay the necessary legal personality and competence to sue and be
sued at whatever court in the country’s judicial hierarchy.
Before us, Mr. Okutepa, learned senior counsel for the applicant, contends that the
appellant was alive as at 7th July 2013when exhibit “A” the notice of appeal, in relation to
which the instant application has been brought, was filed. The respondents contend to the
contrary. The respondents are on a very firm terrain in this regard. The law is trite that he
who asserts must prove. The onus rests squarely on the applicant herein who contends that
as at 7th July 2013 the appellant was alive and capable of initiating the appeal on which the
instant application stands. See I.M.N.L. v. Pegofor Ind Ltd. (2005) 15 NWLR (Pt. 947) 1 and
N.N.P.C. v. Lutin Inv. Ltd. (2006) 2 NWLR (Pt. 965) 506.

Again, the law is that the best evidence of the proof of the existence of the appellant, a
registered political party, is the production of a genuine certificate of its registration by the
Independent National Electoral Commission (INEC) the 1strespondent herein. See The
Registered Trustees of Apostolic Church Ilesha Area v. Attorney-General Mid-Western State
(1986)6 SC 1 and A.C.B. Plc v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770)501. The applicant did
not make this certificate available to us and resultantly failed to provide the proof that the
appellant was alive as at 7th July 2013 when exhibit “A”, its notice of appeal on which the
instant application purports to stand was filed.

The applicant, has failed to provide the proof of the legal existence of the appellant. The
failure to discharge this legal burden alone disentitles the applicant from the reliefs it
canvasses. In Reptico S.A. Geneva v. Afribank (Nig) Plc (2013) 14 NWLR (Pt. 1373) 172 at 211-
212 this court in similarly considering the consequence of the failure of a plaintiff who sues
as a juristic person to establish that fact stated thus:
“The appellant as plaintiff, not having been proved to be a legal entity or juristic
person entitled to sue and be sued in law, does not exist, so to speak, in the eyes of
the law. As a result, the whole action in the trial court is, to say the least
incompetent....”

Beyond applicant’s failure to establish appellant’s juristic existence, the 3rd respondent has
by virtue of exhibit “D” annexed to his counteraffidavit in opposition to the instant
application, established the fact of the “withdrawal” and “cancellation” of the appellant’s
certificate of registration by the 1st respondent, INEC, in the exercise of the latter’s statutory
powers under S. 84(5) of the Electoral Act, 2010 (as amended). Having “withdrawn” and
“cancelled” the registration certificate of the appellant on the 31stJuly 2013, INEC had on
that date effectively killed the appellant. The appellant that died on the 31st July 2013
ceased to have the legal competence it necessarily required to file an appeal on 7th
August2013. On the authorities, dead persons, including unnatural ones, lack the
competence of suing or defending any suit, here an appeal, in courts. See C.C.B. (Nig) Plc v.
O’ silvawax (supra) C.C.B. Ltd. v. Onwuchekwa (supra); Opebiyi v. Oshoboja (supra) and Nzom
v. Jinadu (supra).

It is for the foregoing and more so the fuller reasons contained in the lead ruling of learned
brother, I. T. Muhammad JSC, which I had preview of, that I sustain the preliminary
objections of the respondents, adjudge appeal no. SC.477/2013 incompetent and find the
instant application unsustainable. I strike out the appeal and dismiss the unmeritorious
application. I also abide by the order of costs made in the lead ruling.

OGUNBIYI, J.S.C.: I had the privilege of reading in draft the lead ruling just delivered by my
learned brother, I. T. Muhammad, JSC. I agree that the application is totally devoid of any
merit and same should be dismissed.

As a consequence, the purported appeal should also be struck out for incompetence.
The facts which gave rise to this case are well captured in the lead ruling.

The subject matter of the application filed 3rd October, 2014seeks for the two following
reliefs principally:
“1. An order of the honourable court substituting the appellant in appeal no. SC.
477/2003, (CPC) with the applicant, All Progressive Congress (APC) and for the
same substitution to be made anywhere CPC appeared in the process filed in
this honourable court.
2. An order striking out the 4th and 6th respondents from the appeal.”

The application is predicated upon six grounds and supported by affidavit and also a counter
affidavit in particular that by the 3rdrespondent. In further opposing the application,
identical notices of preliminary objection were filed on behalf of the 2nd and
3rdrespondents wherein they both challenged the competence of the appeal before the
court. In other words, the objection is seeking for an order dismissing the appeal for gross
incompetence as well as constituting an abuse of court process. Specifically, the seven
grounds predicating the objection by the 3rd respondent as the principal objector are that: -
 “(1) The appeal was filed in the name of a deceased party, who had ceased to exist at
the time of the filing of appeal.

The appellant on record, Congress for Progressive Change (CPC) ceased to exist on 31st July
2013, as admitted by the appellant on oath upon the withdrawal of its certificate of
registration by Independent National (2) Electoral Commission on the said 31st July 2013.

The cancellation of the registration certificate of the appellant on 31st July 2013 is confirmed
by a certified true copy of an official letter from the Independent National Electoral
Commission to the appellant on 31st (3) July 2013.

Though the judgment was delivered on 10th July 2013by the Court of Appeal, no appeal was
filed by the (4) deceased appellant before its demise on 31st July 2013.

This appeal was filed on 7th August 2013, after the (5) “death” of the appellant.

(6) The appeal is grossly incompetent.

The appeal as constituted robs the honourable court of (7) jurisdiction to enter same.

TAKE FURTHER NOTICE that at the hearing of this application, the 3rd respondent
shall rely on the notice of appeal, the applications for substitution filed by the
appellant on 24th September 2013 and 26th September 2014, the record of appeal
and all other processes filed in this appeal.”

Also on the same date, the 3rd October, 2014, the 3rd respondent filed a counter affidavit to
oppose the application and paragraphs 4,5, 6 and 7 had this to say:
“4. That prior to filing of the present motion, the appellant had previously filed two
similar motions on notice for substitution before this honourable court,
namely on24th September 2013 and 26th September 2014, and in both
motions on notice, the affidavit in support was sworn to by the same
deponent, namely, Alhaji KashimMabo, and 1 annex herewith copies of the
said motions on notice as exhibits “B” and “C” respectively.
5. That in paragraph 14 of the affidavit in support of the motion on notice filed
on 24th September 2013 and in paragraph 14 also of the motion on notice
filed on 26thSeptember 2014, the appellant through the said AlhajiKashim
 Mabo had deposed “That the certificate of CPC was withdrawn on the 31st of
July 2013.”
6. That also in ground No. 2 of the grounds in support of the two motions on
notice; the appellant had stated unequivocally that the Congress for
Progressive Change (CPC) ceased to exist on 31st July, 2013.
7. That most importantly, the cancellation of the registration certificate of the
appellant on 31st July2013 is confirmed by a certified true copy of an official
letter by Independent National Electoral Commission issued to the appellant
on 31st July, 2013, and I annex herewith the said letter as exhibit “D”

The deposition in the foregoing paragraph 7 calls for a careful analysis of exhibit D which
cannot be taken in isolation but ought to be read in conjunction with exhibit E, the
certificate of merger of political parties which took effect from the 31st day of July,
2013.Contrary to the submission by the learned appellant’s counsel therefore, the date 8th
August, 2013 also shown on exhibit “E” could not possibly hold as the effective date. This is
especially where the appellant conclusively declared the true position in paragraph 14 of the
affidavit supporting the two earlier motions filed 24th and 26thSeptember, 2013 and 2014
respectively:
“14. That the certificate of CPC was withdrawn on the 31stof July, 2013.”

Put differently, the contention held by the appellant’s counsel inholding unto the 8th August
as the effective date is in my view, an afterthought which should not be allowed to hold.

It is intriguing to say also that paragraph 6 of the counter affidavits supra, lends a further
support to paragraph 14 of the supporting affidavits to the earlier two motions exhibits “B”
and “C”, that CPC had since ceased to exist on 31st July, 2013.

A careful scrutiny of the application before us will reveal that the applicant’s stronghold
reliance is on the facts deposed to in paragraphs 10, 11 and 12 of the supporting affidavits
as follows:
“10. That the certificate of registration of CPC was submitted to INEC (1st
respondent) on the 31st of July,2013 and same was only cancelled on 8th
August, 2013after the notice of appeal in this appeal was filed.
 11. That I know as a fact that the Chairman of the 1strespondent Prof. Attahiru
Jega signed dated and issued the certificate of registration to All Progressives
Congress (APC), the applicant herein, on 8th August, 2013.
12. That I know as a fact that as at 7th August, 2013 when this appeal was filed,
CPC as a political party was still in existence and its certificate was yet to be
cancelled and substituted with the certificate of registration of All
Progressives Congress (APC).”

On the totality of the facts deposed in the paragraphs supra, it is within reach to recognize
the missing links as a result of the contradiction in the statements made by the self-same
deponent. The fact that the appellant abandoned the earlier motions (exhibits B and C) did
not in any way diminish the effect of his deposition which legal effect is firmly binding.

In summary, it is the contention by the learned counsel Mr. Okutepa, SAN for the applicant
that the fact that CPC ceased to exist as a result of the withdrawal of its certificate by the
Independent National Electoral Commission, does not relinquish the existing rights of
political office holders on its platform.

With all respect to the learned senior counsel, I beg to differ from his view and say that the
scenario of the situation at hand is peculiar and totally distinct from the contention held by
him. This is because the question in issue is whether an appeal filed in the name of a sole
deceased party is competent and valid in law? The notice of appeal exhibit “A” was filed by
Congress for Progressive Change (CPC), a sole appellant and there is no evidence of other
surviving appellants.

Exhibit E, the certificate of registration for the merger of CPC and other political parties gives
the effective date as 31st July,2013. It is sufficient to restate also that the notice of appeal,
the subject of contention, was filed on 7th day of August 2013. On across reference to
exhibit E, a simple mathematical deduction will show that the appeal was filed within seven
days of the death of the appellant. In other words, it is correct therefore to say that as at the
date of filing the notice of appeal, the appellant had since died on31st July, 2013.

The contents of the document exhibit E have been reproduced in the lead ruling by my
learned brother. In my candid opinion, the interpretation of the contents of exhibit “E” is
very clear, straight forward and unambiguous. In short, the merger of the three political
parties, that is to say Action Congress of Nigeria (ACN), All Nigeria Peoples Party (ANPP) and
Congress for Progressives Change (CPC) was approved on 31st July, 2013 by the Independent
National Electoral Commission. As a consequence, and sequel to the merger, the registration
certificate of Congress for Progressives Change (CPC) was cancelled. A further directive was
made on the appellant/applicant the same date to submit the cancelled certificate to the
Commission immediately. There cannot be a clearer and better understanding of the
expressions that a certificate of registration will be issued in the name of the newly
amalgamated party in due course.

Even at the risk of repeating myself, I see it pertinent to recapitulate ground 2 supporting the
appellant/applicant’s application in the motion filed on 26th September 2014 which stated
thus:
“By the registration of the All-Progressives Congress (APC), the trio of ANPP, ACN and
CPC being the appellant in this appeal ceased to exist and function on their own as
individual political parties as the Independent National Electoral Commission
(INEC)withdrew their certificate on that 31st of July 2013.”

In the light of the foregoing, it is intriguing and indeed self-defeating that the learned
counsel for the appellant/applicant should argue as existing, a party which he conceded
earlier had ceased to exist.

The party is, in other words defunct. I am in complete agreement and more with the counsel
for the 2nd and 3rd respondents that at the time the purported notice of appeal was filed,
the appellant herein was long dead, ceased to exist and had neither legal existence nor vires
to file or authorize the filing of the appeal. In the circumstance, the appellant’s counsel
should not be allowed to approbate and reprobate the concluded matter.

I further wish to emphasize that the applicant by paragraph10 of its further affidavit filed
8/10/14 conceded to the filing of two earlier motions exhibits B and C; regrettably however
it sought to deny the that the deponent of the affidavits in exhibits B and Cis the same in the
affidavit supporting the present motion filed to replace them. The development in my view
is extremely unfortunate especially where the depositions were all made on oath. Retracting
at this stage will neither aid the appellant’s case nor be in its interest.
The application for substitution presupposes the existence of a valid and competent appeal
pending before the court. It is also a matter of settled principle that one cannot put
something in place of that which is nonexistent. By analogy, it follows therefore that the
consequential effect of an absence of a living person to exercise aright of appeal is very
fundamental and detrimental as it renders the purported appeal incompetent.

In similar cases of the nature before us, this court did affirm the incompetence of an appeal
purportedly filed by a dead person. In reference, the bone of contention in the case of
Ezenwosu v. Ngonadi NSCC 9 (1988) Part 1 page 1071; (1988) 3 NWLR (Pt.81) 163 was
whether a dead person can appeal a judgment obtained against him while he was alive? The
situation in that case was on all fours with the case under consideration. In other words, the
appeal was also filed after the death of the supposed appellant. This court held against the
substitution of the applicant, who could have sought for and obtained leave of court to
exercise the right of appeal as an interested party. At page 180 of the report the learned
jurist Oputa, JSC (of blessed memory) held the following view and said:
“A dead man having no legal personality and capacity cannot file a writ of summons.
By the same token a dead man cannot appeal against a judgment given against him
when he was alive.
…..

The right to appeal may survive, but such right has to be exercised by living persons.
Such living person or persons cannot be brought in by mere substitution…..

Where an appeal is incompetent because it was brought in the name of a dead

person such an appeal cannot be vivified and given life for the first time by
substituting a living person as appellant.”

Under our law therefore, a dead person ceases to be a legal person or possess legal
personality and can neither sue nor be sued personally. See Nzom v. Jinadu (1987) 1 NWLR
(Pt. 51) 533.With the demise of the applicant on the 31st July, 2013, in law, it ceases to exist
and therefore lacks the locus standi to maintain any action at all in court. It could not also
have had any legal capacity to file a competent notice of appeal, which act was an utter
abuse of court process. In the result I concur with the reasoning and conclusion arrived
thereat by my learned brother, Hon. Justice I. T. Muhammad, JSC that; while the application
should be dismissed as an abuse of court process, the purported notice of appeal filed
7thAugust 2013 should be struck out for incompetence. I also abide by order made as to
costs.

KEKERE-EKUN, J.S.C.: This is a motion on notice filed on3/10/2014 on behalf of the

appellant/applicant for
1. An order of the honourable court substituting the appellant in appeal no.
SC.477/2013 Congress for Progressive Change
(CPC) with the applicant, All Progressives Congress (APC) and
for same substitution to be made anywhere CPC appeared in the processes
filed in this honourable court.
2. An order striking out 4th and 6th respondents from the appeal.
3. Any order or further orders the honourable court may deem just to make in
the circumstances.

Application supported by 19-paragraph affidavit.

Preliminary objection filed on behalf of 3rd respondent.

Grounds of Preliminary Objection

1. The appeal was filed in the name of a deceased party.
2. The appellant on record, CPC ceased to exist on31/7/2013 as admitted on
oath upon the withdrawal of its certificate of registration by INEC on the
said31/7/2013.
3. The cancellation of the registration certificate of the appellant on 31/7/2103
is confirmed by a certified true copy of an official letter from INEC to the
appellant on31/7/2013.
4. Though the judgment was delivered on 10/7/2013by the Court of Appeal, no
appeal was filed by the deceased appellant before its demise on 31/7/2013.
5. This appeal was filed on 7/8/2013 after the “death” of the appellant.
6. The appeal is grossly incompetent.
7. The appeal as constituted robs the honourable court of jurisdiction to
entertain same.
The notice of preliminary objection is supported by 7-paragraphaffidavit and 4 exhibits. Also,
a counter affidavit filed on 3/10/2014.

The principle in Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt.81) 163 at 180 is that there can be
no substitution in the absence of a competent appeal.

The issue in this application is whether there is a competent appeal pending in respect of
which the order for substitution could be made.

It is the contention of the 3rd respondent (supported by 1st and2nd respondents) that at the
time the notice of appeal in this appeal was filed the appellant was dead, had ceased to
exist, had no legal existence and had no vires to file or authorise the filing of the appeal.

Learned senior counsel stresses the fact that there was a sole appellant in the appeal who
had died before the filing of the appeal.

Exhibit A attached to preliminary objection is the notice of appeal dated and filed on
7/8/2013.

Exhibit B is a copy of the motion on notice filed on 24/9/2013by the appellant for an order
for substitution.

Ground 2 categorically states that the three parties that now make up the appellant ceased
to exist and function as individual parties as INEC withdrew their certificates on 31/7/2013.

Paragraph 14 of supporting affidavit avers thus:

“That the certificate of CPC was withdrawn on the 31st of July 2013.”
This fact is reiterated in the penultimate paragraph of the written address in support.

Exhibit C is a motion on notice filed on 26/9/2014 seeking the same relief. The same ground
is also relied on i.e., that CPC ceased to exist after the withdrawal of its license by INEC on
31/7/2013.See paragraph 14 of the supporting affidavit and written address on behalf of 3rd
respondent. Exhibit E is a certified true copy of a letter from INEC to the Chairman of CPC on
the request for merger stating in paragraph 3:
 “3. The registration certificate of Congress for Progressive Change (CPC) is hereby
cancelled and you are therefore requested to submit same to the Commission
immediately.
4. The Commission shall issue a certificate of registration to All Progressives Congress
(APC) in due course.”

Learned counsel for the applicant contends that the death of CPC would only become
conclusive on the date INEC issued the certificate of merger, which is 8/8/2013.

He relies on sections 84(5), 78(1) and 80 of the Electoral Act,2010 (as amended) and C.C.B.
(Nig.) Ltd. v. Onwuchekwa (2000) 2NWLR (Pt.647) 65 and contends that the appeal is
competent since it was filed on 7/8/2013.

Sections 78(1) and 80 of Electoral Act not relevant. Section78(1) deals with general powers
of INEC to register political parties. Section 80 deals with the legal personality of political
parties.

Section 84(5) deals with steps to be taken in the merger process. It provides:

“Where the request for the proposed merger is approved the Commission shall:
Withdraw and cancel the certificates of registration of all the political parties opting
(1) for the merger and
Substitute a SINGLE certificate of registration in the name of the party resulting from
the (2) merger.”

Exhibit E is proof that INEC took the appropriate steps by withdrawing and cancelling the
certificate of CPC on 31/7/2013.

Exhibit E attached to the 3rd respondent’s counter affidavit shows the certificate of merger
dated 8/8/2013 stating specifically that it takes effect from 31/7/2013. It follows therefore
that as at7/8/2013 when the notice of appeal was filed, CPC had ceased to exist.

The authority of C.C.B. (Nig.) Ltd. v. Onwuchekwa (supra) is not applicable because election
matters are sui generis. The situation in C.C.B. (Nig.) Ltd.
(supra) is not analogous to the situation in this case.
Therefore, the preliminary objections are upheld. There is no competent appeal before the
court upon which the application for substitution could be anchored. The application is
accordingly dismissed.

Appeal No. SC.477/2013 founded on an incompetent notice of appeal is also incompetent

and hereby struck out. N100,000.00costs awarded in favour of the 2nd and 3rd respondents
each against the applicant.

OKORO, J.S.C.: I have had a preview of the ruling of my learned brother, I. T. Muhammad,
J.S.C., just delivered with which I am in total agreement that the instant application is
without merit at all.

The detailed facts leading to the application before this court are well captured in the lead
ruling. I shall resist the temptation of repeating the exercise. But suffice it to say that the
Congress for Progressive Change is the appellant in this appeal. Following its merger with
the Action Congress of Nigeria and All Nigeria People’s Party to form the All Progressives
Congress (the applicant herein), the said applicant applied via a motion on notice filed on
3rdOctober, 2014, for the following reliefs:
“1. An order of the honourable court substituting the appellant in appeal no. SC.
477/2003 Congress for Progressive Change (CPC) with the applicant All
Progressives Congress (APC) and for same substitution to be made anywhere
CPC appeared in the process filed in the honourable court.
2. An order striking out 4th and 6th respondents from the appeal.

3. Any order or further orders the honourable court may deem just to make in
the circumstances.”

The grounds in support of the application are as follows:

“1. By a merger arrangement between the All Nigeria Peoples Party (ANPP), the
Action Congress of Nigeria (ACN) and the
Congress for Progressive Change (CPC), the Independent National Electoral
Commission registered the All Progressives Congress (APC) being the result of
the merger.
2. The appellant in this appeal has become part and parcel of the APC by virtue
of the merger.
 3. The applicant is desirous of being substituted in place of CPC since its rights
will be greatly affected by the outcome of the appeal.
4. That the substitution sought in this appeal does not affect the substance of
the appeal.
5. That the respondents will not be prejudiced in any way by the grant of the
application.
6. That it is in the interest of justice to grant this application.”

In support of the said application the applicant filed a19-paragraph affidavit. On the 9th of
October, 2014 when this application was to be heard, the learned senior counsel for the
3rdrespondent Chief Chris Uche, SAN drew the attention of the court to the counter affidavit
against the application filed on 3rd October,2014 and a notice of preliminary objection also
filed on the same date. Chief Olajide Ajana, of counsel for the 2nd respondent also filed
notice of preliminary objection. The other respondents did not file notice of preliminary
objection.

In moving the preliminary objection, the learned senior counsel for the 3rd respondent,
Chief Uche, SAN referred to a 7-paragraphaffidavit in support of the preliminary objection
and exhibits A, B, C & D annexed. He also referred to the grounds for the objection which
shows that the appellant which filed this appeal on 7th August,2013 had ceased to exist
since 31st July, 2013. According to him, this application cannot be granted because the
applicant had died or ceased to exist as a juristic person as at 31st July, 2013 and as such
lacked the capacity to file an appeal or any process in a court of law. That such an appeal
filed by it is nullity ab initio and that any application based on it cannot be granted.

He then urged the court to dismiss the application.

Chief Ajana who also filed notice of preliminary objection on behalf of the 2nd respondent
also moved the court to dismiss the application on the same ground already marshalled by
Chief Uche, SAN. He also urged the court to dismiss the appeal. The other respondents did
not file any notice of objection and so had nothing to urge the court.

In his response, the learned senior counsel for the applicant, Mr. Okutepa, SAN submitted
that the application to substitute CPC by the APC is competent. He contended that as at the
7th day of August, 2013 when the Congress for Progressive Change (CPC)filed this appeal, it
was still alive since the certificate of merger was not issued until 8th August, 2013. It is his
argument that although Independent National Electoral Commission said that CPC ceased to
exist on 31st July, 2013 that could not be the case since the certificate of merger was yet to
be issued. Relying on the case of Co-operative & Commerce Bank Nigeria Ltd. v. Alex
Onwuchekwa (2000) 2 NWLR (Pt. 647) 65, he urged this court to accept his submission that
the death of the CPC and other parties in the merger took place on 8/8/13 when the
certificate was actually issued.

The crux of this application hinges on the date which the appellant, (CPC) ceased to exist or
ceased to have legal personality. If it is determined that CPC died on 31st July, 2013 when its
certificate of registration was withdrawn and cancelled, then it had no legal capacity to file
this appeal upon which this application is predicated. The said appeal was filed on 7th
August, 2013. However, if it be determined that CPC ceased to exist or died on 8th
August,2013 when the Independent National Electoral Commission issued the certificate of
merger, then CPC would be adjudged to have been alive with full legal capacity to sue or
appeal as at 7th August, 2013when the appeal was filed. The two situations each has
separate, distinct and far-reaching legal implications.

The law is well settled that a dead man having no legal personality and capacity cannot file a
writ of summons and by the same token, a dead man cannot appeal against a judgment
given against him when he was alive. See Ezenwosu v. Ngonadi (1988) 3NWLR (Pt. 81) 163; I.
O. Eyesan v. Y. O. Sanusi (1984) 4 SC 115;(1984) 1 SCNLR 353.
In the case of In Re: Otue don (1995) 4 NWLR (Pt. 392) 655 at668 paragraphs C - D, this court
held, inter alia, that:
“A notice of appeal which is filed on behalf of or in the name of a dead appellant
after his death is incompetent and null and void and the court cannot be asked to
amend such a notice by substituting a living person or persons in place of the dead
litigants. See Clement Ezenwosu v. Peter Ngonadi supra. It is not a mere procedural
defect or irregularity that an appeal has been filed in the name of a dead person. It is
a radical and fundamental error which borders on the issue of jurisdiction.
Accordingly, there must be a competent and pending appeal before one party may
be substituted for another and in the absence of a pending appeal or suit, the issue
of substitution becomes an exercise in futility as ex nihilo nihil fit.”
The issue is as serious as stated above. Maybe I need to add that notice of appeal against
any decision or judgment complained of is the foundation of a proper appeal. Thus, where
notice of appeal was filed by a dead person or an unauthorized person, it is incompetent,
null and void. Therefore, there can be no valid appeal pending upon which an application for
substitution can be entertained. See Tukur v. Government of Gongola State (1988) 1 NWLR
(Pt. 68) 39; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Opebiyi v. Oshoboja (1976) 9-10 SC
195. I shall now consider the status of the appellant (CPC)at the time the appeal was filed.
The counter affidavit filed by the3rd respondent and some exhibits attached are very
instructive and illuminating. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the said counter
affidavits deposed to by one Kanayo Okafor Esq., state as follows:
“4. That prior to filing of the present motion, the appellant had previously filed two
similar motions on notice for substitution before this honourable court,
namely on24th September, 2013 and on 26th September, 2014, and in both
motions on notice, the affidavit in support was sworn to by the same
deponent, namely, Alhaji KashimMabo, and I annex herewith copies of the
said motions on notice as exhibits “B” and “C” respectively.
5. That in paragraph 14 of the affidavit in support of the motion on notice filed
on 24th September, 2013 and in paragraph 14 also of the motion on notice
filed on 26thSeptember, 2014, the appellant through the said Alhaji Kashim
Mabo had deposed “That the certificate of CPC was withdrawn on the 31st of
July, 2013.”
6. That also in ground No. 2 of the grounds in support of the two motions on
notice, the appellant had stated unequivocally that the Congress for
Progressive Change (CPC) ceased to exist on 31st July, 2013.
7. That most importantly, the cancellation of the registration certificate of the
appellant on 31st July,2013 is confirmed by a certified true copy of an official
letter by Independent National Electoral Commission issued to the appellant
on 31st July, 2013 and I annex herewith the said letter as exhibit “D”.
8. That the same Alhaji Kashim Mabo has deposed to the affidavit in support of
the present motion for substitution (which is the third one) and has turned
around in paragraph
10 of the affidavit to state that the certificate of registration of CPC was
cancelled on 8thAugust, 2013, after having deposed twice earlier that it was
on 31st July, 2013.
 9. That the paragraphs 10 and 12 of the affidavits in support are false.
10. That the appellant deliberately refused to annex and exhibit the certificate of
registration of the All Progressives Congress (APC), notwithstanding that it
referred to it in paragraph 11 of the supporting affidavit.
11. That the said certificate of registration of the All Progressives Congress (APC)
is explicit, unambiguous and clear on the fact that the merger producing APC
took effect from 31st July, 2013, notwithstanding that the certificate was
eventually issued on 8th August,2013 as promised in INEC’s letter earlier
annexed herein as exhibit “C” where the Commission stated that thus:
“4. The Commission shall issue a certificate of registration to All Progressives
Congress (APC)in due course.”
12. That I annex the certified true copy of the certificate of registration of the All
Progressives Congress (APC) as exhibit “E”.

Again, in the second ground in support of applicant’s two earlier motions i.e., exhibits B and
C attached to the 3rd respondent’s counter-affidavit, the applicant stated unequivocally that
the appellant ceased to exist on 31st July, 2013. For the avoidance of doubt, I hereby
reproduce the said ground No. 2. It states:
“By the registration of the All Progressives Congress (APC), the trio of ANPP, ACN and
CPC being the appellant in this appeal ceased to exist and function on their own as
individual political parties as the Independent National Electoral Commission
(INEC)withdrew their certificate on that 31st of July, 2013.”

There are two other documents mentioned in and annexed to the counter affidavit of the
3rd respondent which appear to have settled the matter beyond any conjecture. The
documents are exhibits Dand E mentioned in paragraphs 7 and 12 respectively. Exhibit D
states:

“INDEPENDENT NATIONAL ELECTORAL COMMISSION

Zambezi Crescent, Maitama District, P.M.B. 0184,

Garki - Abuja,
Federal Capital Territory
Telephone.…
Ref. No. INEC/EPM/PPM/504/Vol.1/40
 31st July, 2014

The National Chairman,

Congress for Progressive Change (CPC),
Plot 1132, Festus Okotie-Ebo Crescent,
Utako District, Abuja

RE: REQUEST FOR MERGER OF ACTIONCONGRESS OF NIGERIA

(ACN), ALL NIGERIAPEOPLES PARTY (ANPP) AND CONGRESS FORPROGRESSIVE
CHANGE (CPC)

Your request for merger dated 1st July, 2013 refers.

2. The Commission at its meeting held on 31st July,2013 approved the merger of
Action Congress of Nigeria (CAN), All Nigeria Peoples Party (ANPP)and
Congress for Progressives Change (CPC) as a political party with the name All
Progressive Congress (APC).
3. The Registration Certificate of Congress for Progressives Change (CPC) is
hereby cancelled and you are therefore requested to submit same to the
Commission immediately.
4. The Commission shall issue a Certificate of Registration to ALL
PROGRESSIVESCONGRESS (APC) in due course.
5. Please accept the assurance of the Commission’s highest regard.

Congratulations.
ABDULLAHI A. KAUGAMA
SECRETARY TO THE COMMISSION”

Also exhibit E states:

“INDEPENDENT NATIONAL ELECTORALCOMMISSION

Certificate of Merger of Political Parties

 WHEREAS the Commission having verified the facts and information supplied to it by
CAN, ANPP & CPC political parties, is satisfied that the said Political Parties have
fulfilled all the necessary conditions for merger as a Political Party.

NOWTHEREFORE the Commission has, with effect from the 31st day of July, 2013
approved the merger of the aforesaid political parties as a political party to be known
and called ALL PROGRESSIVES CONGRESS pursuant to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended)

GIVEN under the hand of the Chairman and Seal of the Commission at Abuja.

This 8TH day of AUGUST, 2013

SIGNED
PROF. ATTAHIRU MUHAMMADU JEGA, OFR
CHAIRMAN
INDEPENDENT NATIONAL ELECTORALCOMMISSION”

There are many other features of the application which I can go on and on to reproduce in
order to show when the CPC actually ceased to exist. But suffice it to say that I have brought
to the fore enough evidence to demonstrate unequivocally that the CPC, appellant in this
case ceased to exist on 31st July, 2013. In exhibit D, a document made on 31st July, 2013,
paragraph three thereof states:
“The registration certificate of Congress for Progressive Change (CPC) is hereby
cancelled and you are therefore requested to submit same to the Commission
immediately.”

Clearly, the above quotation from exhibit D shows that CPC’s certificate was cancelled on
31st July, 2013. The cancellation means that the life it had, had been sniffed out of it with
effect from that date. The refusal of the promoters of CPC to return the cancelled certificate
to Independent National Electoral Commission did not breathe fresh life into it any longer. It
had died. In fact, exhibit Estates clearly that the All Progressives Congress came into being
“with effect from the 31st day of July, 2013”. I do not think I need to say more on this issue.

From what have been stated above, one thing is crystal clear, and that is, that the appellant
in this appeal ceased to exist with effect from 31st July, 2013. That being the case, it lacked
legal capacity to sue or be sued in a court of law in a terrestrial Nigeria. May be he can do so
in the spiritual world. A corollary to this is that, the appellant could not file any appeal
against a judgment given against it when it was alive.

From the position of the law adumbrated earlier in this ruling, the appeal filed by the
appellant on 7th August, 2013, is incompetent, null and void having been filed by a dead
party.

The consequence of this is that an application to substitute the dead appellant in the
circumstance of this case cannot be granted. Accordingly, the preliminary objections are
hereby upheld. The unmeritorious application is hereby dismissed. Consequently, the null
and void appeal is hereby struck out. I abide by the order as to costs as contained in the lead
ruling.

Appeal Dismissed