The facts of the case include the following: On the I3th clay of December, 2006, the 2nd Respondent conducted its primary election to select/nominate its candidate for the Gubernatorial election for Niger State scheduled for April. 2007 which election was won by the Appellant, as a result of which his name and particulars were forwarded by the 2nd Respondent to the 3rd Respondent as the sponsored candidate of the 2nd Respondent for the Niger State Governorship Election so scheduled. The 1st Respondent was not a candidate at the primary election conducted in December, 2006, resulting in the emergence of the Appellant; in fact at the material time, he was still a civil servant. Appellant was duly screened by the 3rd Respondent and cleared to contest the said election.
However, on the 5th and 13th day of February, 2007, the 2nd Respondent applied to the 3rd Respondent to withdraw/substitute the 1st Respondent for the Appellant as the sponsored Candidate of the 2nd Respondent for the election in question which application was duly acted upon by the 3rd Respondent. The 1st Respondent, rather than 'he Appellant, therefore contested the Niger State Governorship Election on the 14th day of April, 2007, and was consequently declared the winner thereof and was sworn in as the Governor of Niger State on the 29th day of May, 2007.
On the 7th day of November, 2007 the Appellant instituted an action, Suit No. FHC/KD/CS/162/2007 at the Federal High Court, Holden at Kaduna by way of Originating Summons asking for the determination of the following questions:-
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"1.
Whether having regard to the provisions of Section 34(2) of the Electoral Act, 2006, the 2nd Defendant can without adducing cogent and .verifiable reason change and or substitute the name of the plaintiff for the 1st Defendant as the People’s Democratic Party Governorship candidate in the 14th April, 2007 Election in Niger State.
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2.
Whether having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by Section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the 3rd Respondent can act on the name of the 1st Defendant as replacement of the Plaintiff's.
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3.
Whether having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by Section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the Plaintiff is not the duly nominated candidate for the 14th April, 2007 Gubernatorial Election in Niger State under the platform of the 2nd Defendant.
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4.
Whether having regard to the provisions of Article 17.2(5) of the Constitution of the People’s Democratic Party and Articles 13 (a)-(v), 14(a)-(k), 15(i) (a)-(e) (2), 16(a-f), 18(a) &. (b) and 19 its Electoral Guidelines for primary election 2006, the 1st Defendant who did not contest the Gubernatorial Primary Election could be changed and or substituted by the 2nd Defendant for the plaintiff who won the said Primary Election by 3,575 lawful votes.
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Consequently upon the determination of the above questions, the Appellant claimed the following reliefs:
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a.
A Declaration that the plaintiff was the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the 2nd Defendant being the candidate who won the majority of 3557 (sic) lawful votes at the primary Election conducted by the 2nd Defendant on the 13th day of December, 2006 and whose name was submitted by the 2nd Defendant to the 3rd Defendant.
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b.
A Declaration that the 1st Defendant who did no! contest the Primary Election aforesaid as mandated from Art ids; 7 2(b) of the Constitution of the People’s Democratic Party and the Electoral guidelines Jar Primary Election, 2006 issued pursuant thereto, was not qualified, to be nominated by the 2nd Defendant as its Gubernatorial Candidate in the 14th April, 2007 Governorship Election in Niger State.
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c.
A Declaration that the 1st Defendant who did not confer; the Primary Election aforesaid was not the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the Platform of the People’s Democratic Party, the 2nd Defendant.
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d.
A Declaration that by virtue of the provisions of Section 32(5) of the Electoral Act, 2006 it is only a Court of law that can disqualify the Plaintiff who was duly nominated as the Governorship candidate of the 2nd Defendant in the 14th April, 2007Governorship Election in Niger State and whose name and particulars were submitted by the 2nd Defendant to the 3rd Defendant as such.
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e.
A Declaration that the option of changing or substituting the Plaintiff with the 2nd Defendant is only exercisable by the 2nd Defendant in strict compliance with the provisions of Section 34(2) of the Electoral Act, 2006.
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f.
A Declaration that the sudden substitution of the Plaintiff's name with the 1st Defendant's name lacked any merit and it constitutes a deliberate and flagrant infraction of the provisions of Section 34(2) of the Electoral Act, 2006.
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g.
A Declaration that the nomination of the 1st Defendant as the gubernatorial candidate of the People’s Democratic Party at the said Election and the acceptance thereof by the 3rd Defendant is Void ab Initio.
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h.
A Declaration that the Plaintiff, whose name was unlawfully and unjustifiably removed as the Governorship candidate of the 2nd Defendant in 14th April, 2007 Governorship Election remains the candidate of the People’s Democratic Party in the eyes of the law.
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i.
In The Premises of the Foregoing, An Order directing the 1st Defendant to immediately vacate the coveted seat of the Governor of Niger State.
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j.
Further Order directing the relevant authorities to immediately inaugurate and or swear in the Plaintiff as the Executive Governor of Niger State,”
On the 23rd of November, 2007, the 1st Respondent, as 1st Defendant filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to hear and determine the suit as constituted on the following grounds:
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(i)
This Honourable Court lacks jurisdiction in this matter.
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(ii)
This action being about steps taken by a Public Officer is statute barred having regard to the provisions of the Public Officers Protection Act.
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(iii)
Action of the Plaintiff amounts to an abuse of the process of the Court.
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(iv)
The 1st Defendant is the sitting Governor of Niger State of Nigeria and enjoying constitutional immunity from civil and criminal actions whilst in office.
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(v)
The action of the Plaintiff is caught by the principles of Estoppel and Standing-by.
In respect of the 2nd Defendant, the Preliminary Objection is to the effect that:
In their judgment the Court of Appeal dismissed the respondents' claim for declaration of title and there is no appeal against that decision in this court. It also set aside the judgment of the Onitsha High Court as regards damages for trespass and injunction and awarded N200.00 damages for trespass in favour of the respondents herein as well as an order of injunction against the appellants. It is against this decision that the appellants have appealed to this court.
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(i)
This Honourable Court lacks jurisdiction in this matter.
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(ii)
The issue of nomination and substitution are all pre¬-election matters which are no longer justiciable after holding of the election.
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(iii)
The 1st Defendant is covered by constitutional immunity.
The trial Court heard arguments on the Originating Summons and the objections, aria, in a judgment delivered on the 14th day of December 2007, the Court upheld the preliminary objections and consequently struck out the action.
Appellant was dissatisfied with that judgment and appealed to the Court of Appeal, as stated earlier in this judgment, which Court dismissed the appeal in a judgment delivered on the 22nd day of April, 2009. The present appeal is against the said judgment,
