ABDUL-RAZAK & ANOR v. APC & ORS (2021)

ABDUL-RAZAK & ANOR v. APC & ORS

(2021)LCN/15059(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, February 18, 2021

CA/ABJ/CV/20/2021

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1. HON. MOMOH ABDUL-RAZAK 2. HON. ZIBIRI MARVELOUS MUHIZU APPELANT(S)

And

ALL PROGRESSIVE CONGRESS (APC) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. AUDU ABUDU GANIYU (APC Deputy Governorship Candidate For Edo State) 4. IZE-IYAMU OSAGIE ANDREW (APC Governorship Candidate For Edo State) RESPONDENT(S)

RATIO

POSITION OF THE LAW AGAINST PROLIFERATION OF ISSUES

Proliferation of issues is generally frowned at, detested by the Courts, and must be avoided. See: UGO V. OBIEKWE (1989) 21 SC (Pt. 11) 41. It is unwanted, unpleasant and undesirable to formulate an issue embodying more than one question for the Court to determine. See: LABIYI V. ANRETIOLA (1992) 10 SCJN 1. See also: HUSSENI V. MOHAMMED (2015) 3 NWLR (PT. 1445) P. 100. Legal Practitioners must make conscientious efforts to avoid formulating secondary issue(s) in an issue. See: DIN V. AFRICAN NEWSPAPER OF NIG. LTD. (1990) LPELR-947 (SC). Courts encourage that issues for determination should not be unnecessarily prolix, ponderous or bungle some. They should be clear and concise statement of the complaint against the judgment, which is the subject of the appeal. Proliferating issues serve no useful purpose and it is a practice that should be avoided. See: OGBUANYINYA V. OKUDO (No. 2) (1990) 4 NWLR (146) 551 @ 567; CLAY INDUSTRIES (NIG.) LTD. V. AINA & ORS (1997) 8 NWLR (pt. 516) 208; OGUNYADE V. OSHUNKEYE (2007) 15 NWLR (Pt.1057) 218; NDUUL V. WAYO & ORS. (2018) LPELR – 45151 (SC). PER UCHECHUKWU ONYEMENAM, J.C.A.

CONSEQUENCE OF THE FAILURE TO EFFECT SERVICE OF COURT PROCESS WHERE SERVICE OF PROCESS IS REQUIRED

The settled position of the law was clearly stated by His Lordship, MUSDAPHER, JSC (as he then was) in KIDA V. OGUNMOLA (2006) 6 SCNJ 165 @ 174 thus: “Service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N v. ADEWUNMI (2003) 10 NWLR (PT. 829) 526; MBADINUJU v. EZUKA (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Courts jurisdiction was not fulfilled. To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.” The principle was re-stated in the recent decision of the Apex Court in; IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT.1492) 148 @ 179 D-F by OKORO, JSC: “… I AGREE THAT IT IS NOT EVERY NON- COMPLIANCE WITH THE RULES OF COURT THAT SHOULD VITIATE THE PROCEEDINGS. HOWEVER, WHERE THE NON-COMPLIANCE ROBS THE COURT OF ITS JURISDICTION, THE PROCESSES AND THE PROCEEDINGS MUST BE SET ASIDE. I MUST EMPHASIZE THAT SERVICE OF PROCESS IS AN IMPORTANT ASPECT OF THE JUDICIAL PROCESS. FAILURE TO SERVE A NAMED PARTY WITH COURT PROCESS OFFENDS SECTION 36(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED). ANY BREACH OF THIS PRINCIPLE (OF FAIR HEARING) RENDERS THE PROCEEDINGS A NULLITY. SEE CHIME VS. ONYIA (2009) ALL FWLR (PT. 480) 673 @ 730- 731 PARAS H-B; (2009) 2 NWLR (PT. 1124) 1. SEE ALSO: SKENCONSULT (NIG) LTD. V. UKEY (1981) 1 SC 6: OBIMONURE VS ERINOSHO (1966) 1 ALL NLR 250: CRAIG VS KANSEEN (1943) K.B 256; NATIONAL BANK (NIG) LTD. VS. GUTHRIE (NIG) LTD. (1993) 3 NWLR (PT.284) 643. SEE PARTICULARLY: EMEKA V. OKOROAFOR & ORS.(2017) 2-3 SC (PT. IV) P.1; (2017) LPELR-41738 (SC). PER UCHECHUKWU ONYEMENAM, J.C.A.

INTERPRETATION OF SECTION 31 (5) AND (6) OF THE ELECTORAL ACT, 2010 AND SECTIONS 186, 187 (1) AND 285 (14) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) REGARDING WHETHER AN ACTION SEEKING THE DISQUALIFICATION OF A CANDIDATE ON GROUNDS OF FALSE INFORMATION IN THE AFFIDAVIT OR ANY DOCUMENT SUBMITTED BY SUCH CANDIDATE IS A PRE-ELECTION MATTER

Section 31 (5) and (6) of the Electoral Act, 2010 provides thus: 31 (5) “a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court, against such person seeking a declaration that the information contained in the affidavit is false” (emphasis supplied is mine). 31 (6) “if the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an Order disqualifying the candidate from contesting the election”. Sections 186 and 187 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide as follows: 185 “there shall be for each State of the Federation a Deputy Governor”. 187 (1) “in any election to which the foregoing provisions of this part of this chapter relate, a candidate for the office of Governor shall not be deemed to have been validly nominated for such office unless he nominates another candidates as his associate for his running for the office of Governor, who is to occupy the office of the Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions”. Section 285 (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus: (14) “For the purpose of this Section, “pre-election matter” means any suit by- (a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties has not been complied with by a political party in respect of the selection or nomination of candidates for an election; (b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and (c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the commission in respect of preparation for an election” (emphasis supplied is mine). The law is cast-iron that, when interpreting statutes which words are clear and unambiguous, the said words must be given their commonplace, everyday, run-off-the-mill meaning so long as it would not lead to absurdity or in conflict with the provisions of the Constitution; and effect must be given to the said provisions without recourse to any other considerations. See: STATE V. UGHANWA (2020) 3 NWLR (PART 1710); MAMUDA V. STATE (2019) LPELR-46343(SC); IKUFORIJI V. FRN (2018) LPELR-43884(SC); BARBEDOS VENTURES LTD V. FBN PLC (2018) 4 NWLR Pt. 1609 NWLR P. 241 @ 295; EHINDERO V. FRN (2018) 5 NWLR Pt. 1612 P. 301 @ 302, SETRACO (NIG) LTD V. KPAJI (2017) SKY EBANK V. IWU(2017) LPELR-42595(SC). Section 31 (5) of the Electoral Act as reproduced above is glaringly unambiguous and must be given its plain and ordinary meaning. See: STATE V. UGHANWA (supra).The phrase “a person” used in Section 31 (5) of the Electoral Act, refers to any human being, individual, aspirant, party, body etc. In other words, the section empowers any member of the public to seek declaration at the High Court of a State or Federal High Court if he believes that any information given by a candidate in affidavit Form EC9 submitted by that candidate and published by the Independent National Electoral Commission (INEC) is false. In ABUBAKAR V. INEC & ORS. (2020) 12 NWLR (PT. 1737) 37 relied on by the parties, the Supreme Court on the power of general public to screen candidates and raise objection as to qualification under the Electoral Act, held that; “by virtue of Section 31 of the Electoral Act, the General Public is empowered to screen the candidate whose personal particulars are in Form CF 001 published by the Independent National Electoral Commission (INEC) pursuant to Section 31 (1) of the said Act by way of objection”. The provision of Section 31 (supra) is inclusive. This is to say that by Section 31 of the Electoral Act, any human being, individual, party, candidate, body; that is the public in general, is entitled to bring an action seeking the disqualification of a candidate on the ground that he submitted false information to INEC in his Form EC9. However, such action must be brought before the conduct of the election of the candidate whose qualification is object of attack. Now, proceeding to the provisions of Section 285 (14) of the 1999 Constitution (supra) reproduced above; I assert also, that the above section is unambiguous and must be given its plain and ordinary meaning. See: STATE V. UGHANWA (supra). By Section 285 (14) of the 1999 Constitution (supra), the definition of “pre-election matter” therein is exclusive. It is restricted to “an aspirant” and “a political party” and not the general public or members of a party as provided by Section 31 of the Electoral Act (supra). For a suit to fall within the meaning of “pre-election matter” as defined under Section 285 (14) of the 1999 Constitution (supra), such suit must be instituted or commenced before the conduct of the election in question and by either an aspirant or a political party. The provisions of Section 31 (5) and (6) of the Electoral Act are not in conflict with the provisions of Section 285 (14) of the 1999 Constitution. This is firmed by the decisions of the Apex Court in the cases of ABUBAKAR V, INEC and AKINLADE V. INEC (supra); where it was held that:”the disqualification of a candidate on grounds of false information in his Form CF001 is a pre-election matter by dint of Section 285 (14) of the Constitution. The procedure for ventilating any grievance on this is statutorily provided in Section 31 of the Electoral Act, as amended.” APC V. IBRAHIM UMAR & ORS (2019) 8 NWLR (PT. 1675) 564 at 575 F-H. PER UCHECHUKWU ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court Abuja Judicial Division, delivered on 14th December, 2020 by IJEOMA L. OJUKWU, J. in SUIT NO: FHC/ABJ/CS/758/2020.

The Appellants’ case commenced via an Originating Summons filed on 10th July, 2020; at the Federal High Court Abuja Division seeking to disqualify the 3rd Respondent from participating in the Edo State Governorship election on the grounds that the 3rd Respondent deposed to false information in the 2020 INEC Affidavit Form EC-9. The suit was brought pursuant to Sections 6 (6), 186 and 187(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 31 (5) and (6) of the Electoral Act, 2010 (as amended) and Order 3 Rules 1, 6, 7, 8, 9 of the Federal High Court (Civil Procedure) Rules 2019. The Appellants’ case is that a person who gave false information on Oath is not a fit and proper person to contest an election.

The Appellants also alleged that since the 3rd Respondent is not fit to contest by reason of the alleged false deposition, the 4th Respondent who has him as a running mate should also be declared unfit to contest.

The matter which was previously assigned to TAIWO O. TAIWO, J. was later reassigned to IJEOMA L. OJUKWU, J. The 1st, 3rd and 4th Respondents filed their Counter Affidavits to the Originating Summons. The 2nd Respondent did not file anything. The 3rd and 4th Respondents also filed preliminary objections. The objections were on the ground that the matter which is not a pre-election matter had become academic since it was not decided before the election. The Appellants equally argued that they were never served with the 3rd Respondent’s counter Affidavit to the originating summons.

The trial Court entered judgment in favour of the Respondents as follows:
“In sum, it is my humble but firm opinion as inspired by superior authorities that the instant suit has become academic in view of Section 31 (6) of Electoral Act, 2010 (as amended). The order which the Court is being invited to make, with due difference to the learned counsel for the plaintiffs F. N. Nwosu has become sterile, obsolete and of no effect. This case was alive and well at the time of embarkation into this journey, but it has become

moribunden route its port of uncertain destination as are suit of the peculiar nature of this case.”
“The Plaintiffs may wish to seek another avenue of redressing view of their allegations of false information. But as it concerns the present suit, this matter is spent and has become impotent. This Honourable Court has no jurisdiction to continue hearing. Both the preliminary objections canvassed by the 3rd and 4th Defendants succeed and each is upheld. Without further fanfare, the case of the Plaintiffs is struck out.”

Dissatisfied with the above judgment of the Federal High Court Abuja Division, the Appellant approached this Court via a Notice of Appeal dated and filed on 22nd December, 2020.
Counsel on both sides filed relevant processes as required by the rules of the Court, the Appeal was then heard on 3rd February, 2021. Before the Appeal was heard, the 1st Respondent adopted his preliminary objection incorporated in his brief. Thereafter, all Counsel adopted their briefs in the appeal.

F. N. NWOSU Esq. appearing with E. K. OKOKO Esq. and AJAYI ILESSANMI for the Appellants adopted and relied on the Appellants’ Brief of

Argument field on 20th January, 2021. He urged the Court to allow the appeal. The learned counsel formulated four (4) issues for determination from the nineteen (19) Grounds of Appeal filed by the Appellants.
The four issues are:
1. “WHETHER THE TRIAL COURT WAS WRONG IN DECIDING THAT THE APPELLANTS’ SUIT AS CONSTITUTED WAS NOT A PRE-ELECTION MATTER BECAUSE THE APPELLANTS WERE NOT ASPIRANTS IN THE 19TH SEPTEMBER, 2020 EDO STATE GOVERNORSHIP ELECTION DESPITE HAVING REGARD TO THE POSITION OF BOTH THE TRIAL COURT, THE APPELLANTS AND THE RESPONDENTS THAT THE SUIT OF THE APPELLANTS WAS INSTITUTED PURSUANT TO SECTION 31 (5) AND (6) OF THE ELECTORAL ACT, 2010 (AS AMENDED) AND SECTIONS 186 AND 187 (1) AND (2) OF THE 1999 CONSTITUTION OF THE FEDERAL OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) AND WHETHER APPELLANTS CAN FILE THEIR SUIT DESPITE BEING MEMBERS OF THE SAME POLITICAL PARTY (APC) WITH THE 3RD AND 4TH RESPONDENTS.
2. WHETHER BY THE READING AND INTERPRETATION OF SECTION 31(5) AND(6) OF THE ELECTORAL ACT, 2010 (AS AMENDED) TOGETHER WITH SECTIONS 6(6)(A), 186, 187 (1) AND (2) AND

285 (14)(C) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) AND THE STATE OF THE LAWS AS DECIDED BY THE SUPERIOR COURTS IN NIGERIA APPLICABLE TO APPELLANTS’ CASE, THE SUIT OF THE APPELLANTS FILED ON THE 10TH DAY OF JULY, 2020 WHICH COMPLAINED AND URGED THE TRIAL COURT TO DECLARE THAT THE 3RD RESPONDENT SUPPLIED FALSE INFORMATION TO 2ND RESPONDENT (INEC) IN HIS 2020 INEC AFFIDAVIT FORM EC-9 AND IN HIS OTHER DOCUMENTS CONTRARY TO SECTION 31 (5) AND (6) OF THE ELECTORAL ACT 2010 (SUPRA) HAS BECOME ACADEMIC AND SPENT BY REASON THAT THE AFORESAID EDO STATE GOVERNORSHIP ELECTION HAVE BEEN CONDUCTED BEFORE THE DETERMINATION OF THE APPELLANTS’ SUIT BY THE TRIAL COURT AND ALSO THAT THE 4TH RESPONDENTS HAD ALREADY PARTICIPATED IN THE SAID ELECTION AND LOST?
3. WHETHER HAVING REGARD TO SECTION 36 (1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), AND DECIDED CASES THE NON SERVICE OF THE 3RD RESPONDENT’S COUNTER AFFIDAVIT TO APPELLANTS’ ORIGINATING SUMMONS ON THE APPELLANTS WHICH THE LEARNED TRIAL JUDGE COUNTENANCED AND RELIED ON IN HIS JUDGMENT DOES NOT AMOUNT TO DENYING THE APPELLANTS THEIR RIGHTS TO FAIR HEARING AND THEREFORE RENDERS THE JUDGMENT OF THE TRIAL COURT A

JUDGMENT WITH A LACUNA.
4. WHETHER BY THE COMBINED EFFECT OF SECTIONS 36 (1), 285 (8) AND (10) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) TOGETHER WITH SECTION 16 OF THE COURT OF APPEAL ACT, THE STATE OF DECIDED JUDICIAL AUTHORITIES AND IN VIEW OF THE FACT THAT THE TRIAL COURT HAD DETERMINED THE SUITS OF THE APPELLANTS AND DELIVERERD ITS JUDGMENT ON 14TH DECEMBER, 2020 WITHOUT PRONOUNCING ON THE QUESTIONS AND RELIEFS SOUGHT BY APPELLANTS IN THE SUIT, THIS HONOURABLE COURT OF APPEAL CANNOT GRANT THE RELIEFS SOUGHT BY THE APPELLANTS IN THE ORIGINATING SUMMONS THE TRIAL COURT HAVING FAILED IN ITS DUTIES IN ITS JUDGMENT.

DR. E. WEST-IDAHOSA with J. U. PIUS and H. A. MUHAMMED-JAMISO represented the 1st Respondent. In the 1st Respondent’s brief filed on 29th January, 2021; the following 4 issues were raised, to wit:
1. WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS WRONG IN HOLDING THAT THE APPELLANT’S SUIT AS CONSTITUTED WAS NOT A PRE-ELECTION MATTER, HAVING REGARDS TO THE PARTIES IN THE SUIT AND THE PROVISION OF

SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS ALTERED).
2. WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS WRONG IN HOLDING THAT THE APPELLANTS’ SUIT HAD BECOME ACADEMIC, SPENT AND IMPOTENT, HAVING REGARDS TO THE CONDUCT OF EDO STATE GOVERNORSHIP ELECTION ON 13TH SEPTEMBER, 2020 AND THE DEFEAT OF THE 1ST, 3RD AND 4TH RESPONDENTS AT THE SAID ELECTION.
3. WHETHER OR NOT THIS IS A PROPER CASE IN WHICH THIS COURT CAN EXERCISE ITS POWERS TO HEAR THE SUIT OF THE APPELLANTS AS CONSTITUTED BEFORE THE TRIAL COURT HAVING REGARDS TO THE PROVISIONS OF SECTION 15 OF THE COURT OF APPEAL ACT AND DECIDED AUTHORITIES.
4. WHETHER OR NOT THE APPELLANTS WERE DENIED FAIR HEARING BY THE TRIAL COURT WHEN THE APPELLANTS’ SUIT WAS STRUCK OUT FOLLOWING AN APPLICATION THAT SAME HAD BECOME ACADEMIC, OBSOLETE AND SPENT, WHICH APPLICATION WAS VIGOROUSLY CHALLENGED BY THE APPELLANTS.

WENDY KUKU Esq. appeared for the 2nd Respondent. She distilled from the grounds of appeal 2 issues as follows:
1. “WHETHER THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT AS CONSTITUTED WAS NOT A PRE-ELECTION MATTER BY VIRTUE OF SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED).

WHETHER IN VIEW OF SECTION 31 (6) OF THE ELECTORAL ACT, 2010 (AS AMENDED), THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT HAD BECOME ACADEMIC AND SPENT BY REASON THAT THE EDO STATE GOVERNORSHIP ELECTION HAD ALREADY BEEN CONDUCTED WHEREIN THE 3RD AND 4TH RESPONDENTS HEREIN WHO LOST DID NOT CHALLENGE THE OUTCOME OF THE ELECTION AT THE PETITION TRIBUNAL.”A. T. KEHINDE, SAN appeared for the 3rd Respondent with M. J. NUMA, O. KEHINDE Esq. and IFEOMA NNAMDI OKONKWO Esq. the 3rd Respondent in his brief filed on 27th January, 2021 formulated 3 issues for determination. The 3 issues are:
a. “WHETHER, IN LIGHT OF THE FACT THAT NONE OF THE PARTIES TO THIS APPEAL WAS DECLARED THE WINNER OF THE EDO STATE GOVERNORSHIP ELECTION WHICH HELD ON THE 19TH OF SEPTEMBER, 2020, THE LOWER COURT RIGHTLY STRUCK OUT THE APPELLANTS’ SUIT FOR BEING A MERE ACADEMIC EXERCISE.
b. WHETHER THE LOWER COURT BREACHED THE APPELLANTS’ RIGHT TO FAIR HEARING.
C. WHETHER, FOLLOWING THE STRIKING OUT OF THE APPELLANTS’ SUIT BY THE LOWER COURT AS A RESULT OF IT BEING ACADEMIC, THIS HONOURABLE COURT CAN GRANT THE RELIEFS SOUGHT IN THE APPELLANTS’ ORIGINATING SUMMONS.”

Finally and for the 4th Respondent, appeared ROLAND OTARU, SAN with him were F. M. ATUMAN Esq. and OLUWATOSIN F. EMMANUEL Esq. They raised 3 issues for determination. The 3 issues formulated are:
1. “WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT THE APPELLANTS’ SUIT AND THE RELIEFS SOUGHT BY THE APPELLANTS PURSUANT TO SECTION 31 (5) AND (6) OF THE ELECTORAL ACT, 2010 (AS AMENDED) HAS BECOME ACADEMIC BY VIRTUE OF THE ALREADY CONCLUDED EDO STATE GOVERNORSHIP ELECTION WHICH HELD ON THE 19TH OF SEPTEMBER, 2020 WHEREIN THE 1ST, 3RD AND 4TH RESPONDENTS HEREIN LOST AND DID NOT CHALLENGE THE OUTCOME OF THE ELECTION AT THE GOVERNORSHIP ELECTION PETITION TRIBUNAL IN BENIN CITY, EDO STATE.
2. WHETHER BY THE SUPREMACY OF THE CONSTITUTION AND ITS OVERRIDING POWERS OVER ALL OTHER STATUTES AND JUDICIAL AUTHORITIES, THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE SUIT OF THE APPELLANT DOES NOT FALL WITHIN THE AMBIT OF SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) TO QUALIFY AS A PRE-ELECTION MATTER AND THEREFORE LIABLE TO FAIL.
3. WHETHER THE CONDITION PRECEDENT FOR THE GENERAL POWERS

OF THIS HONOURABLE COURT TO ASSUME JURISDICTION UNDER SECTION 15 OF THE COURT OF APPEAL ACT TO GRANT THE RELIEFS SOUGHT BY THE APPELLANTS IN THE SUBSTANTIVE SUIT HAS CRYSTALLIZED HAVING REGARDS TO THE HOSTILE NATURE OF THE SUBSTANTIVE SUIT WITH PARTICULAR REFERENCE TO THE 4TH RESPONDENTS’ PENDING APPLICATION DATED THE 2ND OF SEPTEMBER, 2020 SEEKING TO JOIN: THE RECTOR, AUCHI POLYTECHNIC AUCHI, EDO STATE; THE WEST AFRICAN EXAMINATIONS COUNCIL (WAEC); MRS. MIL. OMOGBAI- THE PRINCIPAL, UGHIOLE SENIOR SECONDARY SCHOOL, AVIELE, EDO STATE; MRS. OBEMEATA AWAWU JOSEPHINE- THE HEAD TEACHER UGHIOLE PRIMARY, AVIELE, EDO STATE; THE NATIONAL YOUTH SERVICE CORPS AS 5TH, 6TH, 7TH, 8TH AND 9TH DEFENDANTS TO THE SUBSTANTIVE SUIT.”

As noted above, when the appeal was called up for hearing, DR. WEST-IDAHOSA indicated that they incorporated Preliminary Objection in their brief. He adopted and relied on their arguments at pages 3-7 of the 1st Respondent’s brief filed on 29th January, 2021 in urging the Court to strike out issues 1 & 2 of the Appellants’ issues.

In reply, MR NWOSU referred to the Appellants’ Reply brief to the 1st Respondent’s brief filed on 2nd February, 2021. He adopted and relied on their arguments at pages 1-3 of the said brief in praying the Court to dismiss the Preliminary Objection.
Thereafter, the appeal was argued.

Before proceeding with the main appeal, I shall firstly, in line with the rules of this Court consider the Preliminary Objection.

ARGUMENTS ON PRELIMINARY OBJECTION
The Learned Counsel in the Preliminary Objection raised in the 1st Respondent’s brief argued that issues 1 and 2 of the Appellants’ brief of argument are incompetent on the ground that no issue formulated for determination of an appeal is permitted to have sub-issue. He relied on the case of ILOABUCHI V. EBIGBO (2000) 8 NWLR (PT. 668) p. 197 at 206, ratio 16.

The Learned Counsel in explaining what an issue is, relied on the decision of the Supreme Court in HUSSENI V. MOHAMMED (2015) 3 NWLR (PT. 1445) P. 100 at 110. He reproduced the two issues and contended that while the Appellants in their Notice of Appeal formulated 19 grounds of appeal, an issue can be distilled from one or more grounds but not for the multiplicity of issues. He relied on the decision of the Court in the cases of

EHIKHAMWEN V. ILUOBE (2002) 2 NWLR (PT. 750) P. 151 AT 156; DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD V. ESAPHARMA SRL, ITALY & ANOR (2017) LPELR-42695 (CA).

It was submitted by the learned counsel for the 1st Respondent that from the decisions in the above cases, issues 1 and 2 of the Appellant’s brief of argument being incompetent should be struck out and the arguments discountenanced He cited the case of ILLIYASU V. SHUWAKI & ORS (2009) LPELR 4305 (CA).

The Appellants’ reply to the 1st Respondent’s Preliminary Objection contained in the 1st Respondent’s brief of argument was filed on 2nd February, 2021. In reply to the Preliminary Objection, the learned counsel submitted that the principle governing the formulation of issues for determination is that, a number of grounds of appeal could where appropriate be covered by a single congruous issue for determination.

The learned counsel reproduced the case of EHIKHAMWEN V. ILUOBE (2002) 2 NWLR (PT. 750) P. 151 AT 156; cited by the 1st Respondent and submitted that the Appellants rightly covered grounds 1, 2, 3, 4, 5, 6 and 12 respectively and 7, 8, 15, 16 and 18 of the Appellants’ grounds of appeal as single congruous issues 1 and 2 for determination respectively.

The Learned Counsel in reply to the argument of the 1st Respondent that in formulation of issues for determination in appeal as decided by the appellate Courts, counsel should indicate the grounds of appeal from which an issue for determination is derived. The learned counsel relied on the cases of HEIN NOBELUNG ISENSEE K. G. v. U.B.A. PLC (2012) 16 NWLR (PT. 1326) 357; NIGERIAN PORTS PLC v. B. P. PTE LTD (2012) 18 NWLR (PT. 1333) 454; to submit that the principle guiding formulation of issue is that an issue may be formulated from one or more grounds of appeal, but two issues cannot be formulated from a single ground of appeal. He cited the case of IBRAHIM v. STATE (2017) 5 S. C (PT. 1) P. 1. The learned counsel urged the Court to dismiss the preliminary objection.

DETERMINATION OF PRELIMINARY OBJECTION
Proliferation of issues is generally frowned at, detested by the Courts, and must be avoided. See: UGO V. OBIEKWE (1989) 21 SC (Pt. 11) 41. It is unwanted, unpleasant and undesirable to formulate an issue embodying more than one question for the Court to

determine. See: LABIYI V. ANRETIOLA (1992) 10 SCJN 1. See also: HUSSENI V. MOHAMMED (2015) 3 NWLR (PT. 1445) P. 100. Legal Practitioners must make conscientious efforts to avoid formulating secondary issue(s) in an issue. See: DIN V. AFRICAN NEWSPAPER OF NIG. LTD. (1990) LPELR-947 (SC). Courts encourage that issues for determination should not be unnecessarily prolix, ponderous or bungle some. They should be clear and concise statement of the complaint against the judgment, which is the subject of the appeal. Proliferating issues serve no useful purpose and it is a practice that should be avoided. See: OGBUANYINYA V. OKUDO (No. 2) (1990) 4 NWLR (146) 551 @ 567; CLAY INDUSTRIES (NIG.) LTD. V. AINA & ORS (1997) 8 NWLR (pt. 516) 208; OGUNYADE V. OSHUNKEYE (2007) 15 NWLR (Pt.1057) 218; NDUUL V. WAYO & ORS. (2018) LPELR – 45151 (SC).

In the 1st Respondent’s brief it was argued that issues 1 and 2 raised in the Appellants’ brief of argument are incompetent on the ground that the said issues formulated for determination of this appeal have sub-issues. While I agree that Issue 1 has a sub issue, I cannot say that of issue 2. Issue 2 is basically clumsy or

inelegant in couching. While formulating an issue in this manner should not be encouraged, however since the gauche issue did not mislead either the Respondents nor the Court, the same not likely to occasion a miscarriage of justice would not be struck out in the interest of justice.

On the incompetence of issue 1 as contended by the 1st Respondent in his preliminary Objection, the referred issue indeed embodies a sub issue. Issue 1 is apparently split, instead of being one whole issue for the determination of the appeal. What the Appellant did is most undesirable and condemnable as it has the effect to obscure and obviate the fundamental and core issue in issue 1. Having in mind that the main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity, it is required of Counsel to endeavour to assist the Court rather than raise rustic issues for the Court to determine.
The vice of issue 1 referred to above is that it inhabits a sub issue. The Courts have unequivocally said that an issue for determination

should not comprise of other issues; it should not be a composition of two different issues. See: ILOABUCHI V. EBIGBO (2000) 8 NWLR (PT 668) 197, EHIKHAMWEN V. ILUOBE (2002) 2 NWLR (PT 750) 151; UNOKAN ENTERPRISES LTD. V. OMUVWIE (2005) 1 NWLR (PT 907) 293; IKARE COMMUNITY BANK (NIG) LTD. V. ADEMUWAGUN (2005) 7 NWLR (PT 924) 275.
I therefore hold that issue 1 is incompetent. I substantially countenance the 1st Respondent’s Preliminary Objection. The incompetent issue 1 of the Appellant is along with the arguments canvassed therein, hereby struck out. See: YUSUF V. AKINDIPE (2000) 8 NWLR (PT 669) 376; AGBEOTU V. BRISIBE (2005) 10 NWLR (PT 932) 1; YADIS NIGERIA LIMITED V. GREAT NIGERIA INSURANCE COMPANY LTD (2007) ALL FWLR (PT 370) 1348; JAMIU V. AYINLA (2009) 17 NWLR (PT 1170) 238; OKWUEGBALA V. IKWUEME (2010) 19 NWLR (PT.1226) 54.

Now to the issues for determination, having held that the Appellant’s issue 2 is inelegant and verbose, I would not like to base the resolution of this appeal on that issue as couched. Rather, upon the grounds of appeal of the Appellant, I shall determine this appeal on the 2nd Respondent’s 2 issues as distilled; and the

3rd Respondent’s issue “b” formulated. The 3 issues which are: shall be determined in the under reproduced order;
a. “WHETHER THE LOWER COURT BREACHED THE APPELLANTS’ RIGHT TO FAIR HEARING.
b. WHETHER THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT AS CONSTITUTED WAS NOT A PRE-ELECTION MATTER BY VIRTUE OF SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED).
c. WHETHER IN VIEW OF SECTION 31 (6) OF THE ELECTORAL ACT, 2010 (AS AMENDED), THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT HAD BECOME ACADEMIC AND SPENT BY REASON THAT THE EDO STATE GOVERNORSHIP ELECTION HAD ALREADY BEEN CONDUCTED WHEREIN THE 3RD AND 4TH RESPONDENTS HEREIN WHO LOST DID NOT CHALLENGE THE OUTCOME OF THE ELECTION AT THE PETITION TRIBUNAL.”

SUBMISSIONS ON ISSUE 1
WHETHER THE LOWER COURT BREACHED THE APPELLANTS’ RIGHT TO FAIR HEARING
The Learned Counsel to the Appellants argued that failure to serve a party with a Court process is a breach of the right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. He argued that such breach is fatal. MR. F.N.

NWOSU of counsel submitted that the failure to serve the Appellants with the Counter-Affidavit and written address of the 3rd Respondent is fatal and renders the proceedings a nullity. He relied heavily on the case of EMEKA V. OKOROAFOR & ORS (2017) 2-3 SC (PT. IV) P.1. The learned counsel urged the Court to hold the non-service a breach of the right to fair hearing of the Appellants and resolve the issue in favour of the Appellants.

In response, MR. OLUWAGBEMILE KEKEHINDE who settled the 3rd Respondent’s brief argued that the Appellant failed to lead any evidence before the trial Court and in the record of appeal that they were not served with the 3rd Respondent’s counter-affidavit. He submitted that a Court cannot speculate on facts not proven before them, he cited the case of OLALOMI INDUSTRIES LTD V. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD (2009) 7 SC 94 @ 135, LINES 20-25.

The Learned Counsel distinguished the fact in EMEKA V. OKOROAFOR & ORS cited by the Appellant from the instant case in urging the Court to resolve the issue in favour of the 3rd Respondent.

RESOLUTION OF ISSUE 1
The settled position of the law was clearly stated by His Lordship, MUSDAPHER, JSC (as he then was) in KIDA V. OGUNMOLA (2006) 6 SCNJ 165 @ 174 thus:
“Service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N v. ADEWUNMI (2003) 10 NWLR (PT. 829) 526; MBADINUJU v. EZUKA (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Courts jurisdiction was not fulfilled.
To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.”
The principle was re-stated in the recent decision of the Apex Court in; IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT.1492) 148 @ 179 D-F by OKORO, JSC:
“… I AGREE THAT IT IS NOT EVERY NON- COMPLIANCE WITH THE

RULES OF COURT THAT SHOULD VITIATE THE PROCEEDINGS. HOWEVER, WHERE THE NON-COMPLIANCE ROBS THE COURT OF ITS JURISDICTION, THE PROCESSES AND THE PROCEEDINGS MUST BE SET ASIDE. I MUST EMPHASIZE THAT SERVICE OF PROCESS IS AN IMPORTANT ASPECT OF THE JUDICIAL PROCESS. FAILURE TO SERVE A NAMED PARTY WITH COURT PROCESS OFFENDS SECTION 36(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED). ANY BREACH OF THIS PRINCIPLE (OF FAIR HEARING) RENDERS THE PROCEEDINGS A NULLITY. SEE CHIME VS. ONYIA (2009) ALL FWLR (PT. 480) 673 @ 730- 731 PARAS H-B; (2009) 2 NWLR (PT. 1124) 1. SEE ALSO: SKENCONSULT (NIG) LTD. V. UKEY (1981) 1 SC 6: OBIMONURE VS ERINOSHO (1966) 1 ALL NLR 250: CRAIG VS KANSEEN (1943) K.B 256; NATIONAL BANK (NIG) LTD. VS. GUTHRIE (NIG) LTD. (1993) 3 NWLR (PT.284) 643. SEE PARTICULARLY: EMEKA V. OKOROAFOR & ORS.(2017) 2-3 SC (PT. IV) P.1; (2017) LPELR-41738 (SC).
It is correct as argued by the 3rd Respondent’s Counsel that in OKOROAFOR’S case the challenge was on improper service of Originating Processes on the Respondent, while in the instant case it has to do with non-service of the 3rd Respondent’s Counter affidavit to the

Originating processes on the Appellant. That notwithstanding, the effect of non service of a Court process on a party before a Court determines an action does not differ from the result of non service of originating process, It has been made clear by the Apex Court that failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Any breach of this principle (of fair hearing) renders the proceedings a nullity.

The Appellants’ grouse as ventilated at page 27, paragraph 71 of their brief is that the failure to serve them with the 3rd Respondent’s Counter Claim and written address deprived the Appellants of the opportunity and right to respond to the said processes. From the records, while applications were still pending, particularly the application for joinder of parties to the Originating Summons, the trial Court heard and determined the Respondents’ objection that the action by reason of the concluded Edo State Governorship election had become academic. Furthermore, from the records, it is clear that the Originating Summons was not ripe for hearing when the trial Court

entered its decision on the 3rd and 4th Respondents’ objection. Equally from the records, the trial Court did not enter any decision on the merits of the Originating Summons, the Court merely highlighted the processes so far before it for the determination of the Originating Summons. In my view therefore, the issue of service of the 3rd Respondent’s Counter Affidavit and written address on the Appellants had not been foreclosed as the hearing of the Originating Summons was still pending. The argument of denial of the Appellants’ right to fair hearing is premature since the trial Court did not determine the Originating Summons without hearing the Appellants on the 3rd Respondent’s counter affidavit and written address.

I therefore hold that the Appellants’ right to fair hearing in the circumstances of the case was not denied. Issue 1 is resolved against the Appellants.

SUBMISSIONS ON ISSUE 2
WHETHER THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT AS CONSTITUTED WAS NOT A PRE-ELECTION MATTER BY VIRTUE OF SECTION 285 (14) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.
The arguments of the appellant in their issue 1 which main issue therein is same as this issue, was struck out along their issue 1.

By the 1st Respondent’s brief of argument settled by DR. EHIOGIE WEST-IDAHOSA, it was submitted that the learned trial Judge was right in holding that the Appellant’s suit as constituted at the trial Court did not fall within the Constitutional definition of pre-election matters under the provisions of Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The Learned Counsel relied on the decision of the Apex Court in GOVERNOR OF KWARA STATE & ANOR V. OJIBARA & ORS (2006) LPELR-3178 (SC) P. 12, para D-F; to submit that the trial Court properly interpreted the law and was therefore right in its decision to entertain the Preliminary Objection of the 3rd and 4th Respondents to the effect that the Appellants’ suit had become hypothetical and impotent.

It is the contention of the Learned Counsel that the Objection raised by the Appellants’ suit to the qualification of 1st, 3rd and 4th Respondents in the participation of the Edo Governorship Election was overtaken by the conduct of the election on 19th September, 2020. He urged the Court to resolve the issue in favour of the 1st Respondent.

In the 2nd Respondent’s brief prepared by MRS. WINDY KUKU, she submitted along the line of the 1st Respondent’s counsel. She went further to submit on the appropriate way to interpret the provisions of the Constitution of the Federal Republic of Nigeria citing authorities.

Still on the same lane, MR. OLUWAGBEMILEKE KEHINDE in the 3rd Respondent’s brief submitted that the main aim of the Appellant was to prevent the 3rd Respondent from contesting the Edo State Governorship Election and that the election having been conducted on 19th September, 2020 the Appellant’s action at the trial Court serves no utilitarian value and became a mere academic exercise. He cited the cases of ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 554 @ 600, PARAS: C-E; PLATEAU STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (pt. 967) 346 @ 419, paras: F-G; A. G FEDERATION V. ANPP (2003) 18 NWLR (PT 851) 182 @ 215; MAMMAN V. SALAUDEEN (2005) 18 NWLR (PT. 958) 478 @ 500; DANMUSA V. BARAU (2014) LPELR – 23479 (CA) P. 20, PARAS. C -D; EFET V. INEC & ORS (2011) 7 NWLR (PT. 1247) 423 @ 451, PARAS: F -H.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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By the 4th Respondent’s brief of argument settled by OLUSEGUN O. MABAWONKU ESQ, it is the submission of the learned counsel that the trial Court was right in holding that the Appellant’s suit as constituted at the trial Court is not a pre-election matter because it does not come within the clear and unambiguous definition of a pre-election matter under Section 285 (14) (a) (b) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

On the supremacy of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Learned Counsel relied on the provision of Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 1 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the cases of SHELL NIGERIA GAS LIMITED (2019) 14 NWLR Pt. 1692 PG. 273 AT 301 PARA. H-D; UGWU V. ARARUME (2007) 12 NWLR PT. 1048 PG. 367 AT 511 PARAS. C-D

The Learned Counsel contended that Section 285 (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); is the only provision that defines ‘pre-election matter’ in the constitution or the Electoral Act and did not

admit any exception. It was submitted that the trial Court was right to have given the above section its clear and unambiguous meaning that, for any suit instituted under Section 31 (5) of the Electoral Act, 2010 (as amended) to amount to ‘pre-election.’ It must be instituted either by an aspirant or a political party which the Appellants are not.

The Learned Counsel relied on the decision of the Court in ADISA V. OYINWOLA (2000) 10 NWLR PT. 674 PG. 116 AT 158; to submit that the trial Court was right to have given Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (supra) it’s clear and unambiguous meaning. It was submitted that the Appellants suit at the trial Court does not constitute a pre-election matter under the above Section.

The learned counsel urged the Court to distinguish the case of AKINLADE V. INEC (2020) 17 NWLR (PT. 1754) 439 and LAWRENCE V. PDP (2018) 5 NWLR (PT. 1613) 464; relied upon by the Appellants from the instant appeal and to resolve the issue in favour of the 4th Respondent.

RESOLUTION OF ISSUE 2
In resolving this issue it is vital to reproduce the relevant Sections of the law that are

pivot to the resolution of the issue. Necessary sections are reproduced as follows;
Section 31 (5) and (6) of the Electoral Act, 2010 provides thus:
31 (5) “a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court, against such person seeking a declaration that the information contained in the affidavit is false” (emphasis supplied is mine).
31 (6) “if the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an Order disqualifying the candidate from contesting the election”.
Sections 186 and 187 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provide as follows:
185 “there shall be for each State of the Federation a Deputy Governor”.
187 (1) “in any election to which the foregoing provisions of this part of this chapter relate, a candidate for the office of Governor shall not be deemed to have been validly nominated for such office

unless he nominates another candidates as his associate for his running for the office of Governor, who is to occupy the office of the Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions”.

Section 285 (14) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
(14) “For the purpose of this Section, “pre-election matter” means any suit by-
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the

Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the commission in respect of preparation for an election” (emphasis supplied is mine).

The law is cast-iron that, when interpreting statutes which words are clear and unambiguous, the said words must be given their commonplace, everyday, run-off-the-mill meaning so long as it would not lead to absurdity or in conflict with the provisions of the Constitution; and effect must be given to the said provisions without recourse to any other considerations. See: STATE V. UGHANWA (2020) 3 NWLR (PART 1710); MAMUDA V. STATE (2019)

LPELR-46343(SC); IKUFORIJI V. FRN (2018) LPELR-43884(SC); BARBEDOS VENTURES LTD V. FBN PLC (2018) 4 NWLR Pt. 1609 NWLR P. 241 @ 295; EHINDERO V. FRN (2018) 5 NWLR Pt. 1612 P. 301 @ 302, SETRACO (NIG) LTD V. KPAJI (2017) SKY EBANK V. IWU(2017) LPELR-42595(SC).

Section 31 (5) of the Electoral Act as reproduced above is glaringly unambiguous and must be given its plain and ordinary meaning. See: STATE V. UGHANWA (supra).The phrase “a person” used in Section 31 (5) of the Electoral Act, refers to any human being, individual, aspirant, party, body etc. In other words, the section empowers any member of the public to seek declaration at the High Court of a State or Federal High Court if he believes that any information given by a candidate in affidavit Form EC9 submitted by that candidate and published by the Independent National Electoral Commission (INEC) is false. In ABUBAKAR V. INEC & ORS. (2020) 12 NWLR (PT. 1737) 37 relied on by the parties, the Supreme Court on the power of general public to screen candidates and raise objection as to qualification under the Electoral Act, held that;

“by virtue of Section 31 of the Electoral Act, the General

Public is empowered to screen the candidate whose personal particulars are in Form CF 001 published by the Independent National Electoral Commission (INEC) pursuant to Section 31 (1) of the said Act by way of objection”.
The provision of Section 31 (supra) is inclusive. This is to say that by Section 31 of the Electoral Act, any human being, individual, party, candidate, body; that is the public in general, is entitled to bring an action seeking the disqualification of a candidate on the ground that he submitted false information to INEC in his Form EC9. However, such action must be brought before the conduct of the election of the candidate whose qualification is object of attack.

Now, proceeding to the provisions of Section 285 (14) of the 1999 Constitution (supra) reproduced above; I assert also, that the above section is unambiguous and must be given its plain and ordinary meaning. See: STATE V. UGHANWA (supra). By Section 285 (14) of the 1999 Constitution (supra), the definition of “pre-election matter” therein is exclusive. It is restricted to “an aspirant” and “a political party” and not the general public or members of a party as provided by Section 31 of the Electoral Act (supra).

For a suit to fall within the meaning of “pre-election matter” as defined under Section 285 (14) of the 1999 Constitution (supra), such suit must be instituted or commenced before the conduct of the election in question and by either an aspirant or a political party. The provisions of Section 31 (5) and (6) of the Electoral Act are not in conflict with the provisions of Section 285 (14) of the 1999 Constitution. This is firmed by the decisions of the Apex Court in the cases of ABUBAKAR V, INEC and AKINLADE V. INEC (supra); where it was held that:”the disqualification of a candidate on grounds of false information in his Form CF001 is a pre-election matter by dint of Section 285 (14) of the Constitution. The procedure for ventilating any grievance on this is statutorily provided in Section 31 of the Electoral Act, as amended.” APC V. IBRAHIM UMAR & ORS (2019) 8 NWLR (PT. 1675) 564 at 575 F-H.
Therefore, the herein suit subject of this appeal which was brought under Section 31 (5) & (6) seeking for the disqualification of the 3rd Respondent as the Deputy Governorship Candidate of the 1st Defendant in

the September, 2020 Edo State Governorship Election by reason of the 3rd Defendant presenting false information to the 2nd Defendant (INEC) in support of his nomination contrary to Section 31 (5) and (6) of the 2010 Electoral Act (as amended); is a Pre-Election matter.

Consequently, I hold that the Appellants not only have the legal right under Section 31 of the Electoral Act (supra) to institute the action subject of this appeal, but also, that the suit as constituted is a pre-election matter.
I resolve this issue in favour of the Appellants and against the Respondents.

SUBMISSIONS ON ISSUE 3
WHETHER IN VIEW OF SECTION 31 (6) OF THE ELECTORAL ACT, 2010 (AS AMENDED), THE TRIAL COURT CORRECTLY HELD THAT THE APPELLANTS’ SUIT HAD BECOME ACADEMIC AND SPENT BY REASON THAT THE EDO STATE GOVERNORSHIP ELECTION HAD ALREADY BEEN CONDUCTED WHEREIN THE 3RD AND 4TH RESPONDENTS HEREIN WHO LOST DID NOT CHALLENGE THE OUTCOME OF THE ELECTION AT THE ELECTION PETITION TRIBUNAL.

MR. F.N. NWOSU, the Learned Counsel for the Appellants in arguing this issue submitted that what is important is whether the information provided to INEC in FORM CF001 (FORM

EC-9) is false and not what the Appellants will benefit from the order of Court. He placed heavy reliance on the case of EKAGBARA & ANOR V. IKPEAZU & ORS (2016) 1 S.C (PART VI) P.48. He further argued that a defaulter should not be aided to evade Justice simply because he is of the same political party with the Appellants. Moreover, every citizen by the provisions of Section 31 (5) and (6) of the Electoral Act, 2010 (as amended) is duty bound to ensure obedience to democratic principles. The Courts on their own part have the unfettered duty to protect the constitutional rights of the citizens such as the Appellant. It is also the duty of the Courts to right the wrongs of parties. He cited the cases of FOLABI v. FOLABI (1976) 1 NMLR 169 AT 177; AFOLABI & ORS V. GOVERNOR OF OYO STATE (1985) 2 NWLR (PART 9) 734; KPEMA V. STATE (1986) 1 NWLR (PART 7) 396; ALIU BELLO V. A-G OYO STATE (1986) 5 NWLR (PART 45) 828; STITCH V. A-G OF THE FEDERATION (1986) 5 NWLR (PART 46) 1007; OHUKA V. THE STATE (1988) 1 NWLR, 539; UDOFIA V. THE STATE (1988) 3 NWLR (PART 84) 533); HON. HASSAN SALEH V. CHRISTAIN ABAH (2017) JSCNLR (VOLE 5), 158 S.C.

N. NWOSU ESQ contended that the trial Court misdirected itself when it held that the fact that the Respondents have participated and lost in the election has robbed the Court of the jurisdiction to entertain same. He cited the cases of ADEOGUN V. FASHOGBON (2008) 11 NWLR (PT. 1115) 149 SC; LAU V. PDP & ORS (2017) 6-7 S.C. (PT. 11) P. 18. He argued that the issue of the matter being an academic never arose until after the election was conducted. He commended the Court to the case of DAHIRU V. A.P.C (2017) 4 NWLR (Pt. 1555) 218 (Pp. 244-245, parasa H-C) where the Supreme Court held that a pre-election matter which was instituted before election subsists even after the election.
He submitted that the trial Court misdirected itself when it found that the matter has become academic and urged the Court to so hold.

DR. EHIOGIE WEST-IDAHOSA, the learned counsel for the 1st Respondent in arguing that the trial Court was right to hold that the Appellants’ suit at the trial Court has become academic, relied on the cases of CPC V. INEC (2011) LPELR-8257 SC, per Mohammed, JSC (pp. 78-79. Paras G-E); UGBA V. SUSWAM & ORS (2014) LPELR-22882 (SC) per OGUINBIYI, JSC (pp 64-65, paras C-B).
The Learned Counsel urged the Court to resolve the issue in favour of the 1st Respondent.

MRS WENDY KUKU, of counsel to the 2nd Respondent submitted that the trial Court was right when it held that since the Edo State Governorship Election, 2020 had held and the 1st, 3rd, and 4th Respondents lost and the winner duly declared, the suit had become academic. He cited the case of NIGERIA ARMY & ANOR V. ALADE & ANOR (2019) LPELR-46915 (CA). Also, it was the learned counsel’s position that in view of Section 31 (6) of the Electoral Act, 2010; and the ensuing Order, the suit had become academic; thereby striping the trial Court of the jurisdiction to hear the suit.

On when a suit is academic, she cited the cases of ODEDO V. OGUEBEGO (2015) 13 NWLR (PT. 1475) 251, paras A-B; CHIEF ALBERT ABIODUN ADEOGUN & ORS V. HON. JOHN OLAWOLE FASHOGBON & ORS (2008) PLELR -131 (SC). She urged the Court to uphold the judgment of the trial Court and dismiss the appeal.

MR. KEHINDE, Learned Counsel that settled the brief for the 3rd Respondent submitted along the same line with the 1st and 2nd Respondents in urging the Court to hold that the suit had become academic.

By the 4th Respondent’s brief of argument settled by OLUSEGUN O. MABAWONKU ESQ, it was submitted that the trial Court was right in holding that the Appellant’s suit and reliefs sought pursuant to Section 31 (5) and (6) of the Electoral Act, 2010 (as amended); has become academic by virtue of the already concluded Edo State Governorship Election, wherein the 1st , 3rd and 4th Respondent herein lost and did not challenge the outcome of the election at the Governorship Election Petition tribunal in Benin City, Edo State.

The Learned Counsel urged the Court to discountenance the Applicants arguments contained at paragraphs 4.29-4.68 of the Appellants brief for being misplaced in law, on the ground that the Appellant failed to address the germane issue. He submitted on what makes a suit and an action filed before election in particular, academic.

MR. MABAWONKU, urged the Court to hold that the trial Court was right in striking out the matter for having become academic and of no utilitarian value to the parties involved. He cited the cases of OGAH V. IKPEAZU & ORS (2017) LPELR-42372 (SC) per. EKO JSC

(pp. 64-65, paras. D-A); A.G FEDERATION V. ANPP (2003) 12 SC (PT. 11) PAGE 146 AT 170; (2003) 18 NWLR (PT. 851) AT 215.

RESOLUTION OF ISSUE 3
The law is that, an action is said to be a mere academic exercise when there is no live issues in the case to be determined by the Court. See: PLATEAU STATE V. A. G. FEDERATION (2006) 3 NWLR (PT. 967) 346; ACTION CONGRESS V. INEC (2007) 18 NWLR (PT. 1065) 50 @ 74 – 75; IJAODOLA V. UNILORIN GOVERNING COUNCIL (2018) 14 NWLR PT. 1638 PG. 32 AT 54, PARAS D- F; UFOMBA V. INEC (2017) 13 NWLR (PT. 1582) PAGE 175; IGBO V. ABILI & ORS (2019) LPELR – 47927 (CA); ANYANWU V. EZE (2020) 2 NWLR PT. 1708 PG. 379.
It is of importance to note that, a matter instituted before the conduct of an election does not necessarily become academic merely because the general election has taken place; it is the provisions of the Constitution and the remedy provided under the enabling law that determine whether the matter would be said to have turned academic or not.
Having held in issue one above that the suit which gave rise to the instant appeal is a pre election matter, the question that calls for answer is whether the

Appellants’ suit as constituted: though a pre-election matter but seeking the disqualification of the 3rd and 4th Respondents from contesting the Edo State Governorship election, which election had already been conducted and the said 3rd and 4th Respondents lost the election, become academic?
The Supreme Court defined ‘an academic question’ in ARDO V. INEC & ORS. (2017) LPELR-41919(SC); as an issue that does not require answer or adjudication by a Court; hypothetical or moot question – see AGBAKOBA V. INEC (2008) 18 NWLR (PT. 1119) 489. Indeed an issue or action is academic or hypothetical when it holds no live matter, or when it holds no practical or tangible value for any pronouncement on it. That is, when any pronouncement on it is a mere exercise in futility. See IKUFORIJI V. FRN (2018) LPELR-43884(SC).
The Supreme Court in AR SECURITY SOLUTION LTD V. EFCC (2018) LPELR – 43828(SC), on attitude of Courts to academic/hypothetical issues or questions held thus:
“A Court does not proceed in vain, A Court exercises its jurisdiction, where approached, in order to resolve a dispute, address an injury and provide relief. Where as in the

instant case the exercise of the Court’s jurisdiction would not resolve any dispute and confer any relief arising from the injury occasioned by the dispute between the parties then, indeed, proceeding will be in vain and useless. Lacking in utility, assumption of jurisdiction in that situation should be avoided by the Court. The Court’s proceedings and eventual decision no matter how well conducted and reasoned will come to naught being devoid of any essence to either party in the matter”.
Equally, in DAHIRU AND ANOR V. APC & ORS (2016) LPELR-42089 (SC), the Apex Court held that;
“A suit is academic where it is thereby theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature… Once a suit no longer has live issue for determination such a suit can be said to be academic. Courts should on no account in such an instance spend judicial time… in academic exercise. Courts are to determine only live issues.”

The Appellants initiated this suit pursuant to Section 31 (5) and (6) of the Electoral Act, 2010 (as amended) and Section 186 and 187 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), I held that the Appellants’ suit at the trial Court is a pre-election matter, what this presupposes is that the suit cannot become academic simply because what gave rise to the action is concluded. A pre-election matter such as this that was instituted prior to the conduct of an election subsists and the Court in which it was instituted continues to have jurisdiction to hear and determine the said pre-election matter even after the conduct of the election. See: DAHIRU & ANOR. V. APC (supra); ODEDO V. I.N.E.C. & 2 ORS (2008) 7 SC P-25; GWEDE V. I.N.E.C. & 3 ORS (2014) LPELR-23763.
Anyone with a right has a remedy. Anyone who has a cause of action would always be heard by the Courts and on no account would such a person be denied a hearing. For this, I hold that the learned trial Judge was wrong when he held that he had no jurisdiction to continue hearing the suit because the Edo State Governorship election had been concluded. The jurisdiction of the trial Court in the pre-election suit was not robbed by the conduct of

the Edo State Governorship Election on 19th September, 2020. Since the constitutional time frame for the determination of the suit was still running, and the life issue of whether the 3rd Respondent submitted false information in his INEC Form EC9 still subsisting, the suit then had not become academic. The trial Court ought to have continued with the hearing of the Appellants’ suit as his jurisdiction was intact, the suit being a pre election matter. Consequently, I hold that the learned trial Judge erred in striking out the suit when he did.
This issue ought to be and is hereby resolved in favour of the Appellants.

Howbeit, considering the facts and circumstances of the suit giving rise to this appeal: where the Appellants are not Aspirants though members of the 1st Respondent alongside the 3rd and 4th Respondents who had as well lost the election and have not challenged the election at the Edo State Election Tribunal; the Appellants do not qualify to bring an action in challenge of the concluded Edo State Governorship Election; meaning that no pronouncement of this Court at this stage will have any legal value. The suit which I have held was

wrongly struck out, ordinarily ought to be sent back to the trial Court to hear and determine the life issue of whether the 3rd Respondent submitted false information in his Form EC9. This Court cannot order the case file to be so sent back for the hearing of the substantive case at this time when the 180 days allotted the trial Court by the Constitution has elapsed and cannot be revived. The suit is now spent at the trial Court and has become academic.

Again, the Court will be acting in vain to disqualify the 3rd and 4th Respondents as there is no life dispute left in the suit which is now academic. The Court also cannot proceed to make such order because the action at the trial Court was not yet ripe for hearing when it was struck out. They were still pending applications which ought to have been determined before it could get to the stage of stepping into the place of the trial Court to disqualify the 3rd and 4th Respondents. Even at that, what relief can this Court now grant the Appellants that will have legal value bearing in mind that the 3rd and 4th Respondents who lost the election have accepted their fate and so did not challenge the outcome of

the election. This means the issue of a rerun of the election cannot arise thereby extinguishing any anticipated remedy to the benefit of the Appellants. The relief grantable by the Court to the Appellants under Section 31 (6) of the Electoral Act; is an order disqualifying the 3rd and 4th Respondents. Of what use will that be to the Appellants, making the order sought by the Appellants now has no useful purpose. It is for this that I hold that the suit which has now been stripped of life and cannot be resuscitated cannot have the relief of disqualifying the 3rd and 4th Respondents sought by the Appellants’ flow from it. The suit no longer has any life issue. The same has become academic making empty noise like a loud sounding cymbal. The Courts are strictly warned to desist from assumption of jurisdiction in such circumstance. I therefore avoid the same. For what I have said above, I hold that the suit subject of this appeal which has become academic cannot have any life Order of this Court placed on it.

In all, I find partial merits in the appeal. The same is allowed to the extent that the suit filed at the trial Court is a pre-election matter and was

not academic as at the time the trial Court wrongly held it had been robbed of its jurisdiction to continue to determine the same. To this same extent I set aside the decision of the Federal High Court, Abuja Division CORAM IJEOMA L. OJUKWU, J. delivered on 14th December, 2020.
Parties shall bear their costs.

PETER OLABISI IGE, J.C.A.: I have the advantage of reading in advance the lucid leading judgment of my Learned brother UCHECHUKWU ONYEMENAM, JCA just delivered.

Section 31(1) – (6) of the Electoral Act 2010 as amended and Section 285(1) – 14 of the Constitution of the Federal Republic of Nigeria 1999 as amended provide for pre-election action or proceedings.
The lower Court failed to advert its mind to clear provisions of the aforesaid law and the Constitution and thus came to the erroneous conclusion that the Appellants suit is not a pre-election matter. See
1. ADEKUNLE A. AKINLADE & ANOR VS. INEC (2002) 17 NWLR (PART 1754) 43 at 462 per EKO JSC.
2. PDP & ORS V. DEGI- EREMIENYO & ORS (2020) 1 SCM 146 at 158 B – F per EKO, JSC.
3. APC V. IBRAHIM UMAR & ORS (2019) 8 NWLR (PART 1675) 564 at 575 F-H per SANUSI JSC who said:

“The learned senior counsel for the appellant submits that, the reliefs sought in the suit he filed before the trial Court vide the originating summons pertained to holding of congresses to elect leaders of political party and therefore the reliefs sought in that suit could not be regarded to as pre-election matter because reliefs sought in the suit relates only to election of the executive members of the party and that it is intra-party activities. With due deference to the learned senior advocate, I think it would be apt to say that the word “election” means the process of choosing by popular votes, a candidate for political office in a democratic government. See: Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169, Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241. It goes without saying therefore, that any preparation or process embarked upon by a political party in preparation for an election can as well be regarded as “PRE- election” or prior to the election or before the election as opposed to post-election which would obviously relate to any exercise or process done after the election therefore, the process or exercise

embarked upon by a political party such as congress, nomination exercise etc are all pre-election matters or exercise. The instant suit being an exercise before or prior to election is therefore caught up by or is within the purview of Section 285(14) of the Constitution (4th Alteration Act), 2017.”
4. A. ABUBAKAR & ANOR VS. INEC (2020) 12 NWLR (PART 1737) 37 at 162 H to 163 A – F per EKO JSC who said:
I have said or shown enough why the appellants’ issue on the disqualification of the 2nd respondent by the operation of Section 137(1)(j) of the Constitution should have been ventilated at the High Court, as a pre-election matter by virtue of Section 285(9) of the Constitution and pursuant to Section 31 of the Electoral Act.
The salient portions of Section 31 of the Electoral Act, germane to what I am saying had earlier been reproduced, I will now reproduce the limitation provisions of Section 285(9) of the Constitution to wit –
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of.

The combined reading of Section 285(9) of the Constitution and Section 31(1), (2), (3), (4), (5) & (6) of the Electoral Act leads me to conclusion that whoever complains, as the appellants do, that a candidate at an election had made false declarations on oath in his Form CF001 published by INEC pursuant to Section 31(1) of the Electoral Act, shall timeously; before the general election and within 14 days from the date of the publication by INEC of the allegedly false declarations in Form CF001 submitted by the candidate, file a suit at the High Court against such candidate seeking a declaration that the information contained in the said Form CF001 is false, And if the High Court determines, pursuant to Subsection (6) of Section 31 of the Act, that any information contained in Form CF001 is false. The Court shall issue an order disqualifying the candidate from contesting the election. The effect of such person, complaining that the information contained in the candidate’s Form CF001 is false, not filing the suit within 14 days from the date of the publication by INEC of the said Form CF001 pursuant to Section 285(9) of the Constitution, is that the

right to the cause of action arising or accruing to such person, on the grounds of any false information contained in Form CF001, is extinguished the cause of action having become statute barred.”

This Court is however hamstrung by the limitation of time for the conclusion or completion of pre election matters because the 180 days stipulated for the hearing and determination of the suit by the lower Court has lapsed. This Court is without jurisdiction to remit the case to lower Court for trial on the merit.
I am not unmindful of the argument of the Learned Counsel to the Appellants urging this Court to utilize its powers under Section 15 of the Court of Appeal Act, 2004 to hear and determine the Appellants suit as if the proceedings had been instituted in this Court as Court of first instance.
It is true that this Court is endowed with such powers under Section 15 of Court of Appeal Act to determine the merit of the case as the lower Court but only in appropriate cases and where the justice of the matter demands it. This Court will not invoke its powers under the said Section 15 of the Court of Appeal Act where its exercise of discretion and hearing and determination of such case will be an exercise in vain or futility.

The undeniable facts in this appeal is to the effect that the 3rd and 4th Respondents who were sponsored by 1st Respondent to contest for the Edo State Governorship seat on 19th September, 2020 lost the election and they did not approach the Edo State Governorship Election Tribunal to challenge the result of the said Gubernatorial election. The Appellants belonged to the same Political Party as 3rd and 4th Respondents.
This means that notwithstanding that the Appellants’ appeal is partially allowed it only gives pyrrhic victory with no beneficial interest or utilitarian value to them.
To that extent, I am of the view that the appeal has become academic. I agree with the leading judgment.
I also agree with the consequential orders contained in the leading judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading the lead judgment of my learned brother, Uchechukwu Onyemenam, JCA, just delivered and I am in complete agreement with the reasoning and conclusion contained therein.
In the result, I abide by the orders made therein. I make no order as to costs.

Appearances:

N. NWOSU, ESQ., with him, KEVIN OKOKO, ESQ. and AJAYI ILESSANMI, ESQ. For Appellant(s)

E. WEST-IDAHOSA, ESQ., with him, J. U. PIUS, ESQ. and H. A. MUHAMMED-JAMISO, ESQ. – for 1st Respondent
WENDY KUKU, ESQ. – for 2nd Respondent
A.T. KEHINDE, SAN, with him, M. J. NUMA, ESQ. and O. S. KEHINDE, ESQ. – for 3rd Respondent
IFEOMA NNAMDI OKONKWO, ESQ., with him, ROLAND OTARU, SAN and F. M. ATUMA OLUWATOSIN EMMANUEL, ESQ. – for 4th Respondent For Respondent(s)

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