ANDREW v. OSHOAKPEMHE & ORS (2021)

ANDREW v. OSHOAKPEMHE & ORS

(2021)LCN/15156(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, March 08, 2021

CA/B/12/2021

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

IZE-IYAMU OSAGIE ANDREW APPELANT(S)

And

1. KADIRI SUNDAY OSHOAKPEMHE 2. AUDU ABUDU GANIYU 3. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)

RATIO

IMPORTANCE OF THE ISSUE OF COMPETENCE TO THE ADJUDICATION PROCESS

My Lords, the issue of competence is key to the adjudication process in our jurisprudence. Thus, once raised either by the parties or even suo motu by the Court, it must be resolved one way or the other before the merit or other wise of the matter if further enquired into if need be if it is found to be competent. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EFFECT OF AN UNAPPEALED FINDING

…it would appear that on 17/9/2020, the Court below had in an interlocutory ruling held that there was no requirement that INEC should be joined as a party, and that ruling, whether right or wrong, had remained un – appealed against by any of the party and in law must remain binding on the parties as well as this Court. That ruling having not been appealed against and with the expiration of the time as prescribed for appeal under Section 285(9), (11) and (12) of the Constitution of Nigeria 1999 (as amended) having long gone, can no longer, in my view and as rightly contended by the learned Counsel for the 1st Respondent, even be appealed against as it has become statute barred. See Section 285(9), (11) and (12) of the Constitution of Nigeria 1999 (as amended). See also Barnabas Nwadiaro & Ors. V. The President And Members of Customary Court Ossomala (2016) LPELR – 40925 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER THE ISSUE OF NON – JOINER OF NECESSARY PARTY IS A JURISDICTIONAL ONE WHICH COULD RENDER A SUIT INCOMPETENT AND THE RESULTANT JUDGMENT A NULLITY

…it has been vehemently contended that the issue of non – joinder of necessary party is a threshold issue of jurisdiction and therefore, in law can be raised at any stage of the proceedings including even for the first time on appeal either to this Court or even to the Apex Court. I have no doubt, and there is no need for any dissipation of energy and citing of countless authorities, that this view represent the correct position of the law, yet the question is whether the issue of non – joiner of necessary party is a jurisdictional one which could render a Suit incompetent and the resultant judgment a nullity? See Obasi Uba Ekagbara & Anor V. Chief Dr Okezie Ikpeazu & Ors (2016) LPELR-26052(SC) It would appear that legal opinion on this issues are sharply divided, with decided cases saying it is mere irregularity and therefore, does not affect the competence of the Suit and the resultant judgment, whilst other decided cases are saying it is jurisdictional and affects the competence and therefore, robs the Court of its jurisdiction. In the beginning, it was Green V. Green (1987) LPELR – 1338(SC) which brought the issue of necessary party to the fore and front burner in the Nigerian jurisprudence and since then many other decided cases have joined in the milieu. However, it would appear that the welter of opinion favor the position canvassed and held in Green V. Green ((1987) LPELR – 1338(SC) that non – joinder of parties, including even a necessary party, neither vitiates nor render the Suit incompetent nor the resultant judgment as between the parties to the Suit. See also Azuh V. Union Bank (2014) LPELR – 2291(SC) per Kekere – Ekun JSC; Garuba V. Omokhodion (2011) LPELR – 1309 (SC). In Green V. Green ((1987) LPELR – 1338(SC), the Supreme Court had pronounced per Oputa JSC, (God bless his soul) inter alia thus: “In other words, where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 R. 6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court-in this case.” See also Ayorinde & Ors V. Oni & Anor. (2000) LPELR – 684 (SC), where the Supreme Court had with finality held per Karibi-Whyte JSC (God bless his soul) @ p. 30 inter alia thus: “… where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of the law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-condition for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

IMPORTANCE OF THE ISSUE OF JURISDICTION

… the issue of jurisdiction is very fundamental to adjudication because it goes to the competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such a situation, zealousness to do substantial justice, where there is no competence, is not a virtue! It is simply over zealousnesss. This is so because ‘without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the handlabor in vain’. See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, per Kayode Eso JSC (God bless his soul). See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EFFECT OF LAW ON LIMITATION OF ACTION

Now, the law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. See Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416. See also Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING HOW THE PERIOD OF LIMITATION IS DETERMINED

In 1987, in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of a Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus: “How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

PROVISION OF THE LAW REGARDING WHEN A PRE-ELECTION MATTER MUST BE COMMENCED

In respect of pre – election matters, and both parties are ad idem that the 1st Respondent’s Suit brought under pursuant to Section 31(5) of the Electoral Act, 2010 (as amended) is a pre – election matter, a Claimant must file his Suit within 14 days from the date the cause of action arose, that is from the date of the occurrence of the event or decision or action he is complaining of in his Suit. See Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered by the Fourth Alteration Act No. 21 of 2017) which provides thus: “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 in the suit.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INTERPRETATION OF SECTION 31(3) OF THE ELECTORAL ACT, 2010 (AS AMENDED) REGARDING PERIOD WITHIN WHICH INEC MUST PUBLISH THE NAMES AND PARTICULARS OF CANDIDATES UPON RECEIPT OF SAME

Now, by Section 31(3) of the Electoral Act, 2010 (as amended), it is provided thus: “The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.” There is in law no longer any serious disputation that the use of the word ‘shall’ ordinarily connotes a mandatory requirement that must be complied with. In other words, it is obligatory and not optional. It follows therefore, in carrying out its statutory duty of publishing the names and particulars of candidates for an election, including the 19/9/2020 Edo State Governorship Election, INEC was under an obligation imposed on it by law to publish the names and particulars of candidates within 7 days from the receipt of the particulars of the candidates. The word, ‘within’ used to qualify the word ‘shall’ gives INEC a leeway only as between the date it receives the particulars of candidates to not later than the 7 day to publish the names and particulars but not any day later. See Section 31(3) of the Electoral Act, 2010 (as amended). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Benin Judicial Division, Coram: Courage – Ogbebor J, in Suit No. B/358/2020: Kadiri Sunday Oshoakpemhe V. Audu Abudu Ganiyu & Others delivered on 6/1/2021 in which the claims of the 1st Respondent as Claimant were granted against the Appellant and the 2nd and 3rd Respondents disqualifying the Appellant and 2nd Respondent from contesting the Edo State Gubernatorial Election held on 19/9/2020 as the Governorship and Deputy Governorship candidates of the 3rd Respondent.

The Appellant was thoroughly dissatisfied with the said Judgment and had appealed against it vide his Notice of Appeal filed on 13/1/2021 on twenty two Grounds of appeal at pages 1253 – 1270 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 21/1/2021. The Appellant’s brief was filed on 29/1/2021. The 1st Respondent’s brief was 19/2/2021. The 2nd Respondent’s brief was filed on 16/2/2021. The 3rd Respondent’s brief was filed on 17/2/2021. The Appellant’s reply brief to

the 1st Respondent’s brief was filed on 22/2/2021.

At the hearing of this appeal on 25/2/2021, K. O. Obamogie Esq., learned counsel for the Appellant, appearing with Osahon Obamogie Esq., and Miss Mercy O. Erhunmwun adopted the Appellant’s brief and the reply brief as their arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below. On their part, J. I. Odibeli Esq., learned counsel for the 1st Respondent appearing with Eric Namuna Esq., adopted the 1st Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the Judgment of the Court below. On their part, Roland Otaru SAN, learned Senior Advocate for the 2nd Respondent, appearing with A. I. Osarenkhoe Esq., sought the leave of Court for Osarenkhoe Esq., who adopted the 2nd Respondent’s brief as their arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below. On their part, A. T. Kehinde SAN, learned Senior Advocate for the 3rd Respondent, appearing with E. T. Usoh Esq., and Douglas Ogbankwa Esq., sought the leave of Court for Usoh Esq., who adopted the 3rd Respondent’s brief as

their arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below.

By a Writ of Summons filed on 17/7/2020, along with a Statement of Claim, the 1st Respondent as Claimant against the Appellant, 2nd and 3rd Respondents as Defendants, the 1st Respondent claimed the following relief to wit:
1. A DECLARATION that the Voter’s Card submitted by the 1st Defendant to the Independent National Electoral Commission (INEC) and attached to Form EC 9, being Affidavit in Support of Personal Particulars submitted to the INEC for the purpose of the sponsorship of the 1st Defendant by the 3rd Defendant as its candidate for the office of Deputy Governorship for Edo State in respect of the Governorship election for Edo State scheduled to hold on the 19th day of September, 2020 is false, the same having been issued to one AUDU ABDUL GANIYU and not the 1st Defendant.
2. A DECLARATION that the party membership card or document with No. 0054248 submitted by the 1st Defendant to the Independent National Electoral Commission evidencing his membership of the 3rd Defendant, the basis of his sponsorship by the 3rd Defendant as its

candidate for election into the office of Deputy Governor of Edo State, in respect of the Governorship Election Scheduled to hold on the 19th day of September, 2020, which said document is attached to the Form EC9, Affidavit in Support of Personal Particulars submitted by the 1st Defendant to the INEC is false, the same having been issued to one AUDU GANI (HON.) and not the 1st Defendant.
3. A DECLARATION that the West African Examination Council Certificate or result submitted by the 1st Defendant to the Independent National Electoral Commission and attached to Form EC 9, Affidavit in support of Personal Particulars for the purpose of contesting election into the office of Deputy Governor of Edo State under the sponsorship of the 3rd Defendant for the Governorship Election for Edo State scheduled for the 19th day of September 2020 is false, the same being markedly different from another West African Examination Council (WAEC) Certificate earlier submitted by the 1st Defendant to the INEC in 2014 which certificate bore the name of AUDU ABUDUL GENIYU and not the name now claimed by the 1st Defendant.
4. A DECLARATION that the 1st Defendant gave false

Information in the Form EC 9, Affidavit in support of Personal Particulars, he submitted to the Independent National Electoral Commission for the purpose of contesting election into the office of Deputy Governor for Edo State under the sponsorship of the 3rd Defendant for the Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 when he deposed therein to the effect that school Testimonial Bendel State 1981 and WAEC 1988 were all educational qualification he possessed to satisfy the requirement “Attach evidence of all educational qualifications” and leaving blank the column requiring him to disclose his “Higher” qualifications when he had earlier submitted another document Form CF 001 in 2014 to the INEC wherein he claimed OND (Ordinary National Diploma) and HND (High National Diploma) to be his higher qualifications while attaching a National Diploma Certificate of one GENIYU ABDUL AUDU.
5. A DECLARATION that the 1st Defendant gave false information in the Form EC9, Affidavit in Support of Personal Particulars, he submitted to the Independent National Electoral Commission (INEC) for the purpose of contesting election

into the office of Deputy Governor for Edo State under the sponsorship of the 2nd Defendant (sic) for the Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 when he deposed therein that he is AUDU ABUDU GANIYU having earlier deposed and submitted to the INEC in 2018 an affidavit of Declaration of Age wherein he deposed that his name was AUDU ABDULGANIYU and not AUDU ABUDU GANIYU now claimed by the 1st Defendant.
6. A DECLARATION that the 1st Defendant gave false information in the Form EC9, Affidavit in support of Personal Particulars, he submitted to the Independent National Electoral Commission (INEC) for the purpose of contesting election into the office of Deputy Governor for Edo State under the sponsorship of the 3rd Defendant for the Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 when he deposed therein to the effect that his name is AUDU ABUDU GANIYU, having earlier submitted another document, Form CF 001 to the INEC in 2018 wherein his name was stated as Hon. ADBUL GANIYU AUDU.
7. A DECLARATION that the 1st Defendant gave false information to the Independent

National Electoral Commission (INEC) in the Form EC 9, Affidavit in support of Personal Particulars, he submitted to the INEC for the purpose of contesting election into the office of Deputy Governor for Edo State under the sponsorship of the 3rd Defendant for the Governorship Election for Edo State scheduled to hold on the 19th day of September 2020 when in answer to the question “HAVE YOU EVER PRESENTED FORGED CERTIFICATE TO INEC?”, he answered “NO” despite the fact that he presented several false/forged documents to the INEC in the past including (a) West African Examinations Council (WAEC) Certificate of 1987 in the name of AUDU ABUDUL GENIYU, presented to INEC in 2014, (b) National Diploma Certificate bearing the name of GENIYU ABDUL AUDU submitted to the INEC in 2014 (c) Declaration of Age wherein the 1st Defendant Claimed to be AUDU ABDULGANIYU submitted to the INEC in 2018 (d) Voters Card in the name of AUDU ABDUL GANIYU presented to the INEC in 2020 among others.
8. A DECLARATION that by virtue of Section 31(5) and (6) of the Electoral Act 2010, as amended, the 1st Defendant is disqualified from contesting election into the office of Deputy

Governor for Edo State under the sponsorship of the 3rd Defendant for the Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 or any other date that may be appointed by the Independent National Electoral Commission.
9. A DECLARATION that by virtue of Section 187(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 2nd Defendant is disqualified from contesting election into the office of Governor under the sponsorship of 3rd Defendant for Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 or any other date that may be appointed by the Independent National Electoral Commission for failure to nominate another qualified candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor if the 2nd Defendant wins the election in accordance with the law.
10. AN ORDER pursuant to Section 31 (6) of the Electoral Act 2010 as amended disqualifying the 1st Defendant from contesting the election into the office of Deputy Governor for Edo State in the Governorship election for Edo State scheduled to hold on the

19th day of September 2020 or any other date that may be appointed by the INEC.
11. AN ORDER pursuant to Section 187(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, disqualifying the 2nd Defendant from contesting election into the office of Governor under the sponsorship of 3rd Defendant for Governorship Election for Edo State scheduled to hold on the 19th day of September, 2020 or any other date that may be appointed by the INEC for failure to nominates (sic) another qualified candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor if the 2nd Defendant wins the election in accordance with the law. See pages 15 – 18 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
On the one hand, it was the case of the 1st Respondent as Claimant before the Court below that he is a registered card carrying and financial member of the Peoples Democratic Party (PDP) and that he is also a registered voter. The Appellant and the 2nd Respondent nominated by the 3rd Respondent and their names forwarded to the Independent National Electoral Commission (INEC) as candidates for

the positions of Governor and Deputy Governor respectively in the 2020 Gubernatorial Election in Edo State. The INEC published on the 6/7/2020 the names, information and documents of all the Candidates for the posts of Governor and Deputy Governor presented to it by all the Political parties, including those of the Appellant and the 2nd Respondent, who was being sponsored by the 3rd Respondent as its Deputy Governorship candidate in the said Election. It was also the case of the 1st Respondent that the 2nd Respondent had falsely deposed to an affidavit on oath in form EC9 when he answered in the negative that he had never presented a forged certificate to INEC; when in the truth he had in 2014, 2018, 2020 presented forged certificates to INEC through various forged certificates and had also given false information and documents to INEC in that the Certificates do not bear his name, which certificates bear multiple names. The 1st Respondent then prayed for the disqualification of the 2nd Respondent from contesting in the said Election. See pages 7-18 and 981 – 997 of the Record of Appeal.

On the other hand, the 2nd Respondent and the Appellant as well as

the 3rd Respondent, as Defendants denied the claim of the 1st Respondent and stated that the 2nd Respondent was qualified and had never presented any forged certificate to INEC or any other Institution or organization and that he also did not give any false information and documents to INEC neither in 2014, 2018 nor in 2020. It was also their case that the 2nd Respondent had formally by a Deed Poll, Sworn Affidavit and Newspaper Publication of Change of Names presented to the Supreme Court of Nigeria on 29/7/2020, effected a change and reconciliation of his first names from Gani, Ganiyu, Abuduganiyu, Abudugeniyu, Geniyu Abdul, Abudul Ganiyu to Abudu Ganiyu and thereafter had applied to the various Institutions which had issued certificates to him namely; Ughiole Senior Secondary School, Aviele, West African Examination Council, Federal Polytechnic Auchi, to re-issue the various Certificates to read the Supreme Court approved name AUDU ABUDU GANIYU and they were re-issued accordingly. The Appellant, 2nd and 3rd Respondents as Defendants also stated that the name Abudul Ganiyu in the Voter’s Card is the same as Abudu Ganiyu and that the differences in the

spellings are as a result of the different and varying pronunciations and intonations among the various ethnic groups and communities and that the name is not false but relates to 2nd Respondent as Audu Abudu Ganiyu and they had urged the Court below to dismiss the 1st Respondent’s Suit for lacking in merit and to grant the counter – claim of the 2nd Respondent against the 1st Respondent for damages for Defamation. See pages 998 – 1012, 1015 – 1016, 1019 – 1021 and 1022 – 1023 of the Record of Appeal.

At the Court below, the parties filed and exchanged pleadings and the matter proceeded to trial. The 1st Respondent filed a Statement of Claim along with the Writ of Summons on 17/7/2020. The 2nd Respondent filed his Statement of Defense and Counter Claim on 16/10/2020. The Appellant filed his Statement of Defense on 26/10/2020. The 3rd Respondent filed its Statement of Defense on 16/10/2020. The 1st Respondent filed his Reply to the 2nd Respondent’s Statement of Defense on 9/11/2020. The 1st Respondent filed his Reply to the Appellant’s Statement of Defense on 28/10/2020. The 1st Respondent also filed his Reply to 3rd Respondent’s

Statement of Defense on 30/10/2020. However, the 1st Respondent did not file any defense to the Counter – claim of the 2nd Respondent claiming damages and other reliefs for Defamation.

At the trial before the Court below, the 1st Respondent as Claimant testified for himself as CW1 and adopted his Statements on Oath and tendered several documents admitted in evidence as Exhibits P1 – P8, some of which were admitted provisionally, while Exhibit P9 was tendered from the Bar by his counsel. He was thoroughly cross examined and he closed his case thereafter. These Exhibits were as follows, namely: Exhibits; P1 – 1st Respondent’s PDP Membership Card; P2 – 1st Respondent’s Permanent Voter’s Card; P3 – Application for CTC and Photocopies of INEC Receipts; P4 – 2nd Respondent’s INEC Form CF001 of 2014; P5 – 2nd Respondent’s INEC Form CF001 of 2018; P6 – 2nd Respondent’s INEC Form EC9 of 2020; P7 – Certified true copy of judgment in Suit No. FHC/B/CS/572020; P8 – INEC Forms EC8A, EC8D and EC8E, and P9 – INEC Time Table issued on 6/2/2020. See pages 981 – 997 of the Record of Appeal.

On his part, the 2nd Respondent as

1st Defendant testified for himself as DW2 and called two witnesses who testified as DW1 and DW3 and tendered several documents admitted in evidence as Exhibits, some of which admitted provisionally. The DW2 was thoroughly cross examined, whilst DW1, one Matthew Ugwuocha, Head of Legal Department of the Independent National Electoral Commission (INEC), Edo State and DW3, one Hassan Enakele, a farmer/Politician were also cross examined and the 1st Respondent closed his case. These Exhibits were as follows, namely: Exhibits D1 & D1A – Subpoenas Forms 27 and 29 served on DW1; D2 – INEC Letter dated 12/08/2020; D3 – 1st Defendant’s Certificate of Birth; D4 – 1st Defendant’s WAEC Certificate, National Diploma Certificate and Higher Diploma Certificate; D5 – Blue Print Newspaper; D6 – Supreme Court Letter – Deed Poll; D7 – 1st Defendant’s Affidavit, And D8 -Claimant’s Statement on Oath. See pages 998 – 1012 of the Record of Appeal.

On his part, the Appellant as 2nd Defendant called two witnesses, who one Mark Afaliokhai who testified as DW4, a Legal Practitioner and one Doris Owolabi, a Staff of INEC, who testified as DW5 and they

were both cross examined and he closed his case. See pages 1015 – 1016 and 1019 – 1021 of the Record of Appeal.

On its part, the 3rd Respondent, APC as 3rd Defendant called one witness, one Emmanuel Osemege Momoh, Businessman/Politician, who testified as DW6 and tendered one document admitted in evidence as Exhibit D9 – 2nd Respondent’s Deed of Change of Name dated 30/6/2020, and was cross examined and it closed its case. See pages 1021 – 1023 of the Record of Appeal.

On 23/11/2020, the Appellant filed a Motion on Notice challenging the jurisdiction of the Court below on the ground that it had become merely academic. The parties filed and exchanged affidavit and counter affidavit on this Motion, which was subsequently heard by the Court below on 22/12/2020 and ruling reserved to be delivered in the final judgment of the Court below. The parties also filed and exchanged their final written addresses which were duly adopted and on 6/1/2021, the Court below delivered its judgment, wherein it granted the claims of the 1st Respondent and disqualifying the Appellant and 2nd Respondent from contesting the Edo State Governorship Election held on

19/9/2020 as Candidates of the 3rd Respondent, APC, whilst dismissing the Counter Claim of the 2nd Respondent against the 1st Respondent for damages and other reliefs for Defamation for lacking in merit., hence this appeal by the Appellant against the judgment of the Court below disqualifying the 2nd Respondent, and by implication the Appellant, as Candidates in the aforesaid Edo State Governorship Election held on 19/9/2020. See pages 953 – 962, 1024 – 1025, 1031 – 1034, 1188 – 1228 and 1253 – 1270 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, five issues were distilled as arising for determination from the 22 grounds of appeal, namely:
1. Was the Court below right when it assumed jurisdiction to hear and determine the 1st Respondent’s Suit without the joinder of a necessary party, the Independent National Electoral Commission? (Distilled from Ground 19)
2. Was the Court below right when it held that 1st Respondent’s Suit was not statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)? (Distilled from Grounds 1, 2, 3, 4, 5 and 15)

Whether having regard to the facts and circumstances of the 1st Respondent’s Suit, the Suit had not become academic and of no utilitarian value to 1st Respondent? (Distilled from Grounds 6, 7 and 8)
4. Whether the 1st Respondent proved his allegations of forgery and false information against the 2nd Respondent beyond reasonable doubt as required by law? (Distilled from Grounds 9, 10, 11, 12, 13, 14, 16, 20 and 21)
5. Whether the Court below was right when it expunged the evidence of DW3 and DW4 from its records? (Distilled from Ground 18)

In the 1st Respondent’s brief, five issues were distilled as arising for determination in this appeal, namely:
1. Whether the learned trial judge was right when he held that the suit, the subject matter of this appeal is not Statute barred? (Distilled from Grounds 1,2,3,4 & 5)
2. Whether from the peculiar circumstances of this case, the learned trial Judge was right when he held that the suit the subject matter of this appeal had not become academic? (Distilled from Grounds 6, 7, & 8)
3. Whether the learned trial Judge was right to have held that 1st Respondent

proved his case to be entitled to judgment? (Distilled from Grounds 9, 10, 11, 12, 13, 14, 15, 16, 18, 20)
4. Whether the non-joinder of INEC as a party can be raised for consideration by the Appellant and if he can, does it rob the trial Court of jurisdiction to entertain the Suit? (Distilled from Ground 19).
5. Whether the learned trial Judge was right to have expunged the evidence of DW3 and DW4 from his Record? (Distilled from Ground 18)

I have taken time to consider the pleadings and evidence, both on oath, oral and documentary as led by the parties at the trial before the Court below as in the printed Records and the submissions of parties in their respective briefs in this appeal, particularly as between the Appellant and the 1st Respondent, who I consider as the principal parties to this appeal going by position of the 2nd and 3rd Respondents in this appeal, who being Respondents are by law expected not to contemned against the judgment but to either support it or to keep silent and let the principal parties slug it out and to be bound by whatever is the outcome of the appeal, and it is for this reason though having reviewed their

briefs, I will not countenance their briefs in this judgment. In my view, the proper issues arising for determination in this appeal are the five issues for determination as distilled in the Appellants’ brief, a consideration of which in my view would invariably involve a consideration of the five issues as distilled in the 1st Respondent’s brief. I hereby adopt and set down the Appellant’s five issues as the issues for determination and I shall proceed anon to consider them ad seriatim!

ISSUE ONE
Was the Court below right when it assumed jurisdiction to hear and determine the 1st Respondent’s Suit without the joinder of a necessary party, the Independent National Electoral Commission?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted in the main that jurisdiction is fundamental to adjudication and thus without jurisdiction there can be no competence and therefore, it can be raised at any stage of the proceedings even orally and even for the first time before the Supreme Court and contended that the non – joinder of INEC as a party to the case before the Court below

was fatal since INEC was a necessary party, being a person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly and completely dealt with and so that INEC would be bound by the decision in the matter, being a person whose presence is necessary as a party for the effectual determination of the suit, and which ought to have been joined and urged the Court to hold that the failure to join INEC rendered the 1st Respondent’s Suit incompetent and thus liable to be struck out and to allow the appeal and set aside the perverse judgment of the Court below delivered without jurisdiction. Counsel referred to Halsbury’s Laws of England, 4th Edition, paragraph 715 at page 323 and relied on Itaye & Ors V. Ekaidere & Ors (1978) 9 – 10 SC45; Western Steel Works Ltd v Iron & Steel Workers Union (1986) 3 NWLR (Part 30) 617, Uzondu V. Uzondu (1997) 9 NWLR (Pt. 521) 466; Uti V. Onoyivwe (1991) LPELR – 3436 (SC) 54, Governor of Kwara State V. Lawal & Ors (2007) 13 NWLR (Pt. 1051) 347; University of Ilorin V. Adesina [2014] 10 NWLR (Pt. 1414) 159; Boyi V. Hassan (2001)

LPELR – 9153; Onyema V. Oputa (1987) 3 NWLR (Pt. 60) 259; Olatunji V. Olakunde (2012) 1 NWLR (Pt. 1280) 133; Madukolu V. Nkemdilim (1962) NSCC 374; Olabomi & Anor V. Oyewinle & Ors (2013) LPELR – 20969 (SC) 13; A.G. Anambra State V. AG. Federation 1993 6 NWLR (Pt. 302) 692; Biariko V. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235; Skenconsult (Nig.) Ltd. V. Ukey (1981) 1 SC 6; Green V Green (1987) LPELR – 1338 (SC) @ pp. 16 – 17; Kalu V Uzor (2004) 12 NWLR (Part 886) 1; Bwacha v Ikenya & Ors (2011) 3 NWLR (Part 1235) 610; Jurassic Communications (Nigeria) Ltd V. Adeyeye (2019) LPELR – 46498(CA); Ekagbara V. Ikpeazu [2016] 4 NWLR (Pt. 1503) 411; Peoples Democratic Party V. Amin & Anor (2019) LPELR – 48096 (CA); Lawson V. Afani Continental Company Nigeria Ltd (2001) LPELR – 9155 (CA).

It was further submitted that in law in an action brought under Section 31(5) of the Electoral Act, 2010 (as amended) to determine whether or not the information contained in Form CF001 submitted to INEC by a candidate at an election is false, INEC is a necessary party and without its joinder such a Suit is incompetent and the Court

lacks jurisdiction to hear and determine it and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below reached in the absence of requisite jurisdiction and to strike out the 1st Respondent’s Suit for being incompetent. Counsel relied on Ekagbara V. Ikpeazu (Supra).

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue four, whether the non-joinder of INEC as a party can be raised for consideration by the Appellant and if he can, does it rob the trial Court of jurisdiction to entertain the suit, learned counsel for the 1st Respondent had submitted that the Court below was right when it dismissed the application made by the 3rd Respondent to join INEC as the 4th Defendant in the suit and contended that the said Ruling having not been appealed against the Appellant cannot raise it again in this appeal and urged the Court to hold that the failure to join INEC did neither render the 1st Respondent’s Suit incompetent nor the judgment a nullity as was erroneously contended by the Appellant and to discountenance this issues being raised again without any appeal against the ruling of the Court below and

to dismiss the appeal and affirm the un – appealed ruling of the Court below dismissing the application of the 3rd Respondent to join INEC. Counsel relied on Barnabas Nwadiaro & Ors. V. The President And Members of Customary Court Ossomala (2016) LPELR – 40925 (CA); Ayorinde & Ors V. Oni & Anor. (2000)LPELR – 684 (SC); Azuh V. Union Bank (2014) LPELR – 22913(SC); Garuba V. Omokhodion (2011) LPELR – 1309 (SC).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had reiterated his earlier submission on the pivotal place of the issue of jurisdiction and submitted further that in law the mere fact that the 3rd Respondent and other parties did not appeal against the said interlocutory ruling delivered on 17/9/2020 was of no moment in that the issue being raised is a jurisdictional one which can be raised at any stage of the proceeding more so when in a pre – election matter there are no provisions for interlocutory appeal and urged the Court to hold that the failure to join INEC, undoubtedly a necessary party to the 1st Respondent’ Suit, rendered it incompetent and the resultant judgment a

nullity and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 285(8), (10) and (11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76; TSKJ (Nig) Ltd V. Otochem (Nig) Ltd [2018] 11 NWLR (Pt. 1630) 330; Akeredolu V. Abraham & Ors (2019) LPELR – 46670 (CA); Faleke V. INEC (2016) 18 NWLR (Pt. 1543) 61; Ekpeyong V. Jega (2019) LPELR – 47694 (CA).

RESOLUTION OF ISSUE ONE
My Lords, the issue of competence is key to the adjudication process in our jurisprudence. Thus, once raised either by the parties or even suo motu by the Court, it must be resolved one way or the other before the merit or other wise of the matter if further enquired into if need be if it is found to be competent. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.

I have taken time to scrutinize the pleadings and claims of the 1st Respondent and the issues as joined by the parties and I have no difficulty holding almost immediately that INEC was a very

necessary party to the Respondent’s Suit. However, it would appear that on 17/9/2020, the Court below had in an interlocutory ruling held that there was no requirement that INEC should be joined as a party, and that ruling, whether right or wrong, had remained un – appealed against by any of the party and in law must remain binding on the parties as well as this Court. That ruling having not been appealed against and with the expiration of the time as prescribed for appeal under Section 285(9), (11) and (12) of the Constitution of Nigeria 1999 (as amended) having long gone, can no longer, in my view and as rightly contended by the learned Counsel for the 1st Respondent, even be appealed against as it has become statute barred. See Section 285(9), (11) and (12) of the Constitution of Nigeria 1999 (as amended). See also Barnabas Nwadiaro & Ors. V. The President And Members of Customary Court Ossomala (2016) LPELR – 40925 (CA).

However, it has been vehemently contended that the issue of non – joinder of necessary party is a threshold issue of jurisdiction and therefore, in law can be raised at any stage of the proceedings including even for

the first time on appeal either to this Court or even to the Apex Court. I have no doubt, and there is no need for any dissipation of energy and citing of countless authorities, that this view represent the correct position of the law, yet the question is whether the issue of non – joiner of necessary party is a jurisdictional one which could render a Suit incompetent and the resultant judgment a nullity? See Obasi Uba Ekagbara & Anor V. Chief Dr Okezie Ikpeazu & Ors (2016) LPELR-26052(SC)
It would appear that legal opinion on this issues are sharply divided, with decided cases saying it is mere irregularity and therefore, does not affect the competence of the Suit and the resultant judgment, whilst other decided cases are saying it is jurisdictional and affects the competence and therefore, robs the Court of its jurisdiction. In the beginning, it was Green V. Green (1987) LPELR – 1338(SC) which brought the issue of necessary party to the fore and front burner in the Nigerian jurisprudence and since then many other decided cases have joined in the milieu. However, it would appear that the welter of opinion favor the position canvassed and held in

Green V. Green ((1987) LPELR – 1338(SC) that non – joinder of parties, including even a necessary party, neither vitiates nor render the Suit incompetent nor the resultant judgment as between the parties to the Suit. See also Azuh V. Union Bank (2014) LPELR – 2291(SC) per Kekere – Ekun JSC; Garuba V. Omokhodion (2011) LPELR – 1309 (SC).
In Green V. Green ((1987) LPELR – 1338(SC), the Supreme Court had pronounced per Oputa JSC, (God bless his soul) inter alia thus:
“In other words, where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 R. 6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court-in this case.”

See also Ayorinde & Ors V. Oni & Anor. (2000) LPELR – 684 (SC), where the Supreme Court had with finality held per Karibi-Whyte JSC (God bless his soul) @ p. 30 inter alia thus:
“… where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of the law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-condition for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity.”
In the circumstances therefore, though INEC is undoubtedly and indisputably a necessary party to the 1st Respondent’s Suit, the failure to join INEC to the 1st Respondent’s Suit was not fatal as it neither rendered the said Suit incompetent nor vitiated the resultant judgment of the Court below and I so firmly hold. In the result, issue one is hereby resolved against the Appellant in favor of the 1st Respondent.

ISSUE TWO
Was the Court below right when it held that 1st Respondent’s Suit was not statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

APPELLANT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Appellant had in the main submitted that the Court below gravely erred in law when it held that 1st Respondent’s Suit was not statute barred by virtue of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and consequently arrived at a decision that occasioned grave miscarriage of justice to the Appellant and contended that the 1st Respondent’s Suit which was filed on 17/7/2020 under Section 31(5) of the Electoral Act, 2010 (as amended) being a pre-election matter ought to have been filed within 14 days from the proved date of publication of the names and particulars of the 2nd Respondent by INEC on 2/7/2020 as confirmed by DW1 and Exhibit D2 but the said Suit having been filed outside the said 14 days on 17/7/2020 was incompetent having become statute barred contrary to the perverse finding

of the Court below and to allow the appeal, set aside the judgment of the Court below and to dismiss the 1st Respondent’s Suit for being incompetent. Counsel referred to Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered by the Fourth Alteration Act No. 21 of 2017); Section 31(3) of the Electoral Act, 2010 (as amended)and relied on Oyewusi & Ors V. Olagbami & Ors (2018) LPELR-44906 (SC); Udo V. State (2018) LPELR – 43707 (SC); Interdrill (Nig) Ltd & Anor V. UBA PLC (2017) LPELR – 41907 (SC); Oni V. Fayemi & Ors (2019) LPELR – 49299 (SC); Chukwuekezie V. All Progressive Grand Alliance (APGA) & Anor (2019) LPELR – 47240 (CA); Malle V. Maigari & Ors (2019) LPELR – 47179 (CA); Cil Risk & Asset Management Ltd V. Ekiti State Govt & Ors (2020) LPELR – 49565 (SC); CBN & Ors V. Okojie (2015) LPELR – 24740 (SC); Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Bajowa V. Federal Republic of Nigeria & Ors (2016) LPELR – 40229 (CA).

It was also submitted that the Court below wrongly expunged Exhibit D2 from its records which is an official letter written by the Administrative

Secretary of INEC, Edo State to a Non-Governmental Organization and clearly stating that the publication of the list and particulars of candidates for the Edo State Gubernatorial Election that held on 19/9/2020 was made on 2/7/2020 and a certified true copy of which, it being a public document, was produced and tendered in evidence by DW1 and contended that the said letter having been duly pleaded and relevant was admissible in evidence and urged the Court to hold that is wrongly expunged by the Court below in its judgment and to allow the appeal and set aside the wrongful exclusion of Exhibit D2 and use same along with the evidence of DW1 and DW5 to find that the publication by INEC was made on 2/7/2020 and not on 6/07/220 as perversely found by the Court below relying on Exhibit P9 not certified by INEC as required by law. Counsel referred to Sections 102(a)(iii) and (b); 104(1) of the Evidence Act 2011 and relied on Dr. Ufere Torti V. Chief Chris Ukpabi & Ors. (1984) 1 SC 370; Agbahomovo & 2 Ors. V. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt.V594) 170; Okonji & 2 Ors. V. Njokanma & 2 Ors. (1999) 14 NWLR (Pt.638) 250; Araka V. Egbue (2003) 17

NWLR (Pt. 848) 1; Lawal V. Magaji & Ors (2009) LPELR – 4427 (CA); Olukade V. Alade (1976) LPELR – 2527 (SC); Mudashiru V. The State (2019) LPELR – 47946 (CA)

It was further submitted that the fact that the recipient of Exhibit D2 was not a party to the Suit was irrelevant to the issue of its admissibility in that in law what is of paramount importance is that Exhibit D2 contains the date of publication of the list and particulars of candidates for the 2020 Edo State Gubernatorial Election, which was a material fact in dispute at the Court below and contended that the Court below was gravely wrong held when it held that Exhibit D2 was made in anticipation of the Suit and therefore, inadmissible and urged the Court to hold that the maker of Exhibit D2, was not a party in the Suit and was not interested in the outcome of the litigation, being the Administrative Secretary of INEC who wrote Exhibit D2 had no reason to depart from the truth and to set aside the exclusion of Exhibit D2 by the Court below. Counsel referred toSection 83(3) of the Evidence Act 2011 and relied on Arab Contractors Nig. Ltd V. Umanah (2013) 3 NWLR (Part 1344) 323 @ p. 347.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It was also further submitted that even if Exhibit P9 was properly admitted in evidence it was of no probative value to the resolution of the issue of date of publication of names of candidates by INEC and was at best a documentary hearsay since the learned Senior Advocate who supplied the information to the CW1 was not called as a witness and urged the Court to hold that the Court below was wrong and ought not to have relied on Exhibit P9 and to rather reject Exhibit P9 being merely a documentary hearsay and to decide the matter on admissible evidence only. Counsel referred to Section 38 of the Evidence Act 2011 and relied on Orji & Anor V. Ugochukwu & Ors (2009) LPELR – 4798 (CA); PDP & Anor V. INEC (2019) LPELR – 48101 (CA); Obot V. The State (2019) LPELR – 48172 (CA).

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether the Court below was right when it held that the Suit was not statute barred, learned counsel for the 1st Respondent had submitted that the Court below was right when it held that the Suit was not statute barred as the cause of action arose on 6/7/2020 whilst the Suit was filed on 27/7/2020 within

the 14 day limitation period prescribed by law as pleaded and proved by the 1st Respondent vide Exhibit P9 and the evidence of CW1 and contended that both DW1 and DW5, INEC staff, admitted the existence of Exhibit P9 and under cross examination admitted having nothing to show that the publication of the personal particulars of the candidates was done on 2/7/2020 by INEC and not 6/7/2020 as in Exhibit P9 and urged the Court to hold that in law, it was within the statutory powers of INEC to issue Timetable and Schedule of Activities for the conduct of election which remains valid and to dismiss the appeal and affirm the correct finding of the Court below that the publication was made on 6/7/2020 and the 1st Respondent’s Suit field on 17/7/2020 was filed within time and therefore competent. Counsel referred to Section 153(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 30 of the Electoral Act and relied onNDP V. INEC (2012) 14 NWLR (Pt. 1319) 176.

It was also submitted that Exhibit P9 was originally certified by INEC and a copy thereof was merely re – certified by the Registry of the Edo State Governorship

Election Tribunal and contended that in law the Election Tribunal is an authority qualified and competent to issue a certified copy of a public document in its custody and urged the Court to hold that a certified photocopy of a certified public document is admissible in evidence and to dismiss the appeal and affirm the decision of the Court below. Counsel referred to Section 102 of the Evidence Act 2011 and relied on Magaji v. Nigerian Army (2008) LPELR – 1814 (SC); Onwuzuruike V. Edoziem (2016) NWLR (Pt. 1508) 215.

It was further submitted that in law it was the Appellant who alleged that the action of the 1st Respondent was statute barred to discharge the burden to prove same and contended that the Appellant failed to prove that the said publication was made by INEC on 2/87/2020 which allegation was disproved by Exhibit P9, coupled with the proper rejected Exhibit D2 and urged the Court to hold that Exhibit D2 is not a public document, but a private document purportedly written by the Administrative Secretary in his personal capacity and was therefore not admissible in evidence by certified true copy thereof but the original produced and tendered and

to dismiss the appeal and affirm the decision of the Court below expunging Exhibit D2 and relying on Exhibit P9, the authentic time table of INEC Time. Counsel referred to Section 132 of the Evidence Act 2011 and relied on Dasuki V. FRN & Ors. (2018) LPELR – 43897 (SC); Abuul V. Bensu (2003) 16 NWLR (Pt. 845) 59 @ pp. 76-77.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had reiterated his earlier submissions and further submitted that had the Court below adverted its mind to the mandatory provisions of Section 31(3) of the Electoral Act, 2010 (as amended), it would definitely not have come to the wrong conclusion that the names and particulars of candidates were published on 6/7/2020, a date which fell outside the statutorily prescribed 7 days period and as confirmed by DW1 and DW5, both INEC officials and contended that the powers of INEC to issue guidelines, including the issuance of a time table was subject to the enabling law, the Electoral Act 2010 as amended urged the Court to hold that the said publication was made on 2/7/2020 and not on 6/7/2020 as perversely held by the Court below and to set

aside the perverse findings and make proper finding of fact and allow the appeal and set aside the judgment of the Court below and strike out the 1st Respondent’s Suit for being incompetent. Counsel referred to Section 31(3) of the Electoral Act 2010 as amended and relied on Nyesom V. Peterside (2016) LPELR – 4003 (SC); Oyetola V. Adeleke & Ors (2019) LPELR – 47529 (CA).

RESOLUTION OF ISSUE TWO
My Lords, as I had stated earlier in this judgment, the issue of jurisdiction is very fundamental to adjudication because it goes to the competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such a situation, zealousness to do substantial justice, where there is no competence, is not a virtue! It is simply over zealousnesss. This is so because ‘without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand

labor in vain’. See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, per Kayode Eso JSC (God bless his soul). See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.

See Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416. See also Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900.
In 1987, in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of a Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”

matter, a Claimant must file his Suit within 14 days from the date the cause of action arose, that is from the date of the occurrence of the event or decision or action he is complaining of in his Suit. See Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered by the Fourth Alteration Act No. 21 of 2017) which provides thus:
“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 in the suit.”

In the trial before the Court below, issues were joined by the parties both in their pleading and in their evidence, on both on their statement of oath, oral and documentary, as to the date the cause of action arose and whether the 1st Respondent’s Suit was filed within the 14 days period as prescribed by law. The Appellant, the 2nd Respondent and the 3rd Respondents called DW1, DW2 and DW5 and tendered Exhibit D2 in evidence in support of their allegation that the 1st Respondent’s Suit was statute barred when it was filed on 17/7/2020 in that the cause of

action, which is the date of publication of the names and particulars of candidates for the 19/9/2020 Edo State Governorship Election was published on 2/7/2020. On the other hand, the 1st Respondent had pleaded and testified as CW1 and tendered through his counsel across the Bar Exhibit P9, which is the INEC Time Table of scheduled activities for the 19/9/2020 Edo State Governorship Election, in support of his stance that his Suit filed on 17/7/2020 was filed within the 14 days period as prescribed by law in that his cause of action arose on 6/7/2020 when by virtue of Exhibit P9, the publication of the names and particulars of candidates, including the Appellant and the 2nd Respondent, for the said election was made by INEC.

It was on the strength of the above that the Court below had in its Judgment delivered on 6/1/2021 held inter alia as follows:
“… The DW5 gave evidence and under cross-examination, she identified Exhibit P9, the time table of INEC and stated thus under cross-examination”. .. According to the directive of our boss from INEC, we were to paste the notice between the 2nd and 6th of July, 2020 but we pasted on the

2/7/2020. “She further stated under cross-examination: “…I see Exhibit P9 en bloc with the time table, the timetable there was issued by INEC Headquarters Abuja. I am aware that the INEC Headquarters uploaded the publication on their website. I am not aware that it was issued on 6/2/2020. In fact, it would do more of substantial justice to admit the document, as it will throw more light into the issue in this case. The objection of the defendants is overruled. The defendants also objected to the admissibility of the document on the ground that it was not certified by INEC but by the Election Petition Tribunal. I also overrule the objection of the defendants in that regard in that the Evidence Act…. The defendants have not stated that the Election Petition Tribunal did not have custody of the document and they are not also saying that Exhibit P9 is not a public document. I hold that the document was properly certified.” See pages 1188 – 1228 of the Record of Appeal

Now, to be able to arrive at the above conclusion the Court below had expunged Exhibit D2, disbelieve DW1 and DW5 and relied solely on Exhibit P9 on the basis that Exhibit D2

was a private document of which the original was not produced and therefore, was inadmissible in evidence even though admitted provisionally at the hearing and further that both DW1 and DW5 were unable to show anything contrary to the contents of Exhibit P9, in which INEC had on 6/2/2020 scheduled the publication of names and particulars of candidates for the 19/9/2020 Edo State Governorship Election for 6/7/2020.

I have taken time to review the pleading and evidence led by the parties on this crucial issue. I have also taken time to scrutinize Exhibits D2 and P9 relied upon by the parties and the position of the law as regards their admissibility and probative value and weight in the light of the strict requirement of the law under Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered by the Fourth Alteration Act No. 21 of 2017) that such a claim shall be filed within 14 days to be competent.

where the candidate intends to contest the election.”
There is in law no longer any serious disputation that the use of the word ‘shall’ ordinarily connotes a mandatory requirement that must be complied with. In other words, it is obligatory and not optional. It follows therefore, in carrying out its statutory duty of publishing the names and particulars of candidates for an election, including the 19/9/2020 Edo State Governorship Election, INEC was under an obligation imposed on it by law to publish the names and particulars of candidates within 7 days from the receipt of the particulars of the candidates. The word, ‘within’ used to qualify the word ‘shall’ gives INEC a leeway only as between the date it receives the particulars of candidates to not later than the 7 day to publish the names and particulars but not any day later. See Section 31(3) of the Electoral Act, 2010 (as amended).
The parties are ad idem, and there is no dispute whatsoever amongst them that the particulars of the 2nd Respondent was submitted to INEC on 29/6/2020. Thus, going by the strict and mandatory provisions of Section 31(3) of the Electoral Act, 2010 (as amended),

INEC had between the 29/6/2020 and 5/7/2020 to publish the names and particulars of candidates for the said election. It had no option or leeway of doing so beyond the 5/7/2020.
Having held as above, it becomes very clear even from the onset that the claim of the 1st Respondent that the publication of the names and particulars of candidates was done on 6/7/2020, one day outside the mandatory 7 days period as prescribed by law, made that claim most improbable. However, that is not the end of the matter as the Appellant who had alleged that the publication was made on 2/7/2020, which was within the 7 days period as prescribed by law, was still under a duty to prove what he has positively alleged.
In law, Exhibit P9 is at best a regulation or guideline made by INEC and thus subject to the substantive provisions of Section 31(3) of the Electoral Act 2010 (as amended) and therefore, where there is a conflict between guidelines/regulations issued by the Electoral body and the substantive provisions of the statute, the latter would prevail. So, would Exhibit D2, subject to the issues of its admissibility being resolved

later in this judgment and if admissible, prevail over Exhibit P9. See Nyesom V. Peterside (2016) LPELR – 4003 (SC). See also Oyetola V. Adeleke & Ors (2019) LPELR – 47529 (CA).
At that stage, the claim of the 1st Respondent that the said publication was made on 6/7/2020 was already out of the way or defeated by the dictates of the law as any date outside the 7 days period would, in my view, render such a publication contrary to the enabling law and would therefore, if challenged be declared null and void. Thus, the real issue before the Court below at that stage was not whether as between Exhibit P9 scheduling the publication for 6/7/2020 and Exhibit D2, a document whose admissibility or otherwise I shall soon focus my attention on, affirming the publication of the said particulars on 2/7/2020, but rather whether the 1st Respondent having failed to produce any probable evidence of the alleged date of 6/7/2002, was the Appellant able to prove as he alleged that the said publication was made on 2/7/2020 by INEC?
I have reviewed the evidence of CW1, DW1 and DW5 as well as looked calmly at Exhibit D2 and also at Exhibit P9 again and it

does appear to me that on the face of the overwhelming evidence of DW1 and DW5, who are INEC staff and indeed in the best position to know when the said publication was made, affirming positively that it was made on 2/7/2020 in line with the contents of Exhibit D2, really left the Court below with no option or choice than to believe DW1 and DW5 and find that the publication was indeed made on 2/7/2020, which as between the dates of 2/7/2020 and 6/7/2020 was a more probable date, being within and in line with the prescription of the law. See Section 31(3) of the Electoral Act, 2010 (as amended).

Let me now focus my attention on Exhibit D2. This is a letter written by the Administrative Secretary of INEC in Edo State and tendered in evidence by no less a person than the Head of Legal Services of INEC in Edo State as DW1, who also gave evidence on oath that the publication was made on 2/7/2020. That was not all! DW5 another staff of INEC Edo State also testified confirming the date of 2/7/2020 as the date of publication of the names and particulars of candidates. However, the Court below ignored these unchallenged evidence and rather disbelieved the DW5

because she admitted and quite honestly too that she had nothing with her in the Court to show that the publication was made on 2/7/2020. How does that automatically render the publication to have been made on 6/7/2020? I see no rationale for this finding by the Court below at all!
Let me say right away that Exhibit D2 is, with due deference to the Court below, not a private document within meaning of the word ‘public document’ under the law. It is clearly the act of a public official, the Administrative Secretary of INEC, and the mere fact that the letter was addressed to a recipient who is a private person does not convert or render it to be a private document, No! It is not! It remained a public document. Thus, I find the reasoning and decision to that effect by the Court below as one done in error. See Section 102 of the Evidence Act, 2011, which provides as follows:
“The following documents are public documents -Documents forming the official acts or records of the official acts; of the sovereign authority; of official bodies and tribunals; of public officers, legislative, judicial and executive, whether of Nigeria or

elsewhere; public records kept in Nigeria of private documents.”
There is no law that prohibits the tendering of an original document, be it public or private document. This is the reason why in law, the original of a public document in the hands of a private person can be tendered in evidence without any certification since certification is in respect of secondary evidence whilst the original document produced is the primary evidence, which in all cases, subject to relevancy and pleadings and other requirements of law, is ordinarily admissible in evidence. There was in my finding, therefore, no legal or other justifiable basis for the Court below to expunge Exhibit D2, which I find and I so hold was admissible in evidence.
Now, Exhibit D2 in the stable, coupled with the evidence of DW1 and DW5, the evidence in proof of the date of the publication of the names and particulars of candidates for the said election by INEC was and still is overwhelmingly in favor of the date of 2/7/2020. The date of 6/7/2020 stood no chance at all and I will show anon why? Both parties are agreed, at least DW1 and DW5, called by the Appellant and the 2nd and 3rd

Respondent, as well as CW1, the 1st Respondent admitted so, that Exhibit P9 is the INEC Time Table issued on 6/2/2020 for scheduled activities of INEC in respect of the 19/9/2020 Edo State Governorship Elections. It is true that Exhibit P9 was issued way back on 6/2/2020 as time table for scheduled activities of INEC in relation to the 2020 Governorship Election in Edo State. It is therefore not a proof of the actual date of publication of the names and particulars of candidates or of even any of the activities so scheduled in it with or without cancellation or rescheduling as erroneously thought and perversely held by the Court below.
The issue was not about time table but simply about the actual date of publication by INEC of the names and particulars of candidates for the said election. That can never and cannot and was not proved merely by reference to time table issued in advance on 6/2/2020 and usually released by INEC months and in some cases years ahead. For instance, it would be incongruous to say that the actual date of conduct of an election could or even may be proved merely by reference to the advance time table as released by INEC, which

are usually issued well or far in advance of months or even years in some cases, yet that was what the Court below surprisingly relied upon to find, and quite perversely too, that the publication of names and particulars of candidates by INEC was actually made on 6/7/2020 even when the 1st Respondent who had so alleged and was under a duty to prove it had told the Court under the intense heat of cross examination in clearly unmistaken terms that he does not know the date the said publication was made by INEC and rather rejecting so spuriously the only genuine evidence of DW1 and DW5 as well as Exhibit D2, which it perversely expunged, showing and proving without doubt that the publication was made by INEC on 2/7/2020. What a travesty of justice!.
The CW1 who intended to take advantage of Exhibit P9, the INEC Time table tendered through his counsel across the Bar on such a highly contentious issue of fact on which the parties had joined issues both on their pleadings and in their evidence and without making himself available for cross examination, was taken to the cleaners in his cross examination, where he admitted that he does know the date of the

publication of the names of the candidates by INEC and would also not know if it was true or not if it was suggested to him by counsel that the said publication was actually made on 2/7/2020. He had also admitted that he does not have the INEC letter of publication of the names and particulars of candidates for the 19/9/2020 Edo State Governorship Election. See pages 986 – 993 of the Record of Appeal.
How did Exhibit P9 even came into the evidence, it was tendered across the Bar by J. I. Odibeli Esq., learned counsel for the 1st Respondent as certified true copy from INEC on timetable and schedule of activities for Edo State 2020 Governorship election but which turned out to have been certified not by INEC but by the Edo State Governorship Election Tribunal but was nevertheless despite the strong objection to its admissibility not only admitted in evidence as Exhibit P9 but also solely relied upon by the Court below in arriving at the actual date of publication of the names and particulars of candidate for the said 2020 Edo State Governorship Election to be 6/7/2020 despite the overwhelming, credible and more reliable evidence to the contrary by DW1 and DW5,

who were official witnesses from INEC and were duly cross examined unlike the learned counsel for the 1st Respondent who was neither a witness nor was he cross examined on such a vital piece of evidence on which the competence or incompetence of the 1st Respondent’s Suit solely hinged in the findings of the Court below. See page 995 – 997 of the Record of Appeal.
DW1 is the Head of Legal Services of INEC in Edo State and tendered a letter dated 12/8/2020 and written by the Administrative Secretary of INEC, Edo State as Exhibit D2 in evidence. The Subpoena was tendered and admitted in evidence as Exhibits D1 and D1A. He maintained that the publication of the names and particulars of candidates for the 19/9/2020 Edo State Governorship Election was made by INEC in Edo State on 2/7/2020 but identified Exhibit P9 as INEC Time Table. There was really no any serious cross examination of DW1. See pages 998 – 1002 of the Record of Appeal. Under cross examination, DW2, the 2nd Respondent, maintained that his particulars as in Exhibit P6 was submitted to INEC on 29/6/2020 and that he applied to the Auchi Polytechnic and other Institutions he had attended to

harmonize his names and to re-issue his certificates to reflect the new name. He insisted that the names on his various certificates were his names which he had used in various organizations as his name. He was not in any material particular shaken in his thorough cross examination by counsel for the 1st Respondent. See pages 1012 – 1014 of the Record of Appeal. Under cross examination, DW5 maintained that the publication of the names and particulars of candidates were done on 2/7/2020 by pasting on the INEC Notice Board and that Exhibit D2 was written by the Administrative Secretary of INEC Edo State and Exhibit P9 is the Time table by INEC issued from their Headquarters in Abuja, but she is not aware that it was on the 6/7/2020 that the INEC Headquarters uploaded the publication of the names and particulars of candidates on their website which was done at the INEC Edo on 2/7/2020 though there is nothing with her in the Court to show that the publication was done on 2/7/2020 by INEC Edo State. She was not shaken in her cross examination by counsel for the 1st Respondent. See pages 1019 – 1021 of the Record of Appeal.

So, was Exhibit P9 of any probative value on the issue of actual date of publication of the names and particulars of candidates for the said Election by INEC? I think not and these are my reasons for saying so! Firstly, the purported certification by the Edo State Governorship Election Tribunal of a document made by INEC, which is under law the custodian and who can certify it in accordance with the provisions of Section 104(1) of the Evidence Act, 2011, was wrong in law and improper. It is akin to allowing INEC to certify copies of a judgment of the Election Tribunal merely because it had in its possession a copy of such judgment. Thus, Exhibit P9 was never in the custody of the Election Tribunal for the purposes of its certification within the meanings and provisions of the Evidence Act 2011. Truly, at best, it was in its possession but the law here talks not about mere possession but custody so that the copy to be certified is compared with the original copy in the custody of the public body or officer or authority. This to my mind is the purport of the requirement of certification. It was not and still is not made for the fun of it for one institution or authority to certify documents in the

custody of another institution or authority merely in its position without reference to the authority in custody of the original of the document. See Section 104(1) of the Evidence Act, 2011, which provides as follows:
“Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.”
However, since on the face of Exhibit P9, it appears to have prior been certified by INEC but was merely re – certified by the Election Tribunal, and to that end, I would agree with the apt submission of leaned counsel for the 1st Respondent that on the extant law, a photocopy of a certified true copy of a public document is admissible in evidence without the need for further certification. It is for this reason, I find that Exhibit P9 was rightly admitted but wrongly relied upon solely by the Court below as proof of the actual date of publication of the names and particulars of candidates

for the said election by INEC, which it is not. It was merely a time table and cannot and is not by itself proof of the actual occurrence of any of the events or activities scheduled therein and I so hold.

I have also considered the issue of whether Exhibit D2 was inadmissible by virtue of the provisions of Section 83 (1) of the Evidence Act 2011, as was also held by the Court below, and I am of the firm view that with INEC not being a party on the volition of the 1st Respondent himself, who had even successfully resisted the joinder of INEC by the 3rd Respondent before the Court below, the maker of Exhibit D2, a very senior staff of INEC, is not a person interested within the meaning of the phrase ‘person interested’ as used in Section 83 (1) of the Evidence Act 2011. I am even prepared to hold that even if INEC had been made a party, being an official statutory body charged with electoral matters and with no interest of its own to serve in matters of this nature, it would not and does not qualify as a ‘person interested’ in the context of the 1st Respondent’s Suits. Thus, in every way and angle one looks at Exhibit D2, it

was and still is a perfectly admissible piece of evidence which was wrongly expunged by the Court below. See S. 83 (3) of the Evidence Act 2011, which provides as follows:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
See also Arab Contractors Nig. Ltd V. Umanah (2013) 3 NWLR (Pt. 1344) 323 @ p. 347, where it was held inter alia thus:
“The overriding raison d’etre of the legislation in my humble view is that the Courts would not allow a person interested to cook up a statement during the pendency of a suit or its anticipation in order to defeat the course of justice.”
See further Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 367.

My Lords, having taken time to consider the pleadings and evidence as led by the parties and having made specific findings as above on the status of Exhibit P9 and Exhibit D2, and having reviewed the evidence of CW1, DW1 and DW5, as in the Record of Appeal, I find as fact that the cause of

action of the 1st Respondent arose on 2/7/2020 and not on 6/7/2020 as perversely held by the Court below, and this being a pre – election matter as agreed upon by both parties, the 1st Respondent had only 14 days as prescribed by Section 285(9) of the Constitution of Nigeria 1999 (as amended), within which to file his claim against the Appellant and the 2nd and 3rd Respondents. In law, the simple duty of this Court in determining whether the 1st Respondent’s Suit was statute barred or not is by looking at the date when the cause of action arose and comparing same with the date the Suit was filed to see if it was filed within or outside the limitation period. See Egbe V. Adefarasin (Supra) @ p. 10; Woherem V. Emereuwa (Supra) @ p. 416.
The Appellant’s Suit, commenced by means of a Writ of Summons, was filed on 17/7/2020, whilst his cause of action arose on 2/7/2020, it is thus crystal clear to me and I so hold that the claim of the 1st Respondent filed on 17/7/2020 to enforce his cause of action which arose on 2/7/2020 was undoubtedly and irredeemably statute barred by virtue of and the operation of the provision of

Section 285(9) of the Constitution of Nigeria 1999 (as amended), which prescribes a constitutional limitation period of 14 days for the competent commencement of the claim of the 1st Respondent in a Court of law. In the light of this findings therefore, I hold that the Writ of Summons filed by the 1st Respondent on 17/7/2020 was clearly statute barred. I find that the claim of the 1st Respondent at the time it was filed against the Appellant suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law. See Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA). See also Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA).
I therefore resolve issue two in favor of the Appellant against the 1st Respondent and hold firmly that the 1st Respondent’s Suit is incompetent and liable to be struck out. This is because in the absence of jurisdiction there can be no competence in the 1st Respondent’s claim to be heard and determined on the merit, as the Court below erroneously did and held perversely that the 1st Respondent’s Suit was not statute barred, since

jurisdiction is the life blood of every cause or action. Thus where the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC. (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
See also Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. Leventis Trading Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar’Adua (2008) All FWLR (Pt. 430) 25; Essien V. Ekanem (2010) All FWLR (Pt. 523) 1992.

Having arrived at the inescapable conclusion that the 1st Respondent’s Suit filed on 17/7/2020 before the Court below was filed out of time and thus, statute barred, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance

technicality bordering on incompetence of the 1st Respondent’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Suit? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had per Georgewill JCA, opined inter alia thus:
“My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”

I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st Respondent’s Suit filed before the Court below on 17/7/2020 which was statute barred. In law, once a Suit is found to be statute barred the proper order to make is one of dismissal. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258. Consequently, the 1st Respondent’s Suit is hereby dismissed.

ISSUE THREE
Whether having regard to the facts and circumstances of the 1st Respondent’s Suit, the Suit had not become academic and of no utilitarian value to 1st Respondent?

APPELLANT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Appellant had submitted that the 1st Respondent’s case has lost any utilitarian value to any of the parties and thereby robbed this Court of the jurisdiction to hear and determine it when there is no more live issue to be adjudicated upon or when the Court’s judgment would hold no practical or tangible utilitarian value to the parties and contended that with the 19/9/2020 Edo State Governorship

Election come and gone and lost by the Appellant and the 2nd and 3rd Respondents, there are no more live issues in the 1st Respondent’s Suit which ought to be struck out and urged the Court to hold that the Court below fell into grave error when in its judgment it held that the 1st Respondent still had live issues to be determined and to allow the appeal and set aside the judgment of the Court below and strike out the 1st Respondent’s Suit for haven become merely academic and thus robbed the Court below of its jurisdiction to enter the judgment as it did without competence. Counsel relied on Adeogun v Fashogbon (2008) 17 NWLR (Part 1115) 149 @ p. 180; Chief Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 @ pp. 654 – 655; Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379 @ p. 391; Agbakoba V. INEC (2008) 18 NWLR (Part 1119) 489; Peoples Democratic Party V. INEC (2014) LPELR – 23808 (SC); Action Congress v INEC (2007) LPELR – 8988 (CA).

It was also submitted that Court below fell into a grave error when it held that the 1st Respondent had not become academic because the Appellant was 5th Respondent in

Petition No. EPT/ED/GOV/01/2020 in which Appellant filed a Reply to the Petition praying for certain orders and contended that the Appellant did not file a Cross-Petition and consequently, did not ignite the Tribunal’s jurisdiction to grant orders in his favour and urged the Court to hold that the 1st Respondent’s Suit had become merely academic and ought to be struck out and to allow the appeal and set aside the finding of the Court below to the contrary and to strike out the 1st Respondent’s Suit for being merely academic. Counsel referred to Section 133(1) of the Electoral Act, 2010 (as amended) and relied on Dalhatu V. Turaki & Ors (2003) 7 SC1; NEPA V. ONAH (1997) 1 NWLR (Pt. 484) 680; Okonjo V. Odje & Ors (1985) 10 SC 267; Atansuyi V. Kufeji & Ors (2013) – 22023 (CA).

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, whether from the peculiar circumstances of this case, the Court below was right when it held that the 1st Respondent’s Suit had not become academic, learned counsel for the 1st Respondent had submitted that the Court below was right when it dismissed the Motion on Notice filed by the

Appellant on 23/11/2020 and contended that the issues involved in the claims of the 1st Respondent remain live and have not been overtaken by the conduct of the election held on 19/9/2020 in view of the fact that the Appellant and 2nd and 3rd Respondents are still in the both the Court and Election Tribunal trying to actualise their mandate and urged the Court to hold that in law whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379 @ p. 391.

It was also submitted that considering the pre-election matters filed by the 3rd Respondent in Suit No. FHC/B/CS/74/2020: All Progressives Congress & Anor. v. Godwin Obaseki & 2 Ors. and Suit No. FHC/B/CS/75/2020: All Progressives Congress & Anor. v. Phillip Shaibu & 2 Ors. challenging the qualifications of those declared as Governor and Deputy Governor respectively, there is no basis whatsoever for contending that the issues in this suit have been overtaken by events and urged the Court to so hold if any of those

pre-election matters succeeds, the Appellant and the 2nd and 3rd Respondents would be declared as winner of the election and to dismiss the appeal and affirm the Judgment of the Court below. Counsel relied on Odedo V. INEC (2008) 17 NWLR (Pt. 1117) 554 @ p. 613; LAU V. PDP & Ors. (2017) LPELR- 42800 (SC); Dahiru & Anor V. APC & Ors. (2016) LPELR – 42089 (SC); Boko V. Nungwa (2019) 1 NWLR (Pt. 1654) 395.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that by reliefs No. 40 and 42 in the 1st Respondent’s Suit and from the result of the election as declared in Exhibit P8, Appellant lost the election and neither the Appellant nor his political party, the 3rd Respondent filed an Election Petition challenging the result and contended that from the claims of the 1st Respondent, the suit had become academic even before the commencement of trial at the Court and urged the Court to allow the appeal and set aside the judgment of the Court below and strike out the 1st Respondent’s Suit for haven become merely academic. Counsel relied on PDP V. INEC (2018) LPELR – 44373 (SC);

Governor, Ekiti State & Anor. V. Ogunleye (2013) LPELR – 21844 (CA).

RESOLUTION OF ISSUE THREE
My Lords, in law the Court lacks jurisdiction to hear and determine matters which are merely academic or hypothetical or which due to the occurrences of certain events had rendered such matters even if pending merely academic or hypothetical. The Courts are loath to and do not saddle themselves with the consideration of matters which though pending before them had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live and are best suited for the Faculties of Law in the several Universities scattered all over the Country, would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. See Uba Plc V. Dana Drugs Ltd (2018) LPELR -44103 (CA), per Georgewill JCA. See also Adeogun v Fashogbon

(2008) 17 NWLR (Part 1115) 149 @ p. 180; Chief Olafisoye V. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580 @ pp. 654 – 655; Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379 @ p. 391; Agbakoba V. INEC (2008) 18 NWLR (Part 1119) 489; Peoples Democratic Party V. INEC (2014) LPELR – 23808 (SC); Action Congress v INEC (2007) LPELR – 8988 (CA).
In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad JSC, had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.

So, does the mere holding of an election and the declaration of a winner or even the swearing in of a winner into office alone renders a pre – election matter duly commenced and pending before a Court of competent

jurisdiction to become merely academic and or over taken by events and thus liable to be struck out? I think not! In law, whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and if those facts or issues remain live, then the pre – election matter would be determined on its merit, notwithstanding whether or not the election has been held and or even the outcome of the election. See Anyanwu V. Eze (2020) 2 NWLR (Pt. 1708) 379 @ p. 391.
In law therefore, a pre-election matter does not become academic or hypothetical merely because the election had taken place. Thus, pre-election matters commenced in line with the extant law on electoral matters would remain live issue, notwithstanding the holding of the election whilst the pre – election matter was already pending. See Mato V. Hember & ORS (2018) 5 NWLR (Pt.1612) 258. See also LAU V. PDP & Ors. (2017) LPELR- 42800 (SC); Dahiru & Anor V. APC & Ors. (2016) LPELR – 42089 (SC); Boko V. Nungwa (2019) 1 NWLR (Pt. 1654) 395.
Now, whether the Court below was right or wrong when it held that the claims in the 1st Respondent’s Suit

had remained live notwithstanding the conduct of the said Election on 19/9/2020 would, as aptly and unassailable submitted by the learned counsel for the 1st Respondent, depend on the issues involved in the claims of the 1st Respondent and whether they have been overtaken by the events of the conduct of the election and I find, upon a calm review of the facts relied upon by the parties in the Motion on Notice filed by the Appellant on 23/11/2020, that the issues in contention between the parties had remained live in view of the fact that, though the Appellant did not file any Election Petition before the Election Tribunal, he is still actively pursuing the realization of his aspiration to govern Edo State by claiming reliefs as the 5th Respondent in Petition No. EPT/ED/GOV/01/2020 before the Governorship Election Tribunal sitting in Benin, Edo State and whether such reliefs would succeed or fail and or are grantable or not grantable are completely immaterial.
It would appear that apart from the Election Petition No. EPT/ED/GOV/01/2020 before the Governorship Election Tribunal sitting in Benin, Edo State, there are still some other pre-election

matters between one or more of the parties relating to the issues of qualification of some of the candidates in the said election in Suit No. FHC/B/CS/74/2020: All Progressives Congress & Anor. v. Godwin Obaseki & 2 Ors. and Suit No. FHC/B/CS/75/2020: All Progressives Congress & Anor. v. Phillip Shaibu & 2 Ors and I hold that the 1st Respondent’s Suit remained live and has not become merely academic. See Odedo V. INEC(2008) 17 NWLR (Pt. 1117) 554 @ p. 613.

My Lords, I had even asked myself the question, whilst considering this issue, if indeed the claims of the 1st Respondent had become merely academic, why would or should the Appellant even bother appealing against the judgment of the Court below arising from a Suit which had become merely academic and of no longer any utilitarian value to any or all of the parties as vehemently contended on his behalf by his learned counsel in this appeal? The answer, to my mind is not farfetched, and I hope I am right, it is because while lawyers pride themselves as masters of the law, the Politicians are master game planners and they would never give up unless and until either they realize their

desire to ‘serve their people’ or the Apex Court in an appeal before them tell the Politicians with finality that it is all over, then they would take a bow and rest but bid their time for the next election! In this wise, they are far wiser than the lawyers! In the light of all my findings above, I hereby resolve issue three against the Appellant in favor of the 1st Respondent.

ISSUE FOUR
Whether the 1st Respondent proved his allegations of forgery and false information against the 2nd Respondent beyond reasonable doubt as required by law?

APPELLANT’S COUNSEL SUBMISSIONS
On issue four, learned counsel for the Appellant had submitted that the 1st Respondent had sought Declaratory and other reliefs predicated on alleged commission of the crimes of forgery and false information by the 2nd Respondent and being allegations of crime must be proved beyond reasonable doubt and contended that the 1st Respondent failed to prove all or any of the criminal allegations made against the 2nd Respondent contrary to the perverse findings of the Court below and urged the Court to hold that in law, the 1st Respondent having failed to prove

these criminal allegations beyond reasonable doubt as required by law, his claims ought to have been dismissed by the Court below and to allow the appeal and set aside the perverse judgment of the Court below and dismiss the 1st Respondent’s Suit for lacking in merit. Counsel referred toSection 135(1) of the Evidence Act 2011 and relied on Nwobodo V. Onoh (1984) NSCC 1 @ p. 17; ACN V. Lamido (2011) 3 LRECN 296.

It was also submitted that all the documentary Exhibits tendered by the 1st Respondent, namely: Exhibit P4, 2nd Respondent’s INEC Form CF001 of 2014, Exhibit P5, 2nd Respondent’s INEC Form CF001 of 2018, and Exhibit P6, 2nd Respondent’s INEC Form EC9 of 2020, which were not certified as required by law and thus were not only inadmissible in evidence but taken together falls far short from the requirement of proof of forgery and false statement as alleged by the 1st Respondent against the 2nd Respondent beyond reasonable doubts as required by law to sustain the claims of the 1st Respondent and urged the Court to hold that the 2nd Respondent having failed to prove his criminal allegations against the 2nd Respondent’s,

his Suit was liable to be dismissed and to allow them appeal and set aside the perverse findings of the Court below to the contrary and expunge Exhibits P4, P5 and P6 for being inadmissible in evidence and dismiss the claims of the 1st Respondent for lacking in merit having not been proved as required by law. Counsel referred to Section 104(1) of the Evidence Act 2011 and relied on Tabik Investment Ltd V. GTB PLC (2011) 17 NWLR (Pt. 1276) 240 @ p. 262; Akinlade V. INEC (2002) 17 NWLR (Pt. 1754) 439.

It was further submitted that save the mere reproduction of the pleadings of the 1st Respondent incompetent written statements on oath the allegation of crimes against the 2nd Respondent were left bare and without any iota of proof and contended that no other witness was called other than the 1st Respondent neither was any of the institutions attended by the 2nd Respondent were shown to have disclaimed the certificates of the 2nd Respondent nor any other person shown to be laying claim to ownership of 2nd Respondent’s certificates and urged the Court to hold that the Court below was in grave error when it held that on the state of the porous evidence

led by the 1st Respondent the allegations of grave crimes were proved beyond reasonable doubt as required by law and to allow the appeal and set aside the perverse judgment of the Court below in which it misconceived and misapplied the decision of the Supreme Court in SC.1/2020: PDP V. Degi Eremienyo and dismiss the unproved allegations of the 1st Respondent and dismiss the 1st Respondent’s Suit for lacking in merit. Counsel referred to Section 177(d) and 187(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and relied on Abubakar V. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110; Maihaja V. Gaidam (2017) LPELR – 42474 (SC).

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue three, whether the learned trial Judge was right to have held that 1st Respondent proved his case to be entitled to judgment, learned counsel for the 1st Respondent had submitted that the Court below was right when it held that the 1st Respondent proved his case as required by law to entitle him to the reliefs sought and contended that the 1st Respondent in line with his pleading gave evidence and tendered documentary proof such as Exhibits P4, P5

and P6 which clearly attested to the fact that the 2nd Respondent gave false information in the forms he submitted to INEC in 2020 and urged the Court to hold that on the state of the documentary Exhibits, as duly certified, and furnished before the Court below by the CW1, it was clear that the 1st Respondent proved his case as required by law and thus the Court below was perfectly right when it so hold in consonance with the series of documentary evidence and urged the Court to affirm the correct findings of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Okoye & Ors V. Nwankwo (2014) LPELR – 23172 (SC) @ pp. 25-26; Akinbisade V. State (2006) LPELR – 342 (SC); Akinyemi V. Akinyemi & Anor. (1963) LPELR – 15457 (SC).

It was also submitted that in law, proof beyond reasonable doubt is not proof beyond all shadow of doubts and is thus not an abstract concept and contended that the production of the documents such Exhibits P4, P5 and P6 submitted to INEC by the 2nd Respondent at different times which bore contradicted evidence of the different information and documents/certificates presented to INEC by the 2nd

Respondent, the 1st Respondent proved beyond reasonable doubt the allegations made against the 2nd Respondent and urged the Court to hold that the Court had upon painstaking evaluation of the totality of the evidence arrived at the impeccable finding that the allegations of forgery and false statements made against the 2nd Respondent were proved beyond reasonable doubt as required by law and to affirm the correct finding of the Court below and dismiss the appeal for lacking in merit. Counsel relied on P.I.P.C. Security Ltd. V. Vlachos & Anor (2007) LPELR – 5150 (CA); Peoples Democratic Party V. Biobarakuma Degi-Eremienyo & 3 Ors (Supra).

It was further submitted that the 2nd Respondent to offer any reasonable explanation for the contradictions in his names and certificates as variously presented by him to INEC in different years and contended that the purported Deed Poll presented by the 2nd Respondent was in la invalid in that for a change of name to official certificate to be valid, there must be a Deed Poll sworn to in the Supreme Court of Nigeria deposing to the fact necessitating the change, the new name will be printed in

Nigeria Official Gazette and an application will be made to the documentation department of Publication, Civil Registry requesting the advertisement of the change of name and urged the Court to hold that the 2nd Respondent met none of the above stated conditions by the Supreme Court and therefore, had no defense to the proved allegations against him and to dismiss the appeal and affirm the sound and correct judgment of the Court below. Counsel relied on P.I.P.C. Security Ltd. V. Vlachos & Anor. (2007) LPELR – 5150 (CA); Peoples Democratic Party V. Biobarakuma Degi-Eremienyo & 3 Ors (Supra); Tsokwa Oil Marketing Co. (Nig) V. Bank of the North Ltd (2002) LPELR – 3268 (SC); Ashakacem Plc. V. Asharatul Mubashshurun Investment Ltd. (2019) LPELR – 46541 (SC).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the 1st Respondent as CW1 who tendered Exhibits P4, P5 and P6 in evidence was not the maker and in law was not competent to testify on the contents of those documents and contended that those documents were inadmissible in evidence and were wrongly relied upon by the Court below

being of no probative value and urged the Court to hold that on the totality of credible evidence led, the 1st Respondent failed to prove his allegations of crimes against the 2nd Respondent as required of him by law and therefore, his claims ought to have been dismissed by the Court below. Counsel relied on Ikpeazu V. Otti (2016) 8 NWLR (Part 1513) 38; Yako & Anor V. Jibrin & Ors (2019) LPELR – 48971 (CA); Ahmed V. Belgore (2013) 8 NWLR (Pt. 1235) 60 @ p. 100; Abubakar V. INEC [2020] 12 NWLR (Part 1737) 37 @ pp. 111 and 172.

RESOLUTION OF ISSUE FOUR
My Lords, issue four deals with the evaluation of evidence and findings of the Court below and when in an appeal it is alleged that the judgment is against the weight of evidence, as in ground 21 on the Appellant’s Notice of Appeal, it is call on this Court to re – evaluate the evidence led before the Court below to arrive at proper finding of facts should it turn out that proper evaluation had not been carried out by the Court below. Thus, unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of

probative value to the evidence before it, the duty of the appellate Court to re – evaluate the evidence on the printed records would not arise. The law is that for a an appellate Court to embark on such a duty, it must be demonstrated that the Court below had either not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand. See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7 – 8 SC 144. See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Prince Ugoh Michael V. Access Bank of Nigeria Plc. (2017) LPELR – 41981(CA) per Georgewill JCA. It must be noted at once that in carrying out evaluation of evidence, a very tough turf for trial Courts, a Court is not to merely review or restate the evidence

but is expected to critically appraise it in the light of the facts in issue, as to what is relevant, admissible and what weight to be attached thereto. In other words, evaluation of evidence is much more critical, crucial and tasking than mere review of evidence. Thus, unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the Court arrived at its conclusion preferring one piece of evidence to the other. Therefore, the reaching of conclusions by drawing necessary inference is a product of legal mind not an indulgence in speculation. See Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458.

Now, it is true that in law, where the evidence of a witness has not been challenged, contradicted or shaken under cross – examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts pleaded, the evidence must be accepted as the correct and acted upon by the Court. See Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 348.

It is also true that though evidence may be unchallenged, it must be relevant and constitute the ingredients of the claims to ground an award. In other words, where though the evidence led is unchallenged but it falls short of the essential requirements of the claim which must be proved to warrant a finding in the party’s favour, the mere fact that the evidence was unchallenged would not suffice. Thus, in law if a party who claims a relief has not made out his claim at least on a prima facie basis there is no duty on the other party to lead any evidence in rebuttal or to disprove anything and the failure to do so would not translate automatically into a grant of the claim of the party who had not established his claim even on a prima facie basis and such a claim must be dismissed despite the absence of evidence from the other party. SeeJolayemi V. Alaoye (2004) 12 NWLR (Pt. 887) 322.

The parties led evidence in support of their pleadings and tendered several documents in evidence as Exhibits, chief of which for the purpose of issue four were Exhibits P4, P5 and P6 by the 1st Respondent and Exhibit D6 by the 2nd Respondent. The Court upon

a review of these pieces of evidence and relying mainly on Exhibit P4, P5 and P6 had found as fact that the 1st Respondent proved his allegations of forgery and making of false statement against the 2nd Respondent, holding inter alia thus:
“….The evidence adduced by the claimant as stated above is mainly documentary….In Nigeria, forgery consists of the making of a false document or writing knowing it to be false and with intent that it may be used as a genuine document….The 1st Defendant presented in the Form CF001 of 2015, the affidavit in support of personal particulars of persons seeking election to the membership of Edo State House of Assembly Exhibit P4, and in the affidavit which he submitted….. In conclusion, the Claimant has established that 1st Defendant’s Form EC9 presented to INEC contained materially false facts and his case succeeds.” See pages 1188 – 1228 of the Record of Appeal.

I have time to scrutinize the contents of Exhibits P4, P5 and P6 as well as Exhibit D6. Exhibit P4, P5 and P6 are the INEC forms submitted by the 2nd Respondent to INEC at various year he had sought elective positions in

2014, 2018 and 2020, while Exhibit D6 is a letter from the Supreme Court of Nigeria. See page 680 of the Record of Appeal.

At the trial, the 1st Respondent testified as CW1 and tendered Exhibits P1, his membership card No 15743031 of the People Democratic Party of Ward No 1088, and P2, his voters card, amongst several other documents in evidence and in admitting the Voter’s Card, in evidence the Court below had observed inter alia thus:
Court: The voter’s card of the witness has been seen by Court. The surname is spelt OSHOAKPEMH in the card as against OSHOAKPEMHE. That will not affect the admissibility of the document. The Voter’s Card with code A04860108 is admitted and marked as Exhibit P2….”

CW1 maintained that Exhibit P2 issued to him by INEC was not forged though his surname in Exhibit P2 is not correctly spelt but that the wrong spelling in Exhibit P2 has not prevented him from using the document as he has been using it to vote in elections and nobody had accused him of forging it. He insisted that he is familiar with Islamic names but does not know the meaning of the name Abudu and that he does not know whether some

other persons have come forward to claim the certificates of the 2nd Respondent and that he also did not visit any of the Institutions attended by 2nd Respondent to find out whether he actually attended those schools since his complain was forgery. See pages 986 – 993 of the Record of Appeal.

In law, the claims of the 1st Respondent having been predicated on the alleged crimes of forgery and false information by the 2nd Respondent, and it being central, must be proved beyond reasonable doubt as required by law. See Section 135(1) of the Evidence Act 2011, which provides as follows:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”
In Nwobodo V. Onoh (1984) NSCC 1 @ p. 17, the Supreme Court had laid down applicable principle of law inter alia thus:
“…Where in an Election Petition, the Petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime as the basis of his Petition, the sub-section imposes strict burden on the Petitioner to prove the crime beyond reasonable

doubt. If the petitioner fails to discharge the burden, his Petition fails.”
See also ACN V. Lamido (2011) 3 LRECN at 296.
I have had a close scrutiny of all the Exhibits tendered by the 1st Respondent, particularly Exhibit P4, the 2nd Respondent’s INEC Form CF001 of 2014, Exhibit P5, the 2nd Respondent’s INEC Form CF001 of 2018, and Exhibit P6, the 2nd Respondent’s INEC Form EC9 of 2020 and I have asked myself, do they amount to commission of the grave offences of forgery and making false statement by the 2nd Respondent as found by the Court below? I will answer this question anon!
My Lords, in law to prove forgery, there must be presented before the Court below by the 1st Respondent, who so alleges forgery, two sets of documents for each of Exhibits P4, P5 and P6 including the original documents, which must be undisputed document, alleged to have been forged and then the forged document which the 2nd Respondent had intended that should be relied upon in place of the original document to his benefit and to the detriment of the other person relying on it. In the absence of such vital pieces of evidence, no matter the

number of different documents produced, such as Exhibits P4, P5 and P6 alone without more, it would not suffice unless the one said to be the original document that was forged is produced along with the forged document and then and only then can the Court compare both to see if indeed the one presented as the forged document was a forgery of the original document. In law, forgery cannot be inferred or proved merely by production of the alleged forged document without the original undisputed document alleged to have been forged not produced before the Court to enable the Court compare same with the allegedly forged copies and this was what the 1st Respondent woefully failed to do.
The standard of proof of forgery and or making of false statement is proof beyond reasonable doubt which implies proof of all the constituent elements or essential ingredients of the offences alleged, none of which were proved and worse still none of which were specifically considered throughout the gamut of the judgment of the Court below. Putting together Exhibits P4, P5 and P6 by themselves alone without any evidence of any claim by any person that his names and or

certificates were forged and used by the 2nd Respondent or that the names do not belong to the 2nd Respondent or that he neither attended any of the Institutions nor obtained the qualifications conferred by the certificates, I can neither see nor find any proof of forgery and or making of false statement as alleged by the 1st Respondent against the 2nd Respondent. The allegations therefore remained bare and unproved by the 1st Respondent and I so hold.
I think it must be pointed out at once that by the introduction of written statements on oath as evidence in chief what now plays out is for parties to copy and paste their pleadings in their statement on oath as their evidence and though there is nothing wrong about that, it has made cross examination the real test of the veracity of witnesses before the trial Court nowadays. The 1st Respondent as CW1 was taken to the cleaners under his cross examination evidence. He was exposed to be merely fishing for anything to hang the 2nd Respondent with, if he had not as much as even taken time to enquire anything about the certificates of the 2nd Respondent from the Institutions they were issued to him to

ascertain if they were actually issued to any other person other than the 2nd Respondent neither does he even know the meaning and versions of the names of the 2nd Respondent. He was a most miserable and pitiable witness under cross examination as he ended up admitting knowing next to nothing of the claims he was making against the 2nd Respondent. At that stage alone, his claims failed and ought to have been dismissed even without calling on the 2nd Respondent to enter upon his defense. In law, merely tendering Exhibit P4, P5 and P6 without more was not sufficient to ground proof beyond reasonable doubt of the grievous crimes alleged against the 2nd Respondent by the 1st Respondent, and I so firmly hold. See Abubakar V. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110, where the Supreme Court per I.T. Muhammad, CJN, had pronounced with finality inter alia thus:
“Before I conclude on this issue, let me state that whenever documents are tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. Such tendering is not the end itself but a means to an end. The makers of such tendered

document must be called to speak to those documents and be cross-examined on the authenticity of the documents. The law is trite that a party who did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document is not called to testify, the document would not be accorded probative value by the Court. That in deed is the fate of Exhibits P80 and P24…Finally, on this issue, it was contended by the appellants that the variation in the names of 2nd respondent on Exhibit R19 and R21 makes his relationship with the two documents doubtful. Is “Mohammed” and “Muhammadu” the same name and belong to the 2nd respondent? The Court below made an elaborate discussion on the issue and concluded that RW5 gave explanation on the names and stated that they are the same….For me, as the appellants failed to prove that any of the documents belong to another person and as nobody has come out to claim any of the two exhibits, I do agree with the explanation given by the RW5 and the conclusions of the Court below that both names “Mohammed” and

“Muhammadu” as contained in Exhibits R19 and R21 belong to the 2nd respondent. On this note, I resolve issues one and two against the appellants.”
See also Maihaja V. Gaidam (2017) LPELR – 42474 (SC), where Kekere – Ekun JSC, had succinctly opined inter alia thus:
“If there is any discrepancy in the age of a candidate, it must have a bearing on the constitutional requirement before it can have the effect of disqualifying him… It was also held in this case that there must be evidence of an intention by the candidate to circumvent the provisions of the Constitution. There was none established in this case.”
On the state of the law in the above pronouncements of the Apex Court, I am in complete agreement with the apt and unassailable submission of learned counsel for the Appellant that save the mere reproduction of the pleadings of the 1st Respondent’s written statements on oath the allegation of crimes against the 2nd Respondent were left bare and without any iota of proof but regrettably in my view but with due deference to the Court below it completely misunderstood, misconstrued as well as misapplied

the decision of the Apex Court inPDP V. Degi Eremienyo (2020) All FWLR (1032) 526 (SC), and thereby erred gravely by relying on the porous and lacking probative value sort of evidence led by the 1st Respondent, perhaps merely because they are mainly documentary, in holding that the 1st Respondent proved his allegations of crimes beyond reasonable doubt as required of him by law. No, he didn’t! SeeAbubakar V. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110.
Now, allegations bordering on forgery and or making of false statement to INEC are not only criminal and grievous but are not matters or things one party alleges and then fold his hand akimbo to see how the other party wriggles out of it. Allegations of forgery and or false statements are not issues of mere discrepancies but of commission of crimes which must be proved beyond reasonable doubt by the person who makes the allegations. However, I agree with the apt submission of the learned counsel for the 1st Respondent that in law proof beyond reasonable doubt is neither proof to the tilt nor proof beyond all shadows of doubts nor proof with certainty yet it is proof far about above either proof on a

balance of probabilities or preponderance of evidence. Thus, if there be any doubts on the totality of the evidence led, it must be resolved in favour of the party alleged to have committed a crime. In Miller v. Minister of Pensons (1947) 2 ALL E.R. 373 per Lord Denning J, (as he then was) had put it so succinctly with regards to proof beyond reasonable doubt inter alia thus:
“it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt…….if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence, “of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt…..”
See alsoGaladima V. State (2012) LPELR – 15530 (SC).
The 1st Respondent, it was who had alleged these crimes against the 2nd Respondent for which he sought the disqualification of both the 2nd Respondent and his principal candidate the Appellant. He must bear the burden of proving these allegations beyond reasonable doubts. Thus, unless and until

the 1st Respondent had made out at least these allegations prima facie there was indeed no scintilla of onus on the 2nd Respondent and by implication the Appellant to prove anything in defence of the 2nd Respondent. Thus, even on the face of Exhibits P4, P5 and P6 alone, they proved no crime of forgery and or making of false statement to INEC as alleged by the 1st Respondent against the 2nd Respondent. I am prepared to even hold, and I hereby so firmly hold, that they do not even constitute prima facie evidence of forgery and or making false statement to INEC by the 2nd Respondent as alleged but left bare and unproved by the 1st Respondent. Truly, I just realised that on the state of evidence led by the 1st Respondent devoid of any or all of the essential ingredients or elements of the crimes alleged against the 2nd Respondent, in law the 2nd Respondent was indeed not under any duty to prove anything in his defence! See Jolayemi V. Alaoye (2004) 12 NWLR (Pt. 887) 322, where, Uwaifo JSC, had so succinctly put this position of law in its proper perspective thus:
“I realise that a Defendant need not prove anything if the Plaintiff has not succeeded in

establishing his case at least prima facie, in order that the necessity of the Defendant to confront the case so made out may arise.”
I have taken time to go through the pleadings of the parties as to the issues as joined by them on the issues of forgery and making of false statements as alleged against the 2nd Respondent by the 1st Respondent. I have also taken the pain to go through the totality of the evidence, both oral and documentary, as led by the parties as in the printed record. I have further considered the reasoning and finding on these pieces of evidence by the Court below. Now, to allege that the 2nd Respondent, who was being presented at the time the 1st Respondent’s Suit was filed as a Deputy Governorship candidate of the 3rd Respondent and was thus required to have been educated to the level of secondary school certificate, had made false statements to INEC because he stated his qualifications that meets the requirements of the office he was seeking and leaving out those higher qualification, which are merely superfluous anyway, amounted to making false statement is to say the least stretching the meaning of making false

statements beyond its most elastic limit. I see no false statement in it at all. It is also not false statement merely because in his earlier submissions to INEC, he had gone all the way to state his other qualifications. Once, a candidate has met the minimum requirement to contest an office, he is under no obligation to provide more and higher qualifications. Thus, the decision to use his own option at the latter election in 2020 not to present his higher qualifications presented in earlier elections in 2014 and 2018 does not in any legal way or manner amount to making of false statement to INEC.
I have also reviewed the evidence in respect of the alleged forgery and the several documentary Exhibits relied upon by the 1st Respondent and I cannot find, notwithstanding the painstaking effort I made in combing through all the strands of evidence, any allegation and or evidence that there is another person who had laid claims to either the certificates or any of the combination of names of the 2nd Respondent or more crucially that the names do not belong to the 2nd Respondent.
I am emboldened to liken allegations of forgery against the 2nd Respondent

by the 1st Respondent to that of ‘making a mountain out of a molehill.’ These are mere discrepancies and in an allegation of crime, it is not even enough to merely prove the actus reus, in the nature of these various documents, most of which were not even presented by the 2nd Respondent to INEC in 2020, but fished out by the 1st Respondent from previous submissions by the 2nd Respondent to INEC and therefore, truly having no bearing on the candidacy of the 2nd Respondent in the 2020 dispensation, but the 1st Respondent was also under a duty to go further to prove the mens rea, the mental intention of the 2nd Respondent to either mislead or cause INEC to rely on these documents to its detriment and to his own advantage. I find not even a scintilla of neither any pleading and or evidence by the 1st Respondent disclosing any mens rea or mental intention of the 2nd Respondent.
In law, criminal responsibility cannot be treated as mere function of actus reus, the physical act, unless in strict liability offences or as mere civil responsibility. Thus, to allege a crime against another person is not and cannot be a mere tea party to be embarked upon

carelessly or thoughtlessly or lightly. It is a decision that must be weighed and reached properly and must be intended to achieve justice to the society more than to the individual. This is perhaps, why crimes are usually said to be committed against the state even where the primary or nominal person against whom it was done may be an individual.
Having thoroughly evaluated the totality of the oral evidence and statements on oath of the witnesses that testified before the Court below as in the printed record and having examined the documentary Exhibits P4, P5 and P6 myself, I am unable to find any or all of the alleged crimes proved beyond reasonable doubt against the 2nd Respondent as required by law vide Section 135 of the Evidence Act 2011 on the lone evidence of the 1st Respondent as CW1 as well as the Documentary Exhibits P4, P5 and P6 that show at best mere discrepancies not amounting in the least to any form of forgery or making of false statement by the 2nd Respondent to INEC, not even made a party by the 1st Respondent.
The Court below failed to resolve all the glaring doubts in the nagging gaps as to what was the mens reas of the 2nd

Respondent, as none was even alleged or proved, and what was criminal about a candidate having met the minimum requirement, opting not to present his other qualifications far higher and above the minimum requirement he was obliged to meet by law to contest a given election? None I can find! On the whole, on the paucity of the evidence led by the 1st Respondent in support of the grave allegations of crimes made by him against the 2nd Respondent, I am even prepared to hold that the 1st Respondent failed to make out any case against the 2nd Respondent even on the standard of proof in civil cases on a balance of probability or preponderance of evidence.
I think it is high time in this country serious thoughts are given to the very laudable provisions of the Constitution of Nigeria 1999 (as amended) on qualification of a person and the Electoral Act 2010 (as amended) on disqualification of a person seeking elective positions or offices, which are intended to ensure that only those who are truly qualified in relation to age, qualification and honesty and integrity are allowed to run for elective offices which are weightier matters than the present recourse to

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all manner of shenanigans over mere discrepancies, which are very common feature of life and human affairs now blown out of proportion and inundating the Courts, which ought to be concerned more with weightier matters and less with such trifles.
If a person is alleged to have forged his certificate or qualifications or had made false statement to INEC, it must relate to whether he has presented certificates belonging to any other person, dead or alive, which does not belong to him or that he has arrogated to himself qualifications which he does not possess to make him qualified for the office he seek or had presented names that does not belong to him but to another person or that he has lied to the umpire, INEC, on matters in aid of his qualification and above all his intention the mens rea, must be that he had answered names not belonging to him but to another person or had forged his qualifications or age or made false statements in respect of the requirements of the law for purposes that the falsifications should be acted upon by INEC.
How does mere discrepancy in name, without any forging of or use of certificate or qualification of another

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person or answering the name of another person, satisfy these requirements? In no way at all! Does not including higher qualifications above the minimum required by law amounts to making false statement to INEC? I think not! Now, many instances abound in this Country, and of which we can judicial notice thereof, where people with higher qualifications would apply for work that requires their lower qualifications for the purpose of being gainfully employed to put body and soul together whilst hoping for better days ahead when they can use their higher qualifications. Is that making false statements? In all of these scenarios, I see no issue of forgery and false statement, which are very serious requirement of the law to disqualify a candidate from running for office in Nigeria.
The law on disqualification of a citizen from contesting for elective office as stipulated in the Constitution of Nigeria 1999 (as amended) and in the Electoral Act 2010 (as amended) is not about mere discrepancies but of substance in relation to the qualification, age and integrity of the person intending to vie for elective offices in Nigeria. It ought not, should not and need not

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be rubbished and reduced to mere shenanigans and sensationalism and drawn to its most elastic limits to apply to all manner of agitations against the candidacy of a citizen not related to any substance as required by law. The Courts must be cautious not to allow parties to open new vistas and uncharted territories not in the least contemplated by the succinct provisions of the Constitution of Nigeria 1999 (as amended) and or the Electoral Act 2010 (as amended), which if allowed to fester could spell doom for our nascent democracy. I should think I have said enough!
The 1st Respondent failed woefully to even show even prima facie talkless of proving anything that can be categorized as forgery or making false statements against the 2nd Respondent. On the state of the pleadings and the entirety of the evidence led by the 1st Respondent vide his statements of oath, oral and documentary, not even a prima facie case of forgery and or making of false statement were made out against the 2nd Respondent to have even required him to enter upon his defence. Thus, at the close of the 1st Respondent’s case his claims ought to have dismissed there and then for

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failure to disclose any prima facie case of forgery and or making of false statement against the 2nd Respondent. This ought to have been the proper course in the trial before the Court below. Indeed, shorn of the shenanigans and the display of legal sophistry by learned counsel to the parties, the claims of the 1st Respondent as pleaded and evidence led in support of it was dead on arrival and very undeserving of the so much attention by means of judicial time and space accorded to it by the Court below. In sum, the 2nd Respondent going by the qualifications he presented satisfying the minimum requirements of the law, his unchallenged age and his names and certificates not attributed even by the 1st Respondent to any other person, living or dead, the 2nd Respondent was under the Constitution of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) eminently qualified to contest for the office of Deputy Governor of Edo State and I so hold. Now, here is a man dragging another person to Court over what at best are mere discrepancies in names when he himself is a victim of some discrepancies in his name on Exhibit P2 without any legal

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consequences whatsoever. Was he also guilty of forgery by the differences in the spelling of his surname in Exhibits P1 and P2 as admitted by him and confirmed by the Court below? Perhaps not! In my finding, these are things which are bound to occur from time to time in human affairs and so long as no criminal intention is imputed and attributed or attributable to them they remain mere trifles tolerated by the society as mere discrepancies. It amounts to no crime of forgery and or false statement at all merely on account of such mere discrepancies. These are mere discrepancies that should not ipso facto without more invoke and ignite grave allegations capable of disqualifying a candidate in law from aspiring to ‘serve his people’. Curiously though as an aside now and no more considering issue three having concluded my consideration of issue four, as I was reading the appellate briefs of counsel, I came across the name of the learned counsel for the 1st Respondent written and signed as ‘J. I. Odibeli Esq,’ then I saw his NBA Seal in the name of ‘Ibezimako Joseph Odibeli, which translates to ‘I. J. Odibelei’ and not ‘J.I. Odibeli.’

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My Lords, in the light of all I have stated and found as above, I hold that the decision of the Court below holding that the 1st Respondent proved his claims of forgery and or making false statement to INEC against the 2nd Respondents was perverse and not supported by the flow and logic of the evidence led before it and it is thus liable to be set aside.

In law, a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. I hereby resolve issue four in favour of the Appellant against the 1st Respondent. See C.S.S Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
See alsoObajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19.

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ISSUE FIVE
Whether the Court below was right when it expunged the evidence of DW3 and DW4 from its records?

APPELLANT’S COUNSEL SUBMISSIONS
On issue five, learned counsel for the Appellant had submitted that the Court below acted wrongly when, in the course of its judgment, it expunged from its records the evidence of DW3 and DW4 on the sole ground that the witnesses used their initials or alphabets in their respective written statements on oath instead of their names and contended that the objections raised to these witnesses’ adoption of their respective statements on oath were taken belatedly they having been duly sworn on oath and had identified their respective statements on oath as statements made by them before the 1st Respondent’s Counsel raised objection to each of them adopting their statements. And urged the Court to hold that in the circumstances the 1st Respondent had waived his right to object and further that the objection to the evidence of DW3 and DW4 was misconceived.

It was also submitted that the statements on oath of

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these witnesses were frontloaded and served on 1st Respondent who had ample opportunity to cross – examine them and contended that and having cross examined them there was no miscarriage of justice occasioned by the concealment of the identities of these witnesses in that when DW3 and DW4 appeared before the Court, each took an oath in the witness box before testifying and urged the Court to hold that in law whatever defect that may have existed in their respective statements on oath had been cured by the oath administered on them in the witness box and to set aside the decision of the Court below expunging the evidence of DW3 and DW4 from its records. Counsel referred to Section 114 of the Evidence Act 2011 and relied onAgwu V. Eze (2012) 1 LRECN 436 @ P. 469; Agusiobo V. Onyekwelu (2003) 14 NWLR (Part 839) 34 @ P. 52.

It was further submitted that Order 3 Rule 3 and Order 15 Rule 1(2) of the Edo State High Court (Civil Procedure) Rules, 2018 dealing with filing of pleadings do not prohibit the use of initials or alphabets by witnesses and contended that in law what is not expressly prohibited by statute is deemed allowed and urged the Court to hold

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that non-compliance Edo State High Court (Civil Procedure) Rules, 2018 alone without more does not render the proceedings or steps taken a nullity and urged the Court to hold that the Court below erred in law when in its judgment it expunged the statements on oath of DW3 and DW4 and to allow the appeal and set aside the said decision and restore the evidence of these witnesses in the overriding interest of justice. Counsel referred to Order 5 Rule 1(1) Edo State High Court (Civil Procedure) Rules, 2018.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue five, whether the Court below was right to have expunged the evidence of DW3 & DW4 from its Record, learned counsel for the 1st Respondent had submitted that the Court below rightly expunged the evidence of DW3 and DW4 from its Record having hidden the identity of the deponent in the witness depositions they attempted to adopt contrary to the Rules of the Court below which did not permit such and contended that the said witnesses deposition were objected to by the 1st Respondent timeously as they were about adopting same during the trial but the Court below had tentatively allowed them to be

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adopted pending its ruling in the final judgment and urged the Court to hold that the 1st Respondent did not at any time waived his right having raised the objection timeously.

It was also submitted that the Rules of the Court below do not allow or permit for concealing of the identity of witnesses or the use of initials in witness statements and contended that unlike the Practice Directions regulating the procedure in Election Petition Tribunals contained in the Electoral Act, the Civil Procedure Rules of Edo State High Court do not allow provide for the use of initials for depositions of witnesses in the Registry of the Courts and urged the Court to hold that in law when one thing is expressly provided, the other thing is impliedly prohibited and to dismiss the appeal and affirm the decision of the Court below expunging the evidence of DW3 and DW4. Counsel referred to Section 117(1) of the Evidence Act, 2011 and relied on Buhari V. Yusuf (2003) 14 NWLR (Pt. 841) 446 @ p. 499; Mamman v. Bwacha [2017] 1 NWLR (Pt. 1547) 425 @ p. 483.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that

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DW3 and DW4 identified their respective statements on oath without any challenge from the 1st Respondent and contended that it was only at the point of adoption of the statements on oath as evidence that objection was raised by 1st Respondent and urged the Court to hold that the expunging of the evidence of DW3 and DW4 who had testified and were duly cross examined by the 1st Respondent was erroneous as no miscarriage of justice was done to the 1st Respondent by way of the non – disclosure of the identity of the witnesses and to allow the appeal and set aside the decision of the Court below to expunge the evidence of DW4 and DW5 respectively.

RESOLUTION OF ISSUE FIVE
My Lords, this issue deals with the duty of a Court to ensure that its decisions are based solely on admissible evidence and therefore, where inadmissible evidence is admitted either inadvertently or even by consent of the parties or provisionally on account of expeditious determination of matters in some extremely urgent cases, a Court is still under the duty to ensure that in its judgment it considers which evidence is admissible and which was in admissible and expunge from its record

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all those which are inadmissible notwithstanding that they have earlier been admitted in evidence by the Court. However, in carrying out this duty a Court must be careful not to once again either inadvertently or in error categorize some evidence as inadmissible when in law it remains perfectly admissible evidence in order not to cause miscarriage of justice to the party whose admissible evidence might have been expunged in error by the Court. Thus, it in the delicate act of balancing these two extreme divides that lies the dexterity and wisdom of the Court to ensure that at all times and in all cases substantial justice is done to the parties according to law.
Now, at the Court below, the Appellant had frontloaded the written statement on oath of the DW4 by the letters M.A at pages 1015 – 1018 of the Record of Appeal, whilst the 2nd Respondent on its part had frontloaded written statement on oath of the DW3 by the letters H.E at pages 1012 – 1015 of the Record of Appeal. At the trial, these witnesses were called and duly sworn on oath with their full names and particulars placed before the Court below before they identified their written statements on

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oath and at the point of adopting them an objection was taken by the learned counsel for the 1st Respondent and the ruling on the objections were reserved till the judgment whilst they were allowed, as it were, to provisionally adopt their written statements on oath and they were duly cross examined.
In its judgment, the Court below then considered the objections to their adoption of their written statements on oath and came to the conclusion that their written statements on oath were incompetent and thereby expunging them from its record, holding inter alia thus:
“… But there is no such provision for hiding of identity of the witnesses in the Edo State High Court (Civil Procedure) Rules 2018. A Statement on Oath has a format which must include the name of the declarant or deponent as it is made on oath; except the rules of Court directs or states otherwise as in the practice Direction of the Election Tribunal. In the circumstance, the evidence of DW3 and DW4 are expunged.” See pages 1188 – 1228 of the Record of Appeal.
My Lords, I thought I should point it out at once that whilst considering issue four for

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determination in this appeal, I had held that the 1st Respondent failed to make even a prima facie case of forgery and making of false statement to INEC as he alleged against the 2nd Respondent for which in law the 2nd Respondent ought not even to have been called upon to enter upon his defense since in law he had no duty to prove anything in his defense if the 1st Respondent has not even been able to make a prima facie case of his allegations against him. Thus, it follows that the evidence of DW3 and DW4 had no crucial role to play in the determination of the failure of the 1st Respondent to prove his allegations against the 2nd Respondent beyond reasonable doubt as required of him by law. In order words, with or without the evidence of DW3 and DW4, the case of the 1st Respondent did not sail at all and was dead on arrival on the pleadings and porous evidence with no probative value as led by the 1st Respondent in support of his allegation against the 2nd Respondent and had thus remained unproved and was therefore liable to have been dismissed by the Court below.
Now, the use of letters to represent witnesses to be called in their written statements on

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oath is intended not only for their safety but also to avoid possible compromise of witnesses in highly sensitive and often sensationalized trials, more especially Election Petitions. The instant case is not an Election Petition but is not a far cry from one being a Pre – Election matter in which, just like in Election Petition, the safety of witnesses due to the volatility of our political environment remains the same. Thus, safety of both the parties and their witnesses is and must be given utmost priority. So, did the 1st Respondent suffered or complained upon being served with the frontloaded written statements of these witnesses of any miscarriage of justice by reason of the non – disclosure of the names and identity of DW3 and DW4 and did he take any step prior to their appearance in the Court below and in the witness stand to set it aside for any irregularity? No, he didn’t!
I have scanned through the Record of Appeal and it is clear that when DW3 and DW4 appeared before the Court below, they each took an oath in the witness stand before testifying and adopting their written statements on oath with the letters used to hide their identity.

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I think in law, and here I am in complete agreement with the apt submission of leaned counsel for the Appellant, that whatever defects that may have existed in their respective written statements on oath had been cured by the oath administered on them in the witness stand. There can be no other rationale thinking on this issue and I so hold. See Section 114 of the Evidence Act 2011. See also Agwu V. Eze (2012) 1 LRECN 436 @ p. 469.
I have also taken time to read through the Rules of the Court below, particularly Order 3 Rule 3, Order 15 Rule 1(2) and Order 5 Rule 1 of the Edo State High Court (Civil Procedure) Rules, 2018 dealing with filing of pleadings and I find that they do not either expressly prohibit or impliedly disallow the use of initials or alphabets by witnesses. Interestingly, at worst non-compliance with Order 3 Rule 3 and Order 15 Rules 1(2) amounts to mere irregularities which does not nullify the proceedings. See Order 5 Rule 1(1) of the Edo State High Court (Civil Procedure) Rules, 2018, which provides thus:
“Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a

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failure to comply with the requirements of these rules, the failure shall not nullify the proceedings.”
I hold firmly therefore, by reason of the above provision of the Rules of the Court below that the use of the letters H.E by DW3 and M.A. by DW4, which are not even prohibited by the said Rules of the Court below, at worst amounted to an irregularity and that alone without more did not render the written statements on oath of DW3 and DW4, as erroneously held by the Court below, incompetent. There was in my finding, therefore, no legal or any other valid basis for the Court below to expunge the evidence of DW3 and DW4, who had appeared before it in the witness stand and were duly sworn on oath, adopted their written statements on oath and were duly cross examined. I cannot see any miscarriage of justice suffered by the 1st Respondent by reason of these circumstances as would warrant and legally justify the most drastic, but gravely erroneous, step taken by the Court below to expunge the entirety of the evidence of DW3 and DW4.
I find the expunging of the evidence of DW3 and DW4 by reason only of their use of letters on their written statement

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on oath to secure their identity before appearing in the Court below under oath to identify and adopt their written statements on oath to be far too technical, most unfair, erroneous and unjust. It is my view, that whether Election Petition or Pre – Election matters both are usually volatile and carries with them great risk to witnesses in Nigeria due to the hostile and volatile political climate. In Dahiru Sale V. Auwalu Abdu & Ors (2011) LPELR – 9170, it was firmly held inter alia that the use of alphabets or initials is to grant parties the liberty to hide the identity of their witnesses and hence insulating them from the likelihood of any harm to their persons or exposing them to the possibility of inducement. This succinct statement of the law, in my view, holds true for both Election Petition and Pre – Election matters in Nigeria and any attempt to differentiate between these two special categories of cases in this regard would merely be an attempt to distinguish between six and half a dozen. It would hold no water at all!
At any rate, a written statement on oath of witnesses is not strictly an affidavit and do not have to strictly comply with

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the requirement of affidavit under the Evidence Act 2011 as most often it contains statements which ordinarily would not and cannot be allowed in an affidavit as being offensive to either the Oaths Act or the relevant provision of the Evidence Act 2011 relating to Affidavits from Sections 107 – 118 of the Evidence Act 2011. The written statements on oath of witnesses, as envisaged under the Rules of the Court below to accompany the pleadings of a party, must therefore, be construed more liberally and proactively in the interest of justice and not rigidly and prejudicially as was done by the Court below.
Having held as above, I find the expunging of the evidence of DW3 and DW4 by the Court below as undue reliance on technicality far and above the rendering of substantial justice to the parties, who are both equally entitled to justice according to law before the Court below. It was technicality taken too far.

These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to

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them. Long gone are the heydays of technicality riding roughshod over substantial justice!
The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, the stance of the Court below, and sought to be justified in this appeal by the learned counsel for the 1st Respondent under issue five, resonates more with undue technicality than with substance and justice! The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king! I hereby resolve issue five in favor of the Appellant against the 1st Respondent and restore the evidence of DW3 and DW4 to the records. See Yusuf V. Adegoke (2007) LPELR – 3534 (SC). See also Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 @ pp. 142-1 43; U.TC. (Nig.) Ltd V. Pamotei (1989) 2 NWLR

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(Pt.103) 244; Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; Chief Adebisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR – 22799 (CA).

On the whole therefore, having resolved issues two, four and five in favor of the Appellant against the 1st Respondent, notwithstanding the resolution of issues one and three in favor of the 1st Respondent against the Appellant, I hold firmly that this appeal is overwhelmingly meritorious and ought to be allowed. Consequently, I hereby allow this appeal.

In the result, the judgment of the High Court of Edo State, Benin Judicial Division, Coram: Courage – Ogbebor J, in Suit No. B/358/2020: Kadiri Sunday Oshoakpemhe V. Audu Abudu Ganiyu & Ors delivered on 6/1/2021 in which the claims of the 1st Respondent as Claimant were granted against the Appellant and the 2nd and 3rd Respondents disqualifying the Appellant and 2nd Respondent from contesting the Edo State Gubernatorial Election held on 19/9/2020 as the Governorship and Deputy Governorship candidates of the 3rd Respondent, is hereby set aside.

In its stead, the 1st Respondent’s Suit No. B/358/2020: Kadiri Sunday

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Oshoakpemhe V. Audu Abudu Ganiyu & Ors is hereby dismissed for being statute barred and for lacking in merit.
I make no Order as to cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I was privileged with the preview of the leading judgment of my learned Brother, B.A. Georgewill, JCA just delivered. It is the upshot of the robust conference we all had in respect of this appeal. I therefore agree entirely with the very detailed reasonings and conclusions in the leading judgment which I accordingly wholly adopt as mine.

It is equally my view and I hold that this appeal is overwhelmingly meritorious. I consequently allow the appeal. Concomitantly, the judgment of the trial Court in this matter delivered on the 6th of January, 2021, in which the claims of the 1st Respondent were granted, thereby disqualifying the Appellant and 2nd Respondent from contesting respectively as the Governorship and Deputy Governorship candidates of the 3rd Respondent in the Edo State Gubernatorial Election held on the 19th of September, 2020 is hereby set aside by me.

Accordingly, the 1st Respondent’s Suit No. B/358/2020 is dismissed by me for being statute barred and the claims therein being devoid of merits.

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I abide by all the consequential orders made in the leading judgment. I make no order for costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my Brother, Sir BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with the reasoning and conclusions reached in resolving issues two, four and five for the determination of this Appeal in favour of the Appellant and I abide by the consequential orders made thereto. I would however, make a few comments of my own on the issue touching on the vexed question of the jurisdiction of the Court below, on one hand and also on the question of whether the 1st Respondent succeeded in establishing its allegations of forgery and false information against the 2nd Respondent beyond reasonable doubt as required, on the other hand.

By beginning from first principles, the term: “Jurisdiction” has been authoritatively defined simply as: “a Court’s power to decide a case or issue”. The word Jurisdiction ordinarily means the authority which a Court has to decide matters presented before it or take cognizance of matters presented in a

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formal way for its decision. It is indeed, a fundamental aspect of adjudication donated to a particular Court by the Constitution and/or the enabling Statute.

Overtime, the vexed question of Jurisdiction has therefore evolved in itself certain salient principles, which now govern the direction and flow of proceedings, not only in all regular civil and criminal matters, but also in the nations Electoral Jurisprudence especially as it relates to full-fledged trials in Election Tribunals in addition to Pre-Election matters. Gone, for instance are the days when it was common place to keep pre-election matters in Court ad infinitum as the Jurisdiction of the Court now envisages a statute of Limitation that not only regulates period of commencement of Political matters in Court but also how long the matters are kept in the Court’s docket. With the coming into effect of the Fourth Alteration Act, 2017 Section 285(9) of the 1999 Constitution FRN (as amended), all that delay in the trial and conclusion of Pre-Election matters have since gone with the judicial winds of the time.
The new Act now provides under Section 285(9) as follows:

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“(9) 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 in the suit.” For the purpose of limitation of action, time begins to run from the moment the cause of action arose. A cause of action accrues from the date on which the incident, which gave rise to the cause of action occurred. See the old case of FADARE vs. ATTORNEY-GENERAL, OYO STATE (1982) 4 SC 1. The Jurisdictional question, in short is so fundamental to an action that parties to a case cannot by acquiescence or any form of agreement confer jurisdiction on a Court, which does not have it. See ADESOLA vs. ABIDOYE (1999) 14 NWLR (PT. 637) 28 AT 52; OKOROMA vs. UBA (1999) 1 NWLR (PT. 587) 359 AT 378. It is therefore, immaterial whether the Appellants at the Court below had consented to or had refused to object on the question of jurisdiction or not. Perhaps, the metaphor on jurisdiction employed by this Court in the case of UNIVERSITY OF ILORIN AND ORS vs. OLUWADARE (2009) ALL FWLR (PT. 452) 1175, 1204; per NWEZE, JCA, (as he then was) provides an

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apt description of the subject when he said: “Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty…” See the case of WAZIRI UMARU FEDERAL POLYTECNIC, BIRNIN-KEBBI & ORS vs. BALA (2017) LPELR-42505, per FREDERICK OHO, JCA (Pp. 32-33, paras. B-D).
In the instant Appeal, 1st Respondent’s suit at the Court below was instituted on the 17th day of July, 2020, wherein by his Statement of

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Claim at paragraph 9 thereof he averred that the alleged publication giving rise to the cause of action was made by INEC on the 6th of July, 2020. The 1st Respondent’s suit was anchored on Section 31(5) of the Electoral A ct, 2010 as amended and under which he challenged the qualification of the 2nd and 3rd Respondents to contest the Edo State Governorship Election slated then for the 19th of September, 2020 on the ground that the 2nd Respondent had furnished false/forged information and credentials to INEC vide his Form EC9, which was admitted as Exhibit P6 in the course of trial.
The said Exhibit P6 is clearly shown by INEC’s endorsement on the face of the Form that it was submitted to INEC and received in their offices on the 29th day of June, 2020. The relevance of the said 29th day of June, 2020 in this matter shall be brought sharply into focus in due course and especially when the computation of the mandatory seven (7) days prescribed under Section 31(3) of the Electoral Act, 2010 shall be done. Under Section 31(3) of the Electoral Act, the provision of the law is cast in such mandatory terms thus;
“The Commission shall, within 7 days

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of the receipt of the personal particulars of the Candidate, publish same in the Constituency where the Candidate intends to contest the election.”
It is important, perhaps, to state at this stage that there is not a single voice of dissent amongst the parties as to the question of the date on which the 2nd Respondent had submitted his personal information to the INEC as all are agreed that this was done on the said 29th day of June, 2020; what will in contractual terminology and in Latin rendition be referred to as a consensus ad idem. Against the backdrop of the fact that INEC has only seven (7) days to publish the list and particulars of the candidates for the election, it only means that the mandatory seven (7) days shall have to be computed from the said 29th day of June, 2020. A simple arithmetical calculation of seven days from the 29th of June, 2020 therefore shall end on the 5th of July, 2020 and not the 6th of July, 2020 as contended by the 1st Respondent. As to do that, would have taken INEC outside the statutorily prescribed period of seven (7) days. It is on this score that this Court finds it unable to agree with the 1st Respondent

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that INEC’s publication of the particulars of candidates intending to contest the Governorship Election slated then for the 19th of September, 2020 was done on the 6th of July, 2020, a day outside the mandatorily prescribed seven (7) days allowed for the publication.
The importance of having to adhere to the mandatory period of seven (7) days in the publication of the particulars and list of candidates by INEC as prescribed by Section 31(5) of the Electoral Act, 2010 as amended, is because that is when the cause of action for the purpose of ventilating the allegations of submitting false and fraudulent information for purposes of Section 31(5) ripens or matures into existence. To this end, this Court cannot under any circumstances agree that INEC under the present scheme of things would not have adhered to the seven (7) days period prescribed by Section 31(3) of the Act, 2010 for the publication of its list and particulars of the candidates.
It is against this background that the Evidence of DW1 and DW5 who testified at the Court below cannot be easily waved aside with the back of the hand. The said DW1, one Mathew Ugwuocha (Head of Legal Department, INEC

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Edo State Office) and DW5, one Mrs. Doris Owolabi, another Staff of INEC testified that the publication of the list and particulars of candidates was actually made on the 2nd of July, 2020. See page 1000 line 12 of the printed record, where the DW1 testifying under cross examination, had this to say on the issue:
“It is correct that the publication was made on the 2nd of July, 2020.”
On the part of DW5 at paragraph 4 of her Statement on Oath at page 980 of the printed records of Appeal, had this to say on the issue:
“4. That the Independent National Electoral Commission (INEC) on the 2nd July, 2020 published the names and personal particulars of the candidates sponsored by political parties for the contest to Edo State Governorship Election held on the 19th September, 2020.”
As if these were not enough, there is also an Exhibit D2, which the Court below wrongfully expunged from the proceedings at the Court below. The issue of the wrongful expunging of the said Exhibit shall be revisited in due course of time in the course of this judgment. But suffice it to say that on the immutability and sacrosanctity of the

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2nd day of July, 2020 when the list and personal particulars of the candidates were said to have been published by the INEC, the letter was emphatic that INEC did its publication of the list and personal particulars of candidates for the Edo Governorship Election on the 2nd day of July, 2020. The letter is pasted at page 631 of the printed records of Appeal and issued under the hand of an Administrative Secretary for the “Resident Electoral Commissioner”, Edo State.
This said Exhibit D2, for reasons best known to the learned trial judge went ahead and expunged the said Exhibit at pages 1203 to 1204 of the printed records of Appeal and by so doing, had this to say on the subject:
“The Court has considered the objection as to the admissibility of Exhibit D2 and the submission of the learned Counsel for the Defendants and the authority of ABUUL vs. BENSU (2003)…where the Court held that documents to be public document would ‘be documents made for the purpose of the public, making use of them and are to which the public have access.’ The Court further explained that such documents made by the public official to a private person, who is the recipient

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and such recipient could refuse to have members of the public access to the document as of right, such documents are private documents…that document is certainly a private document as the recipient, a private person has every right to refuse members of the public to have access to the letter. Moreover, the recipient of D2 has nothing to do with this case, not being a party. The letter made on the 12th August, 2020 is a letter made in anticipation of this case, as this case had been filed when it was made. Exhibit D2 is a private document and only the Original ought to be tendered and the witness did not lay any foundation for the admissibility of the Secondary evidence or photograph thereof.”
Arising from the foregoing, the Court below, went ahead and expunged Exhibit D2 from its records. The pertinent question to address at this stage is whether the Court below was right by so doing? The answer here is a capital ‘No’. The said Exhibit D2 emanated from the coffers of the INEC, duly certified. Again, INEC, the maker was not a party to the proceedings and to therefore say that as the Court below had alluded that the maker must not have been a person who

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has an interest on the outcome of the case under Section 83 of the Evidence Act, 2011 as amended, is untenable. In addition, the INEC is by and large a public institution that has powers to issue the letter under Section 104 of the Evidence Act, 2011. Above all else, the decision of this Court in the case of ABUUL vs. BENSU (Supra) as applied by the Court below did not in essence digest the true facts of the instant case. In the said suit OGBUAGU, JCA (as he then was) had this to say on the subject:
“Once a document sought to be tendered is relevant to the case or matter in controversy, even if it was stolen or obtained by unlawful or tortuous means, such a document is admissible in evidence. Thus, in civil proceedings, every fact which is pleaded and which is relevant to the case of either of the parties, ought to be admitted in evidence. In the instant case, the letter were pleaded and very relevant to the case of the Appellant. See TORTI vs. UKPABI (1984) 1 SCNLR 214; AGBAHOMOVO EDUYEGBE (1999) 3 NWLR [PT. 638] 250.”
Against the backdrop of the foregoing, to even as much as suggest that the Court below did not err in its reliance on the authority

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of ABUUL vs. BENSU (Supra) in expunging Exhibit D2 is to clearly miss the point. The said Exhibit D2, was not only a public document as envisaged by Section 102 (a)(iii) and (b) of the Evidence Act, 2011 as amended, but also a certified true copy of INEC’s record of the letter. The Court dearly missed the point by not observing that Exhibit D2 being a certified true copy and reproduced from public records makes the document a public document. See the case of ARAKA vs. EGBUE (2003) 17 NWLR (PT. 848) 1 AT 17. The fact that the recipient of the Exhibit D2 was not a party to the suit is clearly of no moment so long as the overriding consideration governing the admissibility of the said Exhibit is that it contains the date of the publication of the list and particulars of candidates for the 2020 Edo State Governorship Elections.
Had the Court below not expunged Exhibit D2 from its proceedings, it would have had the benefit of observing that the Exhibit fortified the testimonies of DW1 and DW5 who claimed that INEC published the list and particulars of candidates on the 2nd of July, 2020 within the statutory period prescribed by Section 31(3) of the Electoral Act, 2010

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and not on the 5th of July, 2020 as claimed by the 1st Respondent.
The reliance of the Court below on an Exhibit P9, (the INEC Timetable) in deciding that the Respondent’s suit was not statute barred is another point to be taken seriously. The Court below failed to appreciate the fact that the said Exhibit P9, as an INEC Time table is still subject to the provisions of Section 31(3) of the Electoral Act, 2010 under which INEC is expected to publish the list and personal particulars of candidates within seven (7) days of the receipt of it. Although Exhibit P9 is at best a Regulation or Guideline and it is inconceivable that the said Exhibit can override the Act, in the case of any conflicts; such as there has been of the said Exhibit P9 in this case and the mandatory provision of Section 31(3) of the Electoral Act, 2010, which has prescribed a period of seven (7) days for the publication of the particulars of candidates.
Still on Exhibit P9 tendered from across the Bar by Counsel, this Court simply finds it amazing that a document, which was not pleaded and facts relevant to it not also pleaded could have attracted so much attention from

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the Court below. The Court below obviously and clearly erred in law when it ascribed probative value to the document. The settled position of the law is that although a party can tender a public document from the Bar, such documents tendered attract no probative value until the makers are called to testify on the documents and are subjected to cross examination. See the case of ABUBAKAR vs. INEC (2020) 12 NWLR (PT. 1737) 37 AT 128 to 130. This Court is therefore in agreement with learned Counsel for the Appellant that rather than give credence to the evidence of DW1 and DW5, Officials of INEC who both stated under Oath that the personal particulars of candidates for the Edo Governorship election were published on the 2nd July, 2020, the Court below found itself relying upon an Exhibit P9, which was literarily dumped upon the Court.
This being a pre-election matter, the role of this Court is in determining at this stage, when the cause of action accrued to the 1st Respondent shortly before he instituted his action. Under the provision of Section 285(9) of the Constitution of Nigeria, 1999 as amended by the Fourth Alteration Act, a Claimant has only

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fourteen (14) days for filing a pre-election matter from the date of the occurrence of the event, decision or action complained of. For the avoidance of any doubt, Section 285 (9) of the Constitution is reproduced thus;
“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 on the suit.”
This Court having so far agreed with the Appellant herein that the 1st Respondent’s cause of action accrued on the 2nd day of July, 2020 and not on the 6th of July, 2020, it simply means that the 1st Respondent’s suit filed on the 17th day of July, 2020 was filed way beyond the 14 days prescribed by Section 285(9) of the Constitution of Nigeria, 1999 and that it is therefore, for this reason statute barred. Consequently, this issue is resolved against the 1st Respondent and in favour of the Appellant.

On the question of whether the 1st Respondent succeeded in establishing its allegations of forgery and false information against the 2nd Respondent beyond reasonable doubt, it may first be appropriate to

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examine the 1st Respondent’s statement of claim filed on the 17th day of July, 2020. A careful perusal of same pasted at pages 7 to 19 of the printed records show that the 1st Respondent’s statement of claim is replete with allegations of rendering false information to the INEC by the 2nd Respondent and that three other paragraphs of the said statement of claim made copious accusations of the crime of forgery on the 2nd Respondent. For the avoidance of doubt, these paragraphs, namely; paragraphs 16, 26 and 29 shall be reproduced here as follows:
“16. The claimant further avers that the 1st defendant’s answer to the question if false; that the 1st defendant had presented forged certificates to the INEC in 2014, 2018 and 2020.
26. Claimant asserts that any person seeking elective position under the Electoral Act and Constitution of Nigeria, who presents a forged certificate to INEC is disqualified from that election or any subsequent elections in Nigeria.
29. Claimant avers that it is this Honourable Court that is to determine the qualification or otherwise of the 1st defendant in issue, issue an order disqualifying the 1st defendant from

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participating in the 2020 Gubernatorial Election in Edo State for presenting forged certificates and/or giving false statement to the INEC.”
(Underlined, that of Court for emphasis)

Albeit, the 1st Respondent’s claim at the Court below is predicated on the provision of Section 31(5) and (6) of the Electoral Act, 2010 as amended, it is rather glaring, that his claims are equally founded on the crime of Fraud, requiring a standard of proof, which is commensurate with what obtains in Criminal trials. It is therefore proper in the circumstance to carefully consider Section 135(1) of the Evidence Act, Cap. E14 LFN, 2011 in this connection, which provides thus:
“SECTION 135 (1)
“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
As clearly demonstrated already in this contribution, it is no longer hidden that the 1st Respondent copiously pleaded the crime of Fraud its Statement of Claim at paragraphs 16, 26 and 29. The settled position of the law is that where there is a criminal allegation founded on a

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civil action, the proof required is that of a proof beyond reasonable doubt. As far as this Court is concerned, and by 1st Respondent’s own showing, the crime of Fraud is directly a fact in issue in the case. Sections 4 and 5 of the Evidence Act Cap. E. 14 LFN, 2011 defines a fact in issue as including those facts necessary in order to prove or disprove; to establish or refute a case. They are facts necessary by the law for the Claimant in a civil action to establish his claim and those the Defendant must prove in order to make out his defense. They are those which by the pleadings are said to be in dispute. In short, those upon which the parties seemed to have joined issues. It is precisely for this reason that an admitted fact is not a fact in issue. See the case of OLUFOSOYE vs. OLORUNFEMI (1989) 1 NWLR (PT. 15) 26. Generally, where facts are not in dispute, they cannot be said to be facts in issue. See UGWUNZE vs. ADELEKE (2008) 2 NWLR (PT. 1070) 148.
I have carefully examined the pleadings of the parties in this case and the issue of “Fraud” has featured most prominently in this case. Section 135 (1) of the Evidence Act only applies where there is a

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specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defense as the case may be. See the case of NWOBODO vs. ONOH & ORS (1984) 1 SC. 1 AT 40. See also the case of A. S. E. S. A. vs. EKWENEM (2001) FWLR (PT. 51) 2034. In the old case of IKOKU vs. OLI (1962) 1 ALL NLR (PT. 1) 194, UNSWORTH, F. J. delivering the judgment of the Federal Supreme Court said at page 199:
“Counsel for the Respondent in reply to this ground of appeal submitted that Section 137(1) of the Evidence Act means an issue raised in the pleadings and no crime was put in issue by paragraph 3 of the Statement of claim. The allegation was that the Appellant had maliciously prosecuted the Respondent and falsity is not necessary ingredient in the allegation … the provisions of Section 137(1) were considered by this Court in the case of SUNDAY E. OSO vs. CHIEF FESTUS OKOTIE EBOH (FSC 407/1959) where we held that the issue of a crime must arise on the pleadings. We have not however, previously considered the scope of the sub-section. In my view, the sub-section only applies where there is a specific

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allegation of a crime in pleadings, so that the commission of a crime can properly be said to be the basis or foundation of the claim or defense as the case may be…”
(Underlined, that of Court for emphasis)
Having therefore carefully examined the pleadings and evidence led by the 1st Respondent in seeking to establish his allegations of the crime of forgery of credentials and sundry documentation, levied on the person of the 2nd Respondent, I am also unable to see any corresponding enthusiasm on the part of the 1st Respondent in marshalling sufficient evidence in proof of the allegations intended to tickle the catastrophe of another. That in essence is hardly the hallmark of any iota of credibility. Aside from this, I have nothing more to add to a well researched and written judgment of my learned Brother. I once again, abide by all the consequential orders made in the lead judgment.

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Appearances:

O. Obamogie, Esq, with him, Osahon Obamogie Esq, and Miss Mercy O. Erhunmwun For Appellant(s)

I. Odibeli Esq, with him, Eric Namuna, Esq. -for 1st Respondent
Roland Otaru SAN, with him, A. I. Osarenkhoe, Esq. – for 2nd Respondent
A. T. Kehinde SAN, with him, E. T. Usoh, Esq. and Douglas Ogbankwa, Esq.- for 3rd Respondent For Respondent(s)

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