IZE-IYAMU v. ADP & ORS (2021)

IZE-IYAMU v. ADP & ORS

(2021)LCN/15130(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/B/EPT/GOV/01B/2021

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

ANDREW OSAGIE IZE-IYAMU APPELANT(S)

And

1. ACTION DEMOCRATIC PARTY 2. IBOI LUCKY EMMANUEL 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. PEOPLES’ DEMOCRATIC PARTY (PDP) 5. GODWIN N. OBASEKI 6. ALL PROGRESSIVE CONGRESS (APC) RESPONDENT(S)

RATIO

WHO IS A PERSON HAVING AN INTEREST IN A MATTER

A person having an interest in a matter is a person whose interest is or likely to be adversely or prejudicially affected by a decision in the matter. In CAC vs. Registered Trustees CCC (Nig.) Diocese (supra), this Court deliberating on who is an interested party stated thus: “a party interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. The meaning of ‘person having interest in a matter’ has in many decisions of this Court (and in this regard applying decisions of the Supreme Court on the issue) equally been stated to be synonymous with ‘person aggrieved’ which in turn means ‘a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something.”
Generally, an interested party is a person who is not a party in a suit or to the decision on appeal. See Assams & Ors vs. Ararume & Ors (2015) LPELR 408285 (SC), Green vs. Green (1987) 2 NSCC 1115. PER AMINA AUDI WAMBAI, J.C.A.

MEANING OF THE PHRASE “ANY OTHER PERSON HAVING AN INTEREST IN THE MATTER” REGARDING ELECTION PETITION

With reference to an Election petition, the phrase “any other person having an interest in the matter” in Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria has been judicially interpreted in the context of Section 137(1) of the Electoral Act 2010 (as amended). In other words, a person having an interest in the Election Petition must be circumscribed by the persons mentioned in Section 137(1)(a)(b) namely; (a) a candidate in an election; (b) a political party which participated in an election. Any other person outside this – air tight box must be excluded by the expression “expressio unus est exclusio alterius” which means that the express mention of thing in a statute automatically excludes any other which would have been included impliedly. See Ogbunyiya vs. Okudo (1979) 6 – 9 SC 32. In a similar case of Baido vs. INEC (2008) LPELR – 3843 (CA) where leave was sought to appeal as an interested party, this Court had occasion to interpret the same phrase. Belgore JCA held: “Persons who are regarded as parties interested in an election petition are the petitioners and statutory respondents. Therefore, the phrase ‘parties interested’, cannot be used loosely to cover those who did not contest at an election or those not qualified to file a petition. It follows that those who did not participate at an election or those not qualified to present a petition cannot be regarded as parties interested for the purpose of being granted leave to appeal against the decision of an election Tribunal, as they do not fall into the category of petitioner or statutory respondent under the Electoral Act 2002.” PER AMINA AUDI WAMBAI, J.C.A.

PROVISION OF THE LAW REGARDING THE TIME WITHIN WHICH AN APPEAL FROM A DECISION OF AN ELECTION TRIBUNAL OR COURT OF APPEAL IN AN ELECTION MATTER SHALL BE HEARD AND DISPOSED

Now, Election Petition as is generally known and commonly said is sui – geneis in nature and therefore time is of the essence. It is for its peculiar and unique nature which distinguishes it from the ordinary civil causes and matters that it is governed and regulated by a special deigned to meet its uniqueness. The Election Tribunal and Court Practice Direction 2011, is one such rules made for regulating the practice and procedure of hearing and determination of appeals arising from decisions of Election Petition Tribunals or Court. These Rules are in addition to the constitutional provisions which have continued to undergo some amendments with regards to the fling and determination of election petitions and appeals arising therefrom. By Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), an appeal from a decision of an Election Tribunal or Court of Appeal in an Election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the Tribunal or Court of Appeal. To facilitate the attainment of this requirement, Sub-section (5) of the same Section provides that an election petition shall be filed within 21 days after the date of the declaration of results of the election. Similarly, by Paragraph 6 of the Election Tribunal and Court Practice Direction (2011), a person desirous of appealing a decision of the Tribunal shall file in the Registry of the Tribunal his Notice and grounds of appeal within 21 days from the date of the decision appealed against. In the instant case, judgment in the Election Petition leading to this appeal was delivered on the 29th March, 2021. By a simple computation of time, the Appellant/Applicant had up to the 18th April, 2021 to file his Notice and Grounds of Appeal. PER AMINA AUDI WAMBAI, J.C.A.

WHAT IS REQUIRED OF A PERSON SEEKING TO APPEAL AS AN INTERESTED PARTY

A person seeking to appeal as an interested party must first seek leave of Court to become a party to the case, then file his notice of appeal within the prescribed time and if the time has elapsed before the application is made as in the case at hand, then to ask for enlargement of time to seek leave. Thus, for the Appellant/Applicant to be able to appeal the decision as an interested party, he requires not only the leave of Court but also an extension of time within which to appeal the stipulated time to appeal having elapsed. He requires the tripartite prayers often referred to as the trinity prayers since the statutory time to appeal has expired. The application must contain the following prayers: (a) “An Order extending the time within which the applicant/a party interested can apply for leave to appeal against the judgment of the lower Court. (b) An Order granting leave to the applicant/party interested to appeal against the judgment as a person having an interest in the matter. (c) An Order extending the time within which to appeal against the said judgment of the Court.” See CHUKWU & ANOR v I.N.E.C. (2014) LPELR-25015 (SC) Owena Bank (Nig.) Plc vs. NSE. Ltd, NAF vs. Shekete (2002) 12 SC (Pt. II) 52, 65. PER AMINA AUDI WAMBAI, J.C.A.

INTERPRETATION OF THE PROVISION OF PARAGRAPH 6 OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION, 2011 REGARDING WHETHER THERE IS NO TIME LIMIT FOR AN APPLICANT TO APPLY FOR LEAVE TO APPEAL IN AN ELECTION MATTER

The provision (Paragraph 6 of the Practice Direction, 2011) uses the word “shall” which connotes a command or a mandatory obligation. It leaves no room for any discretion on the part of the Court. In fact, it places a bar on any exercise of discretion on the part of the Court. To put it loosely and in common parlance, it “ties the hands of the Court”. Once the mandatory period elapses, it does not lie within the jurisdiction or competence of the Court to extend the time for the filing of a Notice of Appeal. See Okechukwu vs. INEC (2014) 17 NWLR (Pt. 1436) 252, Ngige vs. INEC (2015) 1 NWLR (Pt. 1440) 281 and C.P.C vs. INEC (2011) 18 NWLR (Pt. 1279) 493. The implication of the use of the word “shall” is that for the notice of appeal to be competent, it must be filed within the 21 days prescribed by both Section 285 (5) of the Constitution and Paragraph 6 of the Election Tribunal and Court Practice Direction 2011. The period so provided cannot be extended. Any time for the doing of a thing in any election matter which is time bound is fixed as mount Zion or the mount of Gibraltar which cannot be extended or enlarged and anything done not within but outside the time fixed by is in the eyes of the law deemed not to have been done. It is of no moment. See PDP V INEC (2014) 17 NWLR (PT. 1437) 525. Therefore, the argument that there is no time limit for an applicant to apply for leave to appeal is a legal fallacy as it relates to election matters. The case of Ojemale Investment Ltd vs. A.G.F. (supra) relied upon is inapplicable to an election matter where the prescribed time for filing a notice of appeal cannot be enlarged, extended or elongated. PER AMINA AUDI WAMBAI, J.C.A.

INTERPREATION OF SECTION 137 (1) (2) AND (3) OF THE ELECTORAL ACT 2010 (AS AMENDED) REGARDING CATEGORIES OF PERSONS THAT CAN BE RESPONDENTS TO AN ELECTION PETITION

Section 137 (1) (2) and (3) of the Electoral Act 2010 (as amended) sets out who parties in an election petition are: They are: (a) “a candidate in an election. (b) The political party which participated in the election (c) The person whose election is complained i.e. the Respondent (d) Independent National Electoral Commission (INEC) The authorities are numerous. They include: PDP V. Abubakar (2004) 16 NWLR (Pt. 900) 455, 468; Obasanjo V. Buhari (2003) 17 NWLR (Pt. 850) 510, 562 ISHAKU V KANTIOK (2012) 7 NWLR (PT 1300) 457, BUHARI V YUSUF (SUPRA). They are to the effect that it is only persons or bodies whom the Electoral Act has specified that can be made parties to Election Petition. By a simple construction of the provision and as judicially interpreted, only two persons can present an election petition viz: (i) the candidate in an election and (ii) his political party. Similarly, only two categories of respondents are necessary parties in an election petition. They are (i) the person whose election is complained of, that is the candidate returned as the winner of the election and (ii) the Electoral Commission, INEC and its officers whose conduct is complained of or “such other persons” who participated in the conduct or the management of the election not being staff of INEC. These are such as the security agents who ensure or are supposed to ensure the smooth conduct of the election. This category of persons is only an extension of the 2nd category which the Apex Court referred to as the 3rd category. What is crystal clear and is beyond any plausible argument is that the phrase “such other person” refers only to the persons who participated in the conduct or management of an election. It does not refer to candidates or their political parties who lost an election. The Section does not envisage a loser of an election being a necessary party to be joined as a respondent to an Election Petition filed by another loser. Only the winner of an election and the statutory body that conducted the election or its staff or other person who participated in the conduct of an election are the necessary and statutory respondents to an election petition or appeal. This point was made by Uwaifo in BUHARI V YUSUF (supra) when the law lord stated thus: “It is manifest that Section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate, who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under Sub-section 2 as identified in this judgment. Indeed, a candidate or his political party that lost an election are not intended to be nor are they necessary parties to an election petition or appeal.” Put differently and succinctly, only the winner of an election and the statutory body or its staff or other person who participated in the conduct of an election are necessary respondents to an election petition or appeal. The law only envisages an election petition to be between a loser as the petitioner and a winner as the respondent and not between two or more losers. It is an elementary principle of interpretation of statutory provisions that where a statute specifically mentions things or persons, it is the intention of the legislature that those not mentioned are intended to be excluded. This principle is expressed in Latin as “expressio unjus est exclusio altrius” rule meaning that the express mention of one thing in a statute automatically excludes any other which would have been included impliedly. See Ogbunyinya v. Okudo (1979) 6 – 9 SC 32. In the case of APC. V. P.D.P. & Ors. (2015) LPELR – 24587 (SC) which is later in time (decided 2015) than the case of BUHARI V. OBASANJO relied upon by the Learned Appellant’s Counsel to argue that there are 3 categories of Respondents in an election, the Supreme Court per Galadima JSC pointedly declared that there are only two categories of Respondents as named in Section 137(2) and (3), thus: “It is trite that the Law expressly specified and legislated on who can be a Respondent to defend an Election Petition. Whosoever is contemplated to be a Respondent to defend an election must fall into any of the two categories named in Section 137(2) and (3) of the Electoral Act.” It is settled that the law recognizes only two categories of respondents to an election petition. obviously, a person who lost an election is not a necessary party to an election petition. PER AMINA AUDI WAMBAI, J.C.A.

POSITION OF THE LAW AS REGARDS APPLICATION OF DECIDED CASES AS AUTHORITIES

It is now firmly settled that each is an authority only for what it decides and nothing more. Authorities cannot be applied across board in total disregard to the peculiar facts in which they were decided. Each case must be considered in the light of its own peculiar facts and circumstances. See SYLVA V. INEC & ORS (2015) LPELR – 24447 (SC), UDO V. STATE (2016) LPELR – 40721, NWABUEZE V. THE PEOPLE OF LAGOS (2018) LPELR – 44113 (SC). It is the facts and circumstances of every case that frames the issues for the decision in that particular case. Thus, facts are the fountainhead or the arrowhead of the Law. They are the spring that is the source of the Law. The decision in a case must necessarily be intimately related to the facts that induced or brought about the decision. It goes without saying that where the facts of a given case are different from those in the decision in an earlier case, it will amount to pulling the ratio in the earlier case out of context to apply the decision to entirety different facts. In ADEGOKE MOTORS LTD V. ADESANYA (1989) 5 SC 92 @ 100, the great Jurist Oputa JSC succinctly made the point inter alia that: “… I think it ought to be obvious by now that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncement of our Justices whether they are rationes decidendi or obitar dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known the Law on those facts. ….Court’s decision and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case pleaded and presented…” PER AMINA AUDI WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): On the 19th September, 2020, the Independent National Electoral Commission (INEC), the 3rd Respondent, conducted election into the office of the Governor of Edo State. Several contestants among whom were the Appellant, the 2nd and 5th Respondents. The Appellant was the candidate of the 6th Respondent. The 2nd Respondent contested the election on the platform of the 1st Respondent and the 5th Respondent on the platform of the 4th Respondent. In the result that was declared by the 3rd Respondent, the 5th Respondent of the 4th Respondent (PDP) was declared the winner and the duly elected Governor of Edo State having scored a total of 307,955 votes. The Appellant who was the candidate of the 6th Respondent, All Progressive Congress came second having scored 223,619 votes. The 2nd Respondent, the flag bearer of the 1st Respondent at the election who polled a votes of 2,374 came 3rd.

Dissatisfied with the declaration and return of the 5th Respondent by the 3rd Respondent, the 1st and 2nd Respondents as petitioners filed an Election Petition NO. EPT/ED/GOV/01/2020 before the Edo State Governorship Election

Petition Tribunal (hereinafter called the Lower Court or Tribunal/trial Tribunal which terms may be used interchangeably) against the 3rd, 4th, 5th and Respondents and the Appellant seeking the following reliefs:
(a) A DECLARATION that 3rd Respondent presented a forged and/or false certificate to INEC (3rd Respondent) in violation of Section 182 (1) (J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b) A DECLARATION that the Respondent was at the time of the election which held on 19/9/2020, not qualified to contest the election for having submitted a false/forged document or certificate to the 3rd Respondent (INEC) along with his Form EC9.
(c) A DECLARATION that the 3rd Respondent having by his own showing admitted in Form EC9 that he never attended any primary school, is a person who has not been educated up to School Certificate level or its equivalent as prescribed by Section 177 (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and is therefore not qualified to contest the governorship election which was held on 19/9/2020 in Edo State.
(d) AN ORDER disqualifying the 3rd Respondent as

contestant in the said Edo State Governorship Election which was held on 19/9/2020.
(e) AN ORDER nullifying the governorship election which was held on 19/9/2020 in view of the fact that the 1st Respondent returned the 3rd Respondent who was not qualified to contest the election as the winner of the election.
(f) AN ORDER directing the 1st Respondent to conduct a fresh election between the qualified contestants in that election apart from the 2nd and 3rd Respondents who are constitutionally disqualified from contesting the 2020 governorship election in Edo State.
(g) AN ORDER nullifying the certificate of return issued by the 1st Respondent to the 3rd Respondent.
ALTERNATTVELY
(a) A DECLARATION that the 3rd Respondent’s participation in the Edo State Governorship election held on 19/9/2020 is null and void having sought and participated in the primary election process for two different political parties (namely PDP and APC) in respect of the same governorship election in Edo State.
(b) AN ORDER so disqualifying the 3rd Respondent and nullifying the votes cast for him in the said Governorship election held in Edo State on 19/9/2020 and

ordering the 1st Respondent to conduct a fresh election between all other qualified candidates excluding the 2nd and 3rd Respondents.

The solitary ground of the Petition under Section 138 (1) (a) of the Electoral Act as contained at paragraph 23 (a) of the Petition was that:
“the 3rd Respondent GODWIN NOGHEGHASE OBASEKI who was declared the winner of the Election and returned elected was at the time of the election not qualified to contest the election.”

At the conclusion of hearing, the learned Judges of the Tribunal Coram, Hon. Justice Yunusa Musa (Chairman), Hon. Justice S. Y. Abubakar (Member I) and Hon. Justice O. O. Stainley (Member II) struck out the names of the Appellant and the 6th Respondent from the Petition as well as their replies to the petition upon the joint and several applications of the 3rd, 4th and 5th Respondents, and dismissed the entire Petition. They also affirmed the declaration and return of the 5th Respondent.

The Appellant was unhappy with the said decision and filed a Notice of Appeal on the 18/4/2021 predicated upon six grounds of appeal. (See pages 3371 to 337B of the supplementary record).
4

I. Osarenkhoe, Esq., who settled the Appellant’s brief of argument filed on 7th May, 2021 distilled four (4) issues for determination, to wit:
1. Whether the Trial Tribunal was right to strike out the Appellant and the reply of the Appellant to the Petition? (Grounds 1 and 4).
2. Whether having regard to the facts and circumstances of the petition, and the current position of the law on disqualification of an alleged winner of an election, the Trial Tribunal was right to hold that no relief was sought against Appellant and his political party and are therefore not necessary parties to the petition? (Grounds 2 and 3).
3. Whether Appellant did not prove by preponderance of evidence that 5th Respondent (Godwin N. Obaseki) was not qualified to contest the Edo State Governorship Election held on 19/9/2020? (Ground 5).
4. Was the Trial Tribunal right to affirm the election of the 5th Respondent (Godwin N. Obaseki) who was not qualified to contest the Edo State Governorship Election held on 19/9/2020 as Governor of Edo State? (Ground 5).The 3rd Respondent’s brief of argument prepared and settled by Asiwaju Adegboyega Awomolo, SAN, leading

two other SAN, and other counsel was filed on the 12/5/2021. In it, a sole issue was nominated for determination, namely:
Whether the lower Tribunal was right when it struck out the Appellant as a Respondent in the Election Petition.

In addition to the Notice of Preliminary Objection filed on behalf of the 5th Respondent on 11/5/2021 challenging the competence of the appeal, the learned senior counsel Ken E. Mozia, SAN, leading O. O. JoIaawo, SAN, and other counsel who settled the 5th Respondent’s brief of argument filed on the same 11/5/2021 adopted the issues formulated by the Appellant’s learned senior counsel in the event that their preliminary objection argued in the brief of argument fails.

The 1st, 2nd, 4th and 6th Respondents did not file any brief of argument.

Meanwhile, the Appellant filed a Motion on Notice on the 14/5/2021 for leave to appeal as an interested party; leave to use the Records of Appeal Volumes 1, 2, 3, 4 and 5 and the Supplementary Record of Appeal compiled and transmitted by the secretary of the Tribunal in Appeal No. CA/B/EPT/GOV/01A/2C21 and CA/B/EPT/GOV/01B/2021 and a deeming order.

On 17/5/2021, the 5th Respondent filed a counter-affidavit in opposition to the motion.

At the hearing of the appeal on 19th May, 2021, the Appellant’s said motion and the 5th Respondent’s preliminary objection were taken. All parties adopted their processes and their addresses. Rulings in both were reserved. The said rulings will now be delivered before the judgment in the substantive suit; in this order, namely; (i) ruling on the Appellant’s motion and then (ii) ruling on the Preliminary Objection.

RULING ON THE APPELLANTS MOTION FILED ON 14/5/2021
The Appellant’s motion filed on 14/5/2021 was brought pursuant to Section 243(1)(a)(b) and 246(1)(ii) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Paragraph 9 of the Election Tribunal and Court Practice Direction, 2011 inter alia, prays for the following reliefs:
(a) “AN ORDER granting leave to the Appellant to exercise his constitutional right of appeal to appeal as an interested party against the decisions contained in the judgment of the trial Tribunal delivered in Petition No. EPT/ED/GOV./02/2020 on 29th March, 2021.
(b) AN ORDER deeming as properly filed and

served the Notice of Appeal dated 17/4/2021 and filed on 18/4/2021 by the Appellant against the decision contained in the judgment of the trial Tribunal delivered in Petition No. EPT/ED/GOV/01/2020 on 29th March, 2021.
(C) AN ORDER granting leave to the Appellant to use for the purpose of the hearing and determination of this Appeal, the Records of Appeal Volumes 1, 2, 3, 4 and 5 and the Supplementary Record of Appeal compiled and transmitted by the Secretary of the Tribunal in petition No. EPT/ED/GOV/01/2020 to this Honourable Court for Appeal No. CA/B/EPT/ED/GOV/01A/2021 together with the Record of Appeal compiled by the Secretary of the Trial Tribunal in Petition NO. EPT/ED/GOV/01/2020 to this Honourable Court for Appeal (No. CA/B/EPT/ED/GOV/01A/2021).
(d) AN ORDER deeming as properly compiled and transmitted the said Records of Appeal Volumes 1, 2, 3, 4 and 5 and the Supplementary Record of Appeal in Appeal No. CA/B/EPT/ED/GOV/01A/2021 and the Record of Appeal in Appeal No. CA/B/EPT/ED/GOV/01A/2021 for the hearing and determination of this Appeal.”

The application is predicated upon 24 grounds and was supported by a 5 paragraphed affidavit.

Learned Appellant’s counsel identified 2 issues for determination of the application. These are:
“(1) Whether the Appellant in view of the Order of the trial Tribunal striking out his name from the Petition as well as the exclusion of Appellant by 1st, 2nd and 5th Respondents from their Appeals, Appellant is not entitled to exercise his Constitutional Right of Appeal as an interested party against the decisions of the trial Tribunal in Petition No. EPT/ED/GOV/01/2020?
(2) Whether the Appellant having complied with the conditions of Appeal is not entitled to use and rely on the Records of Appeal Volumes 1, 2, 3, 4 and 5 and the supplementary Record of Appeal relating to this Appeal?”
ISSUE NO. 1
Whether the Appellant in view of the order of the trial Tribunal striking out his name from the Petition as well as the exclusion of Appellant by 1st, 2nd and 5th Respondents from their Appeals, Appellant is not entitled to exercise his Constitutional Right of Appeal as an interested party against the decisions of the trial Tribunal in Petition NO. EPP/ED/GOV/01/2020?

APPELLANT’S SUBMISSION
The submission of learned counsel on this issue is that the Appellant was a party (as 5th Respondent) to Election Petition No. EPT/ED/GOV/01/2020 but was at the instance of the 3rd, 4th and 5th Respondents Struck out by the trial Tribunal on the ground that he is neither a statutory or a necessary party to the Petition. That the 1st and 2nd Respondents also excluded the Appellant from their appeal and the 5th Respondent who initially included the Appellant as one of the Respondents to his Cross-Appeal having also later withdrawn the Cross-Appeal against the Appellant and his Political Party, (the 6th Respondent) and their names deleted from the appeal, the Appellant being a party interested in the appeal has a constitutional right to institute and maintain an appeal against the decision of the trial Tribunal. SeeOgembe vs. Usman (2012) All FWLR (Pt. 613) 1866; Ojemale Investment Ltd vs. Attorney General of the Federation (2011) All FWLR (Pt. 582) 1738; Contract Resource (Mg.) Ltd vs. UBA Plc (2011) All FWLR (Pt. 596) 438; C.A.C vs. Registered Trustees, CCC (Nig.) Diocese (2010) All FWLR (Pt. 509) 423.

Thus, he has filed his own Notice of Appeal dated 17/4/2021 but filed on 18/4/2021

in Appeal No. CA/ED/EPT/GOV/01B/2020 (Exhibit C) in terms of the striking out of his name and that of 6th Respondent as well as in terms of the Tribunal’s holding that the Appellant and 1st, 2nd and 6th Respondents did not prove that the 5th Respondent was not qualified to contest the Edo Governorship Election of 19/2/2020.

It was submitted that the subject matter of the Petition before lower Court and the appeal arising therefrom is whether the 5th Respondent herein was validly elected to the office of the Governor of Edo State, the ground being that he was not qualified as at the time of the Election to contest the said election. That rather than the 1st and 2nd Respondents to seek the relief that the Appellant with the next highest number of votes be declared the winner, they have prayed for nullification of the Election. Therein according to him, lies the Appellant’s interest in view of the current position of the Supreme Court in the cases of PDP vs. Eremienyo & Ors (2020) All FWLR (Pt. 1032) 526, APC vs. Marafa (2020) 6 NWLR (Pt. 1721) 383 and C.A.C vs. Registered Trustees, CCC (Nig.) Diocese (2010) All FWLR (Pt. 509) 423, Ogembe vs. Usman (2012) All FWLR (Pt. 613) 1844.

He contended that the grounds of appeal contain arguable, substantial and sustainable grounds of appeal disclosing the Appellant’s constitutional interest in the Petition and the appeals arising therefrom, drawing our attention to the decision of this Court in Ojemate investment Ltd vs. A.G.F. (2011) All FWLR (Pt. 582) 1738 wherein it was decided that neither the Constitution of the Federal Republic of Nigeria 1999 nor the Court of Appeal Rules 2007 prescribe any period within which an interested party may bring an application for leave to appeal as a person having interest in the matter.

He argued that the application has become imperative in view of the Appellants exclusion by the 1st, 2nd and 5th Respondents from their appeals, hence, the deeming prayer for the Notice of Appeal; urging us to grant the application to enable the Appellant exercise his constitutional right of appeal to ventilate his interest in the said election.

The 5th Respondent’s learned senior counsel filed a 10 paragraph counter-affidavit to the application but filed no written address. He however adopted the depositions in the

counter-affidavit. In addition, the learned silk, Jolaawo SAN who argued the appeal on behalf of the 5th Respondent that the motion by its own showing is not grantable. That the Appellant who said he was a party to the Petition cannot seek to appeal as an interested party and that the application is an abuse of process.

The learned Appellant’s counsel however submitted in reply that the 5th Respondent’s senior counsel cannot be heard having not filed a written address to afford the Appellant the opportunity to respond; that if the 5th Respondent wanted to raise an issue of law, he ought to have filed a written address. He referred to Paragraph 47(3) of the 1st Schedule to the Electoral Act.

It was his further submission that by the combined effect of the ruling of the lower Court striking out his name and that of the 6th Respondent from the Petition and Exhibits ‘A’ and C, by which the 1st, 2nd and 5th Respondents have excluded the Appellant from the appeal, the Appellant is deemed not to have been a party to the appeal and until the said decision is set aside, the position remains so. We were urged to grant the prayers on the Motion.

The 1st, 2nd, 3rd, 4th and 6th Respondents did not file any process to oppose the application. While the 1st and 2nd Respondents leave the matter to the discretion of the Court, the 3rd Respondent’s senior counsel, A. A. Awomolo, SAN and the 4th Respondent’s senior counsel Jolaawo, SAN, adopted the submission of the 5th Respondent’s senior counsel. The 6th Respondent concedes to the application.

RESOLUTION OF ISSUE 1 OF THE MOTION
The gist of this issue is whether the Appellant having contested the Edo Governorship Election conducted by the 3rd Respondent on 19/2/2020 but being struck out by the lower Court as a Respondent to the Election Petition No. EPT/ED/GOV/1/2020 filed by the 1st and 2nd Respondent and also being excluded by the 1st and 2nd, and the 5th Respondents in their Appeal and Cross-Appeal respectively, the Appellant is an interested party entitled to be granted leave to appeal the decision of the lower Court excluding him and his Political party (6th Respondent) from the Petition and declaring that the Appellant did not prove that the 5th Respondent was not qualified to contest the Election being such a party interested in the appeal whether leave of this Court ought be granted

to the Appellant to use the records of appeals in Appeal No. CA/B/EPT/GOV/01/2021 and CA/B/EPT/GOV/01A/2021 in Volumes 1, 2, 3, 4, 5 and the supplementary record for the purpose of determining this appeal.

Certain facts are not in contention or at war. Parties are ad idem that the Appellant as the candidate of the 6th Respondent contested the Election and Scored 223,619 votes next only to the 307,955 scored by the 5th Respondent who was declared the winner of the Election. As a candidate who not only contested the election but came 2nd in terms of the highest number of votes scored at the Election, it will be paradoxical to argue or to hold that the Appellant has no interest in the Election. It will be flying in the teeth of all the processes filed by the parties and in particular the 3rd Respondent who conducted the Election and declared the result to contend that the Appellant has no interest in the subject matter of this appeal.

deliberating on who is an interested party stated thus:
“a party interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. The meaning of ‘person having interest in a matter’ has in many decisions of this Court (and in this regard applying decisions of the Supreme Court on the issue) equally been stated to be synonymous with ‘person aggrieved’ which in turn means ‘a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something.”
Generally, an interested party is a person who is not a party in a suit or to the decision on appeal. See Assams & Ors vs. Ararume & Ors (2015) LPELR 408285 (SC), Green vs. Green (1987) 2 NSCC 1115. With reference to an Election petition, the phrase “any other person having an interest in the matter” in Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria has been judicially interpreted in the context of Section 137(1) of the Electoral Act 2010 (as amended). In other words, a person having an

interest in the Election Petition must be circumscribed by the persons mentioned in Section 137(1)(a)(b) namely;
(a) a candidate in an election;
(b) a political party which participated in an election.
Any other person outside this – air tight box must be excluded by the expression “expressio unus est exclusio alterius” which means that the express mention of thing in a statute automatically excludes any other which would have been included impliedly. See Ogbunyiya vs. Okudo (1979) 6 – 9 SC 32.
In a similar case of Baido vs. INEC (2008) LPELR – 3843 (CA) where leave was sought to appeal as an interested party, this Court had occasion to interpret the same phrase. Belgore JCA held:
“Persons who are regarded as parties interested in an election petition are the petitioners and statutory respondents. Therefore, the phrase ‘parties interested’, cannot be used loosely to cover those who did not contest at an election or those not qualified to file a petition. It follows that those who did not participate at an election or those not qualified to present a petition cannot be regarded as parties interested for the purpose of being granted

leave to appeal against the decision of an election Tribunal, as they do not fall into the category of petitioner or statutory respondent under the Electoral Act 2002.”
Therefore, by the combined reading and effect of Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Electoral Act 2020 (as amended), the Appellant who was a candidate at the Edo State Governorship Election conducted by the 3rd Respondent on 19th September, 2020 but whose name was struck out as a Respondent by the Tribunal and excluded in the appeals filed by the 1st, 2nd and 5th Respondents, is a person having interest in the matter.

The paramount question that flows is whether the Appellant’s/Applicant’s application for leave to appeal as an interested party is grantable.

2011, is one such rules made for regulating the practice and procedure of hearing and determination of appeals arising from decisions of Election Petition Tribunals or Court. These Rules are in addition to the constitutional provisions which have continued to undergo some amendments with regards to the fling and determination of election petitions and appeals arising therefrom.
By Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), an appeal from a decision of an Election Tribunal or Court of Appeal in an Election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the Tribunal or Court of Appeal.
To facilitate the attainment of this requirement, Sub-section (5) of the same Section provides that an election petition shall be filed within 21 days after the date of the declaration of results of the election. Similarly, by Paragraph 6 of the Election Tribunal and Court Practice Direction (2011), a person desirous of appealing a decision of the Tribunal shall file in the Registry of the Tribunal his Notice and grounds of appeal within 21 days from the date of the

decision appealed against.

In the instant case, judgment in the Election Petition leading to this appeal was delivered on the 29th March, 2021. By a simple computation of time, the Appellant/Applicant had up to the 18th April, 2021 to file his Notice and Grounds of Appeal. A person seeking to appeal as an interested party must first seek leave of Court to become a party to the case, then file his notice of appeal within the prescribed time and if the time has elapsed before the application is made as in the case at hand, then to ask for enlargement of time to seek leave. Thus, for the Appellant/Applicant to be able to appeal the decision as an interested party, he requires not only the leave of Court but also an extension of time within which to appeal the stipulated time to appeal having elapsed. He requires the tripartite prayers often referred to as the trinity prayers since the statutory time to appeal has expired. The application must contain the following prayers:
(a) “An Order extending the time within which the applicant/a party interested can apply for leave to appeal against the judgment of the lower Court.
(b) An Order granting leave

to the applicant/party interested to appeal against the judgment as a person having an interest in the matter.
(c) An Order extending the time within which to appeal against the said judgment of the Court.”
See CHUKWU & ANOR v I.N.E.C. (2014) LPELR-25015 (SC) Owena Bank (Nig.) Plc vs. NSE. Ltd, NAF vs. Shekete (2002) 12 SC (Pt. II) 52, 65.

The present motion before us does not contain a prayer for extension of time to seek leave to appeal as an interested party which ab initio renders the application incompetent.

Furthermore, and by far the most fundamental problem with the application is that the time line prescribed is mandatory. The provision (Paragraph 6 of the Practice Direction, 2011) uses the word “shall” which connotes a command or a mandatory obligation. It leaves no room for any discretion on the part of the Court. In fact, it places a bar on any exercise of discretion on the part of the Court. To put it loosely and in common parlance, it “ties the hands of the Court”. Once the mandatory period elapses, it does not lie within the jurisdiction or competence of the Court to extend the time for the filing of a

Notice of Appeal. See Okechukwu vs. INEC (2014) 17 NWLR (Pt. 1436) 252, Ngige vs. INEC (2015) 1 NWLR (Pt. 1440) 281 and C.P.C vs. INEC (2011) 18 NWLR (Pt. 1279) 493.
The implication of the use of the word “shall” is that for the notice of appeal to be competent, it must be filed within the 21 days prescribed by both Section 285 (5) of the Constitution and Paragraph 6 of the Election Tribunal and Court Practice Direction 2011. The period so provided cannot be extended. Any time for the doing of a thing in any election matter which is time bound is fixed as mount Zion or the mount of Gibraltar which cannot be extended or enlarged and anything done not within but outside the time fixed by is in the eyes of the law deemed not to have been done. It is of no moment. See PDP V INEC (2014) 17 NWLR (PT. 1437) 525.

Therefore, the argument that there is no time limit for an applicant to apply for leave to appeal is a legal fallacy as it relates to election matters. The case of Ojemale Investment Ltd vs. A.G.F. (supra) relied upon is inapplicable to an election matter where the prescribed time for filing a notice of appeal cannot be enlarged, extended or elongated.

Though the Appellant filed a notice of Appeal on the 18th April, 2021, that notice of appeal was filed before leave was sought and the notice is not in respect of a “party interested”. Having been filed before the leave was sought obtained, it cannot therefore be deemed as a proper notice of appeal. See SADAM & COMPANY LTD V NDIC (2018) LPELR-46569 at pages 20-23 of the report (CA), to appeal as an interested party.
The time prescribed by the law to file an appeal against the judgment of the Trial Tribunal having expired, the grant of this application for leave to appeal the decision as an interested party, assuming the application itself is competent, would serve no utilitarian purpose or benefit to the Appellant/Applicant since appellant can appeal only after obtaining the leave. He cannot utilize the leave even if granted. It will only be an empty order and an exercise in futility. No right or benefit can accrue or inure the Appellant therefrom. Perhaps, the only purpose it may serve is for an academic discourse which the Courts are not permitted to indulge in being an area for the academicians.
In Plateau State vs. A.G.F. (supra), Niki

Tobi JSC on the meaning of academic question stated inter alia:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situation of human nature and humanity.”

In sum and in recapitulation, the resolution of this first issue is that the Appellant being a candidate who contested the election but lost and who was struck out as a Respondent to the petition, is an interested party in the matter and has the right to appeal the ruling striking out his name but can only appeal the judgment as an interested party with leave of Court. However, time for the decision having elapsed, the prayer for leave to appeal as an interested party even if competent no longer inures the Appellant. The issue is thus resolved against the Appellant.

The 2nd issue is whether the Appellant having complied with the conditions of appeal is not entitled to use and rely on the Records of Appeal Volume 1, 2, 3, 4 and 5 and the supplementary record of appeal relating to this appeal.

With the resolution of

the 1st issue against the Appellant, a consideration of the 2nd issue becomes otiose, and this ordinarily would have been the end of the road for the Appellant. However, since this Court does not have the last say being the final Court, we shall still consider the Appeal on its merits beginning with the Preliminary Objection.

PRELIMINARY OBJECTION
The grounds upon which the preliminary objection is predicated are:
(i) “The reliefs sought by the Appellant in this appeal do not confer any benefit on the Appellant, thus, they are academic and an abuse of Court process.
(ii) The Appellant has failed, refused and or neglected to duly compile and transmit a Record of Appeal, in this appeal thus robbing the Honourable Court of jurisdiction to entertain the appeal.
(iii) The Appellant filed his brief of argument in the absence of a duly compiled and transmitted record of appeal.
(iv) A brief of argument can only be founded on a duly compiled and transmitted record of appeal.”

The 5th Respondent’s senior counsel/objector did not formulate any issue for determination of the preliminary objection but argued the objection spanning

from paragraph 4.00 to paragraph 4.34 at pages 3 to 10 of the brief of argument.

On the 1st ground of the objection, learned senior counsel referred to the reliefs sought by the Appellant namely; (i) an order allowing the appeal, and (ii) an order setting aside the judgment of the trial Tribunal to submit that as parties and the Court are bound by pleadings, the said reliefs even if the appeal is undefended or allowed do not confer any specific legal right or benefit to the Appellant but are merely hypothetical and academic. On the meaning of academic question, the cases of C.P.C. vs. INEC & Ors (2011) LPELR – 8257 (SC), Agbakoba vs. INEC (2008) 18 NWLR (Pt. 1119) 489 SC were cited.

Learned counsel stressed that an appeal is not filed for fun or to waste the precious judicial time but is filed or initiated only where there is some accruable benefit to the party, and that absence of any actual legal benefit renders a case or appeal an academic exercise or an abuse of Court process the instances of the abuse being un-exhaustive but includes a situation such as the presentation with no accruable benefits to the Appellant but aimed at

harassing the 3rd to 5th Respondents, citing the cases of PDP vs. Obi (2009) 3 NWLR (Pt. 1128) 327, 339, Umeh vs. Iwu (2008) 8 NWLR (Pt. 1089) 225, Benkay Nig. Ltd vs. Cadbury Nig. Plc (2006) 6 NWLR (Pt. 976) 338 and Ojo vs. A. G. Oyo State (2008) 16 NWLR (Pt. 1110) 309 at 323 – 324 to fortify his position and urging us as was done in the cases of Jimoh vs. Starco Nig. Ltd (1998) 7 NWLR (Pt.558) 523 and Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126, to take the appropriate punitive action against the abuse of the Court process by dismissing the (action) appeal in its entirety.

On the 2nd, 3rd and 4th grounds of the objection which attack the legal competence of the Appellant’s brief of argument not predicated upon a compiled and transmitted record of appeal, it was contended that a competent Appellant’s brief of argument must be predicated on the existence of a duly compiled and transmitted record of appeal. That the record being pivotal and fundamental to an appeal unless an appeal entered, the question of filing a valid Appellant’s brief does not arise since it is the record and not the copy of the Notice of Appeal transmitted by the

Registrar of the lower Court that is the reflection and the documentary account of what transpired in the lower Court. See Opara vs. Paul & Ors (2019) LPELR – 47678 (CA), Kilawa vs. Kalshingi & Anor (2015) LPELR – 41652 (CA).

It was submitted that the reference made by the Appellant in his brief of argument to various portions of the record of appeal in some volumes and the supplementary record of appeal is of no moment since the Appellant is neither a party to the only appeals with proper records of appeal before the Court, Appeal No. CA/B/EPT/GOV/01/2021 nor to the Cross-Appeal No. CA/B/EPT/GOV/01A/2021 (his name having pursuant to a notice of discontinuance by the 5th Respondent been struck out therefrom). It was further submitted that the Appellant who filed a separate and distinct substantive appeal cannot without seeking and obtaining the leave of Court attempt or purport to predicate his argument in his appeal on any portion of the record of the cross-appeal to which he is not a party nor can be validly compile or purport to compile or have the Registrar thereafter transmit the said processes as supplementary records to the Cross-Appeal.

Learned counsel insisted that assuming this Court is inclined to admitting and considering the Notice of Appeal transmitted by the Registrar of the lower Court as the record of appeal, we can still not proceed to hear the appeal on the said record which is grossly incomplete for absence of pleadings, proceedings and the judgment of the lower Court which is the subject of this appeal, drawing our attention to the settled law that an Appellate Court is without competence to hear an appeal on incomplete records. SeeEco Bank (Nig.) Plc vs. G.T.B & Ors (2016) LPELR – 40574 (CA), Ekpemupolo & Ors vs. Edremoda & Ors (2009) LPELR 1089-SC.

Predicated on the foregoing, the only order to make, he contended, is an Order dismissing or striking out the appeal.

APPELLANT’S RESPONSE TO THE PRELIMINARY OBJECTION
In his response to ground 1 of the preliminary objection alleging that the Appellant’s reliefs do not confer any benefit on him, the learned Appellants counsel reproduced paragraph 26 of his reply to the petition containing six reliefs (see pages 87 – 88 of Volume 1 of the Records) inducing in particular paragraph 26(5)

whereat he sought the following relief: “an order declaring 5th Respondent of 4th Respondent as the duly elected candidate in the Edo State Governorship Election conducted on 19/9/2020 by the 1st Respondent” and relied on Order 7 Rule 7 of the 2016 Rules of Court, Contract Resource Nig. Ltd vs. UBA Plc (2011) All FWLR (Pt. 596) 438, to submit that since an appeal is a re-hearing, or review or a continuous appellate hearing of the substantive matter, the reliefs sought in the Notice of Appeal are in relation to the Appellant’s pleadings at the said paragraph 26 of the reply to the petition and the trial Tribunal having also found that the Appellant and the 1st, 2nd and 6th Respondents did not prove that the 5th Respondent was not qualified to contest the election, it cannot be correct to say that the reliefs sought by the Appellant do not confer any right on him.

In this respect, by praying this Court to allow the appeal and to set aside the decision of the lower Court, the Appellant, he argued, is simply saying that this Court should overrule and overthrow the decision of the lower Court that the Appellant did not prove the non-qualification of the 5th

Respondent and to grant prayers contained at paragraph 26 of the reply to the petition, thus the 5th Respondent cannot in the real legal sense contend that the reliefs sought by the Appellant in paragraph 26 of the reply to the petition did not confer benefit on the Appellant. That the 5th Respondent’s/Objector’s argument amounts to engaging in self-delusion, self-deception, fantasy and fiction.

He dared the 5th Respondent not to defend the Appeal if he feels that the appeal is an academic exercise.

On grounds 2, 3 and 4 of the preliminary objection which attack the competence of the Appellant’s brief of argument on the ground of alleged Appellant’s failure to compile and transmit the record of appeal upon which to predicate the brief, it was submitted that the contention that there is no record of appeal before this Court upon which the Appellant can rely or place a supplementary record is false and misleading for the records of appeal as compiled and transmitted by and in the manner or methodology at the discretion of the Registrar by merging the records of the two appeals together and simply placing the Notices of Appeal of the Appellant and the

6th Respondent in the supplementary Record of Appeal to the records of appeal in Volumes 1, 2, 3, 4 and 5 of No. CA/B/EPT/GOV/01A/2021, was for the purpose of avoiding unnecessary duplication of processes or documents in respect of appeals CA/B/EPT/GOV/01A/2021 and CA/B/EPT/GOV/01B/2021 which arose from the same petition.

He stated that the 5th Respondent did not complain or apply that the supplementary record containing the Appellant’s and the 6th Respondent’s Notices of Appeal in Appeal Nos. CA/B/EPT/GOV/01B/2021 and CA/B/EPT/GOV/4/2021 which were merged with Records of Appeal No. CA/3/EPT/GOV/01A/2021 should be set aside or nullified and that the rationale for the merger is that the Appellant and the 6th Respondent were made parties by the 5th Respondent to the Cross-Appeal in (the 5th Respondent’s) Notice of Cross-Appeal filed on 18/4/2021 in Appeal (Cross-Appeal) No. CA/B/EPT/GOV/01A/2021. That the records of appeal, Volumes 1 to 5 for Appeal No. CA/B/EPT/GOV/01B/2021 (hereinafter simply referred to as Appeal No. “01A/2021”) and the supplementary Record of Appeal No. CA/B/EPT/GOV/01B/2021 (hereinafter simply called Appeal No.

“01B/2021″) had not only been merged and transmitted by the Secretary on 28/4/2021 but the Appellant had been served with the Cross-Appellant’s brief of argument before the 5th Respondent applied to strike out the Appellant and the 6th Respondent from the Cross-Appeal, thus, the argument that this Court struck out the name of the Appellant on 10/5/2021 shows the mischief and the bad faith on the part of the 5th Respondent.

On the submission that the appeal be struck out or dismissed on ground of incomplete record, it was submitted that since the complaint of incomplete record was raised by the 5th Respondent, Order 8 Rule 6 of the Rules of this Court places the duty on the 5th Respondent, and not on the Appellant to compile additional record, citing the cases of Buhari vs. Yabo (2005) 29 WRN 75 at 83 – 84, Effiong & Ors vs. Iron Bar & Ors (1998) 23 NWLR (Pt. 582) 367.

Still on the propriety of relying on the said records in volumes 1, 2, 3, 4 and 5 as well as the supplementary record, learned counsel emphasized that all parties in this appeal were the petitioners and the Respondents in Petition No. EPT/ED/GOV/01/2020 and all the

appeals and Cross-Appeal arose from the same judgment of the Tribunal; all relevant processes in petition including the pleadings, evidence, proceedings and judgment appealed against by the Appellant are all contained in the same Records of Appeal; the supplementary record is only a continuation of the records of appeal in volumes 1, 2, 3, 4 and 5, thus, the Appellant met all the conditions of appeal imposed by the Secretary of the Tribunal.

What is more he argued, the 1st and 2nd Respondents who are also the 1st and 2nd Respondents to the 5th Respondent’s Cross-Appeal have already fled their brief of argument to the Cross-Appeal using the records in volumes 1, 2, 3, 4 and 5 and the supplementary record of appeal in Appeal No. CA/B/EPT/GOV/01A/2021.

On this premises, learned counsel submitted that this is an appropriate situation to allow the Appellant as well as the 1st, 2nd, 5th and 6th Respondents use the same Records of Appeal and the supplementary Records of Appeal since all the appeals arose from the same Petition between the same parties on the same processes, proceedings and judgment in order to avoid unnecessary duplication. He referred to Rule 8 of the Rules of this Court.

RESOLUTION OF PRELIMINARY OBJECTION
The first ground of the preliminary objection is that the reliefs sought by the Appellant in the Notice of Appeal do not confer any legal right or benefit on the Appellant.

The pertinent question is whether as argued by the learned counsel for the 5th Respondent the said reliefs, namely:
(1) An Order allowing the appeal; and
(2) An Order setting aside the judgment of the Trial Tribunal,
are merely hypothetical or academic or abuse of Court process and the said Notice of Appeal ought be struck out and the appeal be dismissed on that account.

Learned Counsel for the Appellant submitted and rightly too, that an appeal is a re-hearing or continuous appellate hearing of the substantive matter. I am at one with Appellant’s counsel that an appeal is indeed a continuation of the suit ventilated at the trial Court.

Thus, a Notice of Appeal is the Originating Process for the appeal only, and not the suit itself. In other words, an appeal is not a new action but a continuation of the suit or dispute which is subject of the appeal. It deals with the

Appellant’s complaints against the decision or judgment of the trial Court. SeeFIRST BANK OF NIGERIA PLC V. T.S.A. INDUSTRIES LIMITED (2010) LPELR-1283(SC); Obineche & Ors v. Akusobi & Ors (2010) 12 NWLR (Pt. 1208) 383;
Order 7 Rule 2 of the Court of Appeal Rules, 2016 provides:-
(1) “All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.”
The above provision requires among others that the exact relief(s) claimed be stated. However, the judicial interpretation of this requirement is that a breach of the requirement does not necessarily vitiate the Notice for the Court is empowered to grant reliefs other than the ones sought in the Notice of

Appeal. See ONUAGULUCHI V. NDU & ORS (2001) 7 NWLR (Pt. 712) 309, also reported as (2000) LPELR – 2699 (SC).
Generally, reliefs are granted in response to issue(s) raised from the grounds of Appeal. Once the ground and issues flow from the ratio decidendi of the judgment or decision appealed against, the Notice of Appeal will not necessarily be struck out merely because the Appellant did not state the precise or exact nature of relief he seeks or states an inadequate relief. Once the Grounds and issues are found to have arisen from the ratio decidendi of the judgment, the Notice of Appeal will not necessarily be struck out because the Appellant did not state the precise or exact nature of the relief(s) he seeks. In the case of KATTO V. CBN (1991) 9 NWLR (Pt. 214) 126, Akpata, JSC said:
“I find it difficult to accept the proposition that failure to specify the exact nature of the relief sought, will preclude the Court from granting the appellant the relief it thinks he is entitled to, should his appeal succeed.
“While it is desirable that the exact relief sought be stated in the Notice of Appeal so that the Court may be guided in making

the order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the Notice of Appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for retrial depends in the main on the nature of the complaints projected by the Grounds of Appeal and the merit or demerit of the complaints. In effect, the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails. If I may confess, I hardy turn to the Notice of Appeal to verify the reliefs sought by an Appellant before making an order following the success of his appeal. The Order I make is that which appears to flow from the decision arrived at in the Appeal.”
See also Briggs v. The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (Pt. 938) 59.
Following the said decision of KATTO V CBN (SUPRA), this Court in the case of INEC V IZUNASO (2019) LPELR -48446 (CA) wherein as in the case at hand, the reliefs named on the Notice of Appeal are:
a. An order avowing the appeal
b. An order setting aside the

decision of the Tribunal.
My learned brother Nimpar JCA sought refuge for an answer in the case of KATTO V CBN (supra) and held that the reliefs are clear and discernable, and would not be struck out but the question of granting them depended on the outcome of the case.
Let me emphasize that even where no relief is inserted in the Notice of Appeal at all, the omission does automatically result in the striking out of the Notice of Appeal. What is important is whether the Appeal will be dismissed or allowed which is determined by the nature of complaint and the ultimate outcome of the Appeal.

In the instant case, by an holistic reading of the grounds of appeal together with the relief sought, particularly ground 3 wherein the Appellant prayed in their reply to the Petition (either rightly or wrongly) to be declared as the winner of the election, and in the light of decisions in KATTO V. CBN (supra) and INEC V. IZUNASO (Supra), the Notice of Appeal ought not to be struck out merely on the ground that the reliefs sought do not confer any legal right or benefit on the Appellant. This ground of the Preliminary Objection fails.

On grounds 2, 3 and 4 of the Preliminary Objection which complain of non-compilation and transmission of record by the Appellant and challenges the Appellant’s reliance on the Record of Appeal in appeals No. CA/B/EPT/01/2021 and CA/B/EPT/01A/2021, the Law is that the duty of compilation, transmission and service of record of proceedings in an election petition is that of the Secretary, the Tribunal who shall do so within 10 days of the receipt of the Notice Appeal. See Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011. Once the Appellant has fulfilled his part of the obligation by paying the necessary prescribed fees, he cannot be held responsible for any omission in the Record or the manner of compilation of the record. See BUHARI V. YABO (2005) 29 WRN 75 @ 83. The Appellant deposed and submitted that the conditions of the Appeal were met. The Secretary’s statement was also exhibited. By the combined effect of Paragraphs 7, 8 and 9 of the Practice Directions 2011, the compilation and service of the records of appeal in Cross-Appeal CIA volumes 1-5 and more importantly the supplementary record containing the Secretary’s statement and the Appellant’s

Notice of Appeal on all parties is an indication that the Appellant complied with the requirement in paragraph 7 as regards the payment of the prescribed fees.

As to whether the Appellant who is no longer a party to Appeal 01A/2021 can be permitted to rely on the said record and the supplementary record, it is my candid view that since the Appellant and 6th Respondents were parties to the Election Petition No. EPT/ED/GOV./01/2020 until they were struck out by the Lower Court, they are entitled upon the fulfillment of the necessary requirements and with leave of Court, to rely on part of the records of proceedings to the point that they were struck out. The Appellant and the 6th Respondent could also upon the same conditions rely on the records of Appeal in Appeal No. 01A until the Appellant ceased on the 10/05/2021, upon the unchallenged application of the 5th Respondent/Cross Appellant in 01A to be a Respondent. Therefore, after the 10/5/2021, the Appellant not being a party to either appeal no. CA/B/EPT/GOV/01/2021 or to the Cross-Appeal no. CA/B/EPT/01A/2021, can no longer rely on the records.

Furthermore, grant of this prayer for leave to the

Appellant to rely on the records of Appeal in Appeal 01 and 01A would serve no utilitarian value, benefit or purpose to the Appellant have to appeal as an interested party and to deem his Notice of Appeal filed on 18/04/2021 as properly filed having been refused. The Court acts for a purpose. Let me emphasize, for a useful purpose. The Court does not act or make an order in vain and it is the duty of the Court to ensure that it does not make an order in vain. SeeOKE & ANOR V. MIMIKO ORS (2014) 1 NWLR (Pt 1385) 225, OLADIPO V. OYELAMI (1989) 5 NWLR (Pt. 120) 221. No Court of Law will knowingly make an order which it is aware is incapable of being actualized or is or will be of no benefit to the party. It will therefore be an exercise in futility and incongruent with our earlier order refusing the Appellant leave to appeal, to now grant him leave to use the records compiled and transmitted in another appeal. For what purpose or what end? It is only logical that the grant of leave to use or rely on the compiled and transmitted records in appeal 01A is dependent only on the Appellant being granted leave to appeal. The leave to appeal as an interested party is the

foundation upon which the leave to rely on records is predicated. The foundation having collapsed all the structures erected or purported to erected upon the collapsed foundation, also go down.

We have stated earlier that the function of the Court is to decide real and live issues between parties and not to decide hypothetical or academic questions. Since the grant of this relief will serve no useful purpose to the Appellant, this ground of Preliminary Objection is sustained. In any case, the Appellant cannot situate his appeal, suppose he has a valid appeal, on a different appeal No. 01A, to which he is no longer a party. In other words, the Appellant cannot lawfully rely on the Records of Appeal in Appeal No. 01 and 01A 2021.

This notwithstanding, as earlier stated we shall still consider the merits of the appeal in the event of a further sojourn of this appeal through the stair case to the apex Court to afford it the opportunity of our views.
Now the main Appeal.

THE MAIN APPEAL
The appeal will be determined on the issues crafted by the Appellant’s counsel:
1. “Whether the trial Tribunal was right to strike out the

Appellant and the reply of the Appellant to the Petition?
2. Whether having regard to the facts and circumstances of the petition, and the current position of the law on disqualification of an alleged winner of an election, the trial Tribunal was right to hold that no relief was sought against Appellant and his political party and are therefore not necessary parties to the petition?”

APPELLANT’S SUBMISSION ON ISSUES 1 AND 2
In arguing these issues 1 and 2 together, learned counsel for the Appellant contended that it was wrong for the lower Court (the Trial Tribunal) to strike out the name of the Appellant and his reply brief upon the joint and several applications of the of the 3rd, 4th and 5th Respondents when all the parties agreed that the Appellant was a person interested in the petition. He referred to paragraphs 7 and 8 of the petition wherein the 1st and 2nd Respondents pleaded the fact that the Appellant and the 6th Respondent (as 4th and 5th Respondents to the petition) scored the next highest votes and came 2nd in the election, paragraph 6 of the 3rd Respondent’s reply, paragraph 10 of the 4th Respondent’s reply as paragraph 1 of the

5th Respondent’s reply to the petition by which the 5th Respondent is also deemed in law to have admitted the said fact having not been specifically denied and submitted that parties and the Court are by the pleadings. See Ige vs. Olunloyo (2004) 2 WRN 116 at 153 line 20, Trans Meriden vs. Gulf Maritime (2002) 25 WRN 154 at 164, Bakari vs. Ogundipe (2021) 5 NWLR (Pt. 1768) 1 at 48 D.

It was his submission that as the reliefs sought by the 1st and 2nd Respondents on ground of disqualification of the 5th Respondent for the cancellation of the election or for a fresh election are contrary and adverse to the interest of the Appellant who is entitled by the current position of the law to be declared as the winner in the event of the disqualification of the 5th Respondent and the lower Court having found that the prayers sought by the 1st and 2nd Respondents as petitioners were against the Appellant and 6th Respondent’s interests, the Court was perverse in its finding and conclusion that there was no claim or relief sought against the 4th and 5th Respondents (now Appellant and 6th Respondent) on the basis of which it struck out the Appellant and the 6th Respondent,

urging us to set aside the perverse finding and decision.

On the current position of the law that appropriate order to make where the winner of an election is disqualified is to declare the candidate with the next highest number of votes rather than cancelling the election ordering a fresh election, the cases of PDP & Ors vs. Biobarakuma Degi Eremienyo & Ors (2020) ALL FWLR (Pt.1032) 526, APC vs. Marafa (2020) 6 NWLR (Pt. 1721) 383 at 433, were cited contending on the authority of Amaechi vs. INEC (2008) 1 MJSC 1 at 67 – 68 that the Apex Court has admonished lower Courts against random ordering of fresh election.

It was submitted that by the combined effect of Paragraph 4(1)(a) of the 1st Schedule to the Electoral Act 2010 (as amended), Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) apart from the Respondents mentioned in Section 137(2) of the Electoral Act, any other person having an interest in the matter has a right to be included or joined in the Petition. That even at this stage of the appeal, the Appellant still enjoys a constitutional right not only to be joined or included in the

appeal of the 1st and 2nd Respondents as well the cross-appeal of the 5th Respondent but can independently appeal against the decision of the lower Court – Ogembe vs. Usman (2012) ALL FWLR (Pt. 613) 1844, Ojemale Investment Ltd vs. A.G.F. (2011) ALL FWLR (Pt. 582) 1738 among others.

He faulted the reliance placed by the lower Court on the case of Buhari vs. Obasanjo (2003) 14 NWLR (Pt. 841) 446 decided on the provisions of Section 133(2)(3) of the 2002 Electoral Act, (now Section 137(2) and (3)) in striking out the Appellant and the 6th Respondent which he was erroneously done in oblivion of the superior provision of Section 243(1)(a) of the Constitution such that by the inconsistency, the constitutional provision of the Section prevails over those of Section 137(2) of the Electoral Act. PDP vs. C.P.C. (2011) 12 NWLR (Pt. 1277) 485 at 511. Moreover, even in the Buhari vs. Obasanjo’s case (supra) decided on 14/11/2003, the Apex Court identified 3 classes of Respondents.

Instructively he argued, in the latter case ofObasanjo vs. Yusuf decided on 7/5/2004 (2005) 20 WRN represents the current position of the law and is binding on all Courts, the apex

Court decided that it is not the business of one Respondent to apply that another Respondent be struck out simply because he feels that presence of that Respondent is unnecessary.

That it is Petitioner who joined a Respondent that must know why he made him a party to the petition. We were urged to follow the decision in Obasanjo vs. Yusuf (supra) which meets and serves the justice of case to all parties and to resolve issues 1 and 2 in favour of the Appellant.

3RD RESPONDENT’S SUBMISSION:
In response to the submission, the learned silk for the 3rd Respondent, A. A. Awomolo, SAN, submitted that by the Latin Maxim: “expressio unius est exclusio alterius”, and the specific provisions of Section 137 of the Electoral Act 2010 (as amended), the Electoral Act contemplates only two classes of Respondents and expressly excludes a candidate who contested an election (such as the Appellant) or any other person to joined as a Respondent to an election petition, as the law only intends an election petition to be between a loser as petitioner and a winner as a Respondent and not between two losers.

He submitted that the Courts have been consistent in the

interpretation of the provisions of the Electoral Act as to who may be joined as a Respondent in an election petition and that such person must fall within the two categories of persons named in Section 137(2) and (3) of the Electoral Act 2010 (as amended). He referred to the cases of Muhammadu Buhari vs. Alh. Muhammad Dikko Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446 at 449 per Uwaifo JSC, Buhari & Ors vs. Obasanjo & Ors (2003) LPELR – 24859 (SC) and A.P.C. vs. P.D.P & Ors (2015) LPELR – 24587 (SC) per Galadima JSC, to contend that the lower Court was right in striking out the Appellant and the 6th Respondent from the petition.

In his further argument at paragraphs 4.13 and 4.16 of the brief, subtitled “mini petition”, the learned silk submitted that the impropriety of the Appellant being a Respondent to the Election Petition was compounded by his pleadings and prayers that he be returned as the winner of the election which amounts to complaining against the election in a manner other than by filing an Election Petition contrary to Section 133(1) of the Electoral Act (as amended).

The learned senior counsel also restated the trite law

that the role of a Respondent in any matter or appeal is to defend the action or appeal and not to argue in favour of same, citing in support the case of Bakari vs. Ogundipe (2021) 5 NWLR at 34 – 35 paras D-E CA. (incomplete citation). He insisted fiat for the Appellant to complain against the Edo Governorship election of 19th September, 2020, he ought to have filed an Election petition rather than to complain as a Respondent in the petition of the 1st and 2nd Respondents to this appeal, and having not filed any Election Petition, the lower Court was right in striking out his name and that of the 6th Respondent.

5TH RESPONDENT’S SUBMISSION
On his part, the learned silk Ken E. Mozia, SAN, denied the assertion by the Appellant’s learned counsel that the 5th Respondent in particular, and in general the 3rd to 5th Respondents admitted that the Appellant was an interested party to the Petition by mere admission or deemed admission that the Appellant contested the election and scored votes. The allegation of admission so premised, it was argued, is imprecise and equivocal. See Buhari vs. INEC & Ors (2008) LPELR – 814 (SC) 166 D.

It was submitted that if the contention that the Appellant who did not file an appeal or a cross-appeal and whose prayers in his reply to the Petition (to be declared the winner in the event of 5th Respondents disqualification) violently conflicts with of the Petitioners who filed the Petition (1st and 2nd Respondents herein) for the cancellation of the election or for fresh election were to be acceded, it would translate into the joinder of all candidates and Political Parties who participated in an election whether or not there is a specific complaint or relief against such parties. He referred to the case of Buhari & Anor vs. Yusuf & Anor (2003) LPELR – 812 (SC), and submitted that the Appellant was not a necessary party to the Petition and was rightly struck out by the lower Court.

Assuming this Court is persuaded and inclined to considering the Appellant’s complaint, the learned senior counsel submitted that the several and vital unchallenged findings of the trial Court including the findings that the Appellant’s reply was incompetent and which are binding on the parties are sufficient to sustain the decision of the trial Court; for even if this Court

finds the Appellant to be a necessary or interested party, his reply which is a miniature petition cannot stand as an answer to a Petition having not filed a Cross-Petition. The case of Suleiman & Ors vs. Abubakar Tafawa Balewa University Bauchi & Anor (2019) LPELR – 47708 (CA) was called in aid, urging us to sustain the decision of the lower Court, striking out the Appellant’s reply and to discountenance the Appellant’s submission.

RESOLUTION OF ISSUE 1 (MAIN APPEAL)
The Appellant’s complaint is the striking out of his name together with that of his political party, the 6th Respondent and their replies from the petition on the application of the 3rd, 4th and 5th Respondents.

In out their names, the Lower Court held:
“The Petitioners have not in our view shown the 4th and 5th Respondents are necessary parties to this Petition. This is more so that the 4th and 5th Respondents have in their reply to the petition prayed the Tribunal to declare the 4th and 5th Respondents as the winner or the election.”
The Learned Judges then concluded:
“Accordingly, an order striking out the 4th and 5th Respondents as parties and all relevant and

referred paragraphs of the replies of the 4th and 5th Respondents is hereby made.”
Are they right in their position?

election is complained of, that is the candidate returned as the winner of the election and (ii) the Electoral Commission, INEC and its officers whose conduct is complained of or “such other persons” who participated in the conduct or the management of the election not being staff of INEC. These are such as the security agents who ensure or are supposed to ensure the smooth conduct of the election. This category of persons is only an extension of the 2nd category which the Apex Court referred to as the 3rd category.
What is crystal clear and is beyond any plausible argument is that the phrase “such other person” refers only to the persons who participated in the conduct or management of an election. It does not refer to candidates or their political parties who lost an election. The Section does not envisage a loser of an election being a necessary party to be joined as a respondent to an Election Petition filed by another loser. Only the winner of an election and the statutory body that conducted the election or its staff or other person who participated in the conduct of an election are the necessary and statutory respondents to an election petition or appeal. This point

was made by Uwaifo in BUHARI V YUSUF (supra) when the law lord stated thus:
“It is manifest that Section 133 of the Act places no obligation on a petitioner(s) to make any candidate who lost an election or any political party, whether of a candidate elected or returned or of a candidate, who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondents envisaged under Sub-section 2 as identified in this judgment. Indeed, a candidate or his political party that lost an election are not intended to be nor are they necessary parties to an election petition or appeal.”
Put differently and succinctly, only the winner of an election and the statutory body or its staff or other person who participated in the conduct of an election are necessary respondents to an election petition or appeal. The law only envisages an election petition to be between a loser as the petitioner and a winner as the respondent and not between two or more losers.

It is an elementary principle of interpretation of statutory provisions that where a statute specifically mentions things or persons, it is the

intention of the legislature that those not mentioned are intended to be excluded. This principle is expressed in Latin as “expressio unjus est exclusio altrius” rule meaning that the express mention of one thing in a statute automatically excludes any other which would have been included impliedly. See Ogbunyinya v. Okudo (1979) 6 – 9 SC 32.

In the case of APC. V. P.D.P. & Ors. (2015) LPELR – 24587 (SC) which is later in time (decided 2015) than the case of BUHARI V. OBASANJO relied upon by the Learned Appellant’s Counsel to argue that there are 3 categories of Respondents in an election, the Supreme Court per Galadima JSC pointedly declared that there are only two categories of Respondents as named in Section 137(2) and (3), thus:
“It is trite that the Law expressly specified and legislated on who can be a Respondent to defend an Election Petition. Whosoever is contemplated to be a Respondent to defend an election must fall into any of the two categories named in Section 137(2) and (3) of the Electoral Act.”
It is settled that the law recognizes only two categories of respondents to an election petition. obviously, a person who lost an

election is not a necessary party to an election petition.

The further contention of the Learned Appellant’s Counsel relying on the latter case of BUHARI V. YUSUF (Supra) is that it is not the business of a Co-Respondent to apply that another Respondent be struck out because he feels that the presence of that other Respondent is unnecessary and that the Lower Court ought not to have struck out the Appellant and the 5th Respondent on the application of the other Respondents.

I have gone through the said case ofBUHARI & ORS V. YUSUF (Supra) heavily relied upon by the Learned Appellants Counsel. The facts and circumstances of the present appeal are different from those in the BUHARI V. YUSUF’S case (Supra). It is now firmly settled that each is an authority only for what it decides and nothing more. Authorities cannot be applied across board in total disregard to the peculiar facts in which they were decided. Each case must be considered in the light of its own peculiar facts and circumstances. See SYLVA V. INEC & ORS (2015) LPELR – 24447 (SC), UDO V. STATE (2016) LPELR – 40721, NWABUEZE V. THE PEOPLE OF LAGOS (2018) LPELR – 44113 (SC).

It is the facts and circumstances of every case that frames the issues for the decision in that particular case. Thus, facts are the fountainhead or the arrowhead of the Law. They are the spring that is the source of the Law. The decision in a case must necessarily be intimately related to the facts that induced or brought about the decision. It goes without saying that where the facts of a given case are different from those in the decision in an earlier case, it will amount to pulling the ratio in the earlier case out of context to apply the decision to entirety different facts. In ADEGOKE MOTORS LTD V. ADESANYA (1989) 5 SC 92 @ 100, the great Jurist Oputa JSC succinctly made the point inter alia that:
“… I think it ought to be obvious by now that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncement of our Justices whether they are rationes decidendi or obitar dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for,

without known the Law on those facts.
….Court’s decision and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case pleaded and presented…”
In BUHARI V. YUSUF’s case (Supra) unlike in the case at hand, none of the Co-Respondents therein sought to struck out, prayed for any relief from the Court in their reply to the petition to nullify the election of the principal Respondent whose election and return was being challenged by the petitioner(s) nor did any of them seek any relief that he as a Co-Respondent be the winner of the election unlike in the case at hand wherein the Appellant as the 5th respondent sought to be declared the winner in contradistinction to the reliefs sought by the petitioners (1st and 2nd Respondents herein) who filed their petition for the nullification of the election and ordering of a fresh election.

The Appellant herein as the 5th Respondent to the petition filed by the 1st and 2nd Respondents had prayed at paragraph 26 of his reply to the petitioner as follows: –
(1) AN ORDER disqualifying 3rd Respondent from the

Governorship Election of Edo State held on 19th September, 2020 on the ground that as at that date, that is, 19th September, 2020 when the election was held, 3rd Respondent was not qualified to contest the said election for the reasons stated in this Petition and admitted by 5th Respondent and further stated in this Reply.
(2) AN ORDER nullifying the 307,955 votes of 3rd Respondent for being wasted and useless votes; Respondent not being qualified to contest the Edo State Governorship Election as at 19/9/2020 when the election was held 3rd Respondent did.
(3) AN ORDER setting aside and nullifying the Certificate of Return purportedly issued to 1st Respondent to 3rd respondent pursuant to the Final Result of the Edo State Governorship Election held September, 2020.
(4) AN ORDER declaring 5th Respondent as the next candidate with majority of valid votes of 223,629 cast at the election after disqualification and nullification of the votes of 3rd Respondent.
(5) AN ORDER declaring 5th Respondent of 4th Respondent as the duly elected candidate in the Edo State Governorship Election conducted on 19/09/2020 by 1st Respondent.

(6) AN ORDER declaring 1st Respondent to issue 5th Respondent with Certificate of Return as the duly elected Governor of Edo State in the Governorship Election held on 19th September, 2020.

The Appellant having prayed the trial Tribunal to disqualify the 5th Respondent who won the election and was the candidate duly returned by the 3rd Respondent and who further prayed that he be declared the duly elected candidate at the election, it was very much the business, and I must add, the duty of the 5th Respondent to apply that the Appellant’s name and his reply to the Petition be struck out. It was also the business of the 4th Respondent, the political party of the 5th respondent, to apply that the Appellant be struck out of the Petition. Unquestionably, the decision in BUHARI V. YUSUF (Supra) wherein the Supreme Court was quoted to have held that it is not the business of a Co-Respondent to apply that the name of another Respondent be struck out does not apply to the peculiar facts and circumstances of this case.

In the said Appellant’s reply to the petition which was nothing but a mini petition properly so called by the lower Court and the Learned Senior Counsel to the 3rd

Respondent, the Appellant was clearly by those reliefs not only complaining against the return of the 5th Respondent but was also seeking to be declared the winner. Can the Appellant as a Respondent (5th Respondent) to the Petition of the 1st and 2nd Respondents raise the complaints and such reliefs?

It is necessary to turn to Section 133 (1) of the Electoral Act for an answer and perhaps a few cases. The Section provides:
“NO election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent Tribunal or Court in accordance with the provision of Constitution or of this Act, and in which the person elected or returned is joined as a party.”

The only way the conduct of an election or the return of a candidate at an election can be challenged is by an election petition duly filed before a duly constituted Election Petition Tribunal or Court in accordance with Section 285 of the Constitution, Section 133 of the Electoral Act and in the manner set out in the 1st Schedule to the Electoral Act.

The election Petition must be presented in conformity with the relevant provision of the 1st Schedule. No other method of complaint against the conduct of an election or the return of a candidate other than by an Election Petition presented before an Election Petition Tribunal or Court is acceptable by the Constitution and Electoral Act. Section 285(1) CFRN is very emphatic on this point just as Section 133(1) Electoral Act (Supra) is.

The Appellant herein did not file any election petition before the Tribunal to question the election of the 29/09/2020 or the return of the 5th Respondent made by the 3rd Respondent from that Election. The Appellant only seeks to ride through the back of the 1st and 2nd Respondents who filed an Election Petition to do what he would have done or sought if he had filed an Election Petition forgetting that he was only a Respondent to the Petition. The traditional duty or role of a Respondent at the trial Court is to defend the action and on appeal to defend the judgment appealed against. It is for a Respondent/Defendant at the trial Court to seek declaratory reliefs except through a counter-claim and on appeal, it is not for a

Respondent who has not Cross-Appealed or filed a Notice of Contention, to criticize or attack judgment of the lower Court. His duty is to defend the judgment. See BAKARI V. OGUNDIPE (2021) 5 NWLR 34 – 35.

It is indeed strange that Appellant as a Respondent to the Petition rather than defend the action or seek to be disjoined from the petition would turn into a pseudo petitioner by fighting his own case through another person’s petition. It is a novel adventure and most surely not within the contemplation of the Constitution and the Electoral Act that a Respondent to an Election Petition would turn into a Petitioner and seek a declaration within another person’s petition to be declared the winner of the election without filing an election petition. This novelty is very feeble and is one that cannot survive the incubation process to see the light of day. Except words have changed their meanings (and I believe have not) or the learned counsel to the Appellant expects the impossible of squeezing water out of the rock, no amount of elastic interpretation can be given to Paragraph 12 of the First Schedule or the entire Electoral Act to permit a Co-Respondent in an Election Petition turn

his Respondent’s reply to an Election Petition. The purpose of a respondent’s reply to the Petition is different from the purpose of a petition. They do not serve the same purpose and therefore not interchangeable. A party who does not file an election petition cannot turn his reply to the petition as an election petition and seek through same, reliefs inter alia, to be declared the winner of an election or to overturn the return of the candidate he did not challenge in the manner known and acceptable by law.

The only option for the Appellant to pursue his reliefs was to file his own election petition. That is the only medium and the vehicle through which a party aggrieved with the conduct of an election or the return of a candidate at an election can challenge same and seek redress from the Election Tribunal or Court. He cannot through another person’s petition seek to be declared the winner of the election. The other option for the Appellant wrongly as a respondent if he was not interested in challenging the election or the return of the 5th Respondent was to apply to be disjoined from the Petition or in the least remain aloof as an unnecessary and

undesirable Respondent to the Petition.

The position of the Appellant can be likened to that of a snake that never digs a hole but assumes the right of ownership and occupation of a one dug by others. The Appellant cannot do that. He cannot come through the back door to get what he would not get from the proper door. Again, let me for the umpteenth time make it clear that for the Appellant to seek the reliefs he prayed for at paragraph 26 of his reply, he has to file an Election Petition in compliance with CFRN, Electoral Act and in accordance with the procedure set out in the 1st Schedule to the Electoral Act. Any other method or procedure other than this is unknown to and unacceptable by Law.

In summation, the Lower Court was right in striking out the names of the Appellant and his party, the 6th Respondent, from the Election Petition No. EPT/ED/GOV./01/200 filed by the 1st and 2nd Respondents for being unnecessary Respondents wrongly joined in the Petition which the Tribunal could have done even suo motu.

The issue is resolved against the Appellant. Having so resolved this issue against the Appellant, the consideration of the 2nd issue

does not arise. The effect is that there is no merit in this appeal. It is accordingly dismissed. The judgment of the lower Court delivered on 29th March, 2021 is hereby affirmed. Parties shall bear their cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I have read the lead judgment by my Lord, Amina Wambai, JCA, and I agree completely with her reasoning and conclusion that the Appeal lacks merit and should dismissed.

Even by Appellant’s motion of 14/5/2021, the Appeal was due to be struck out in my opinion. The Motion showed that Appellant was only a party to the Ruling in EPT/ED/G0V/01/2020, delivered on 29/3/21, which ruling struck out his name for not being a necessary party to the petition (EPT/ED/GOV/01/2020). He can only appeal against that ruling and cannot appeal against the judgment thereof as he was not a party thereto. Appellant cannot also appeal as an interested party, having not appealed/overturned the Ruling that he was not a necessary party (statutory respondent) to the petition!

Appellant cannot also rely on Records of Appeals, compiled and transmitted in another/different Appeal

(CA/B/EPT/GOV/01A/2021), in which he is not a party, to host his alleged appeal.

The entire application appears strange and absurd to me and should be dismissed. I too dismiss it.

I see no basis to consider the alleged Appeal on the merit in the circumstance. I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

UCHECHUKWU ONYEMENAM, J.C.A.: I have perused before now the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA.

I agree with the findings of my learned brother in the lead judgment. I also hold that the appeal lacks merit and the same is accordingly dismissed. I uphold the judgment of the Governorship Election Petition Tribunal of Edo State in Petition No. EPT/ED/GOV/01/2020, delivered on 29th March, 2021.

ABUBAKAR SADIQ UMAR, J.C.A.: I have read the draft judgment of my learned brother Wambai, JCA. I entirely agree with the reasoning and conclusions therein. My Lord has exhaustively dealt with all issues in this appeal.

I too dismiss this appeal and abide by the consequential orders in the lead judgment.

Appearances:

I. Osarenkhoe, Esq. For Appellant(s)

Ikhide Ehighelua, Esq. – for 1st and 2nd Respondent.
Asiwaju Adegboyega Awomolo, SAN – for 3rd Respondent.
Adetunji Oyeyipo, SAN. with him, Rotimi Ogunneso, SAN – for 4th Respondent.
Ken E. Mozia, SAN, leading O. O. Jolaawo, SAN, Robert Emukpemo, SAN. – for 5th Respondent
E. L Usoh, Esq. – for 6th Respondent. For Respondent(s)

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