LawCare Nigeria

Nigeria Legal Information & Law Reports

ABDUL v. SHEKWOLO & ORS (2022)

ABDUL v. SHEKWOLO & ORS

(2022)LCN/15941(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 02, 2022

CA/ABJ/1025/2021

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

IBRAHIM ABDUL APPELANT(S)

And

1. AUDI HARUNA SHEKWOLO 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

 

RATIO

THE PURPOSE OF A REPLY BRIEF

By Order 19 Rule 5 (1) of the Court of Appeal Rules, 2021, a reply brief is to reply to new points and points of preliminary objection or any challenge to the appeal raised and argued in the Respondent’s brief. It is not proper to use a reply brief to extend the scope of argument and submissions in the appellant’s brief. See YANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LIMITED vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The repetition of the submissions already made in the appellant’s brief in the reply brief, will not improve the quality of the submissions or make them acceptable, if they were ordinarily unacceptable. See FSB INTERNATIONAL BANK vs. IMANO NIGERIA LIMITED (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13 and ZEDAKOJI vs. ALOHUTADE (2022) LPELR (56416) 1 at 4-5.
In OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580 at 644, Tobi, JSC stated:
“The main purpose of a reply brief is to answer any new points arising from the respondent’s brief … A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply … Where a reply is necessary, it should be limited to answering new points arising from the respondent’s brief. A new point is a fresh point, which was raised by the respondent in his brief. A reply brief cannot be used to strengthen the appellant’s brief by way of repeating arguments made in the appellant’s brief. A reply brief is not a recitation of the appellant’s brief.”
See also MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 27-28.
PER OGAKWU, J.C.A.

THE POSTITION OF THE LAW ON FILING OF PRE-ELECTION MATTERS

Section 285 (9) of the 1999 Constitution (as amended) provides as follows:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
From the question as framed and the reliefs claimed, what is the “occurrence of the event, decision or action complained of”? It seems to me that the complaint about the event, decision or action is the 2nd Respondent’s primary election which took place on 24th April, 2021. The Appellant instituted his action on 18th June, 2021, if this date is considered against the background of when the event, decision or action occurred, id est, contesting the primaries without resigning 30 days before the date of the primary election, it is beyond the period of 14 days stipulated in Section 285 (9) of the Constitution; as a result of which the action is statute-barred. See INEC vs. OGBADIBO LOCAL GOVERNMENT (2015) LPELR (24839) 1 at 32-33, IDACHABA vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2021) LPELR (53081) 1 at 11, SAKI vs. APC (supra) and AREMO II vs. ADEKANYE (2004) LPELR (544) 1 at 18.
PER OGAKWU, J.C.A.

THE CARDINAL PRINCILE OF INTERPRETATON OF STATUTES

Where the words used are clear and unambiguous, they must be given their ordinary, natural and plain meaning so as to avoid reading into the provision meanings not intended by the lawmakers. By implication, where the words used in the provisions are clear and unambiguous, the question of interpretation does not arise as there is nothing to be interpreted or constructed since the Court is duty bound to assign the words used in the provisions their ordinary, natural and plain meanings. In aliis verbis, the general rule of interpretation of statutes is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes, in pari materia, in order to resolve the ambiguity or avoid doing injustice, the duty of a Court is to interpret the words of the lawmakers as used. The authorities in this regard are legion. I will mention a few. See BUHARI vs. OBASANJO (2005) All FWLR (PT 273) 1 at 189, ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2015) LPELR (24588) 1 at 41, ABUBAKAR vs. NASAMU (2012) LPELR (7826) 1 at 34-35 and GANA vs. SDP (2019) LPELR (47153) 1 at 45.
In the words of Ngwuta, JSC in BRITTANIA-U (NIG) LTD vs. SEPLAT PETROLEUM DEVELOPMENT CO. LTD (2016) LPELR (40007) 1 at 57 -58:
“…In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meanings. In THE LEVY EX PARTE WULTIN (1881) 17 Ch D 746 at 751 Jessel M.R. opined: ‘The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.”
PER OGAKWU, J.C.A.

WHETHER OR NOT THE COURTS HAVE THE POWERS TO IMPORT INTO A STATUTE WORDS THAT WERE NOT USED Y THE LEGISLATURE

It is hornbook law that while the Courts have the powers to interpret the law, it has no licence to veer into the legislative arena or constitute itself a legislator by importing into a statute words that were not used by the legislature as the Court is not to engage in judicial legislation. The function and role of the Court remains jus dicere, not jus dare. See BASINCO MOTORS LTD vs. WOERMANN-LINE (2009) LPELR (756) 1 at 25-26, SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26 and ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 71-72. The Constitution has not enacted for the knowledge or awareness of the claimant of the occurrence of the event, decision or action complained of before the limitation period begins to run; it is not for the Court to embellish the clear and unambiguous provision of the Constitution. PER OGAKWU, J.C.A.

 

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On 24th April, 2021, the All Progressives Congress, the 2nd Respondent in this appeal, conducted primary elections for the election of its candidate for the Chairmanship of the Bwari Area Council, at the Area Council Elections fixed by the Independent National Electoral Commission, the 3rd Respondent herein, to take place on 12th February, 2022.

The 1st Respondent emerged victorious at the said primary election and his name was submitted to the 3rd Respondent as the candidate of the 2nd Respondent. Upon the publication of his name, by the 3rd Respondent as a duly nominated candidate for the said Area Council Elections, the Appellant herein, contending that the 1st Respondent was not qualified to contest the said election instituted proceedings before the Federal High Court, Abuja Division in SUIT NO. FHC/ABJ/CS/503/2021: IBRAHIM ABDUL vs. AUDI HARUNA SHEKWOLO & ORS. In the said action, which was commenced by Originating Summons, the Appellant in his Amended Originating Summons presented the following questions for determination:
​“1. Whether in view of Section 107 (1) (f) and Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), the 1st Defendant is qualified to contest the forthcoming Bwari Area Council Chairmanship Election having not resigned his appointment as a Public Servant working with Bwari Area Council within a period of 30 days before contesting the primaries of the 2nd Defendant for the Bwari Area Council Chairmanship Election.
2. Whether in view of the provisions of Sections 106 (1) a-d, 107 (1) (f) and (h), 31 (5) and (6) of the Electoral Act, 2010 (as amended) the 1st Defendant is qualified to contest the Bwari Area Council Chairmanship Election having made false statements/declarations in the Affidavit submitted to the 3rd Defendant wherein he falsified certificates and wrong age declaration and deliberately omitted to give vital information concerning his educational qualification and past employment as required in parts C and D of his Affidavit in Support of Personal Particulars submitted to the 3rd Defendant.”

Upon the determination of the said questions, the Appellant claimed the following reliefs:
“1. A DECLARATION that the 1st Defendant as a Public Servant did not resign within a period of 30 days before contesting election as provided in Section 107 (1) (f) of the Electoral Act, 2010 (as amended) and is therefore not qualified to contest the Bwari Area Council Chairmanship Election.
2. A DECLARATION that the 1st Defendant made false statement/declarations in the affidavit and documents submitted to the 3rd Defendant and is therefore not qualified to contest the Bwari Area Council Chairmanship Election.
3. AN ORDER disqualifying the 1st Defendant from contesting the Bwari Area Council Chairmanship Election having not resigned within a period of 30 days before contesting the election.
4. AN ORDER disqualifying the 1st Defendant from contesting the Bwari Area Council Chairmanship Election having made false Statements/Declarations in the affidavit and documents submitted to the 3rd Defendant.
5. AN ORDER of injunction restraining the 3rd Defendant from featuring the 1st Defendant as the candidate of the 2nd Defendant for the Bwari Area Council Chairmanship Election.”

The Respondents contested the action and the lower Court, after hearing the action on the processes filed by the parties, struck out the Appellant’s Question No. 1 and Reliefs No. 1 and 3 predicated thereon, on the ground that the same was statute-barred. The lower Court equally resolved Question No. 2 against the Appellant and dismissed the reliefs predicated thereon. Conclusively, the lower Court found no merit in the Appellant’s action and it dismissed the same in its entirety. The Appellant was dissatisfied with the judgment of the lower Court and he appealed against the same. The Notice of Appeal, which was filed on 6th December, 2021, is at pages 366-372 of the Records while the scarified judgment of the lower Court, which was delivered on 25th November, 2021, is at pages 300-365 of the Records.

Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument which they adopted and relied upon at the hearing of the appeal. The briefs on which the appeal was argued are:-
1. The Appellant’s brief of argument filed on 23rd December, 2021.
2. The 1st Respondent’s brief of argument filed on 31st December, 2021.
3. The 2nd Respondent’s brief of argument filed on 6th January, 2022.
4. The Appellant’s reply brief to the 1st Respondent’s brief of argument filed on 13th of January, 2022.
5. The Appellant’s reply brief to the 2nd Respondent’s brief of argument filed on 13th January, 2022.

The 3rd Respondent did not file any brief of argument even though it was represented by counsel at the hearing of appeal, it had nothing to urge since it did not file any brief.

The 1st Respondent filed a Notice of Preliminary Objection on 31st December, 2021 wherein he challenged the competence of the Appellant’s Ground 5 of the grounds of appeal and the issue distilled therefrom. The said Preliminary Objection was argued in the 1st Respondent’s brief and the Appellant made his submissions in replication in the Appellant’s Reply brief to the 1st Respondent’s brief. At the hearing of the appeal, the learned senior counsel for the 1st Respondent conceded that since the preliminary objection only challenged one of the grounds of appeal, that the same was incompetent and that the proper process to file would have been a Motion on Notice to challenge the said ground of appeal. He consequently withdrew the said preliminary objection and the same was struck out together with the submissions made thereon.

Let me hasten to state that with the striking out of the Preliminary Objection, the remaining submissions in the Appellant’s reply brief to the 1st Respondent’s brief constitute a re-argument of the submissions made in the Appellant’s brief. This is not the purpose of a reply brief. By Order 19 Rule 5 (1) of the Court of Appeal Rules, 2021, a reply brief is to reply to new points and points of preliminary objection or any challenge to the appeal raised and argued in the Respondent’s brief. It is not proper to use a reply brief to extend the scope of argument and submissions in the appellant’s brief. See YANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LIMITED vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The repetition of the submissions already made in the appellant’s brief in the reply brief, will not improve the quality of the submissions or make them acceptable, if they were ordinarily unacceptable. See FSB INTERNATIONAL BANK vs. IMANO NIGERIA LIMITED (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13 and ZEDAKOJI vs. ALOHUTADE (2022) LPELR (56416) 1 at 4-5.
In OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580 at 644, Tobi, JSC stated:
“The main purpose of a reply brief is to answer any new points arising from the respondent’s brief … A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply … Where a reply is necessary, it should be limited to answering new points arising from the respondent’s brief. A new point is a fresh point, which was raised by the respondent in his brief. A reply brief cannot be used to strengthen the appellant’s brief by way of repeating arguments made in the appellant’s brief. A reply brief is not a recitation of the appellant’s brief.”
See also MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 27-28.

A reply brief is to refute the arguments in the respondent’s brief which were not taken in the appellant’s brief. Since the Appellant’s reply brief to the 1st Respondent’s brief of argument does not serve the essence, function or purpose of a reply brief, it is not a proper reply brief. Accordingly, I would discountenance the same and it will play no part in the consideration of the submissions of learned counsel and resolution of this appeal. See OGUANUHU vs. CHIEGBOKA 2013 LPELR (19980) 1 at 17, ONEMU VS. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 5-7 and ZEDAKOJI vs. ALOHUTADE (supra) at 6-7.

The Appellants distilled three issues for determination, which issues were adopted by the 1st Respondent. The issues are:
“1. Whether the lower Court was right when it struck out question one as well as reliefs 1 and 3 on the Amended Originating Summons for being statute barred (Distilled from Grounds 1 and 2).
2. Whether the deliberate omission by the Appellant [sic] to state his past employment with the Bwari Area Council Commission and the fact of his resignation less than 30 days statutorily required does not constitute false information (distilled from Ground 5 of the Appeal).
3. Whether the lower Court was right when it held that the 1st Respondent did not supply false information and was indeed qualified to contest the Bwari Area Council Chairmanship election (Distilled from Grounds 3, 4, 6, 7 and 8 of the Appeal).”

On its part, the 2nd Respondent formulated two issues for determination in its brief of argument, scilicet:
“1. Whether viz-a-viz [sic] the information/documents contained in the 1st Respondent’s expression of interest form Exhibit C submitted to the 2nd Respondent and made available to the 3rd Respondent, he is reasonably qualified to contest the seat of Bwari Area Council Chairmanship position.
2. Whether the lower Court decision on reliefs 1 and 3 canvassed before the Court and the questions raised therefrom is proper in law.”

The 2nd Respondent did not proffer any submissions on the second issue it distilled, which is reproduced above. However, the 2nd Respondent, on pages 9-13 of its brief of argument, argued a totally different issue which it did not include among the issues it distilled for determination as set out on page 4 of its brief of argument. The said issue it argued, reads:
“Whether from the facts of the case canvassed before the lower Court the 1st Respondent has supplied false information or failed to disclose any relevant information about his status in ‘Exhibit F’ (Pg 147) and ‘Exhibit A’ (Pg. 94) of the originating summons.”

The Appellant contended in his Reply brief that the issues formulated by the 2nd Respondent were not formulated from the grounds of appeal and were accordingly incompetent, since the 2nd Respondent, not having filed a cross-appeal, cannot formulate issues outside the Appellant’s grounds of appeal. He therefore urged the Court to strike out the issues formulated by the 2nd Respondent and the submissions made thereon on pages 4 to 13 of the 2nd Respondent’s brief.

I have apposed the issues distilled by the Appellant alongside the issues distilled by the 2nd Respondent and it is lucent that the 2nd Respondent’s issue number two is akin to the Appellant’s issue number one which is said to be distilled from grounds 1 and 2 of the grounds of appeal. Equally, the 2nd Respondent’s issue number one and the issue it argued at pages 9-13 of its brief are analogous to the Appellant’s issue numbers two and three, which are said to have been distilled from grounds 3 to 8 of the grounds of appeal. I am therefore unable to agree with the Appellant that the issues formulated and argued by the 2nd Respondent do not arise from the Appellant’s grounds of appeal.

Howbeit, it is on the basis of the issues distilled by the Appellant, which I find idoneous, that I will review the submissions of the learned counsel and resolve this appeal. I would consider issue number one separately and thereafter consider issue numbers two and three together.

ISSUE NUMBER ONE
Whether the lower Court was right when it struck out question one as well as reliefs 1 and 3 on the Amended Originating Summons for being statute-barred.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that in determining the jurisdiction of the Court, it is the pleadings filed by the claimants that is considered, in this instance, the Amended Originating Summons and the supporting affidavit vide LAU vs. PDP (2018) 4 NWLR (PT 1608) 60 at 104-105, GOVERNOR, IMO STATE vs. AMUZIE (2019) 10 NWLR (PT 1680) 331 and OGAR vs. IGBE (2019) 9 NWLR (PT 1678) 534. It was posited that the issue of when the cause of action arose is captured in paragraphs 7 and 9 of the affidavit in support of the Amended Originating Summons which shows that the Appellant only became aware of the premature resignation of the 1st Respondent from the employment of Bwari Area Council on 5th June, 2021, after the 3rd Respondent had published the names of the candidates for the Chairmanship election.

It was opined that in calculating the fourteen days for purpose of instituting a pre-election matter, time begins to run from when the Appellant became aware. The case of ZAILUNI vs. GUMAU (2020) 2 NWLR (PT 1709) 452 at 456 was referred to. It was therefore asserted that the Originating Summons filed on 18th June, 2021 was filed within the stipulated fourteen days since the Appellant only became aware of the 1st Respondent’s qualification on 5th June, 2021 when the 3rd Respondent published the names of the candidates.
It was further contended that by Section 31 (4) of the Electoral Act, the draftsman intended that the fourteen days within which to bring an action would start running after the 3rd Respondent has given the person who intends to sue a certified true copy of the nomination form and other documents submitted by the candidates, and not even the date of publication of candidates by the 3rd Respondent. The case of IBRAHIM VS. ABDALLAH (2019) 17 NWLR (PT 1701) 293 at 314 was referred to.

It was further submitted that the lower Court rightly held that the Appellant’s case is not a challenge to the primaries of the 2nd Respondent, only to erroneously hold that the action was statute-barred since it was complaining about the primary election of the 2nd Respondent which held between 1st and 24 April, 2021 and therefore the action had to be filed within fourteen days of 24th April, 2021. It was asserted that the lower Court thereby approbated and reprobated, which a Court is not allowed to do. The case of ADERONPE VS. ELERAN (2019) 4 NWLR (PT 1661) 141 at 158 was called in aid.

It was posited that a person who is not a candidate cannot challenge the primary of a political party and that the Appellant’s case, was not a challenge on the primaries, but based on Section 31 (5) of the Electoral Act, which any person can bring where a candidate has given false information in his nomination form. Section 107 (1) (f) of the Electoral Act was referred to and it was submitted that the deliberate omission by the 1st Respondent from his nomination form that he did not resign his employment as required by law led to the 3rd Respondent publishing his name as duly qualified when he was not. The 1st Respondent, it was maintained, should not be allowed to profit from his illegality. The cases of SALEH vs. ABAH (2017) 12 NWLR (PT 1578) 100 at 135 and BALLANTYNE vs. AYI (2011) LPELR-8825 (CA) were called in aid. It was stated that the false information provided for in Section 31 (5) of the Electoral Act constitutes information supplied either by commission or omission. The refusal by the 1st Respondent to state that he had worked in the public service and did not properly resign was said to be false information supplied in order to deceive the 3rd Respondent.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the lower Court rightly held that the Appellant’s question 1 and reliefs 1 and 3 of the Amended Originating Summons were statute-barred, since the Appellant did not bring the action within the fourteen days stipulated in Section 285 (9) of the 1999 Constitution (as amended). It was opined that from the depositions in paragraphs 9-13 of the affidavit in support of the Amended Originating Summons, it is clear that the Appellant’s grouse was with respect to events tied to the primary election of 2nd Respondent, the complaint being that the 1st Respondent did not resign from public service 30 days before participating in the primary election of the 2nd Respondent which took place on 24th April, 2021, while the action was filed on 18th June, 2021; a period that is more than the stipulated fourteen days. The case of SAKI vs. APC (2019) 1 NWLR (PT 1706) 515 at 543 was relied upon.

It was contended that it is immaterial that the Appellant’s case relates to the non-resignation of the 1st Respondent within 30 days to the primary election as the issue evolves around the primary election conducted on 24th April, 2021 and has nothing to do with the 1st Respondent’s nomination form. The case of APC vs. UMAR (2019) 8 NWLR (PT 1675) 564 at 575-576 was referred to.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
I have already set out the issues distilled by the 2nd Respondent. I have also stated that issue number 2 distilled by the 2nd Respondent at page 4 of his brief of argument is akin to the issue number 1 distilled by the Appellant. However, the 2nd Respondent failed to set out the said issue under any sub-heading in its brief to proffer submissions thereon. However, embedded in the 2nd Respondent’s brief are the following submissions which have a bearing on the issue.

The 2nd Respondent submitted that Section 106 of the Electoral Act provides the qualification for election to the office of Chairman of an Area Council and that the stipulations of Section 107 (1) (f) of the Electoral Act contemplates an elective office and not the preparatory process as in this case. The cases of OJUKWU vs. OBASANJO (2004) 12 NWLR (PT 886) 189 and BUHARI vs. OBASANJO (2005) 2 NWLR (PT 910) 241 were referred to. It was asserted that the phrase before the date of the election employed in Section 107 (1) (f) of the Electoral Act does not refer to the primary election of a political party but to the main election vide MELE vs. MOHAMMED (1993) 3 NWLR (PT 595) 425. The 1st Respondent’s resignation was said to be before the primary election and that it was done timeously, as the resignation took effect immediately the letter was tendered and not when it was approved. Resignation from employment, it was submitted, can be by giving the requisite notice or payment in lieu of notice. The cases of ADEFEMI vs. ABEGUNDE (2004) 15 NWLR (PT 985) 1 at 28 and MELE vs. MOHAMMED (supra) at 430 were relied upon.

It was contended that there cannot be a need to prove disqualification, irregularity, non-compliance and exclusion in an election without there having been an election, since by Sections 26 and 27 of the Electoral Act, election is a process which culminates in the declaration of result. The Court was urged to hold that the 1st Respondent’s resignation was in due compliance with the provisions of the Electoral Act as he resigned on 31st March, 2021 for the election fixed for 12th February, 2022.

APPELLANT’S REPLY ON LAW TO 2ND RESPONDENT’S SUBMISSIONS
The Appellant submits that the stipulations of Section 107 (1) (f) of the Electoral Act contemplates resignation before participating in any kind of election. The definition of election in Section 156 of the Electoral Act was referred to and it was posited that the said definition must be accorded its ordinary grammatical meaning vide BABADE vs. FRN (2019) 5 NWLR (PT 1652) 100 and MAMONU vs. DIKAT (2019) 7 NWLR (PT 1672) 495. The 2nd Respondent, it was contended, was not consistent in stating its case, having conceded at the lower Court that Section 107 (1) (f) of the Electoral Act was applicable and that the 1st Respondent paid one month salary in lieu of notice, only to now argue otherwise on appeal, which is not allowed. The cases of ADEOGUN vs. FASHOGBON (2011) 8 NWLR (PT 1250) 427 and AJIDE vs. KELANI (1985) 3 NWLR (PT 12) 248 were called in aid.

RESOLUTION OF ISSUE NUMBER ONE
I have already set out the questions presented for determination by the Appellant and the reliefs claimed. For clarity and ease of reference, I would again reproduce question 1 for determination and reliefs 1 and 3 claimed, which are the fulcrum of the disceptation in this issue. Question 1 reads:
“Whether in view of Section 107 (1) (f) and Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), the 1st Defendant is qualified to contest the forthcoming Bwari Area Council Chairmanship Election having not resigned his appointment as a Public Servant working with Bwari Area Council within a period of 30 days before contesting the primaries of the 2nd Defendant for the Bwari Area Council Chairmanship Election.”

The reliefs 1 and 3 which flow from the resolution of the said question are as follows:
“1. A DECLARATION that the 1st Defendant as a Public Servant did not resign within a period of 30 days before contesting election as provided in Section 107 (1) (f) of the Electoral Act, 2010 (as amended) and is therefore not qualified to contest the Bwari Area Council Chairmanship Election.”
“3. AN ORDER disqualifying the 1st Defendant from contesting the Bwari Area Council Chairmanship Election having not resigned within a period of 30 days before contesting the election.”

The Appellant appears to be conflicted and befuddled in the presentation of the question and reliefs set out above as a result of which there is some obfuscation on which election the question for determination and reliefs 1 and 3 relate to. In precis terms, the question as framed seems to be that because the 1st Respondent did not resign 30 days before the primary election of the 2nd Respondent which took place on 24th of April, 2021, he is not qualified to contest the Area Council Election which is fixed for 12th February, 2022. This is so notwithstanding that the resignation letter of the 1st Respondent which was submitted on 31st March, 2021 is more than 30 days before the election fixed for 12th February, 2022. Section 107 (1) (f) of the Electoral Act (as amended) provides that a person shall not be qualified to contest an Area Council Election if he is a person employed in the public service or Area Council and he has not resigned, withdrawn or retired from such employment 30 days before the date of the election. It is not confuted that the 1st Respondent was an employee of the Bwari Area Council, it is also not confuted that the 1st Respondent submitted his letter of resignation on 31st March, 2021, and further made payment of one month salary in lieu of notice. It is settled law that resignation is by giving the required length of notice or payment in lieu of notice: INEC vs. ORJI (2009) LPELR (4320) 1 at 17 and ZUBAIRU vs. MOHAMMED (2009) LPELR (5124) 1 at 6-7. If the Appellant’s contention is that his complaint is not in respect of the primary election conducted by the 2nd Respondent, then it is as clear as crystal that from 31st March, 2021 when the 1st Respondent tendered his resignation letter, and made payment in lieu of notice to 12th February, 2022 when the Area Council Election is to be conducted by the 3rd Respondent is more than the 30 days required by Section 107 (1) (f) of the Electoral Act. The Appellant’s complaint in this wise, as borne out by the question framed clearly relates to the primary election of the 2nd Respondent conducted on 24th April, 2021, the Appellant having framed the question as “…having not resigned his appointment as a public servant working in Bwari Area Council within a period of 30 days before contesting the primary of the 2nd defendant for the Bwari Area Council Chairmanship election.”

The Appellant is definitely between and betwixt. If he maintains that the question does not relate to the primary election, then from 31st March, 2021 when the letter of resignation was written and submitted, to 12th February, 2022, when the 3rd Respondent is to conduct the election for the Chairmanship of Bwari Area Council is more than 30 days and there would be no basis for any argument that the 1st Respondent did not resign in a timely manner. Where the question relates to the 1st Respondent not having resigned 30 days before he contested the primary election of the 2nd Respondent which was conducted on 24th April, 2021, then the Appellant’s action which was instituted on 18th June, 2021, would not have been commenced within fourteen days of the event as stipulated in Section 285 (9) of the 1999 Constitution (as amended). It would appear to be a situation where both sides of the coin would not yield a result that would be favourable to the Appellant!

The matter does not end there. It is trite law that both the Court and the parties are bound by the relief claimed. The relief claimed is the pivot or cynosure of the case. It sets out the paregoric sought in the action and a claimant must not deviate from the reliefs claimed. See EAGLE SUPER PACK NIG. LTD vs. ACB PLC (2006) LPELR (980) 1 at 40, DUMEZ NIG. LTD. vs. NWAKHOBA (2008) LPELR (969) 1 at 26 and OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44 and 55.

The Appellant in his relief 3 seeks for an order disqualifying the 1st Respondent from contesting the Bwari Area Council Chairmanship Election since he did not resign within a period of 30 days “before contesting the election.” The 1st Respondent is yet to contest the Bwari Area Council Chairmanship Election as the election is fixed for 12th February, 2022. The election which the 1st Respondent has contested is the primary election of the 2nd Respondent which took place on 24th April, 2021. Therefore, the phrase, “before contesting the election” employed in relief 3 can only refer to the 2nd Respondent’s primary election which the 1st Respondent has contested. So, notwithstanding the specious manner in which the Appellant worded his relief 3, it clearly relates to the primary election of the 2nd Respondent which took place on 24th April, 2021.

The casuistry and sophism in the Appellant’s reliefs is further underscored by relief 1 wherein the Appellant claims a declaration that because the 1st Respondent did not resign 30 days before contesting the election (again election herein can only refer to the primary election of the 2nd Respondent since the election for the Bwari Area Council Chairmanship is yet to hold), he is not qualified to contest the election for Bwari Area Council Chairmanship. 

Section 285 (9) of the 1999 Constitution (as amended) provides as follows:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
From the question as framed and the reliefs claimed, what is the “occurrence of the event, decision or action complained of”? It seems to me that the complaint about the event, decision or action is the 2nd Respondent’s primary election which took place on 24th April, 2021. The Appellant instituted his action on 18th June, 2021, if this date is considered against the background of when the event, decision or action occurred, id est, contesting the primaries without resigning 30 days before the date of the primary election, it is beyond the period of 14 days stipulated in Section 285 (9) of the Constitution; as a result of which the action is statute-barred. See INEC vs. OGBADIBO LOCAL GOVERNMENT (2015) LPELR (24839) 1 at 32-33, IDACHABA vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2021) LPELR (53081) 1 at 11, SAKI vs. APC (supra) and AREMO II vs. ADEKANYE (2004) LPELR (544) 1 at 18.

The Appellant contends that the time to file a pre-election matter will begin to run from the day he became aware that the 1st Respondent did not properly resign from his employment, which is from 5th June, 2021 when the 3rd Respondent published the names of the candidates for the election. I am not enthused by this contention. The provision of Section 285 (9) of the 1999 Constitution (as amended) is clear and unambiguous. It has not made knowledge on the part of the claimant a pre-condition to filing the action. The claimant’s knowledge or awareness is therefore immaterial in determining when the limitation period begins to run. The Court is not to read into the Section what it does not contain. See BELLO vs. YUSUF (2019) 15 NWLR (PT 1695) 250.
It is hornbook law that while the Courts have the powers to interpret the law, it has no licence to veer into the legislative arena or constitute itself a legislator by importing into a statute words that were not used by the legislature as the Court is not to engage in judicial legislation. The function and role of the Court remains jus dicere, not jus dare. See BASINCO MOTORS LTD vs. WOERMANN-LINE (2009) LPELR (756) 1 at 25-26, SETRACO vs. KPAJI (2017) LPELR (41560) 1 at 25-26 and ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 71-72. The Constitution has not enacted for the knowledge or awareness of the claimant of the occurrence of the event, decision or action complained of before the limitation period begins to run; it is not for the Court to embellish the clear and unambiguous provision of the Constitution.

The Appellant further contended that the lower Court approbated and reprobated in that the lower Court after having held that his case is not a challenge to the primaries of the 2nd Respondent turned round to hold that the action was a challenge to the primaries. Without a doubt, the lower Court, in resolving the 1st Respondent’s objection before it that the Appellant did not have the locus standi to maintain the action held that the Appellant’s complaint is in respect of the qualification and disqualification requirements which any person can bring and therefore the Appellant had the requisite locus standi. However, this does not change the fact that the cause of action which the Appellant had the locus standi to pursue under Sections 106 and 107 of the Electoral Act, was caught by the limitation period stipulated in Section 285 (9) of the 1999 Constitution (as amended), since the Appellant did not bring his action within 14 days of the occurrence of the event, decision or action complained of; namely, the 1st Respondent participating in the primary election when he was allegedly not qualified, not having resigned 30 days before the primary election. It is therefore not correct to contend that the lower Court approbated and reprobated. Even though the Appellant had the locus standi to challenge the qualification of the 1st Respondent to contest the election, he was left with a bare and empty cause of action since the limitation period had removed his right of action. See EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20, EBOIGBE vs. NNPC (1994) 5 NWLR (PT 347) 649 at 659 and ODUBEKO vs. FOWLER (1993) 7 NWLR (PT 308) 637.

The Appellant’s further submission under this issue on whether the omission of the 1st Respondent having worked in Bwari Area Council and the circumstances of his resignation from his nomination form amounts to giving false information contrary to Section 31 (5) of the Electoral Act, will more conveniently be accommodated in the consideration and resolution of issue numbers two and three as distilled by the Appellant. For now, it suffices to state in a coda that the lower Court was correct when it struck out question one presented for determination and reliefs 1 and 3 of the Amended Originating Summons for being statute-barred. This issue number one is accordingly resolved against the Appellant.

ISSUE NUMBERS TWO AND THREE
Whether the deliberate omission by the Appellant (1st Respondent) to state his past employment with Bwari Area Council Commission and the fact of his resignation less than the 30 days statutorily required does not constitute false information.
Whether the lower Court was right when it held that the 1st Respondent did not supply false information and was indeed qualified to contest Bwari Area Council Chairmanship election.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s contention on his second issue is that question two which he presented for determination sought the disqualification of the 1st Respondent, based on his having omitted to disclose his past employment on his nomination form and that he did not resign his employment as statutorily provided in Section 107 (1) (f) of the Electoral Act. It was opined that the lower Court left the crucial issue of the omission raised untouched, especially when a Court has a duty to pronounce on all issues raised before it vide BI-COURTNEY LTD vs. A-G FEDERATION (2019) 10 NWLR (PT 1679) 112 at 129, SAIPEM CONTRACTING (NIGERIA) LTD vs. FIRS (2019) 5 NWLR (PT 1664) 78, NCC vs. MOTOPHONE LTD (2019) 14 NWLR (PT 1691) 1 and UMAR vs. GEIDAM (2019) 1 NWLR (PT 1691) [no page stated].

It was asserted that the 1st Respondent’s omission to state that he had worked in Bwari Area Council and that his resignation fell short of the legal requirement was a false information, in consequence of which the 1st Respondent had lied on oath when he stated that all the answers, facts and particulars in his nomination form are true and correct. It was posited that the Court should invoke Section 167 (d) of the Evidence Act, as the 1st Respondent withheld the information, which information, if it had been supplied, the 1st Respondent would have been disqualified. It was maintained that Section 107 (1) (f) of the Electoral Act provided for 30 days notice of resignation and not payment of one month salary in lieu of notice. The Court was urged to give the words of the statute their ordinary grammatical meaning since they are clear and unambiguous. The cases of KUSAMOTU vs. APC (2019) 7 NWLR (PT 1670) 51 and ANDREW vs. INEC (2018) 9 NWLR (PT 1625) 507 were relied upon.

It was conclusively submitted that false information can either be by commission or omission and that the deliberate omission by the 1st Respondent was designed to mislead the 3rd Respondent and the general public as to facts relating to the 1st Respondent’s past employment and his illegal resignation. Referring to ABUBAKAR vs. INEC LER [2019] CA/PEPC/002/2019, it was stated that any person legally bound by an oath to state the truth and makes any statement which is false in a material particular which he knows or believes to be false or does not believe to be true is said to give false evidence.

The quiddity of the Appellant’s contention on his third issue is that there are material contradictions and signatures of the 1st Respondent in the documents he presented to the 3rd Respondent, as well as the different names used for the 1st Respondent in the said documents which made the documents questionable in the absence of any affidavit of reconciliation, which would not have even sufficed as held in PDP vs. EREMIENYO (2021) 19 NWLR (PT 1781) 274 at 288.

It was stated that Appellant’s case is based on false information and declaration made by the 1st Respondent in the form he submitted to the 3rd Respondent and not on extraneous documents not submitted to 3rd Respondent like the WAEC result, Exhibit D to the 1st Respondent’s counter-affidavit. It was posited that the duty on the Court is to determine the case based on what was submitted to it and not rely on extraneous materials or engage in speculation. The case of FAGBENRO vs. AROBADI (2006) 7 NWLR (PT 978) 172 at 183 was called in aid.

It was maintained that the 1st Respondent’s claim that he was born in 1983 and finished secondary school in 1998 is doubtful, judging by the Federal Ministry of Education policy guideline that primary school age is six years. The Court was urged to take judicial notice of the said policy guideline vide EAGLE SUPER PACK (NIG.) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 46-47. It was further submitted that the lower Court was wrong to rely on uncertified copies of public documents to hold that the 1st Respondent paid one month salary in lieu of notice, since the only admissible secondary evidence of a public document is a certified true copy. The cases of ENILOLOBO vs. N. P. D. C. LTD (2019) 8 NWLR (PT 1703) 168 and IJIFA vs. THE STATE (2019) 16 NWLR (PT 1697) 45 were cited in support. The Court in conclusion urged to hold that the 1st Respondent, in the light of the false information, documents and declarations made to the 3rd Respondent, is not qualified to contest the Bwari Area Council Chairmanship election.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that on the issue evolving around his resignation within 30 days of the election, that the lower Court held that the same was statute-barred as it affects question one and relief numbers 1 and 3 claimed. The Appellant, it was contended, wrongly argued that the lower Court failed to evaluate and resolve the issue.

It was posited that the Appellant’s contention that omission to supply information is a false statement is an allegation that is criminal in nature which must be proved beyond reasonable doubt and that the burden of proof remained on the Appellant to adduce credible evidence to sustain the claim. Sections 131, 132 and 135 of the Evidence Act and the cases of ATILADE vs. ATILADE (1968) 1 ALL NLR 27, MAKANJUOLA vs. AJILORE (2001) 12 NWLR (PT 727) 416, APC vs. OBASEKI (2021) LPELR-55004 (SC), OGAH vs. IKPEAZU (2017) LPELR- 42372 (SC), BUHARI vs. INEC (2008) LPELR-814 (SC) at 79-80 among other cases were relied upon.

It was maintained that the 1st Respondent is qualified to contest election for the office of Chairman of Bwari Area Council, relative to the qualifying and disqualifying factors in Sections 106 and 107 of the Electoral Act. The Appellant was said to have failed to prove his allegations against the 1st Respondent with respect to his qualification for the election. The case of AGI vs. PDP (2017) 17 NWLR (PT 1595) 386 at 456-457 was called in aid. It was contended that Section 107 (1) (f) of the Electoral Act requires the person to resign 30 days before the election and not 30 days before the party primary. The cases of EMENIKE vs. PDP (2012) LPELR-7802 (SC) and OLLY vs. TUNJI (2012) LPELR-7911 (CA) were referred to.

The conspectus of the 1st Respondent’s submission on issue number three is that the Appellant’s allegations cannot be considered as false information that would lead to the disqualification of the 1st Respondent as a candidate at the election. It was submitted that by Section 31 (5) and (6) of the Electoral Act, it is the information given by the candidate that has to be false for the candidate to be disqualified. It was opined that in order to succeed, the Appellant has the burden of proving the false information and that it was made with the intent to deceive. The case of SMART vs. THE STATE (1974) 11 SC 173 at 186 was relied upon. The 1st Respondent’s WAEC certificate at page 189 of the Records was said to bear the particulars of the 1st Respondent, bearing out the 1998 he wrote on his nomination form as the year he obtained his secondary school certificate. Furthermore, that the Appellant failed to establish that the manner in which the 1st Respondent’s name was stated in Exhibits B1, B2, B3, C and D was made in bad faith with the intent of misleading the public or gaining undue advantage in the forthcoming election and that the Appellant also failed to disclose the particulars and ingredients of the alleged forgery or false information in the 1st Respondent’s nomination form.

SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
The 2nd Respondent argues that the 1st Respondent, in compliance with Section 31 (1) and (2) of the Electoral Act provided all the relevant and required information in his nomination form. The provisions on qualification of a candidate in Section 106 of the Electoral Act and disqualification of a candidate in Section 107 of the Electoral Act were referred to and it was opined that the 1st Respondent made a detailed disclosure of his academic and career details and that there was no false declaration or falsification of academic qualification. It was stated that by Section 131 (1) of the Evidence Act, the Appellant has the burden of proving the falsification of documents alleged, which being criminal in nature, he failed to establish beyond reasonable doubt. The case of FRN vs. IWEKA (2013) 3 NWLR (PT 1341) 285 at 322 was cited in support.

RESOLUTION OF ISSUE NUMBERS TWO AND THREE
The crux of the contention in these issues is whether the 1st Respondent gave false information in his nomination form to the 3rd Respondent. The contention of the Appellant is that false information can either be by commission or omission and that the deliberate omission by the 1st Respondent of facts in respect of his employment with Bwari Area Council and his resignation therefrom amounted to giving false information.

The further contention of the Appellant is that the name of the 1st Respondent as they appeared on the documents he submitted to the 3rd Respondent made the documents questionable, such that the 1st Respondent was not qualified to contest the election for the Chairmanship of Bwari Area Council. The contention under these issues calls for an interpretation of the provisions of Section 31 (5), Section 106 (1) (c) and (d) and Section 107 (1) (f) of the Electoral Act.

The Appellant has rightly submitted that the words used in a statute should be given their ordinary grammatical meaning. It is rudimentary law that the object of interpretation of a statute is to discover the intention of the legislature, which intention is usually deduced from the language used in the statute. 

Where the words used are clear and unambiguous, they must be given their ordinary, natural and plain meaning so as to avoid reading into the provision meanings not intended by the lawmakers. By implication, where the words used in the provisions are clear and unambiguous, the question of interpretation does not arise as there is nothing to be interpreted or constructed since the Court is duty bound to assign the words used in the provisions their ordinary, natural and plain meanings. In aliis verbis, the general rule of interpretation of statutes is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes, in pari materia, in order to resolve the ambiguity or avoid doing injustice, the duty of a Court is to interpret the words of the lawmakers as used. The authorities in this regard are legion. I will mention a few. See BUHARI vs. OBASANJO (2005) All FWLR (PT 273) 1 at 189, ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2015) LPELR (24588) 1 at 41, ABUBAKAR vs. NASAMU (2012) LPELR (7826) 1 at 34-35 and GANA vs. SDP (2019) LPELR (47153) 1 at 45.
In the words of Ngwuta, JSC in BRITTANIA-U (NIG) LTD vs. SEPLAT PETROLEUM DEVELOPMENT CO. LTD (2016) LPELR (40007) 1 at 57 -58:
“…In construing the provisions reproduced above, there is no need to resort to external sources. The words used in them ought to be given their grammatical and ordinary meanings. In THE LEVY EX PARTE WULTIN (1881) 17 Ch D 746 at 751 Jessel M.R. opined: ‘The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.”

It is against the background of the principle guiding the Court in its duty in interpreting the clear and unambiguous words of a statute that I would now construe the pertinent provisions in this matter.

Section 31 (5) of the Electoral Act provides as follows:
“Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.” (Emphasis supplied)
The words employed in the above provision are clear, plain and univocal. They should therefore be given the literal interpretation of their simple, plain and ordinary meaning. The provision enacts in respect of information given. The Appellant’s complaint is not about any information given by the 1st Respondent, his complaint is about information that was not given. It is his contention that where information is omitted, that it still comes within the purview of Section 31 (5) as false information. Put differently, the Appellant’s complaint is on concealment of information, it is not about any information given.
To accede to the Appellant’s contention would be reading into the provision what is not there, which a Court should not do, as it would amount to judicial legislation. To underscore the fact that what the legislature had in mind in enacting Section 31 (5) in the manner in which it did to pertain to information actually given by the candidate, Section 31 (6) of the Electoral Act provides that if the Court determines that any of the information contained in the affidavit or any document submitted by the candidate is false, the Court shall disqualify the candidate from contesting the election.
Let me iterate that the information which the Appellant complains about is not contained in the 1st Respondent’s affidavit or any document he submitted, so a Court cannot, in exercise of its power under Section 31 (6) of the Electoral Act, disqualify the 1st Respondent, since the power given to the Court in the said provision is to disqualify the candidate in respect of false information contained in the affidavit or other documents and not in respect of information that is not contained in the affidavit or other documents. In the circumstances, the perceived omission of information which the Appellant complains about cannot be a basis for the disqualification of the 1st Respondent and the lower Court was correct in so holding.

With respect to whether the 1st Respondent met the qualification requirements to contest the Bwari Area Council Chairmanship election, it is the provisions of Sections 106 and 107 of the Electoral Act that have to be considered. By Section 106, to be qualified to contest the election for the Chairmanship of an Area Council, the person shall be a citizen of Nigeria, a registered voter, attained the age of 30 years, be educated up to at least school certificate level or its equivalent and be a member of a political party, which political party sponsored him.

The Appellant has latched onto the school certificate of the 1st Respondent, contending that it is doubtful that the 1st Respondent who said he was born in 1983 could have finished secondary school in 1998. It was opined that the Federal Ministry of Education Policy Guideline is that every child must be up to six years before starting primary school. The Appellant has not proven the 1st Respondent’s date of birth of 1983 to be false, he has also not proven that the school certificate of 1998 is false. While having correctly submitted that it is not open to a Court to speculate, the Appellant has unwittingly invited this Court to speculate by his contention that it was doubtful that the Appellant who was born in 1983 could have finished secondary school in 1998. There is no evidence from the Appellant disproving that the 1st Respondent was born in 1983, just as there is also no evidence that the school certificate of 1998 did not belong to the 1st Respondent. I therefore refuse to follow the Appellant along the route of speculation and conjecture since it is trite law that a Court of law cannot speculate or conjecture as it is a dangerous thing to do in the absence of evidence. See OLUFEAGBA vs. ABDUR-RAHEEM (2009) LPELR (2613) 1 at 40, IKENTA BEST (NIG.) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 51 and OLALOMI INDUSTRIES LTD vs. NIDB (2009) LPELR (2564) 1 at 44.

The Appellant further made an issue as to the order in which the 1st Respondent’s name appeared in the documents he submitted. The lower Court gave due consideration to this contention at pages 362-364 of the Records in arriving at the conclusion that the 1st Respondent has been consistent with his name in all the documents. Hear the lower Court:
“The next complaint of the Plaintiff is that the 1st Defendant presented a false declaration of age certificate wherein the supposed declarant (his father) is Haruna Audi and the 1st defendant is Audi Haruna Shekwolo, whereas in Part C of the Affidavit in support of personal particulars, the 1st Defendant’s surname is simply Audi and Audi-Haruna as a compound surname presupposing that there is no link between the declarant and the 1st Defendant as father and son.
I have critically examined Exhibit B1-Form EC 9-and Exhibit B3 – the Statutory Declaration of Age. In Exhibit B1, the declarant is ‘Audi Haruna Shekwolo’ (the 1st Defendant). In Part B of Exhibit B1, the declarant stated his surname to be ‘Audi’ and his other as ‘Haruna Shekwolo’. In Part C of Exhibit B1, there is no column for names contrary to the submissions of the Plaintiff’s counsel.
In Exhibit B3, the declarant is ‘Haruna Audi’ who is 75 years. He described himself as the ‘father of Audi H. Shekwolo. He deposed that ‘Audi H. Shekwolo was born at Ughafa Village in B. A. C Local Government Area of Abuja on the 15th of March 1983.
The 1st Defendant has been consistent with his name-Audi Haruna Shekwolo. This is the name in all the documents before this Court including the amended originating summons filed by the Plaintiff…
In Exhibits B1 and B3, the 1st Defendant was stated to have been born on the 15th of March, 1983. A person born in 1983 is definitely above 30 years as required by Section 106 (1) (c) of the Electoral Act, 2010…
In any case, I agree with the 1st Defendant that the Plaintiff’s preposition that ‘there is no link between the declarant and the 1st defendant as father and son’… is not a ground for disqualification of a candidate. I also agree with the 1st Defendant’s counsel that the allegation that the 1st defendant must have begun Primary School at age 3 contrary to the accepted age for Primary School at the time which is 6 years’ is equally outside the requirements of Section 106 of the Electoral Act, 2010. The proposition is moot.
The result is that the question posited for determination by the Plaintiff is resolved against the Plaintiff.”

I have insightfully considered the 1st Respondent’s name as it appears on the documents complained of by the Appellant, namely the Exhibit B series, Exhibit C and Exhibit D and I find no reason to interfere with the findings of the lower Court that the name of the 1st Respondent appearing in the said documents is consistent. The peculiar facts of this matter are diametrically different from the case of PDP vs. EREMIENYO (supra) relied on by the Appellant’s counsel. Unlike in the said case, the name of the 1st Respondent as it appeared in his documents is consistent. Accordingly, the ratio of the decision in the said case cannot be pulled out of context and given a general application.

It is abecedarian law that the burden of proof is on he who asserts: ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 3 NWLR (PT 331) 178 at 192. It is the Appellant who asserts that the 1st Respondent was not qualified to contest the Bwari Area Council Chairmanship Election, the Appellant failed to establish by credible evidence that the 1st Respondent was caught by or did not satisfy any of the requirements of Sections 106 and 107 of the Electoral Act. The Appellant therefore did not prove his case and the lower Court was correct to so hold. Indubitably, these issue numbers two and three must be resolved in favour of the Respondents. The 1st Respondent did not give any information that is false in the documents he submitted to the 3rd Respondent and he was indeed qualified to contest the Bwari Area Council Chairmanship election.

While it is correct that all Courts, except the apex Court, are obligated to consider and resolve all issues properly raised before it, however, it is not in every situation where a Court fails to consider an issue raised before it that its decision will willy-nilly be set aside. It is only where the failure to consider the issue occasioned a miscarriage of justice that it would be of consequence. See A. G. LEVENTIS NIGERIA PLC vs. AKPU (2007) 6 SCNJ 242 at 255-256, SEABULK OFFSHORE OPERATORS NIGERIA LTD vs. AUGUSTA OFFSHORE S.P.A. (2019) LPELR (50510) 1 at 18, ETAJATA vs. OLOGBO (2007) 16 NWLR (PT 1061) 554 at 584 and BAMAIYI vs. THE STATE (2001) LPELR (731) 1 at 17 and 37-38. In the diacritical circumstances of this matter, the failure by the lower Court to make a definitive pronouncement on the alleged omission by the 1st Respondent to supply facts about his resignation from the Bwari Area Council, after the lower Court had held that the question number one and reliefs 1 and 3 which interrogated the said issue were statute-barred, did not occasion any miscarriage of justice.

All the issues which the Appellant distilled for determination have been resolved against him. This signposts that the appeal is devoid of merit. It therefore fails and it is hereby dismissed with costs of N200,000.00 in favour of each of the 1st and 2nd Respondents.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I agree with his reasoning and conclusion that the appeal is devoid of merit.

I also abide by the order as to costs as contained in the lead judgment of my learned brother.

DANLAMI ZAMA SENCHI, J.C.A.: I was in conference of the Panel of Justices that heard this appeal and I had also the privilege of reading in draft the leading judgment of my Noble Brother, Ugochukwu Anthony Ogakwu, JCA just delivered and the leading judgment substantially captured all my views expressed during our conference of Justices and I therefore agree with the findings and conclusion in the leading judgment that all the issues distilled for determination by the Appellant are hereby resolved against the Appellant and in favour of the Respondents. Consequently, the appeal lacks merit and it is accordingly dismissed.

The judgment of the lower Court in Suit No. FHC/ABJ/CS/503/2021 is hereby affirmed.

Appearances:

George Ibrahim, Esq., with him, Ms. Yvonne Oputa For Appellant(s)

Mahmud A. Magaji, Esq., SAN, with him, Kenechukwu Azie, Esq. and Affis Matanmi, Esq. – for 1st Respondent
Y. G. Haruna, Esq., with him, D. A. Ubana, Esq. – for 2nd Respondent
Lebo-Albert Ekito, Esq. – for 3rd Respondent. For Respondent(s)