AKPOTI & ANOR v. INEC & ORS (2020)

AKPOTI & ANOR v. INEC & ORS

(2020)LCN/14512(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Saturday, July 04, 2020

CA/ABJ/EPT/397/2020

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1) NATASHA HADIZA AKPOTI 2) SOCIAL DEMOCRATIC PARTY (SDP) APPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. ALL PROGRESSIVES CONGRESS (APC) 3. YAHAYA BELLO 4. EDWARD ONOJA RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY DECISION OF A LOWER COURT IN AN APPEAL AGAINST THE FINAL DECISION OF THE COURT

I believe it is settled that an appellant can appeal against an interlocutory decision of a lower Court in an appeal against the final decision of the Court, Onwubuariri & Ors v. Igboasoiyi & Ors (2011) LPELR-754(SC); Ishaku & Anor v. Kantiok & Ors (2011) LPELR-8944(CA).

A party who is aggrieved by the decision of a Court on the admissibility of evidence has two options open to him. He may decide to proceed to lodge an interlocutory appeal against the ruling, or he may decide to await the conclusion of the trial and thereafter proceed to present one encompassing appeal; per Jombo Ofo, JCA in Patani & Ors v Ibedangha & Ors (supra); Conrad & Anor v. Bem & Ors (2019) LPELR-48786(CA). The latter option is usually to be preferred. This is because the option of proceeding at once with an interlocutory appeal may have the effect of stalling the hearing of the case and thereby cause delays. Appellate Courts do not encourage this option; Amadi v NNPC (2000) LPELR-445(SC). PER OTISI, J.C.A.

WHETHER OR NOT A GROUND OF APPEAL WILL BE STRUCK OUT WHERE THE PARTICULARS OF ERROR IN LAW ARE EITHER NOT SET OUT SEPARATELY OR NOT DISCOVERED THROUGH CAREFUL PERUSAL

It is therefore settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated into the body of the ground of appeal, the ground of appeal will contravene the relevant rule which, in the present case, is Order 3, Rule 2(2) of the Court of Appeal Rules. The ground will be incompetent and is liable to be struck out: See Nta v. Anigbo (1972) 5 SC 156 at 164; Anadi v. Okoli (1977) 7 SC 57 at 63.” PER OTISI, J.C.A.

DEFINITION OF AN “ABUSE OF COURT PROCESS”

“What is an abuse of Court process? First off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”.
The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC.
In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means –
Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive.”
See also: Saraki & Anor v. Kotoye (1992) LPELR-3016(SC); Oyeyemi (Rtd) & Ors v. Owoeye & Anor (2017) LPELR-41903(SC). PER OTISI, J.C.A.

WHETHER OR NOT A PLAINTIFF WHO SEEKS DECLARATION FROM THE COURT MUST RELY ON THE STRENGHT OF HIS OWN CASE AND NOT THE WEAKNESS OF THE DEFENCE

The position of the law which must persistently be made is that a plaintiff who seeks declarations from the Court must rely on the strength of his own case and not on the weakness of the defence, except, where such evidence of the defence manifestly supports the case of the plaintiff;Ajibulu v. Ajayi (2013) LPELR-21860(SC); Akande v. Adisa & Anor (2012) LPELR-7807(SC). He must prove that he is entitled to the declarations sought. The law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence; Dumez Nigeria Ltd v Nwakhoba (2008) 18 NWLR (PT 1119) 361, (2008) LPELR-965(SC); Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC); Amaechi v. INEC & Ors (2008) LPELR-446(SC). Therefore, not even admissions on the part of the respondent or his failure to respond to the petition will entitle the petitioner to such declaratory relief except where the weakness supports his claim; Emenike v. P.D.P (2012) LPELR-7802(SC); Aliucha & Anor v. Elechi & Ors (supra); Busari & Anor v. Adepoju & Ors (2015) LPELR-41704(CA). Oyetola v. Adeleke & Ors (2019) LPELR-47529(CA). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Kogi State Governorship Election Petition Tribunal which sat in Abuja, delivered on May 18, 2020 Coram Hon. Justice Gumna Kashim Kaigama, Hon. Justice Ohimai Ovbiagele, and, Hon. Justice Baraka I. Wali (trial tribunal), in which the election petition filed by the 1st and 2nd Appellants was dismissed.

The facts leading to the petition may be summarized as follows: The 1st Appellant, Natasha Hadiza Akpoti, was the candidate of the 2nd Appellant, Social Democratic Party, in the Kogi State Governorship Election held on November 16, 2019. The 3rd Respondent, Yahaya Bello, was declared the winner of the said election with 406,222 votes while the 1st Appellant polled 9,482 votes. Dissatisfied with the said declaration and return of the 3rd Respondent as the elected Governor of Kogi State, the Appellants presented a petition before the lower Tribunal on 8/12/2019, on the following grounds:
(1) Kogi State Governorship Election held on 16th day of November, 2019 was marred by substantial non-compliance with the provisions of Electoral Act, 2010 (as

amended) and the Electoral Guideline.
(2) The Kogi State Governorship election held on 16th day of November, 2019, was invalid by reason of corrupt practices.
(3) The 3rd Respondent was at the time of Kogi State Governorship election held on 16th November, 2019, not qualified to contest the election.
(4) The 3rd Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election held on 16th November, 2019.
(5) The 4th Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election held on 16th day of November, 2019.

The Appellants then sought for following reliefs:
(A) A declaration of this Honourable Tribunal that the Kogi State Governorship election held on 16th November, 2019 was marred by substantial non-compliance with the provisions of Electoral Act, 2010 (as amended).
In Alternative to the above
A) A declaration of this Honourable Tribunal that the Kogi State Governorship election held on 16th of

November, 2019 was marred by substantial irregularities/corrupt practice.
B) A declaration of this Honourable Tribunal that in view of paragraphs 56(A) above, the Kogi State Governorship Election, held on 16th November, 2019 is a nullity.
C) A declaration of this Honourable Tribunal that virtue of the combined provision of Section 182(1) (J) of the 1999 Constitution of the Federal Republic of Nigeria, the 3rd and 4th Respondents were disqualified to contest as Governorship and Deputy Governorship candidates of the All Progressives Congress (APC) respectively in the Kogi State Governorship election held on 16th November, 2019.
D) A declaration of this Honourable Tribunal that the 3rd and 4th Respondents were not qualified to contest as Governorship and Deputy Governorship candidates of the All Progressive Congress (APC) respectively in the Kogi State Governorship Election held on 16th November, 2019.
E) A declaration of this Honourable Tribunal that certificate of return issued by the 1st Respondent to the 3rd Respondent, as the winner of Kogi State Governorship Election held on 16th November, 2019 is unlawful, null and void ab initio.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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F) An order of this Honourable Court directing the 3rd Respondent to vacate the seat of Governor of Kogi State forthwith.
G) An order of this Honourable Tribunal directing the 1st Respondent to conduct a fresh Governorship election in Kogi State.
H) Such further or other order(s) as this Honourable Tribunal may deem fit to make in the circumstances of this petition.

The Appellants, in the petition, made allegations of various irregularities that included over voting, alteration of results, violence, intimidation, manipulation of security agencies, intimidation of voters, massive multiple thumb printing of ballot papers, and, unlawful exclusion. The 1st Respondent denied in its entirety, all the allegations of the petitioners. The 2nd Respondent also denied all allegations of corrupt practices as contained in the petition. The 3rd and 4th Respondents, in the same vein, denied all the allegations of corrupt practices.

At the hearing of the Petition, the Appellants called 15 witnesses, PW1 – PW15, and tendered a number of documents as exhibits. The 1st and 2nd Respondents did not call any witness. The 3rd Respondent called only one

witness, RW1. At the conclusion of hearing, the trial tribunal dismissed the petition on the ground that the Appellants failed to prove the grounds on which the petition was presented. Aggrieved by the decision of the trial tribunal, the Appellants lodged the instant appeal by Notice of Appeal filed on 7/6/2020 on twenty-five grounds of appeal, pages 2349 – 2380 of Vol. 3 of the Record of Appeal.

The parties filed Briefs of Argument in line with the rules. The 1st Respondent, 2nd Respondent, as well as the 3rd and 4th Respondents, respectively, also challenged the competence of the appeal. For the Appellants, the following Briefs were filed: the Appellants’ Brief filed on 19/6/2020; the Appellants’ Reply Brief to the 1st Respondents’ Brief filed on 25/6/2020; the Appellants’ Reply Brief to the 2nd Respondent’s Brief filed on 25/6/2020; and, the Appellants’ Reply Brief to the 3rd and 4th Respondents’ Brief filed on 25/6/2020. The 1st Respondent’s Brief was filed on 25/6/2020. The 2nd Respondent’s Brief was filed on 24/6/2020; while the 3rd and 4th Respondents’ Brief was filed on 24/6/2020. The

1st Respondent had filed a Motion on Notice on 25/6/2020, to which the Appellants deposed to a Counter Affidavit on 27/6/2020. The 2nd Respondent filed a Motion on Notice on 24/6/2020, to which the Appellants deposed to a Counter Affidavit on 27/6/2020. The 3rd and 4th Respondents filed a Notice of Preliminary Objection on 24/6/2020, to which the Appellants deposed to a Counter Affidavit on 27/6/2020.

At the hearing of the appeal on 29/6/2020, the challenges to the competence of the appeal as lodged by the respective Respondents were first taken. The Motions filed by the 1st Respondent and by the 2nd Respondent, which seek similar determinations, shall be resolved together.

Motion on Notice filed by 1st Respondent and Motion on Notice filed by 2nd Respondent.
The 1st Respondent prayed the Court for the following Orders:
1. An Order of this Honourable Court striking out ground 5, 15 and 18 contained in the Appellants Notice of Appeal filed on the 7/6/2020 in Appeal No:.CA/EPT/397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, for being incompetent.
2. An order of this Honourable

Court striking out issues 3 and 5 distilled from ground 5, 15 and 18 of the notice of appeal and argued in the appellant’s brief of argument filled on the 19th June, 2020 in Appeal No: CA/EPT//397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, for being incompetent.
3. An order striking out grounds 21, 22, 23 and 24 of the appellants notice of appeal filed on the 7/6/2020 in Appeal No: CA/EPT//397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, same having been abandoned as no issue is distilled therefrom by the Appellants.
4. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.

The application was brought on the following grounds:
1. Ground 5 as contained in the notice of appeal filed by the appellants on 7/6/20 in Appeal No: CA/EPT//397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, does not arise from the judgment of the tribunal delivered on 18th May, 2020 appealed against by the Appellants.

Ground 15 as contained in the Notice of Appeal filed by the appellants on 7/6/2020 in Appeal No: CA/EPT/397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, does not arise from the Judgment of the Tribunal delivered on 18th May, 2020 appealed against by the Appellants and had been earlier litigated in Appeal No: CA/A/EPT/264/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS.
3. Ground 18 as contained in the Notice of Appeal filed by the Appellants on 7/6/2020 in Appeal No: CA/EPT//397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, does not arise from the Judgment of the Tribunal delivered on 18th May, 2020 appealed against by the appellants.
4. The said ground 15 of the Appellants Notice of Appeal relates to the decision of Tribunal made on 4th April, 2020 rejecting the documents tendered by PW14; and does not arise from the judgment of the tribunal delivered on 18th May, 2020. The said ground 15 is incompetent as it is statute barred.
5. The appellants had earlier appealed the said decision of

the Tribunal made on 4/4/2020 vide a notice filed on 6/4/2020 in Appeal No: CA/A/EPT/264/2020 between NATASHA HADIZA AKPOTI & ANOR V. INEC & 3 ORS, and judgment in the said appeal was delivered on 1st May, 2020 striking out the said appeal for being incompetent.
6. The said Ground 18 of the Appellants Notice of Appeal relates to the decision of the tribunal made on 16th April, 2020 rejecting documents tendered by PW15 and does not arise from the judgment of the Tribunal delivered on 18th May, 2020. The said ground 18 is incompetent as it is statute barred.
7. The Appellants had filed a notice of appeal against the said decision of the tribunal made on 16/4/2020 and served the record of appeal, but later abandoned the said appeal.
8. Grounds 15 and 18 in the Appellants notice of Appeal offend the provisions of Paragraph 6 of the Election Tribunal and Court Practice Direction, 2011, having been filed outside 21 days prescribed therein.
9. Ground 21 of the Appellants Notice of Appeal does not arise from the judgment of the Tribunal delivered on 18th May 2020.
10. That issue 3 and 5 as formulated and argued in the Appellants brief

of argument filed on 19/6/2020 in appeal no: CA/EPT/397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS, are distilled from the said grounds 5, 15 and 18 of the notice of appeal, that is incompetent.
11. The Appellants have abandoned grounds 21, 22, 23 and 24 contained in their Notice of Appeal filed on 7/6/2020 as no issue has been distilled from the said grounds in the Appellants brief of argument filed on 19/6/2020 in this instant appeal.

In support of the Motion was an affidavit of 4 paragraphs deposed to by Patience Ohenmwen, legal assistant in the law office of Alex A. Izinyon, SAN & Co. to which was annexed as Exhibit A, the certified true copy of the proceedings and ruling of the trial tribunal delivered on 4/4/2020; as Exhibit B, the judgment of this Court in CA/A/EPT/264/2020 between Natasha Akpoti & Anor v INEC & Ors delivered on 1/5/2020; as Exhibit C, the certified true copy of proceedings before the trial tribunal on 16/4/2020; and, as Exhibit D, the Notice of Appeal.

The 2nd Respondent prayed for the following Orders:
1. AN ORDER striking out;

grounds 15 & 18 of the Appellants’ Notice of Appeal filed on 7th June, 2020 in Appeal No. CA/ABJ/EPT/397/2020 between NATASHA HADIZA AKPOTI & ANOR V. INEC & 3 ORS.
II. issue 3 formulated from the said grounds 15 & 18 at paragraph 6.0. of the Appellant’s Brief of Argument filled on 21st June, 2020 and
III. arguments canvassed in support of the said Issue 3 of the Appellant’s Brief of Argument;
being grounds and issue already determined in Appeal NO. CA/A/EPT/264/2020 between NATASHA AKPOTI & ANOR V. INEC & 3 ORS. in the judgment of this Honourable Court delivered on 1st May, 2020.
2. And for such Orders or Further Orders as this Honourable Court may deem fit to make in the circumstances.
ALSO TAKE NOTICE that the grounds whereupon this application is predicated are as follows:
1. In the course of the proceedings of 4th April, 2020, pursuant to objections raised by the Respondents, the trial Tribunal delivered two Rulings, to wit;
a. Restricting the Appellants’ witness – PW14 to giving evidence or tendering documents to the Appellants’ pleadings in the Petition as it

relates to the circumstance of the 4th Respondent leaving the Banking Industry, that is, paragraph 50(e).
b. Rejecting CTCs of the following documents sought to be tendered through pw14;
i. Personal Data Form
ii. Curriculum Vitae (CV) of Onoja Edward David Unekuojo
iii. Secondary School Certificate in the name of Onoja Edward
iv. Certificate from University of Jos in the name of Onoja Edward
v. Testimonial in the name of Onoja Edward David
vi. NYSC Certificate of National Service
vii. Statutory Declaration of Age
not being related to or connected with the circumstance of the 4th Respondent’s departure or disengagement from the Banking industry.
2. On 16th April 2020, the Appellants filed a Notice of Appeal against the said Rulings.
3. The appeal was entered as Appeal NO. CA/A/EPT/264/2020, between NATASAH AKPOTI & ANOR v. INEC & 3 ORS.
4. This Honourable Court, in a Judgment delivered on 1st May, 2020 dismissed the Appellants’ appeal.
5. The subject matter of the Appeal NO. CA/A/EPT/264/2020, between NATASHA AKPOTI & ANOR v. INEC & 3 ORS., dismissed by this Honourable

Court is the same as Issue 3 formulated from grounds 15 & 18 of the Notice of Appeal giving rise to the instant Appeal.
6. This Honourable Court is functus officio as far as Issue 3 distilled from grounds 15 & 18 of the Appellants’ Notice of Appeal and arguments in support of same.
7. This Honourable Court lacks the jurisdiction to consider Issue 3 distilled from Grounds 15 & 18 of the Appellants’ Notice of Appeal and arguments in support of same.
8. It is in the interest of justice to strike out the said Issue 3 and arguments in its support.
9. This Honourable Court has powers to grant this Application.

In support of the Motion was an affidavit of 16 paragraphs deposed to by Mubaraq Imam, Legal Practitioner in the law office of Messrs. Ahmed Raji & Co. to which was annexed as Exhibit A, a copy of the proceedings before the trial tribunal on 4/4/2020; as Exhibit B, the Appellants’ Notice of Appeal; and, as Exhibit C, the judgment of this Court in CA/A/EPT/264/2020 between Natasha Akpoti & Anor v INEC & Ors delivered on 1/5/2020.

Arguments
Dr. Alex Izinyon, SAN, who appeared with C.S.

Ekeocha, Esq., K.O. Omoruan, Esq., F.O. Izinyon, Esq., and Miss O.A. Ibadin, adopted arguments in support of their motion as contained in the 1st Respondent’s Brief. They distilled the following Issue for determination of the Motion:
Whether grounds 5, 15 and 18 of the Appellants’ Notice of Appeal filed on 7/6/2020, as well as Issues 3 and 5 distilled from the said grounds 5, 15 and 18 of the Notice of Appeal in the Appellants’ Brief of Argument are not incompetent.

For the 2nd Respondent, Ahmed Raji, SAN appeared with M.A. Abubakar, Esq., Abdulwahab Muhammad, Wale Balogun, Esq. and Zekeri Garuba, Esq. On the application of Mr. Raji, SAN, M.A. Abubakar, Esq. argued the motion. He adopted the arguments in support of their Motion as contained in the 2nd Respondent’s Brief.

Ola Olanipekun, SAN, who appeared with Reuben Egwuaba, Esq., Onyoche Lawani, Esq., A.U.S. Oguajamma, Esq., and Hassan Sherif, Esq. relied on their Counter Affidavits to the respective Motions filed on 27/6/2020 and adopted the arguments in support as contained in the respective Reply Briefs.

For the 1st Respondent, it was contended that ground 5 of

the Notice of Appeal did not arise from the judgment of the trial tribunal delivered on 18/5/2020. A ground of appeal must arise from the judgment appealed against; relying on the decisions in Mercantile Bank of Nigeria Plc & Anor v Nwobodo (2005) LPELR-1860(SC); Co-Operative and Commerce Bank Plc v Ekperi (2007) 3 NWLR (PT 1022) 493 at 509; Abdul-Raman v APC & Ors (2018) LPELR-46479. The said ground 5 had alleged that the trial tribunal failed to decide on the merit ground one of the Appellants’ Petition, which did not arise from the judgment. The trial tribunal had, after striking out grounds 10 – 32 of the petition, proceeded to consider on the merit the evidence for the Appellants on the allegation of non-compliance with the provisions of the Electoral Act, which was formulated as issue 1 by the trial tribunal. The Court was urged to therefore strike out ground 5 as it did not arise from the judgment on appeal herein; and also strike out Issue 3 formulated from the incompetent ground 5.

The further contention of the 1st Respondent and the 2nd Respondent was that the Appellants can no longer raise the points made in their Issue 3

arising from grounds 15 and 18. This same issue was the subject of an interlocutory appeal by the Appellants in Appeal No CA/A/EPT/264/2020, which was struck out by this Court on 1/5/2020. The Appellants are estopped from re-litigating the same issue in the instant appeal; citing APC v PDP & Ors (2015) LPELR-24587(SC) as the Court is functus officio on this point. Reliance was placed on Dingyadi & Anor v INEC & Ors (2011) LPELR-950(SC). Ground 15 constituted an abuse of Court process having been litigated upon earlier in the said unsuccessful appeal, CA/A/EPT/264/2020.

Dr. Izinyon, SAN, for the 1st Respondent also argued that the said grounds 15 and 18 were incompetent as they were filed in breach of the provisions of Paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 by which an appeal against a decision of the tribunal ought to be filed within 21 days from the date of the decision appealed against. The instant appeal filed on 7/6/2020 was outside the prescribed time. Where a statute has prescribed a mode for doing any particular thing, only that mode shall be used to do that particular thing; relying on Abbey v State

(2018) 1 NWLR (PT 1600) 183 at 206; Abubakar v Nasamu (No 2) (2012) 17 NWLR (PT 1330) 523 at 577. The time for filing processes in election appeals, such as was prescribed in Paragraph 6 cannot be extended; citing PDP v INEC (2014) 17 NWLR (PT 1437) 525 at 554, 557 and 571. Grounds 15 and 18 were statute barred.

A competent issue cannot arise from an incompetent ground of appeal as it would be incompetent and liable to be struck out; relying onMato v Hember & Ors (2017) LPELR-42765; Anyanwu v PDP (2020) 3 NWLR (PT 1710) 134 at 160. The Court was urged to strike out Issue 5.

The Court was also urged by Senior Counsel for the 1st Respondent to strike out grounds 21, 22, 23 and 24 of the grounds of appeal as they had been abandoned, citing PDP v INEC (2014) 17 NWLR (PT 1437) 525 at 552.

In their reply, Mr. Olanipekun, SAN submitted relying on the decision of the trial tribunal, that the allegation of non-compliance was not decided by the trial tribunal on the merits. Ground 5 had arisen from the judgment of the trial tribunal.

Senior Counsel described the arguments on the competence of grounds 15 and 18 as misconceived. Time does not

begin to run against a party on the issue of wrongful admission or refusal to admit evidence as the party is expected to wait until the final determination of the case before exercising his rights of appeal. Reliance was placed on authorities that included: Saidu Adio v AG Kwara State & Ors (2013) LPELR-22067(CA); Onwe & Ors v Nwaogbuinya & Ors (2001) LPELR-2709(SC); Patani & Ors v Ibedangha & Ors (2018) LPELR-44789(CA).

It was further submitted that CA/A/EPT/264/2020 was struck out and the Court was not thereby rendered functus officio, citing Hamman & Ors v Pur & Anor (2017) LPELR-43130(CA). The Court was urged to discountenance these objections.

Resolution
The trial tribunal had on 4/4/2020 declined to admit certain documents that were tendered by PW14 and ruled:
“This Tribunal has ruled in the day that any document that has to be tendered by or through this witness has to be related to the circumstances in which the 4th Respondent left the banking industry. The ruling is very specific and does not in any way overrule the pre-hearing report. The documents sought to be tendered are the CTCs of Personal

Data Form, Curriculum Vitae (CV) of Onoja Edward David Unekuojo, Secondary School Certificate in the name of Onoja Edward, University of Jos Nigeria, Testimonial in the name of Onoja Edward David NYSC Certificate of National Service in the name of Onoja Edward David and the Statutory Declaration of Age. These documents are not related to or connected with the circumstances of the 4th Respondent’s departure or disengagement from the Banking industry. The objections of the learned SAN for the Respondents are hereby sustained and accordingly the documents are to be marked ‘Tendered but Rejected’.”
The Appellants lodged an appeal against this decision in CA/A/EPT/264/2020. This Court struck out the appeal on the ground that the issues formulated by the Appellants were incompetent. Now, it is trite that a matter that is struck out has not been determined on its merit. The matter may be revived on the application of the party; Iyoho v. Effiong & Anor (2007) LPELR-1580(SC); Benbok Ltd v. First Atlantic Bank Plc (2007) LPELR-9003(CA). Or, the applicant may re-apply to the Court for the hearing and determination of his fresh

application seeking the same reliefs; Panalpina World Transport (Nig.) Ltd v. J.B. Olandeen International & Ors (2010) LPELR-2902(SC); PDP v Asadu (2016) LPELR-41007(SC). In Panalpina World Transport (Nig.) Ltd v. J.B. Olandeen International & Ors (supra) at page 23-24 of the E-Report, the Apex Court, per Adekeye, JSC presented the effect of an order of striking out in this manner:
“When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is

applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR pt.362 pg.1836
Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88.
This same procedure is open to an applicant whose motion has been struck out. He can either file a fresh motion or bring an application to relist it which option depend on the circumstances that led to the striking out of the motion or the nature of the order made. Where there was an attack on the contests of such motion made prior to it being struck out – a fresh application must be filed. A motion brought under the prerogative jurisdiction of the Court which is struck out can be refiled and brought before another judge of the same jurisdiction. This is legally approved.”
Therefore, as long as a matter was not heard on the merit and a conclusion judicially reached, the matter is still alive and may be relisted. It follows,

that the Court which had struck out the matter cannot be said to be functus officio. A Court is said to have become functus officio when it has given a final decision on a matter placed before it for adjudication; Nigerian Army v. Iyela (2008) LPELR-2014(SC); Dingyadi & Anor v INEC & Ors (supra). Once an issue has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it for re-litigating;Ihedioha v Okorocha (2015) LPELR-40837(SC). Therefore, an appeal could be lodged against the decision of the trial tribunal rendered on 4/4/2020 in respect of the admissibility of documents tendered by PW14, notwithstanding the fact that the earlier appeal in CA/A/EPT/264/2020 was struck out by this Court on 1/5/2020.

A party who is aggrieved by the decision

of a Court on the admissibility of evidence has two options open to him. He may decide to proceed to lodge an interlocutory appeal against the ruling, or he may decide to await the conclusion of the trial and thereafter proceed to present one encompassing appeal; per Jombo Ofo, JCA in Patani & Ors v Ibedangha & Ors (supra); Conrad & Anor v. Bem & Ors (2019) LPELR-48786(CA). The latter option is usually to be preferred. This is because the option of proceeding at once with an interlocutory appeal may have the effect of stalling the hearing of the case and thereby cause delays. Appellate Courts do not encourage this option; Amadi v NNPC (2000) LPELR-445(SC). Courts, especially in the sui generis proceedings in election matters, have always preferred and actively encouraged the latter position; per Sankey, JCA in Mimi & Anor v. Suswam & Ors (2019) LPELR-48780(CA). To this extent, ground 15 was not incompetent. I shall return to this point anon.

On 16/4/2020, the Appellants presented PW15 who sought to tender certain documents. Upon objections raised by the Respondents, the trial tribunal ruled:

“Tribunal Ruling
Learned counsel for the Petitioners Olanipekun SAN has sought to tender in evidence, the CTC of a statutory declaration of age sworn to at the High Court of Justice, Rivers State. This document is part of the documents rejected by this Tribunal on the 04/04/2020, which is now the subject of appeal at the Court of Appeal. We have gone through the records of this Tribunal and we are satisfied that there is in fact an appeal subsisting over the rejection of some document inclusive of the document now sought to be admitted. Since the issue is subject of an appeal, this Tribunal has become functus officio so as not to provide the Court of Appeal with a fait accompli. Accordingly this document i.e. the CTC of the sworn declaration of age of one Okolo, Cosmos O. of the Rivers State High Court of Justice is hereby to be marked ‘Tendered but Rejected’.”
Dissatisfied with the decision of the trial tribunal, the Appellants again appealed to this Court by Notice of Appeal filed on 2/5/2020 on three grounds of appeal. The said Notice of Appeal was attached as Exhibit D to the 1st Respondent’s affidavit in support of their motion. This appeal is

apparently still pending. In the instant appeal, the Appellants have in ground 18 raised the same complaint for which an appeal is already pending. Senior Counsel for the 1st Respondent has described this action as an abuse of Court process. The Appellants’ Counsel made no response to this point. In Nwosu v PDP & Ors (2018) LPELR-44386(SC), the Supreme Court, per Augie, JSC restated established guiding principles engaged in determining if there has been abuse of Court process as follows:
“What is an abuse of Court process? First off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”.
The bottom line is that an abuse of Court process is where a

litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC.
In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means –
Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive.”
See also: Saraki & Anor v. Kotoye (1992) LPELR-3016(SC); Oyeyemi (Rtd) & Ors v. Owoeye & Anor

(2017) LPELR-41903(SC). Without dissipation of further judicial energy, it is evident that the lodging of the present appeal on the same issue when another appeal earlier filed on the self-same issue was pending, constituted an abuse of Court process. Issue 18 was therefore manifestly incompetent.

It is trite that any issue for determination raised from or formulated on an incompetent ground of appeal goes to no issue. Such issue is worthless and must be struck out since it cannot stand on any legal pedestal for any attack on a judgment; Atanda v. Hon. Commissioner for Lands and Housing, Kwara State & Anor (2017) LPELR-42346(SC); Mato v Hember (supra).

It is also trite that issue for determination that is premised on both a competent and an incompetent ground becomes infected with a life sapping virus and automatically becomes itself incompetent; Jev & Anor v. Iyortyom & Ors (2014) LPELR-23000(SC). In this light, Issue 5, which was distilled from grounds 15 and 18, is incompetent and is hereby struck out.

It is also quite pedestrian that any ground of appeal from which no issue has been distilled and

upon which no argument has been canvassed is deemed abandoned by an appellant, and in consequence, it should be struck out; Iyoho v. Effiong & Anor (supra); Adelekan v. Ecu-Line NV (2006) LPELR-113(SC). Grounds 21, 22, 23 and 24 of the grounds of appeal are, for this reason, hereby struck out.

Now, upon ruling on all the pending applications before it, the trial tribunal proceeded on this footing, page 2274 of Vol 3 of the Record of Appeal:
“We shall now proceed and determine this petition on its merit.”

The complaint of the Appellants in ground 5 of the grounds of appeal, was that the trial tribunal failed to determine the merit of the allegation of non-compliance contained in ground 1 of the petition, which read:
Kogi State Governorship Election held on 16th day of November, 2019 was marred by substantial non-compliance with the provisions of Electoral Act, 2010 (as amended) and the Electoral Guideline.

A careful reading of the entirety of the judgment of the trial tribunal would reveal that the complaint of non-compliance with the provisions of the Electoral Act was considered. The trial tribunal had also recognized

that:
“…the Petitioner has a bounden duty to establish that the non-compliance or corrupt practice substantially affected the outcome of the election result. It is only then that the Respondents are to lead evidence in rebuttal.”

See page 2304 of Vol 3 of the Record of Appeal. The first Issue then considered by the trial tribunal was, page 2307 thereof:
(1) Whether the Kogi State Governorship Election held on the 16th of November, 2019, was marred by corrupt practices and non-compliance with the Electoral Act 2010 (as amended).

This issue was considered and determined by the trial tribunal. It cannot then be said that the trial tribunal failed to consider on the merit the complaint of non-compliance. I therefore agree with Dr. Izinyon, SAN that ground 5 did not flow from the judgment of the trial tribunal.

A valid ground of appeal must be premised and flow from the judgment on appeal. I think it would be right to describe as pedestrian the rule of brief writing that demands that a ground of appeal must relate to the decision of the Court against which the appeal is lodged; Mato v Hember (supra); Achonu v. Okuwobi

(2017) LPELR-42102(SC). A ground of appeal, as well as the issue formulated therefrom for determination of the appeal, which does not derive from the judgment appealed against is incompetent; Kano Textile Printers Ltd v. Gloede and Hoff (Nig.) Ltd (2005) LPELR-1660(SC).

Ground 5 is therefore incompetent and Issue 3 formulated thereon cannot stand. Ground 5 and Issue 3, for these reasons, are hereby struck out.

In all, the applications of the 1st Respondent and the 2nd Respondent succeed in part. Accordingly, grounds 5, 15 and 18 of the grounds of appeal, as well as, Issues 3 and 5 as distilled by the Appellants for the determination of this appeal are incompetent and are hereby struck out.

Preliminary Objection of 3rd and 4th Respondents
Take notice that the 3rd and 4th respondents herein intend to raise the following Preliminary Objection at the hearing of this Appeal namely:
1. This Appeal is entirely incompetent having been argued based on defective grounds of appeal.
2. Grounds 1, 3, 4, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of the appellants notice of appeal dated 3rd June 2020 and filled on 7th of June 2020 for being

grossly incompetent.
3. Issue nos. 1, 2, 3, 4, 5 and 6 distilled from the defective grounds 1, 3, 4, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of the appellants notice of appeal dated 3rd June 2020 and filled on 7th of June 2020 being grossly incompetent.
THE GROUNDS UPON WHICH THIS OBJECTION IS PREDICATED ARE AS FOLLOWS:
a. Grounds 15 and 18 of the notice of appeal dated 3rd June 2020 and filed on 7th of June 2020 are incompetent, same having not arisen from the final judgment of the trial tribunal.
b. Grounds 15 and 18 of the notice of appeal dated 3rd June 2020 and filed on 7th of June 2020, are against interlocutory decisions of the trial tribunal delivered on the 4th of April 2020 which the appellants have unsuccessfully appealed against to the Court of appeal in Appeal NO.; CA/ABJ/EPT/264/2020.
c. Grounds 1, 3, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of the notice of appeal dated 3rd June 2020 and filed on 7th of June 2020 allege errors in law without stating the errors of law of the grudges/complaints of the appellants against the portions of the judgment quoted.
d. Issues nos. 1, 2, 3 ,4, 5 and 6 and all the arguments

connected thereto in so far as they are distilled from grounds 1, 3, 4, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of the appellants notice of appeal are incompetent.
RELIEFS SOUGHT
i. An Order of this Honourable Court striking out grounds 1, 3, 4, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of appellants notice of appeal dated 3rd June 2020 and filed on 7th of June 2020 being grossly incompetent.
ii. In order of this Honourable Court striking out issue 1, 2, 3, 4, 5 and 6 all the arguments connected thereto in so far as they are distilled from grounds 1, 3, 4, 8, 11, 12, 13, 15, 17, 18, 19, 22 and 23 of the appellants notice of appeal dated 3rd June and filed on 7th June 2020.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

An affidavit of 15 paragraphs in support of the Preliminary Objection was deposed to by Emmanuel Oni, Esq., a Legal Practitioner in the Law Firm of J.B. Daudu & Co.

Some of the objections raised by the 3rd and 4th Respondents have already been resolved the Court. On the further ground of the objection, it was argued that grounds 1, 3, 4, 8, 11, 12, 13, 17,

18 and 19 allege errors in law without stating the errors of law or the grudges/complaints of the Appellants against the portion of the judgment quoted. That merely quoting the portions of the judgment of the trial tribunal as grounds of appeal without stating the complaints or grudges against it make the grounds incompetent. Reliance was placed on Nnachi v Onuorah & Anor (2011) LPELR-4626(CA) at pages 14-15. The Court was urged to strike out the grounds and the issues formulated thereon for incompetence.

In response, Senior Counsel for the Appellants submitted that the 3rd and 4th Respondents appear to be unmindful of the particulars of the said grounds of appeal in issue which clearly stated the nature of the error/misdirection in the judgment. Reliance was placed on Akpan v Bob (2010) LPELR-376(SC) and Order 7 Rule 2 (1) and (2) of Court of Appeal Rules, 2016. Further reliance was placed on authorities including Ngere v Okuruket IV & Anor (2017) 5 NWLR (PT 1559) 440 at 446.
The Court was urged to discountenance the objection.

Resolution
Some of the objections raised by the 3rd and 4th Respondents have already been resolved the

Court. In consequence of which grounds 5, 15, 18, 21, 22, 23 and 24, as well as Issues 3 and 5 have been struck out.
Order 7 (2)(2) of the Court of Appeal Rules, 2016 provides:
“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
Examining similar provisions in the Court Rules of 1981, the Apex Court, per Uwaifo, JSC, in Osasona v. Ajayi & Ors (2004) LPELR-2790(SC) at pages 14-15, said:
“What Order 3, Rule 2(2) of the Court of Appeal Rules says is simply that:
” If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
Now, it should be realized that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the

complaint in a ground of appeal but ancillary to it: see Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265 at 300 per Akpata, JSC. It has been said that the whole purpose of grounds of appeal is to give to the other side notice of the case it has to meet in the appellate Court and so the errors of law or misdirection complained of must be sufficiently identified in the grounds of appeal: see N.I.P.C. Ltd v. Thompson Organisation (1969) 1 All NLR 138 at 142 per Lewis, JSC.
It is the particulars of the error of law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out.
Where appropriate, those particulars should be set out or tabulated, particularly where a passage is quoted from the judgment appealed from as representing the error of law or misdirection alleged: Adeniji v. Disu (1958) SCNLR 408 at 409 per Abbott F.J.; Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731; (1986) 2 NSCC (vol. 17) 799 at 805-806 per Uwais, JSC (now CJN).
However, the particulars need not always be separately set out but may be embodied or incorporated in the ground of appeal itself provided the ground is so framed as to

leave no one in doubt as to the error complained of: see Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282; Koya v. United Bank for Africa Ltd. (1997) 1 NWLR (Pt. 481) 251 at 265-266 per Onu, JSC. In Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297, Obaseki, JSC in his leading judgment observed:
“I have examined the five grounds of appeal and I find that each of the grounds was framed or couched in an unorthodox style. They all contain particulars of misdirection or errors and their nature. The particulars were incorporated into the body of the ground of appeal and not set out under the usual heading of particulars in bold letters as is now the normal practice. It cannot therefore be said that the respondent (then appellant) failed to supply the particulars and nature of error or misdirection so alleged in the said grounds.”
See also United Bank for Africa Ltd. v. Achoru (1990) 6 NWLR (Pt.156) 254 at 283 per Karibi-Whyte JSC.
It is therefore settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated

into the body of the ground of appeal, the ground of appeal will contravene the relevant rule which, in the present case, is Order 3, Rule 2(2) of the Court of Appeal Rules. The ground will be incompetent and is liable to be struck out: See Nta v. Anigbo (1972) 5 SC 156 at 164; Anadi v. Okoli (1977) 7 SC 57 at 63.”
It is crucial that the ground of appeal clearly exposes the complaint of the appellant. A ground of law is incompetent when the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is. Once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection on the facts of the ground of appeal, the ground of appeal is valid; Aigbobahi & Ors. v. Aifuwa (2006) LPELR-267(SC). In my considered view, therefore, the grounds 1, 4, 8, 11, 12, 13, 17, 18 and 19 are not incompetent.
The Preliminary Objection of the 3rd and 4th Respondents therefore succeeds in part.

Substantive Appeal
Having regard to the resolutions of the Motions on Notice and the Preliminary Objection of the respective Respondents by which grounds 5, 15,

18, 21, 22, 23 and 24, as well as Issues 3 and 5 have been struck out, and, in consideration of the fact that competent issues cannot be framed from a combination of competent and incompetent grounds of appeal, the competent Issues for determination of this appeal as formulated by the respective parties are:
For the Appellants:
1. Whether the learner trial Judges of the lower Tribunal were not wrong when they struck out the name of the 4th Respondent, despite appellants’ averments and testimony that he submitted forged documents to the 1st Respondent and was thus disqualified to contest subject matter 2019 Kogi State Governorship Election. (Distilled from grounds 6, 7 & 8).
2. Whether the lower Tribunal was not wrong when it struck out paragraph 3 – 12 of the Petitioners’ Reply to the 2nd Respondent’s Reply on the grounds that those paragraphs were repetitive of the petition and lacked basis in law. (Distilled from ground 4).
3. Whether the lower Tribunal was not wrong when it refused to accord probative value to the uncontroverted testimonies of all the Appellants’ witnesses. (Distilled from grounds 9, 10,

11, 12, 13, 14, 16 & 17).
6. Whether the decision of the lower Tribunal, that the Appellants failed to proffer proof that the 3rd & 4th Respondents were disqualified from contesting subject matter 2019 Kogi State Governorship Election, was borne out of evidence before the Tribunal. (Distilled from Grounds 19 & 20).

For the 1st Respondent:
2. Whether the Honourable Tribunal was right when it held that the Appellants failed to prove the various allegations of corrupt practices made in their petition? (distilled from grounds 9, 14 and 22 of the Notice of Appeal).
4. Whether the Honourable Tribunal was right when it held that the Appellants failed to prove the allegation of non-qualification made in their petition? (distilled from grounds 15, 16, 17, 18, 19, 20 and 21 of the Notice of Appeal).

For the 2nd Respondent:
3. Whether the trial Tribunal was right when it held that the Appellants failed to adduce credible evidence to show that the 3rd and 4th respondents were not qualified to contest election into office of governor and deputy governor of Kogi State. (distilled from grounds 19 and 20 of the notice of appeal)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For the 3rd and 4th Respondents:
3. In the light of the express provisions of the Constitution of the Federal Republic of Nigeria, the Electoral Act, Guidelines and Manuals for the conduct of the election and the long line of judicial authorities on the subject, whether the Trial Tribunal right when it held that the Appellants failed to prove their allegations of corrupt practices and non-compliance with the Electoral Act, as required by law? (Grounds 9, 10, 11, 12, 13, 14 and 25).

Most of the Issues distilled by the respective Respondents are subsumed in the Issues as framed by the Appellants. I shall however adopt and reframe the Issues as formulated by the Appellants, renumbered as follows.
1. Whether the learned trial Judges of the lower Tribunal were not wrong when they struck out the name of the 4th Respondent, despite Appellants’ averments and testimony that he submitted forged documents to the 1st Respondent and was thus disqualified to contest subject matter 2019 Kogi State Governorship Election. (Distilled from grounds 6, 7 & 8).
2. Whether the lower Tribunal was not wrong when it struck out paragraph 3 – 12 of

the Petitioners’ Reply to the 2nd Respondent’s Reply on the grounds that those paragraphs were repetitive of the petition and lacked basis in law. (Distilled from ground 4).
3. Whether the lower Tribunal was not wrong when it refused to accord probative value to the uncontroverted testimonies of all the Appellants’ witnesses in proof of their allegations of corrupt practices and non-compliance with the Electoral Act, as required by law. (Distilled from grounds 9, 10, 11, 12, 13, 14, 16 & 17).
4. Whether the decision of the lower Tribunal, that the Appellants failed to proffer proof that the 3rd & 4th Respondents were disqualified from contesting subject matter 2019 Kogi State Governorship Election, was borne out of evidence before the Tribunal. (Distilled from Grounds 19 & 20).

Issue 1
The Appellants’ Petition before the trial tribunal was predicated mainly on the disqualification of the 3rd and 4th Respondents from contesting the 2019 Kogi State Governorship election and non-compliance with the provisions of the Electoral Act. PW3 had testified that the 4th Respondent was dismissed from Guaranty Trust

Bank and Access Bank contrary to the 4th Respondent’s deposition in Form CF001 and his birth certificate presented to the 1st Respondent was queried. At hearing of the petition, the trial tribunal struck out the name of the 4th Respondent upon consideration of a motion on notice filed by the 3rd and 4th Respondents, a Preliminary Objection raised by the 2nd Respondent in its Reply to the Petition, and, a motion also filed by the 2nd Respondent. The Appellants contended that the trial Tribunal made the order striking out the name of the 4th Respondent without a specific prayer for that order by the 3rd and 4th Respondents. Although the trial tribunal made an order striking out the name of the 4th Respondent upon considering the Preliminary Objection of the 2nd Respondent, the said Preliminary Objection was dismissed. The Court was urged to hold that the order of the trial tribunal striking out the name of the 4th Respondent should be set aside. That the trial tribunal had no powers to grant a relief not sought in the processes under consideration. Reliance was placed on NIDOCCO Ltd v Gbajabiamila (2013) LPELR-20899 (SC); Kalejaiye v LPDC & Anor (2019) LPELR-47035(SC).

The trial tribunal had also referred to a motion said to have been filed by the 2nd Respondent on 10/1/2020 which sought similar orders with the motion filed on 30/12/2019, and on which basis the name of the 4th Respondent was struck out. It was submitted that there was no such motion filed by the 2nd Respondent on 10/1/2020. Rather, the motion filed on 10/1/2020 was filed by the 1st Respondent and did not seek an order striking out the name of the 4th Respondent. It was argued that the decision of the trial tribunal was predicated on a non-existent ruling made pursuant to a non-existent motion said to have been filed on 10/1/2020. Something placed on nothing cannot stand; relying on Aji v Chad Basin Development Authority & Anor (2015) LPELR-24562 (SC).

It was also argued that while the trial tribunal had dismissed the said applications, it declined to dismiss the petition. The order made to strike out the name of the 4th Respondent was therefore hanging on nothing.

It was further submitted that the cases of Abubakar v INEC (2004) 1 NWLR (PT 854) 207 and Kalu v Uzor (2004) 12 NWLR (PT 886) 1 relied upon by the trial

tribunal, were inapplicable herein as there were specific allegations made personally against the 4th Respondent. Where allegations are made against any person in a Petition, that person must be joined to enable the trial tribunal decide on those allegations. The decisions in Atiku Abubakar v INECdelivered on 30/10/2019, which affirmed the decision of this Court in Appeal No CA/PEPC/002/2019; Nyesom Wike v Peterside & Ors (2016) 7 NWLR (PT 1512) 453 at 536 were cited and relied upon. The Court was urged to set aside the decision striking out the name of the 4th Respondent.

For the 1st Respondent, the Court was referred to applications filed on 10/1/2020 and on 17/1/2020 by the 1st Respondent, at pages 1437 – 1462 and 1499 – 1510 of Vol. 3 of the Record, to which the Appellants had reacted, and which prayers the trial tribunal had granted in part.

For the 2nd Respondent, the Court was invited to look at the reliefs sought and grounds for the reliefs sought by the 3rd and 4th Respondents in their application of 28/1/2020, page 1721 – 1754 of the Record of Appeal, in which the case was made for the striking out of the name of the

4th Respondent. The 2nd Respondent also had filed a motion on 30/12/2019 seeking similar relief, pages 1548 – 1584 of the Record of Appeal. It was posited that this was the motion referred to erroneously by the trial tribunal as having been filed on 10/1/2020. It was posited that the Appellants cannot hold on to this inadvertent slip in the judgment of the trial tribunal to argue that the trial tribunal had referred to a non-existent motion. There was an application made by the 2nd Respondent to strike out the name of the 4th Respondent on 30/12/2019 to which the Appellants filed a counter affidavit.

It was further submitted that the dismissal of the applications of the 2nd Respondent and of the 3rd and 4th Respondents was limited to their contention that the petition was fundamentally defective. The orders made thereon by the trial tribunal striking out certain paragraphs of the petition as well as the name of the 4th Respondent was rightly made. The Court was also referred to the provisions of Section 137 of the Electoral Act and Section 177 of the 1999 Constitution, as amended. The 4th Respondent was not a statutory defendant in an election

petition, citing APC v PDP & Ors (2015) LPELR-24587(SC). The 3rd and 4th Respondents, who hold a joint ticket, cannot be sued separately. It was finally submitted that the trial tribunal rightly struck out the name of the 4th Respondent.

The 3rd and 4th Respondents have also submitted that a cursory look at their said application at pages 1721 – 1754 of the Record would reveal that they had, among the grounds relied on, explicitly sought for an order striking out the name of the 4th Respondent. It was further argued, assuming without conceding, that they did not ask for such relief, having raised the point with the parties joining issues thereon, and the trial tribunal agreeing that the 4th Respondent was not a necessary party, was right to have granted the order striking out the name of the 4th Respondent as a consequential order. The said order could not therefore be described as an unsolicited or gratuitous relief granted by the trial tribunal; citing the case of Awoniyi & Ors v The Registered Trustees of the Rosicrucian Order, AMORC (Nigeria) (2000) LPELR -655(SC); Orji v Zaria Industries Ltd (1992) LPELR-2768(SC).
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Resolution
The motion on notice filed by the 3rd and 4th Respondents before the trial tribunal, pages 1633-1666 Vol 3 of the Record of Appeal, sought an Order of the trial tribunal –
Striking out and/dismissing the Petition for being fundamentally defective in the terms particularized in the grounds here below and thereby divesting this Honourable Tribunal of jurisdiction to adjudicate thereon.
One of the grounds for the application was that the trial tribunal lacked jurisdiction to entertain the Appellants’ complaint against the person sponsored by the 2nd Respondent as Deputy Governorship candidate…and who was duly returned was as the Deputy Governor of Kogi State is “Onoja Edward David” and not “Edward Onoja”. A further ground was for the name of the 4th Respondent to be struck out along with paragraphs of the petition relating to the 4th Respondent.
In the Preliminary Objection raised by the 2nd Respondent in its Reply to the Petition, page 633 – 637 of Vol 1 of the Record, one issue raised was that the 4th Respondent was not a statutory respondent recognized under Section 137 of the Electoral Act 2010, as amended.

In a motion on notice also filed by the 2nd Respondent, page 1548 – 1584 of the Appeal, one of the orders sought was:
striking out the name of the 4th Respondent for not being a statutory Respondent recognized under Section 137 of the Electoral Act, 2010 (as amended). The Appellants reacted to these applications, joining issues with the respective Respondents thereon. I agree with the submission of Senior Counsel for the 3rd and 4th Respondents that even if they did not specifically seek the relief of having the name of the 4th Respondent struck out, having raised the point and the parties joined issues thereon, and with the trial tribunal agreeing with the submissions of the Respondents, the order striking out the name of the 4th Respondent could be granted as a consequential order. However, although a deputy governorship candidate is not a recognized respondent to an election petition under the Electoral Act, Mr. Olanipekun, SAN has rightly argued that there were specific allegations, which were of criminal nature, made against the 4th Respondent personally. The recognized statutory respondents certainly were

not the proper persons to respond to such allegations on behalf of the 4th Respondent. Where allegations are made against a specific person, that person ought to be joined in the action, in this case, in the petition; Omoboriowo & Ors v. Ajasin (1984) LPELR-2643(SC); Nyesom Wike v Peterside (supra), (2016) LPELR-40036(SC). Therefore, while the 4th Respondent may not be a statutorily recognized respondent to an election petition, having regard to the provisions of Section 137 of the Electoral Act, he was a necessary party, having regard to specific allegations made against him. Fair hearing demanded that the Appellants should be allowed to ventilate their grievances and allegations, while the 4th Respondent should be given opportunity to be heard in his defence, since no orders can be made against a person who was not a party to an action in which allegations were made against him;Bello v INEC (2010) LPELR-767(SC); Azuh v Union Bank (2014) LPELR-22913(SC). To my mind therefore, the name of the 4th Respondent ought not to have been struck out by the trial tribunal.

The Appellants seek an order setting aside the decision of the trial tribunal striking

out the name of the 4th Respondent. That order is one that has attraction and that ought to be made. However, it would be undoubtedly a vain order, in the vein of a pyrrhic victory. This is because even if the 4th Respondent’s name were restored, he will be unable to respond to any of the allegations made against him. The life span of the Petition has long expired. The trial tribunal is without jurisdiction to reconvene to hear evidence in respect of the allegations and the defence of the 4th Respondent. No Court makes a vain order that has the potential to expose the Court to ridicule. It is in this light that although the Court agrees that the name of the 4th Respondent ought not to have been struck out, I decline to make a further order setting aside the said order striking out the name of the 4th Respondent. Issue 1 is therefore resolved in part in favour of the Appellants.

Issue 2
On 28/1/2020, the 2nd Respondent by Motion on Notice sought the following orders from the trial tribunal, pages 1686 – 1687 of Vol 3 of the Record of Appeal:
(1) An Order of this Honourable Tribunal striking out the entire petitioner’s Reply to

the 2nd Respondent’s Reply to the Petition filed on the 12th day of January, 2020 as same sought to amend their Petition by bringing in new facts and adding to the content of the Petition and repeating the facts already captured.
ALTERNATIVELY;
(2) An Order of this Honourable Tribunal striking out paragraphs 3, 4, 5, 6 (at pages 10 – 46) 7, 8, 9, 10 and 12 of the Petitioner’s Reply to the 2nd Respondent’s Reply to the Petition filed on the 12th day of January, 2020 as same sought to amend their Petition by bringing in new facts, adding to the content of the Petition and repeating the facts already captured in the Petition.
(3) And for such Other Order or other orders as this Honourable Tribunal may deem fit to make in the circumstances.

The Appellants opposed the application. The trial tribunal heard arguments thereon and struck out paragraphs 3 – 12 of the said Reply. It was argued for the Appellants that the decision of the trial tribunal was unfounded in law on two grounds: that the said decision was in contravention of Paragraph 53(2) of the First Schedule to the Electoral Act 2010, as amended, and, that

the said paragraphs 3 – 12 were not repetitive of averments contained in the petition.

It was further submitted that the 2nd Respondent was served with the Petitioners’ Reply but failed to bring application within reasonable time as required by Paragraph 53(2) of the First Schedule to the Electoral Act. Rather the 2nd Respondent took fresh steps in the proceedings by filing the 2nd Respondent’s Answer to Pre-Hearing Information Sheet on 22/1/2020 but failed to list therein any application to set aside any paragraphs of the Appellants’ Reply. The 2nd Respondent’s application contending that paragraphs of the Petitioners’ Reply were incompetent was not filed till 28/1/2020 in contravention of Paragraph 53(2) of the First Schedule to the Electoral Act. The Supreme Court in Nyesom v Peterside (supra) had refused an application on this ground. The Court was urged to invoke the provisions of Section 16 of the Court of Appeal Act and pronounce on the competence of the 2nd Respondent’s Motion on Notice filed on 28/1/2020.

It was further submitted that the Appellants had in the paragraphs that were struck out

answered to specific averments in the 2nd Respondent’s Reply to the Petition. The Petitioners’ Reply had introduced the decision of this Court in CA/A/1123/2019 delivered on 19/12/2019, which was after the Petition had been filed on 8/12/2019. The decision was to show that all issues regarding the validity of the Appellants’ nomination of candidates had been laid to rest. The decision responded to the facts averred in paragraphs 8(i)(ii)(iii) and (iv) of the 2nd Respondent’s Reply to the Petition filed on 30/12/2019. The pleading of the decision was not a repetition of the Petition. The Court was urged to resolve this issue in favour of the Appellants and set aside the decision of the trial tribunal striking out paragraphs of the Petitioners’ Reply to the 2nd Respondent’s Reply.

For the 2nd Respondent, it was submitted that the Petitioners’ said Reply was a complete rehash of the petition and in violation of Paragraph 16(1)(a) and (b) of the First Schedule to the Electoral Act and rightly struck out by the trial tribunal. The decisions in Okey Ikoro v Osita Izunaso & Ors (2008) LPELR-4302(CA) was cited and

relied upon.

It was further submitted that a Reply by a Petitioner does not serve the purpose of re-presenting the Petitioners’ Petition, neither does it serve the purpose of presenting new facts. The Petitioner’s Reply is to provide clarity on the basis of facts presented in the Respondent’s Reply. Neither repetition of facts nor the presentation of new facts is permitted, relying on Airhiavbere v. Oshiomhole & Ors (2012) LPELR-19797(CA).

On the contention that the 2nd Respondent had not filed the application timeously and before taking a fresh step, it was submitted that the 2nd Respondent brought the application within reasonable time and that the filing of answers to the pre-hearing notice does not amount to taking a fresh step.

The Court finally urged to hold that the invitation to invoke Section 16 of the Court of Appeal Act was without basis, relying on Olutola v University of Ilorin (2005) 18 NWLR (PT 905) 416, (2005) FWLR (PT 245) 1151.

Although the 1st Respondent had argued that the trial tribunal also rightly granted its application to have paragraphs of the Petitioners’ Reply to the 1st

Respondent’s Reply to the Petition struck out, the Appellants have not raised this as an issue.

Resolution
The contents of a petitioner’s reply to a respondent’s reply to an election petition are provided for in Paragraph 16 (1)(a) and (b) of the First Schedule to the Electoral Act, thus:
16.-(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so however that-
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers lending to amend or add to the contents of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the provisions of subparagraph (1) of Paragraph 14 of this Schedule.
These provisions have been judicially interpreted to mean that the petitioner in his reply to the respondent’s reply must spring no surprises by bringing in new facts, grounds or prayers which would

have the effect of amending the petition from the back door, as it were. The respondent, who would have no further process to file, would be unable to plead a response to the new facts, grounds or prayers. See: APC v PDP & Ors (2015) LPELR-24587(SC); Ogboru & Anor v. Okowa & Ors (2016) LPELR-48350(SC); Airhiavbere v. Oshiomhole & Ors (supra). Stephen & Anor v. Moro & Ors (2019) LPELR-48752(CA). Whether the Petitioners’ Reply to the 2nd Respondent’s Reply was indeed a mere rehash of the petition or had pleaded new facts is a matter of fact.

The trial tribunal had found and held as follows:
“The Petitioner, filed his reply to the 2nd respondent’s reply on the 12th of January, 2020 he responded to the 2nd respondent’s preliminary objection in paragraphs 1 and 2. In paragraph 3, of the said reply, he denied paragraph 8(v) of the 2nd respondent’s reply. In paragraph 8(v), the 2nd respondent averred that the Petitioner was not deprived or prevented from campaigning by INEC, (the first respondent).
The Petitioner, in paragraph 21 of his Petition, stated clearly and expressly that the

Petitioners were denied reasonable time to campaign. Therefore, paragraph 3 of the Petitioner’s reply is a repetition of what he earlier said. We hold that a reply from a Petitioner should not be premised on repetitiousness. Paragraph 3 of the said petitioners reply is accordingly struck out.
In paragraph 4 of the Petitioner’s reply to 2nd respondent’s rely(sic), the Petitioners expressly referred to paragraph 8(1 – 17) of the 2nd respondent’s reply. The Petitioner’s referred to the unlawfulness of the conduct of INEC (the 1st respondent) who questioned the substitution of the petitioner’s deputy Governorship Candidate. He made reference to the Court of Appeal’s Decision that dismissed the appeal of the 1st respondent over failure to include the Petitioners in the election of 16th of November 2019. In the aforesaid paragraphs 8(1 – 17), the 2nd respondent averred, that the Petitioners presented an under aged candidate and failed to substitute its running mate within the time prescribed. The Petitioners, in paragraph 16 of their Petition, explicitly pleaded these facts. For reasons that are not clear,

the petitioners went on to reinstate these facts in their reply to the 2nd respondents reply. We have no difficulty in holding that paragraph 4 of the Petitioner’s reply to 2nd respondent’s reply is patently repetitive. The said paragraph 4 is struck out.
The Petitioner in paragraph 5 of the aforesaid reply contends that the 1st respondent, INEC, failed to comply with a Court Order to place the name and logo of the 1st Petitioner, Hadiza Akpoti, and 2nd Petitioner, Adams Ogbeche Khalid, on the list of candidates for the said election.
Again, just like the other paragraphs, the Petitioners have already brought these facts to the fore in its Petition specifically in paragraph 30.
The petitioners went ahead to repeat or reproduce facts already contained in the Petition in paragraphs 7, 8, 9, 10 and 12 in its reply to the 2nd respondent’s reply…
It is an established principle of law that a Petitioners cannot at the reply stage be allowed to bring in any substantial facts which ought to have been raised in the Petition itself, neither will he be allowed to have a second bite or a reharsh(sic) of its pleadings by

rebuilding, expatiating or enlarging the Petition in any manner whatsoever. See Paragraph 16(1)(a) & (b) of the Electoral Act, 2010 (as amended) See also the case of Dingyadi & Anor Vs. Wammako & 3 Ors; Airhiavbere Vs. Oshiomhole [2012] LPELR – 19797 (CA) and Adepoju Vs. Awoduyilemi [1999] NWLR (Pt. 603) 364 at 382 – 383.
We are bound to conclude that the Petitioners reply to the 2nd respondent’s reply is without basis in law. Paragraphs 3 – 12 of the said reply are accordingly struck out.”

Now Senior Counsel for the Appellants admitted that the Petitioners’ Reply had introduced the decision of this Court in CA/A/1123/2019 delivered on 19/12/2019, which was after the Petition had been filed on 8/12/2019. This was in paragraph 4 of the Reply to 2nd Respondent’s Reply to the Petition. Mr. Olanipekun, SAN posited that the decision was pleaded to show that all issues regarding the validity of the Appellants’ nomination of candidates had been laid to rest. The said decision upheld the decision of the Federal High Court in Suit No FHC/ABJ/CS/1129/2019, which the Appellants had pleaded in paragraph

16 of the Petition. In paragraph 4 of the Reply to 2nd Respondent’s Reply to the Petition, the Appellants copiously pleaded the orders made by the Federal High Court in Suit No FHC/ABJ/CS/1129/2019, which they had already pleaded in paragraph 16 of the Petition. I agree with the trial tribunal that the facts pleaded by the Appellants in the offending paragraphs of the said Reply were a rehash of facts already pleaded. Facts surrounding Suit No FHC/ABJ/CS/1129/2019 had already been pleaded. Having pleaded these facts, including the fact that the judgment in the said Suit No FHC/ABJ/CS/1129/2019 had been delivered, the further pleading on the same facts was unnecessary. Moreover, an appeal is a continuation of the matter before the lower Court by way of a rehearing; Sapo & Anor v. Sunmonu (2010) LPELR-3015(SC); Sabru Motors Limited v. Rajab Enterprises Nigeria Limited (2002) LPELR-2971(SC). There was therefore no necessity to file a Reply only to plead the same facts.
It is trite that election matters are sui generis. One outstanding feature is that time is of the essence. All matters are therefore fast tracked without undue clogs.

Repetitious processes cause delays. In addition, new facts pleaded in replies may result in breaches to fair hearing as the other party may not have opportunity to respond in rebuttal. The findings and conclusion of the trial tribunal on this point are therefore unassailable.

The question now is whether the application of the 2nd Respondent, which was filed on 28/1/2020, was brought timeously. Section 53 of the First Schedule to the Electoral Act provides:
53.-(1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt within such manner and so such terms as the Tribunal or Court may deem fit and just.
(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings

after knowledge of the defect.

It was submitted for the 2nd Respondent that the application was brought within reasonable time and that the filing of answers to the pre- hearing notice does not amount to taking a fresh step. I agree with this submission. The said Reply was incompetent in that it did not comply with the requirements of a Reply. The application of the 2nd Respondent was to remove an incompetent process and it was made within reasonable time.

Issue 3
The trial tribunal held the view that the case of the Appellants cannot be proved without polling unit agents. It further held that the certified copies of electoral documents tendered by PW3, who was not the maker, were dumped on the trial tribunal. The trial tribunal dismissed the exhibits as having no probative value and also dismissed the evidence of PW3 as lacking credibility and worthless.

The Appellants contended that the oral and documentary testimonies of the Appellants’ witnesses, particularly PW3, were cogent, reliable and ought to have been accorded probative value by the trial tribunal. PW3 was the star witness of the Appellants. He tendered Exhibits P8 –

P78. It was submitted that the Appellants need not call polling agents to prove their allegation of non-recording/non-collation of votes as pleaded in paragraph 32 (i – xxi) of the Petition, relying on Uzodinma v Ihedioha in SC 1462/2019 delivered on 14/1/2020 by the Supreme Court. It was further submitted that the documents were not dumped on the trial tribunal as PW3 who tendered them did not give hearsay evidence, citing Uzodinma v Ihedioha (supra). The Court was urged to so hold.

The arguments for the 1st Respondent, 2nd Respondent and 3rd and 4th Respondents by their respective Senior Counsel were similar. Learned Senior Counsel were on the same page in urging the Court to affirm the decision of the trial tribunal. The attention of the Court was drawn to the nature of the evidence given by the Appellants’ witnesses. It was submitted that these witnesses failed to prove either the allegations of corrupt practices or of non-compliance. The evidence of the main witness, PW3, was described as unsubstantiated, speculative and hearsay. The documents PW3 tendered were not made by him. Without calling their makers, the documents would have no

probative value. The Respondents contend that the allegations of the Appellants, in addition to being vague and baseless, remained unproven by the Appellants as they failed to proffer any credible, cogent and admissible evidence in support of their case. Learned Senior Counsel for the respective Respondents relied on various authorities in urging the Court to dismiss the appeal on this basis. I shall make reference to these submissions and authorities in resolving this issue.

Resolution
The Appellants had brought their petition on the following grounds:
1. Kogi State Governorship Election held on 16th day of November, 2019 was marred by substantial non-compliance with the provisions of Electoral Act, 2010 (as amended) and the Electoral Guideline.
2. The Kogi State Governorship election held on 16th day of November, 2019, was invalid by reason of corrupt practices.
3. The 3rd Respondent was at the time of Kogi State Governorship election held on 16th November, 2019, not qualified to contest the election.
4. The 3rd Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of

his qualification for the Kogi State Governorship election held on 16th November, 2019.
5. The 4th Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election held on 16th day of November, 2019.

The Appellants upon the allegations of various irregularities, asked for fresh elections to be conducted in Kogi State, which in effect called for the nullification of the election in 21 Local Government Areas of Kogi State, which comprises of 239 Wards and 2568 Polling Units.

The trial tribunal stated the issues for determination thus:
(1) Whether the Kogi State Governorship Election held on the 16th of November, 2019, was marred by corrupt practices and non-compliance with the Electoral Act 2010 (as amended).
(2) Whether the 3rd respondent and his deputy are qualified to contest the aforesaid election.

In proof of their petition, the Appellants called 15 witnesses, with PW3, the State Chairman of the 2nd Appellant being their star witness. PW3 tendered the following documents: CTC of 17 Forms EC40G series, marked as Exhibit

P9 (A – Q); CTC of 11 Forms EC8A and EC8AVP of Adavi Local Government Area, marked as Exhibit P10 A – K; CTC of Forms EC8A and EC8AVP series of 21 Local Government Areas marked Exhibits P11 – P31; 41 CTCs of Forms EC8A and EC8AVP from Adavi Local Government Area in which no scores were recorded for SDP, marked as Exhibit P31 (i) – (xxxxi); The CTC of Forms EC8A and EC8AVP of 20 Local Government Areas where no scores were recorded for the Petitioners, marked as P32 – P51; CTC of Forms EC8B of 21 Local Government Areas, marked Exhibit P52 – Exhibit P72; CTC of Form EC8C series of 21 Local Government areas of Kogi State, marked as Exhibit P73 (A – U); CTC of Form EC8D, Summary of Result from Local Government, marked as Exhibit P74; CTC of Form CF001 in respect of the 3rd Respondent, marked as Exhibit P76; and, CTC of Form CF001 in respect of the 4th Respondent, marked as Exhibit P77 and photostat copies of INEC letters dated 13/09/2019 and 27/09/2019, both addressed to the National Chairman of the 2nd Appellant, Exhibit P78 (A & B).

Under cross examination by Senior Counsel for 1st Respondent, PW3 said that on the day

of the election, he was in his ward in Okehi Local Government Area and that he did not vote because thugs did not allow them to vote. He admitted the 2nd Appellant had agents across all the polling units, ward agents, Local Government agent and collation agents. He got the results of the election from his agents and from the sophisticated electronic machines in his house with which he monitored the election. But he now said:
“I was at most of the polling units where Exhibit P30 – P74 were generated before I was chased away.”

He further said under cross examination by the 2nd Respondent’s Counsel:
“After the Federal High Court ruling the names of my Party could not appear in many ballot papers. So I will not say that we participated in the election. The result of the election is falsified. I was not there where the falsification was done but I monitored the falsification of results from my electronic devices at home after my agents were chased away. I was chased away from my polling unit at 8:00am. The thugs that chased me away were APC members because they (APC) were the beneficiaries. The agents were masked so I

don’t know them except for those from my village of which I reported the matter to the Police. I do not have the report but I can produce one. I have cited a helicopter around the vicinity of my polling unit.”

Under cross examination by Senior Counsel for 3rd and 4th Respondents, PW3 further said:
“Our case is that our names were removed from the ballot papers.”

In evaluating his evidence, the trial tribunal found:
PW3 is Mouktar Atimah. He spoke in general and global terms. He said the election was marred by unprecedented and unimaginable violence. However, under cross examination, he was in his ward, Okehi Local Government Area on the day of the election. He went on to say that he was not allowed to vote. He got the result from his agents and the sophisticated machines in his house. He does not know the numbers of eligible voters in Kogi State. He was not there when the results were falsified. The thugs who chased him away were masked. In one breadth, he said he was in his ward and he got the result from his agents and the sophisticated machine in his house. In another breadth, he said he was at most of the

polling units. He could not trace the thugs to the 2nd or 3rd Respondents. He knew they were APC thugs because they were the beneficiaries of the election.
Flowing from the above, it is glaring that PW3 testimony is unreliable and patently hearsay. It is devoid of any evidential value. What is more, he could not link the violence to anybody. He imagined that the thugs were APC thugs because they benefitted from the result of the election. He later went on to say that his case is that: – “Our names were removed from the ballot papers”. His testimony is ludicrous and empty.”

I have been prolix in reproducing the responses of PW3 which indeed expose that his evidence was rightly described by the trial tribunal as ludicrous and empty! His evidence was also contradictory. He said he went to vote but could not because he was chased away. He then went home to his personal situation room to monitor the elections all over Kogi State with sophisticated electronic monitoring gadgets! But he also said he was at most of the polling units where Exhibit P30 – P74 were generated before he was chased away by thugs, yet he also said that he

went home after he was not allowed to vote. He said the thugs that chased him away were masked so he did not know them, yet he also said that the thugs were APC members because APC was the beneficiary of the election! He said he got the results of the election from his agents and from the sophisticated machines in his house. He had said he had agents at the polling units, wards, Local Governments and the Collation centre. Yet he also said under cross examination that his agents were chased away. His oral evidence was replete with glaring and blaring contradictions, absurdities and was totally unhelpful in proving the petition.

The documentary evidence he tendered was also unhelpful in advancing the case of the Appellants. I would consider it a very well settled position of the law that only the maker of a document or a person who has personal knowledge of its contents can give any admissible evidence on its contents; Buhari v Obasanjo (2005) LPELR-815(SC); SC 1211/2019 Atiku Abubakar & Anor v INEC & 2 Ors (pronounced on 15/11/2019) (Unreported); INEC v Adeleke (2019) LPELR-47545(CA).
Further, the state of the law remains as stated in Ikpeazu v. Otti & Ors

(2016) LPELR-40055(SC), per Galadima, JSC, at page 48 of the E-Report:
“It is now well settled law that a party who did not make a document is not competent, to give any evidence on it.”
In the earlier case of Belgore v. Ahmed (2013) 8 NWLR (PT. 1355) 60 at 100, the Supreme Court, per Tabai JSC, also held:
“With respect to the volume of documentary evidence, I wish to state at the risk of repetition that they were merely tendered across the Bar by learned counsel for the petitioners at the trial. He did not and was, in fact, not in a position to answer questions or otherwise speak on any of them. Their makers were not called. In such circumstances, was the tribunal bound to ascribe probative value to them? I shall answer the question in the negative.
In Flash Fixed Odds Ltd. V. Akatugba (2001) 9 NWLR (Pt. 717) 46 at 63, the Court of Appeal re-emphasized the principle that the proper person to tender a document is its maker who alone can be cross examined on it; and that where a person who did not make it tenders it, the Court ought not to attach probative value to it since the witness cannot be cross

examined on it. See Gregory Okonkwo V. The State (1998) 8 NWLR (Pt. 561) 210 at 258. This principle applies with equal force in the case. The trial tribunal had no duty to accord probative value to the mass of documents, their status as certified public documents notwithstanding.” (Emphasis mine)
Senior Counsel for the Appellants had submitted that the polling unit results tendered through PW3 were not dumped on the trial tribunal. He submitted at paragraph 7.7 of the Appellants’ Brief:
“In the case of SENATOR HOPE UZODINMA & ANOR V RT. HON. EMEKA IHEDIOHA (supra), 388 Polling Unit results were tendered through a single witness and Supreme Court accepted the testimony of the witness, relied on the Result sheets and gave judgment in favour of the Appellants therein. In the instant case, PW. 3 not only tendered the aforesaid Exhibits P.8 – P78, as similarly done in SENATOR HOPE UZODINMA & ANOR V RT. HON. EMEKA IHEDIOHA (supra), the witness equally testified, at pages 1359 – 1360 Vol. 3 of the printed Record, particularly paragraphs 6 & 8 thereof, that his evidence pertaining to non-collation of Appellants’ votes

was based on his inspection of electoral documents pursuant to order of the lower Tribunal.”
Now, the evidence of PW3 under cross examination was completely discredited, as already demonstrated above. His evidence was patently contradictory and full of absurdities. The mere tendering of documents, which he could say and indeed said absolutely nothing about, did not advance the case of the Appellants. He was not the maker of the documents and could not purport to speak to the documents. See also: SC 1211/2019 Atiku Abubakar & anor v INEC & 2 Ors (pronounced on 15/11/2019) (Unreported); Buhari v Obasanjo (supra); Aliucha & Anor v. Elechi & Ors (2012) LPELR-7823(SC); Doma v INEC (2012) LPELR-7822(SC); INEC v Adeleke (2019) LPELR-47545(CA); Buhari v INEC (2008) LPELR-814(SC); Nyesom v Peterside (supra). As the Apex Court in Belgore v Ahmed (supra) held:
“The trial tribunal had no duty to accord probative value to the mass of documents, their status as certified public documents notwithstanding.”
On the evidence of PW3, the trial tribunal further held:
“PW3, Mouktar Atimah went ahead and reproduced

Petitioners’ pleadings. He admitted he was in his ward only in the day of the election he got the result from his agents and from the sophisticated machines in his house. He was not in any of the polling unit. In one feel(sic) swoop, exhibits P8 to P78 were tendered through him. He did not link, demonstrate or tie these exhibits to evidence. He could not connect or relate them to any part of his case. For the avoidance of doubt, exhibit P8 is the certified true copies of the amended timetable and schedule of activities for the Kogi and Bayelsa State 2019 Governorship Election. The others are Forms EC40G, EC8AS, EC8AVP, EC8BS, EC8C, EC8D, INEC letters dated the 13th and 27th September, 2019.
It was the duty of the PW3 to simply connect and demonstrate these documents and link them with his evidence. This he failed to do. See the cases of Labaran Maku Vs. Al-Makura [2017] ALL FWLR (Pt.909) 1 at 761; Ladoja Vs. Ajimobi [2016] ALL FWLR (Pt.843) 1846 at 1904. The worthlessness of PW3’s testimony was exposed when he formed his opinion from reports that reached him from agents all over. He also based his testimony from his sophisticated room. He

concluded that the thugs that drove him away were APC members simply because they were beneficiaries even though some wore mask. His testimony is in breach of Section 126 of the Evidence Act, 2011. It is hearsay. It has no value…
In the light of that we have posited above, we hold the firm view that exhibits P9-P78 have no probative value. The testimony of PW3 lacks credibility as same is demonstrably worthless.”
All considered, I see no reason to disturb the conclusion of the trial tribunal on the evidence of PW3.

The Appellants also fielded PW4 – PW13 who testified on corrupt practices and violence. However, under cross examination, their evidence was discredited and exposed to be unreliable. For instance, PW4 said, under cross examination:
“No I don’t know whether results are declared in unit 002. I now say there was no election result declared in unit 002. I was present when the Senatorial result was announced.”
PW5 under cross examination, said:
“I confirm that I cannot read and write in English. I am the one who made the statement and it is in English language. On the day of the

election from 8:30. I remained at the Polling unit until the shooting started at about 2:30pm. There are 33 polling units in Ward 8. I was at my polling unit only. I was told about what is in paragraph 11 of my witness statement.”
His deposition had no jurat. I think it is well settled that in protection of the illiterate, and more so in election matters, which are sui generis, the jurat must be signed by the named interpreter to safeguard the deponent and ensure that the contents of the depositions were made known to the deponent; Gundiri v Nyako (2014) 2 NWLR (1391) 211. In the absence of a jurat, his evidence was unreliable.
PW6 under cross examination, said:
“I can confirm that election was peaceful and people voted up to 3:00pm.”
PW7 under cross examination said:
“I don’t know Zara physically. I heard the information all over the Local Government. I don’t know whether Zara is alive or dead now. I was told by one of my friends about what happened in other polling units.”
PW8 under cross examination said:
“I did not vote on the day of election. I was not at the collation

centre and so everything was told and narrated to me…
all what I said in my witness statement is based on what I was told.”
PW9 under cross examination said:
“I ran away from the polling unit. Someone told me about what happened at the polling unit.”
PW10 under cross examination said:
“I voted on the day of the election. I voted for another party. Yes, I ran away from the polling unit as I stated in paragraph 8 of my witness statement. I did not state in my statement that I returned to my polling unit. My collation agents brief that result was announced for my polling unit, but I am saying there was no result from my polling unit….”
PW11 under cross examination said:
“Everything I narrated in my witness statement happened before the date of the election.”
PW12 under cross examination, said:
“I did not vote on the day of the election. I don’t know if my lawyer has tendered my voters card and my register of voters. I know there is restriction of movement on that day…
There were other voters at the Polling unit. I don’t know if anyone

voted at the polling unit. There are some people who voted. After the thugs left, the voters organized themselves and voted. I was not there when they started counting.”
PW13 under cross examination, said:
“I went to unit 002 Odariko as a voter. I went there to vote for SDP and on reaching there I saw that the SDP Logo was missing so I changed my mind and voted for PDP. Election started by 8:00am but it was not allowed to be completed because they came and carried away the ballot boxes…
I had said that thugs invaded other polling units. The voters who ran away came and told us that thugs invaded their polling units. I don’t know the name of those voters. I don’t know the time they told us about the invasion. I did not completely run away but took cover behind a Zinc wall and watched over what they were doing.”

I shall return to the evidence of the Appellants’ witnesses.

Section 139 of the Electoral Act, 2010, as amended, provides that an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Act, if it appears to the tribunal or the Court that

the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not substantially affect the result of the election. It is thus also settled that where the ground for challenging the return of a candidate in an election is by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner must prove:
(a) that the corrupt practice or non-compliance took place; and,
(b) that the corrupt practice or non-compliance substantially affected result of the election.
See also: Nyesom v Peterside (supra); Buhari v Obasanjo (2005) LPELR-815(SC); CPC v INEC (2011) LPELR-8257(SC); Uchechukwu v Okpalake (2010) LPELR-5041(CA); Buhari & Anor v. Obasanjo & Ors (2005) LPELR-815(SC); Abubakar & Ors v. Yar’Adua & Ors (2008) LPELR-51(SC); Ekpe v. Morah & Ors (1999) LPELR-6631(CA); Fayemi & Anor v. Oni & Ors (2010) LPELR-4145(CA).
The demand on a petitioner who contests the legality of votes cast and the subsequent result of an election on these grounds have been well articulated in a number of judicial pronouncements.

In Buhari v INEC (2008) LPELR-814(SC), the Supreme Court, per Tobi, J.S.C said, pages 172-173 of the E-Report:
“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too.
Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes;

wrong doings and irregularities which affected substantially the result of the election. Proving an Election Petition or proof of an Election Petition is not as easy as the Englishman finding coffee on his breakfast table and seeping it with pleasure; particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult though not impossible task.” (Emphasis supplied).
In Nyesom v. Peterside & Ors (supra) the Supreme Court, per Kekere-Ekun, JSC restated what must be placed before the tribunal or Court as proof of grounds complaining that a respondent was not duly elected by a majority of lawful votes cast as follows: pages 51-53 of the E-Report:
“The law is well settled that in order to prove over voting the petitioner must do the following:
1. Tender the voters register;
2. Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes;
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered;
4. Show that the figure representing the over-voting if removed

would result in victory for the petitioner.
See: Haruna Vs Modibbo (2004) 16 NWLR (Pt.900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639; Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456; Shinkafi vs. Yari (unreported) SC.907/2015 delivered on 8/1/2016; Yahaya vs. Dankwanbo (unreported) SC.979/2015 delivered on 25/1/2016.”
In Uchechukwu v Okpalake (2010) LPELR-5041(CA), this Court, per Sanusi, JCA (as he then was) said, page 41-42 of the E-Report:
“The appellants also contended that the 1st petitioner won the election by majority of lawful votes cast at the election. To my mind, the evidence to be led in proof of such assertion which seems to be questioning the figures and scores of candidate at the election, must be evidence coming directly from the officers who were at the election ground where votes were cast, counted and or collated.”
See also: Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Abubakar v Yar’Adua (2008) LPELR-51(SC); In Uduma v. Arunsi (2010) LPELR-9133(CA); PDP v Usman J. & Ors (2015) LPELR-26032(CA). The petitioner must therefore plead and adduce evidence from witnesses, preferably the

polling unit agents, who were directly at the election ground where the votes were cast, counted and or collated.
The trial tribunal had found:
“In our view, we find as absurd the attempt by the Petitioner to established their grievances without their polling agent. Polling agent are the base of the pyramid upon which all credible elections are built. The polling agent remains the most competent witnesses to comment on the result of any election. See Okoreaffia & Anor Vs. Agwu (2012) NWLR at 1282.”
I find I must agree with the trial tribunal on this score. On the present state of the law, evidence that would advance the case of the Appellants in proof of their complaints in respect of irregularities at a polling unit would have to come from Polling agents or persons who were personally present at the Polling Units and who can testify as to what exactly transpired at the Polling Units in issue. I am fortified in this stand by the decision of the Apex Court in Gundiri v Nyako (2014) 2 NWLR (Pt. 1391) 211 at page 245 thus:
“The significance of the polling units agents cannot therefore be underestimated in the case at hand

if the appellants must have the facts to prove their case. The best evidence the appellants would have had was that of the agents at the polling units who were physically on the ground and in true position to testify as to what transpired at an election.”
And further at page 246 thereof:
“I also hasten to add that as a ward supervisor such person is a competent witness under the Evidence Act; the issue in this case however is the failure to distinguish the clear cut evidence between information which is within his personal knowledge as against the information given to him by the polling agent, who ought to have been called as a witness, but was not.
Where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit. See again the case of Ucha Anor v. Elechi & 1774 Ors (2012) 3 SC (Pt. 1) P. 26, (2012) 13 NWLR (Pt. 1317) 330.
It is therefore physically impossible for one person to have supervised the election in ten polling units given the fact witnesses are to be called from each polling unit.”

In Ladoja v. Ajimobi (supra), (2016) LPELR-40658(SC), Onnoghen, JSC (as he then was) said, page 75 of the E-Report:
“It is in evidence that PW1 was not present in all the polling units in the local governments in dispute which means his evidence or testimony in respect of polling units other than the one he was present is clearly hearsay and consequently inadmissible. Not being admissible evidence, it follows that it has no weight at all in law. This is trite law.”
I must say that I find this restatement of the law very instructive in the circumstance of this case.
The burden placed on a petitioner by the provisions of Section 139 is therefore twofold. He has first to prove that there had been non-compliance with the provisions of the Act and secondly, that the non-compliance was such that result of the election had been affected. The need to satisfy this two-fold burden of proof is central to the claim of a petitioner. This is so because there is a presumption that the election officials have performed their duties in a proper and lawful manner. The results certified by the election officials are presumed to be correct. The burden is on the

petitioner to rebut this presumption with credible, cogent and admissible evidence; CPC v INEC (2011) LPELR-8257(SC). Belgore, JSC (as he then was) in Buhari v Obasanjo (supra) at page 145 of the E-Report, restated this position thus:
“When the Electoral Commission declares a result, there is a presumption the result is correct. But this presumption is not water tight, it is rebuttable and the onus is on the petitioner to prove and rebut the presumption. Omoboriowo v. Ajasin (1984) SCNLR 108, Nwobodo v. Onoh (1984) 7 SCNLR 1. Once the Electoral Commission announces the result of an election it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic.”
The burden of proving a petition lies squarely on the petitioners who are the Appellants herein. By Sections 131 – 133 of the Evidence Act, 2011, he who asserts must prove; Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC); Jimoh v. The Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329(SC). The standard of proof in civil matters, which includes Election

Petitions, is on the preponderance of evidence or the balance of probabilities; Section 134 of the Evidence Act, 2011. See also: Buhari v INEC (supra) at page 56 of the E-Report; Nduul v Wayo (2018) LPELR-45151(C).
However, the burden placed on the Appellants as petitioners was not discharged by credible evidence in proof of the allegations. The witnesses of the Appellants. PW3 – PW13 were exposed by cross examination as being unreliable. Further, as rightly pointed out by learned Senior Counsel for the 3rd and 4th Respondents, in no part of the evidence for the Appellants was it shown that the 3rd and 4th Respondents, who were beneficiaries of the voting exercise, were linked to or were responsible for any corrupt practices or non-compliance with the provisions of the Electoral Act.
The position of the law which must persistently be made is that a plaintiff who seeks declarations from the Court must rely on the strength of his own case and not on the weakness of the defence, except, where such evidence of the defence manifestly supports the case of the plaintiff;Ajibulu v. Ajayi (2013) LPELR-21860(SC); Akande v. Adisa & Anor (2012)

LPELR-7807(SC). He must prove that he is entitled to the declarations sought. The law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence; Dumez Nigeria Ltd v Nwakhoba (2008) 18 NWLR (PT 1119) 361, (2008) LPELR-965(SC); Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC); Amaechi v. INEC & Ors (2008) LPELR-446(SC). Therefore, not even admissions on the part of the respondent or his failure to respond to the petition will entitle the petitioner to such declaratory relief except where the weakness supports his claim; Emenike v. P.D.P (2012) LPELR-7802(SC); Aliucha & Anor v. Elechi & Ors (supra); Busari & Anor v. Adepoju & Ors (2015) LPELR-41704(CA). Oyetola v. Adeleke & Ors (2019) LPELR-47529(CA). Indeed, before the defence of the respondent would need to be considered, the petitioner would be required to first prove his case. He must make out a prima facie case before the burden of proof shifts to the defendant in rebuttal. See Sections 131 – 133, 136 of the Evidence Act, 2011.

Explaining this principle of law in Okoye & Ors v. Nwankwo (2014) LPELR-23172(SC), I.T. Muhammad, JSC (now CJN) said, page 45 thereof:
“…the principle of shifting of burden of proof in civil cases is not new. It is as old as the Law of Evidence itself (as seen above) and it is not as fixed on the plaintiff as it is on the prosecution in a criminal case. Black, describes it “shifting the burden of proof’, which he defines as: –
“Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (see: H.C Black’s Law Dictionary 5th ed. P.1234). The point has already been made that the presumption that the election officials have performed their duties in a proper and lawful manner and that the results certified by the election officials are presumed to be correct must be rebutted by the petitioner with credible and admissible evidence; Buhari v Obasanjo (supra) at

page 145 of the E-Report.
Fundamentally, the trial tribunal was right as demonstrated above, to have declined to accord the evidence of the Appellants’ witnesses any probative value. A calm appraisal of the evidence adduced by the Appellants can only lead to the inevitable conclusion that the Appellants failed to reveal how the conduct of the election so negatively affected the result of the election as to justify invalidating the return and declaration of the 3rd Respondent as the winner of the election. I therefore resolve Issue 3 against the Appellants and in favour of the Respondents.

Issue 4
The Appellants alleged that the 3rd and 4th Respondents were disqualified from contesting in the 2019 Kogi State Governorship election. They alleged that the 3rd and 4th Respondents presented forged documents to the 1st Respondent, contrary to Section 182(1)(i) of the 1999 Constitution, as amended, read in conjunction with Section 182(1)(j) of the said Constitution. Senior Counsel for the Appellants submitted that Section 182(1)(j) gave one of the particulars of non-qualification under Section 138(1)(a) of the Electoral Act, 2010, as amended, such

that where a candidate sponsored by a political party has presented a forged Certificate to the 1st Respondent, the said candidate will not be qualified to contest the election. On what was meant by forged certificate, reliance was placed on the decision of the Supreme Court in PDP v & 2 Ors v Biobarakuma Degi-Eremienyo & 3 Ors SC 1/2020 (Unreported) delivered on 13/2/2020. Further reliance was placed on Abdulrauf Abubakar Modibbo v Mustapha Usman & 2 Ors SC 790/2019 (Unreported); Angos Dide & Anor v Ebiotu Seleketimibi & Ors (2009) LPELR-4038 in which it was held that where a candidate in an election certified the truth of any fact/statement presented to INEC, such candidate would be held to have presented a false/forged certificate to INEC, if the statement turned out to be false. It was submitted that, contrary to the decision of the trial tribunal to the effect that no evidence was led in proof of grounds 3, 4, and 5 of the petition, which border on disqualification of the 3rd and 4th Respondents, the evidence of false/forged certificates was presented to the trial tribunal to show: that the 4th Respondent falsely certified that he

resigned from Guaranty Trust Bank and Access Bank in INEC Form CF001, Exhibit P.77. PW3 in his witness statement had stated that the 4th Respondent did not leave the banking industry by voluntary resignation but was dismissed from Guaranty Trust Bank and from Access Bank but concealed the facts by refusing to attach evidence of how he left his last place of employment; he did not attach the letter of resignation addressed to the respective Banks; he did not resign his appointment; and, that the 4th Respondent, when dismissed or terminated, was under obligation to state the truth in Form CF001. PW3 was not cross examined on this testimony. It was submitted that the Respondents are deemed to have admitted the truth of the testimony of PW3 in this regard and that the trial tribunal was bound to accept the uncontroverted evidence; relying on Leadway Ass. Co. Ltd v Zeco Nig. Ltd (2004) LPELR-1773(SC); Chief Sunday Ogunyade v Solomonn Oluyemi Oshunkeye (2007) LPELR-2355 (SC); Gaji & Ors v Paye (2003) LPELR-1300(SC), (2003) 8 NWLR (PT 823) 583. It was further submitted that the 4th Respondent had declared a false age in Form CF001. The testimony of PW15 was relied upon.

It was submitted that the testimony of PW15 was not controverted. He was not challenged in cross examination. His identity was not challenged. That the refusal of the trial tribunal to attach any weight on the document PW15 tendered on the ground that his identity as a bailiff was not verified, was perverse.

Form CF001 for both the 3rd and 4th Respondents were tendered by PW3 and admitted as Exhibits P76 and P77. These Forms falsely represent that they were deposed to at the FCT High Court. It was submitted that in view of this false representation, the 3rd and 4th Respondents were disqualified from contesting in the election of 16/11/2019.

In reply, for the 1st Respondent it was submitted that neither PW3 nor PW14 gave any oral or documentary evidence to contradict the contents of Exhibit P77. PW15 also failed to give any credible evidence to substantiate the allegations against the 4th Respondent. It was also posited that the decisions relied on by the Appellants were inapplicable herein.

Senior Counsel for the 2nd Respondent submitted that qualification for the office of Governor is determined by the provisions of Sections 177, 182 and 187 of the 1999 Constitution, as amended.

citing Al-Hassan v Ishaku (2016)10 NWLR (PT 1520) 230. Reliance was also placed on Agi v PDP (2016) LPELR-42578(SC). He submitted that the Appellants had adduced no evidence in proof of the grounds 4, 5 and 6 of the petition which attacked the qualifications of the 3rd and 4th Respondents.

Senior Counsel for the 3rd and 4th Respondents made similar submissions. He submitted that the Appellants did not prove that the 3rd Respondent failed to meet the constitutional demands of Section 177. The 3rd and 4th Respondents were sponsored by their political party upon meeting these provisions. He relied on Shinkafi & Anor v. Yari & Ors (2016) LPELR-26050(SC) to submit that no other law could disqualify them. The Appellants had failed to call proof in respect of their allegation against the 3rd Respondent on ground 3 of the petition, which can be inferred was abandoned. It was further submitted that the allegations against the 4th Respondent were not proved. Being a criminal allegation, the Appellants must prove the mens rea and actus reus of the accusation. Reliance was placed on Agi v PDP (supra).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It was further submitted that, by Section 138(1)(e) the decision in Atiku Abubakar & Anor v INEC & 2 Ors SC/1211/2019 (Unreported) delivered on 15/11/2019, a complaint that false information was supplied by a candidate in Form CF001 should be challenged before a Federal/State or FCT High Court within 14 days from the date of publication, not before the trial tribunal, failing which the action would be statute barred.

The Court was urged to discountenance the contentions of the Appellants and hold that the 3rd and 4th Respondents were qualified to contest in the election.

Resolution
Grounds 3, 4 and 5 of the Petition were:
3. The 3rd Respondent was at the time of Kogi State Governorship election held on 16th November, 2019, not qualified to contest the election.
4. The 3rd Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of his qualification for the Kogi State Governorship election held on 16th November, 2019.
5. The 4th Respondent submitted to the 1st Respondent affidavit containing false information of a fundamental nature in aid of his qualification for

the Kogi State Governorship election held on 16th day of November, 2019.

Section 177 of the 1999 Constitution, as amended, provides the qualifications of a person who aspires to be a Governor of a State, thus:
Section 177
A person shall be qualified for election to the office of Governor of a State if
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of thirty-five years;
(c) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent.
Conversely, factors that disqualify a candidate for the office of Governor of a State are provided in Sections 182(1) and 187 of the 1999 Constitution, as amended, which provides thus:
Section 182(1)
No person shall be qualified for election to the office of Governor of a State if –
(a) subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other

country; or
(b) he has been elected to such office at any two previous elections; or
(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed by any competent Court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any Court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a Court or tribunal; or
(e) within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the code of Conduct; or
(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
(g) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the

election; or
(h) he is a member of any secret society; or
(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government; or
(j) he has presented a forged certificate to the independent National Electoral Commission.
Section 187
(1) In any election to which the foregoing provisions of this part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.
(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of

office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.
In Shinkafi & Anor v. Yari & Ors (2016) LPELR-26050(SC) at page 81, the Supreme Court, per Okoro, JSC, stated:
“From the provisions of the Constitution in particular reference to Sections 177 and 182 , it is clear that the matter of who qualifies to contest for election as Governor has been graphically provided for and exhaustively stipulated and so nothing outside those constitutional prescriptions such as an inferior legislation to which the Electoral Act would be situated come into the arena of qualification or non qualification to so contest.”
In Agi v PDP & Ors (supra), relied on by the 2nd Respondent, the Supreme Court per Ogunbiyi, JSC at pages 84 -85 said:
“By the provision of Section 31(5) of the Electoral Act, the position of the law is well established that, where a candidate makes a false declaration in his form CF001, a person aggrieved may seek redress. However, the purport of Section 31(5) is

not designed to disqualify a candidate who is otherwise qualified to contest the relevant election under the 1999 Constitution of the Federal Republic of Nigeria. I seek to say further that even in situations where a governorship candidate makes inconsistent statement in his form CF001 and such a candidate is nevertheless qualified to contest the election under the provisions of Section 177(b) of the Constitution, he will not withstanding the inconsistencies in his form, be disqualified to contest the election. The support for the foregoing conclusion, is as rightly submitted by the learned counsel for the 2nd respondent, because a person who is qualified to contest an election by virtue of the Constitution of the Federal Republic of Nigeria 1999 (as amended) cannot be disqualified by the operation of any other law in force in Nigeria. The Constitution takes precedence over all other laws. Therefore where there is a matter of alleged falsification of a document or rendering of a false statement as alleged in this case, it must relate to a qualifying or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria.” (Emphasis mine)

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Therefore, where it is alleged that a person is or was not qualified to contest election to the office of Governor as envisaged by Section 138(a)(i) of the Electoral Act, it is Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that are being contemplated; per Okoro, JSC in PDP v INEC (2014) LPELR-23808(SC). See also: Kubor & Anor v. Dickson & Ors (2012) LPELR-9817(SC). A candidate cannot be said to be unqualified to contest the election outside of these provisions. The trial tribunal therefore rightly held that:
“The ground of disqualification or non-qualification of a candidate to contest a Governorship election under Section 138(1)(a) of the Electoral Act, 2010 (as amended) is strictly within the confines of Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
Exhibit P76 was the Form CF001 submitted by the 3rd Respondent. But there was no evidence in proof of any allegations against him, particularly the allegation of forgery, which must be proved beyond reasonable doubt.

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Paragraph 53(e) of the petition stated:
But for the 4th Respondent’s false declaration in his Form CF001, he would not have qualified to contest for the seat of Deputy Governor, due to the reasons involving why he left the Banking Industry.
PW14 who was subpoenaed from Guaranty Trust Bank Plc, gave no evidence on the circumstance of the exit of PW14 from the Bank. No witness came from Access Bank. And, as rightly noted by the trial tribunal, the history of the banking career of the 4th Respondent had no bearing on or connection with the provisions of the 1999 Constitution, as amended. Therefore, even in the event that the allegation that the 4th Respondent rendered a false statement was proved, in order to be relevant to his qualification or disqualification, it must relate to a qualifying or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria; Agi v. PDP & Ors (supra).
The trial Tribunal held:
“From the evidence before us, we hold that the evidence adduced by the Petitioners have not disclosed any evidence to show that the 3rd Respondent and his Deputy were not qualified to contest election Into the office of Governor and Deputy

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Governor of Kogi State under the Constitution of the Federal Republic of Nigeria.
In our humble and firm view, once a candidate sponsored by his political party has satisfied the provisions set out in Section 177 of the Constitution and is not disqualified under Section 182(1) thereof he is qualified to stand election to the office of Governor. See Shinkafi & Anor Vs. Abdulazeez Yari & Ors [2016] 7 NWLR (Pt.1511) 340 at page 377-379.
Accordingly, we hold that the 3rd Respondent, Yahaya Bello, and his Deputy, Edward 0noja having not been shown to have breached any of the provisions in Section 177 of the Constitution or being afflicted by any of the provisions in Section 182(1) of the Constitution were qualified to have contested election into the office of Governor and Deputy Governor of Kogi State. It is clear that the prosecution did not plead any evidence in support of grounds 3, 4 and 5. And we so hold.”
I see no reason to disturb this conclusion. Issue 4 is resolved against the Appellants and in favour of the Respondents.

All issues arising for determination have thus been resolved against the Appellants and in favour of the

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Respondents. The appeal fails and is hereby dismissed.
Parties are to bear their costs.

ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit and ought to be dismissed.
I adopt the judgment as mine and join my brother in dismissing the appeal. I abide by all consequential orders made.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to preview the draft of the lead judgment delivered by my learned brother ONYEKACHI AJA OTISI JCA.

I am in complete agreement with the reasoning and conclusion reached therein and have nothing else to add.
I therefore also dismiss the appeal and affirm the judgment of the Tribunal.
I make no order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft of the lead judgment of my learned brother ONYEKACHI AJA OTISI JCA just delivered. I

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agree entirely with the reasoning and conclusion of the leading judgment. I too consider the appeal unmeritorious and deserved to be dismissed by me.
I abide by the consequential orders in the leading judgment.

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Appearances:

Ola Olanipekun, SAN, with him, Reuben Egwuaba, Esq., Onyoche Lawani, Esq., A.U.S. Oguajamma, Esq., and Hassan Sherif, Esq. For Appellant(s)

Dr. Alex Izinyon, SAN, with him, C.S. Ekeocha, Esq., K.O. Omoruan, Esq., F.O. Izinyon, Esq., and Miss O.A. Ibadin – for 1st Respondent

Ahmed Raji, SAN, with him, M.A. Abubakar, Esq., Abdulwahab Muhammad, Wale Balogun, Esq., and Zekeri Garuba, Esq. – for the 2nd Respondent For Respondent(s)

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