APC & ORS v. AGUELE & ORS (2020)

APC & ORS v. AGUELE & ORS

(2020)LCN/14622(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/111/2020

RATIO

PLEADINGS: JURISDICTION OF THE COURT OF APPEAL.

My lords, in considering the preliminary objection challenging the competence of this Appeal on the two grounds relied upon by the 1st Respondent, I bear in mind that the issue of incompetence has over the years dovetail into issue of jurisdiction and once raised must first be considered and resolved one way or the other before if need be the merit of the matter is considered if it survives the onslaught of the issue of incompetence. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (pt 788) 538 @ p. 563. Now, the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, jurisdiction is radical and sine qua non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.The first arm of the preliminary objection relates directly to what can be simply described as limitation of action, which is just a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of or continuation of stale matters. In its operation it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 @ p. 597; Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195; Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1; Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p.416; P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900. Now, by Section 285(12) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“An Appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60days from the filing of the appeal”.
By the above provision, it goes with saying that there has been introduced constitutionally the conception and prescription of time limitation for the hearing and determination of an appeal arising from a judgment of the Court below in a pre – election matter in Nigeria. What then is a pre-election mater for the purposes of Section 285 (12) of the Constitution of Nigeria 1999 (as amended)? Happily, the Constitution of Nigeria 1999 (as Amended) did not remain silent on this as would have led the Courts, and litigants and their Counsel, to grope in the dark as to its proper meaning. Thus in Section 285 (14),for the purpose of this section, “pre-election matter’ means any suit by-
(a) An Aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the Provisions of the Guidelines of a Political Party for the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an Election.
Furthermore, by Section 87 of the Electoral Act, 2010 (as amended), which the Court below, quite rightly in view, held as being applicable to the claims of the 1st Respondent and against which finding there is no ground of appeal by the Appellant in this appeal, it is provided inter alia thus:
87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below.
(ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party.
Having taken time to scrutinize the claims of the 1st Respondent and the issues as joined by the parties, I am in complete agreement with the submissions of learned counsel for the 1st Respondent that the 1st Respondent’s Suit was clearly a pre – election matter, to which both the Electoral Act 2010 (as amended) and the provision of Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) apply with equal force, contrary to the misconceived submissions by learned counsel for the Appellants that these provisions do not apply. The finding to that effect by the Court below having not been appealed against in this Appeal by the Appellants remained valid, subsisting and binding not only on them but also the Respondents as well as this Court. Thus, none of the parties can simply merely wish it away without any ground of appeal challenging such a finding, and cannot even be allowed to contend anything to the contrary to the un-appealed finding of the Court below. See Ogigie V. Obiyan (1997) 10 NWLR (Pt. 524) 179 @ p. 195.
Now, with the applicability of Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) to this Appeal, how is the limitation period reckoned with in any matter in which it is alleged that a pending case or appeal has been caught up by the limitation law?
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
Later in 2004, the Supreme Court had revisited this issue and reiterated in Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416, inter alia thus:
“The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred”.
So, in the peculiar circumstances of the first ground of preliminary objection of the 1st Respondent against the competence of the appeal, how is the limitation period to be determined? It my view, taking a leading and cue from the above decisions, it is the date of the delivery of the judgment of the Court below appealed against and the period it has taken for it be determined by this Court that are the relevant dates to be considered in the determination whether this appeal has become statute barred, spent, expired and or lapsed by ex-fluxion of time as contended by the 1st Respondent. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: DURATION FOR THE DETERMINATION OF APPEAL AND PRE-ELECTION MATTERS.

By Section 285(12) of the Constitution of Nigeria 1999 (as Amended), which has been reproduced earlier in this judgment, an appeal from the judgment of the Court below in a pre – election matter must be heard and determined within 60 days from the date the judgment appealed against was delivered and without any exceptions.
The Constitution of Nigeria 1999 (as amended) is the supreme law of the land and therefore, its provisions are superior to every other provision embodied in any Act or law. It is binding on all person and authorities in Nigeria. The provisions of Section of the Constitution of Nigeria 1999 (as amended) providing for a period of 60 days from the date of judgment for the hearing and determination of an appeal against the judgment of the Court below in a pre – election underscores both the sui generis nature and essence of time in both election and pre – election matters in Nigeria. These provisions are cast in stone and made mandatory. Not unexpectedly, there is no proviso to them to accommodate any human exigencies, including but not limited to Corona Virus pandemic, as they are couched in absolute terms. They therefore, accommodate no exception but must be strictly complied with by both the parties and the Court itself, and failure to do so renders such an appeal or action statute barred and thus liable to be dismissed. See Jallco Nig. Ltd V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 531; CPC V. INEC (2011) LPELR – 8257 (SC); AG Abia State V. AG Federation (2002) 5 NWLR (Pt. 763) 268; Adisa V. Oyinwola_ (2000) 10 NWLR (Pt. 674) 116; Kawuwa & Anor V. PDP & Ors (2016) LPELR – 40344(CA) per Sankey JCA @ pp. 49 – 50.
My lords, in the circumstances, therefore, I hold firmly that this Appeal has become statute barred on 21/5/2020 and thus rendered incompetent to be heard and determined on the merit. It is further my considered view that even this Court lacks the vires to extend in any way or manner the 60 days limitation period as prescribed by Section 285(12) of the Constitution of Nigeria 1999 (as amended) once it has lapsed. Thus, there is no known remedy yet and this Court is devoid of any requisite jurisdiction to hear and determine this Appeal on the merit outside the 60 days as prescribed by law or to in any subtle manner or by any means act to extend on its own the life span of this Appeal.
Now, these Constitutional timelines are sacrosanct and have been described as the ‘Rock of Gibraltar’ and ‘Mount Zion’ which cannot be moved. Indeed, and quite true, the law may be harsh but it is the law and must be obeyed to the letter, more so when it is a constitutional provision! Thus, this Court being not the Creator, and indeed not pretending to be one, cannot bring back to life a dead appeal and assume jurisdiction over an Appeal which had since died on 21/5/2020 when it attained the ripe death age of 60 days as allowed it by law. We do not, and indeed cannot, raise dead appeals! See Kawuwa & Anor V. PDP &Ors (2016) LPELR – 40344 (CA) per Georgewill JCA @ pp. 14 – 15. See also ANPP &Ors V. Alhaji Mohammed Goni & Ors (2012) LPELR – 8730 (SC) per Onnoghen JSC (as he then was but later CJN); Afam Ogene V. Hon Chukwuka Onyema (2012) LPELR – 9774 (CA); Ugba V. Suswam (2012) LPELR – 191/2012 (SC); Saleh V. Donald (2012) LPELR – 9299 – (CA). Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: TECHNICAL JUSTICE IN THE DUE ADMINISTRATION OF JUSTICE.

In African Songs Limited &Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541. See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR 587.
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the Appellant’s Appeal that has become grossly incompetent in law. In the circumstances therefore, I find great merit in the first ground of the preliminary objection of the 1stRespondent and it is hereby upheld.
Consequently, the 60 days for the hearing and determination of this Appeal by this Court from the date the judgment of the Court below was delivered as allowed by Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) having elapsed, this appeal has become statute barred, spent, extinct, elapsed and expired by operation of law and that is the end of the matter! See Dr Casmir Anyanwu V. Chief Okey Eze (2020) 2 NWLR (Pt 1708) 379 @Pp 390 – 391. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: PROHIBITION OF PUBLIC OFFICER FROM PARTICIPATING IN PRIVATE PRACTICE.

I have taken time to consider the affidavit evidence of the parties and reviewed the submission of their counsel on this second ground of the 1st Respondent’s preliminary objection and it does appear to me that prior to 1999, by the Regulated and Other professions (Private Practice Prohibition) Law Lecturers Exemption) (No. 2) Order 1992, Lecturers were indeed exempted from the ban on private practice by Public Officials of State to enhance the quality of teaching and practical experiences shared with law students. However, it would appear that by the coming into effect on 29/5/1999 of the Constitution of Nigeria 1999 and its operation now as Amended, the regulation on exemption of Law lecturer and the law pursuant to which it was made has been expressly repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree No. 63 of 1999, and thus modified to conform with the provisions of the Constitution of Nigeria 1999 (as Amended) now prohibiting all forms of engagement in private practice by Public Officers or Public Servants except for engagement in farming. I hold therefore, this exemption no longer subsists and therefore, does not offer any protection or exemption to the counsel for the Appellants. See Sections 315, 318 and Paragraph 15 of Part 1 of the 5th Schedule to the Constitution of Nigeria 1999 (as amended). See also Plateau State University V. Joseph & Ors. 2018) LPELR-46049(CA). Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: HIGH COURT OF A STATE AND VARIOUS JUDICIAL DIVISION

Now, by Section 270(1) of the Constitution of Nigeria 1999 (as Amended) a High Court was created and established for each of the States of the Federation and the Federal Capital Territory. It follows that no one State of the Federation has more than one High Court for the State. However, for administrative convenience and for ease of access to justice in all the different parts of the State, the High Court Laws of the States divides the State into Judicial Divisions where the State High Court sits in those different Divisions to afford ease of access to justice and strictly for smooth administrative convenience in the due administration of justice. Thus, no one judge in any State of the Federation is appointed solely for any particular Judicial Division of the High Court of the State and therefore, each judge is appointed as a judge of the one State High Court and with jurisdiction to sit in any of the Judicial Divisions to which he is so duly assigned by the Chief Judge of the State.
My lords, what I have been belaboring to say, perhaps in far too words, is simply that the High Court of a State as created and established by the Constitution of Nigeria 1999 (as Amended) is one High Court not withstanding how many Judicial Divisions it operates from by virtue of the Division of the one State High Court into several administrative Judicial Divisions by the High Court Laws of the State under the hand of the Chief Judge of that State. The High Court of each State of the Federation is thus one indivisible High Court.
Going by the succinct provisions of Section 270(1) of the Constitution of Nigeria 1999 (as Amended), there is by law only one High Court of Edo State. However, for strictly and purely administrative convenience, Judicial Divisions are created under the hand of the State Chief Judge pursuant to the High Court Laws of Edo State and judges are assigned to man these Judicial Divisions. Thus, the jurisdiction of the High Court of Edo State is State wide and covers the territorial jurisdiction of the entire Edo State. There is therefore, in law no distinct jurisdiction of each of the Judicial Divisions as distinct from the one common jurisdiction of the High Court of Edo State as created and established by law. See Section 270 (1) of the Constitution of Nigeria 1999 (as Amended), which provides thus:
1. “There shall be a High Court for each State of the Federation.
See also Section 270 (2) of the Constitution of Nigeria 1999 (as Amended) which provides as follows:
“The High Court of a State shall consist of-
a. A Chief Judge of the State, and
b. Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State.”
In law therefore, the Edo State High Court is one Court, and all the Judicial Divisions of the High Courts of Edo State have the same jurisdiction to entertain any matter arising from Edo State despite the creation of Judicial Divisions for mere purposes of administrative convenience. See Section 32 (1) of the High Court Law of defunct Bendel State, Cap 65, Laws of Bendel State of Nigeria 1976 now applicable to Edo State provides as follows
“For the more convenient dispatch of business the Court may sit in two or more divisions and the Chief Justice may divide the State into divisions and assign any portion to any division which shall be known as a Judicial Division and may designate such Judicial Division by name and shall direct one or more judges to sit in one or more Judicial Divisions.” In my view therefore, the High Court of Edo State whether sitting at Ubiaja Judicial Division or Benin Judicial Division or indeed any other Judicial Divisions of the High Court of Edo State is one High Court exercising the same powers and jurisdiction as conferred on the High Court of Edo State by Section 270 (1) of the Constitution of Nigeria 1999 (as Amended) and all other powers enabling it in that behalf.
The above being the succinct position of the law on the powers and jurisdiction of the High Court of Edo State, the contention by the Appellants that the High Court of Edo State sitting at Ubiaja has and exercises jurisdiction that inures to it only and does not extend to the High Court of Edo sitting in the Benin Judicial Division is not only preposterous and untenable but also very erroneous and highly misconceived and must be discountenanced in its entirety. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: LOCUS STANDI

My lords, it is true in law that the question of who is a candidate of a political party is clearly a political question and which is non – justiciable being at the sole discretion or within the powers of the political party concerned as its internal affairs over which no Court has the jurisdiction to superintend. SeeNuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ pp. 68 – 69. See also Onuoha V. Okafor (1983) 2 NSCC 494; Taiwo V. Adegboro (2011) All FWLR (Pt. 584) 53; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.
However, it is also equally true in law that a person who participated as a candidate in a primary election of a political party and alleges a breach of Section 87(9) of the Electoral Act 2010 (as Amended) and non – compliance with the guidelines of that political party for the conduct of the primaries for selection of its candidate for election has the locus standi, the legal right, to sue and such an issue is not a political question and is thus justiciable. See Ardo V. Nyako (2014) All FWLR (Pt. 744) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ p. 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. PDP (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FGWLR (Pt. 735) 243; See also Nuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ p. 69.
Thus, the clear position of the law as resonate in virtually all the decisions of the apex Court as well as this Court as touching the issue of locus standi pursuant to Section 87 (9) of the Electoral Act (2010 as Amended) is that a person, once he was a candidate at the primary election of a political party and who alleges a breach of the Electoral Act 2010 (as Amended) and the guidelines of the affected political party, such as the 1st Respondent in this appeal, indeed has the locus standi, the legal right, to sue by virtue of Section 87(9) of the Electoral Act 2010 (as Amended). Indeed, such a claim, such as the claim commenced by the 1st Respondent before the Court below, is clearly justiciable in law. The 1st Respondent is thereby clothed with the requisite locus standi to sue as he did in his claim against the Appellants, and as was rightly held by the Court below, contrary to the erroneous contentions of the Appellants in this appeal and which contentions, being erroneous, must be discountenanced. See Alahassan & Anor V. Ishaku & Ors (2016) LPELR – 40083 (SC). See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ p. 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. PDP (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FGWLR (Pt. 735) 243; See also Nuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ p. 69. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

RATIO

PLEADINGS: PARTIES ARE BOUND BY THE AVERMENTS IN THEIR PLEADINGS AND THE COURT IS BOUND BY THE PLEADINGS OF THE PARTIES.

In law, the parties are bound by the averments in their pleadings. See Lipede V. Shonekan (1995) 1 NWLR (Pt. 374) 668 @ p. 686. The Court is also bound by the pleadings of the parties, and therefore, cannot go into an inquiry outside the pleadings or to adjudicate on matters not put in issue by the parties. See George V. Dominion Flour Mills Ltd (1963) All NLR 71. It is also the law that the onus is on the person to prove his allegation, and therefore a failure to adduce evidence in support of facts pleaded would result to failure to prove the facts pleaded or the pleadings would be deemed abandoned. See Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227. See also Rt. Hon Tarzoor V. Ioraer 2015 LPELR – 25975 CA pp. 43 – 47. Now, by Article 20 (1) of the APC Constitution as in Exhibit C, it is provided that all Party post shall be by election or consensus through yes or no votes but for nomination of candidate for Chairman of a Local Government, by Article 20 (iii)(a) it shall be by direct or indirect primary election. By Article 20 (iv)(a) – (d) procedure for nomination shall be by electoral college for indirect primaries. Thus, whilst by Article 20(ii)(i), nomination of Councillorship candidate shall be by direct primary or by consensus through yes or no votes but under Article 20(iii)(a) there is no similar provision for nomination of Chairmanship candidate by consensus through yes or no votes but rather by the combined effects of Article 20 (iii)(a) and 20(iv)(c), nomination of Chairmanship candidate shall by direct or indirect primaries only by which the candidate who scores the simple majority of the valid votes cast emerges the Chairmanship candidate and not by consensus through yes or no voice vote. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

ALL PROGRESSIVE CONGRESS (APC) 2. BARR. ANSELM OJEZUA (EDO STATE CHAIRMAN, ALL PROGRESSIVE CONGRESS) 3. MR. VICTOR EMUAKHAGBON APPELANT(S)

And

1. MR. PETER AGUELE 2. EDO STATE INDEPENDENT ELECTORAL COMMISSION 3. ESAN SOUTH EAST LOCAL GOVERNMENT COUNCIL, UBIAJA RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Benin Judicial Division, Coram: D.I. Okungbowa J., in Suit No: B/28/OS/2018: Peter Aguele & Ors V. All Progressive Congress & Ors., delivered on 20/3/2020, wherein the claims of the 1st Respondents were granted against the Appellants.

The Appellants were peeved with the said Judgment and had promptly appealed to this Court vide an Original Notice of Appeal filed on 20/3/2020 on three Grounds of appeal at pages 967 – 970 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 7/5/2020. Subsequently, four additional grounds of appeal were filed with the leave of Court granted on 2/6/2020. The Appellants’ brief was filed on 8/6/2020. The 1st Respondent’s brief was filed on 9/6/2020. The 1st Respondent also filed a Motion on Notice of Preliminary Objection on 27/5/2020. The 2nd Respondent’s brief was filed on 10/9/2020. The 3rd Respondent’s brief was filed on 9/6/2020 but deemed properly filed on 15/9/2020. The Appellants’ reply brief to the 1st and

3rd Respondents’ respective briefs was filed on 19/6/2020. The 1st Respondent and the Appellant filed and exchanged written addresses on the 1st Respondent’s Preliminary Objection.

At the hearing of this appeal on 15/7/2020, Dele Uche Igbinedion Esq., learned counsel for the 1st Respondents, with Innocent Ukpai Esq., informed the Court of their preliminary objection challenging the competence of the Appeal. G. E. Oaikhena Esq., learned counsel for the Appellants, with A. E. Oaikhena Esq., adopted the Appellants’ brief, Appellants’ reply briefs and Appellants’ written address as their arguments in support of the appeal and in opposition to the preliminary objection and urged the Court to dismiss the preliminary objection, allow the appeal, set aside the Judgment of the Court below and to dismiss the claims of the 1st Respondent for lacking in merit. On his part, Dele Uche Igbinedion Esq., adopted the 1st Respondents’ brief and the 1st Respondents’ written address as his arguments in support of the preliminary objection and in opposition to the appeal and urged the Court to strike out the Appeal for being

incompetent and or dismiss the Appeal for lacking in merit and affirm the Judgment of the Court below. I. O. Kadiri Esq., learned Senior State Counsel, Ministry of Justice Edo State for the 2nd Respondent adopted the 2nd Respondent’s brief as his arguments and urged the Court to dismiss the Appeal. Robert Igbinedion Esq., learned counsel for the 3rd Respondent adopted the 3rd Respondent’s brief as his arguments and urged the Court to dismiss the Appeal.

By an Originating Summons filed on 1/3/2018, but subsequently converted to Writ of Summons filed along with Statement of Claim filed 8/4/2018 on the 1st Respondent as Claimant claimed against the Appellants and the 2nd and 3rd Respondents as Defendants the following reliefs namely:
A. A declaration that the 3rd defendant was not duly nominated as the 1st defendant chairmanship candidate for Esan South East in the 3rd March, 2018 Local Government Elections in Edo State.
B. A declaration that the claimant having won the 1st defendant’s primary election held on 24th January, 2018 with an overwhelming majority, is the duly nominated chairmanship candidate of the 1st defendant for Esan

South East in the 3rd March, 2018 Local Government Elections in Edo State.
C. An Order of perpetual injunction restraining the 1st defendant from fielding the 3rd defendant as its chairmanship candidate and/or presenting him to the 4th defendant for the Esan South East in the Local Government Elections scheduled for 3rd March, 2018 in Edo State.
D. An order of perpetual injunction restraining the 4th defendant from recognizing and/or accepting the 3rd defendant or any other person other than the claimant as the chairmanship candidate of the 1st defendant for the 3rd March, 2018 Local Government Elections in Edo State.
E. An order of Court directing the 1st and 4thdefendants to accord recognition to the claimant as the 1st defendant’s chairmanship candidate for Esan South East Local Government in the 3rd March, 2018 Local Government Elections in Edo State.
F. An order of this Court that if at the date of delivery of the Judgment of this Court in this suit, the 3rd defendant has already been elected as the chairman of Esan South East Local Government Council, in the Edo State Local Government Elections slated for 3rd March, 2018, that all the

salaries, emoluments, allowances and all other monies payable to the Chairman of Esan South East Local Government Council, Edo State, if already paid to the 3rd defendant, be forthwith refunded by the 3rd defendant and be paid to the claimant by the 3rd and 5th defendants, as the duly elected chairman of Esan South East Local Government Council, Edo State in the 3rd March, 2018 Local Government Elections in Edo State. See pages 1 – 4; 543 – 547 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the 1st Respondent, as Claimant before the Court below as can be gleaned from the pleadings and evidence, both oral and copious documentary Exhibits as can be seen in the Record of Appeal was that he expressed interest to contest for the nomination of the 1st Appellant ticket for the Chairmanship of the Esan South Local Government Election scheduled for 3/3/2018 and in pursuant thereto bought, paid for and submitted all the relevant nomination forms to the 1st Appellant. On 24/4/2018, when the primary election was held he emerged the candidate with the simple majority of the valid votes cast of 164 votes out of the 286 votes but curiously

the 2nd and 3rd Appellants acting in concert with some others manipulated the process after the primary election had been conducted and concluded and a winner in him emerged to present the 3rd Appellant as a consensus candidate who had secured a yes vote, which was contrary to the Constitution and guidelines of the 1st Appellant. Therefore, he remained the validly nominated candidate of the 1st Appellant for the said election which held with the 3rd Appellant purported as the candidate of the 1st Appellant. He is thus entitled, according to him, to be the person to be sworn in to occupy the position of the Chairman of the Esan South Local Government Council of Edo State and all the ensuring benefits thereto and not the 3rd Appellant. See pages 543-547 of the Record of Appeal.

On the part of the Appellants, as Defendants before the Court below, particularly the 3rd Appellant, the gist of their case as can be gleaned from their pleadings and evidence, both oral and copious documentary Exhibits as in the Record of Appeal was that there was no primary election of the 1st Appellant held on 24/1/2018 since the 3rd Appellant had already emerged a consensus

Candidate of the 1st Appellant on at a meeting held on 17/1/2018 and that on 24/1/2018 his candidature by consensus was merely ratified by a yes vote and was therefore, the validly nominated candidate of the 1st Appellant for the Esan South Local Government Council election slated for and duly held on 3/3/2018, in which he also emerged victorious as the duly elected Executive Chairman of the Esan South Local Government Council. The 1st Respondent was never nominated as the Chairmanship candidate of the 1st Appellant and did not participate or emerge as its candidate on 24/1/2018 or on any other day since no primary election was held for the said nomination by the 1st Appellant. See pages 561 – 568 of the Record of Appeal.

The parties filed and exchanged pleadings upon the conversion of the Originating Summon into Writ of Summon and the matter proceeded to trial. The 1st Respondent called four witnesses, including himself in proof of his case and tendered several documents admitted in evidence as Exhibits. In their defense, the Appellants called four witnesses including the 2nd and 3rd Appellants and tendered some documents admitted in evidence as

Exhibits. At the conclusion of the trial, the parties filed and exchanged written addresses which were subsequently adopted by their counsel. On 20/3/2020, the Court delivered its judgment wherein it granted all the reliefs claimed by the 1st Respondent as Claimant against the Appellants as Defendants, hence this appeal. See pages 543 – 547; 561- 568; 784A – 789U; 789U – 789Z; 915-961 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, four issues were distilled as arising for determination in this appeal from the surviving five grounds of appeal, namely;
1) Whether the Benin High Court in Benin Judicial Division has the Jurisdiction to adjudicate in the case, when the cause of action arose in the Ubiaja High Court judicial Division of Edo State, where the Respondent and the Principal Party; the 3rd Appellant, resides? (Distilled from Ground 4)
2) Whether the Court was right to assume Jurisdiction in a matter purely within the domain of the Political Party to nominate their candidate for election (Distilled from Ground 7)
3) Whether the judgment is against the weight of evidence? (Distilled from Grounds

2 and 3)
4) Whether the trial Judge was right when he ordered that the 3rd Appellant should refund all the salaries he earned while acting as the chairman of the council to the claimant/Applicant? (Distilled from Ground 8)

In the 1st Respondent’s brief, issues were distilled as arising for determination in this appeal, namely:
1. Whether there is only one High Court of Edo State and thus, the judicial Divisions are merely for convenience and not for purpose of jurisdiction? (Distilled from Ground 4 )
2. Whether by virtue of Section 87(9) of the Electoral Act 2010 and Section 23(1) & (2) of the Edo State Local Government Election Law 2012, the trial Court did not have the jurisdiction on matter bordering on the Nomination/primary election of the 1st Appellant at the instance by an Aspirant? (Distilled from Ground 7)
3. Whether the Judgment is against the weight of evidence? (Distilled from Ground 3)
4. Having found that the 1st Respondent was the duly elected Chairman of the Esan South East Local Government Council, Edo State, whether the 3rd Appellant was liable to refund all the salaries and emoluments received from

that office? (Distilled from Ground 8)

The 2nd Respondent formulated no issues for determination in its brief but addressed the Court on its powers to conduct the Local Government Elections in Edo State, which powers according to it was neither challenged nor question by any of the parties in this case.

In the 3rd Respondent’s brief, four issues were distilled as arising for determination in this appeal, namely:
1. Whether the jurisdiction of Edo State High Court is vested by the Rules of Court on matters within the Judicial Divisions? (Distilled from Ground 4)
2.Whether by virtue of Section 87(9) of the Electoral Act 2010 and Section 23(1) & (2) of the Edo State Local Government Election Law 2012, the trial Court did not have the jurisdiction on matter bordering on the Nomination/primary election of the 1st Appellant at the instance by an Aspirant? (Distilled from Ground 7)
3. Whether the Judgment is against the weight of evidence? (Distilled from Ground 3)
4. Having found that the 1st Respondent was the duly elected Chairman of the Esan South East Local Government Council, Edo State, whether the 3rd Appellant was

liable to refund all the salaries and emoluments received from that office? (Distilled from Ground 8)

My lords, I have given due considerations to the pleadings, particularly as to the issues joined therein, the evidence and copious documentary exhibits relied upon by the parties at the trial before the Court below as can be seen in the Record of Appeal. I have also reviewed the submission of counsel in their respective briefs in the light of the decisions of the Court below appealed against and it appears to me that the proper issues arising for determination in this appeal are the four issues as distilled in the Appellants’ brief. It is my view that a consideration of these four issues would invariably involve the due consideration of all the identical issues as distilled in the 1st and 3rd Respondent’s respective briefs. Consequently, I hereby set down the four issues for determination in the Appellants’ brief as the four issues for determination in this appeal. In the Appellants’ brief grounds 1, 5 and 6 of their grounds of appeal were duly abandoned. Consequently, these grounds of appeal having been abandoned by the

Appellants, they are hereby struck out as required by law, and would therefore go to no issue in the consideration and determination of the live issues in this appeal.

However, before proceeding to consider these four issues, I am aware that there is a Motion on Notice of Preliminary Objection filed by the 1st Respondent on 27/5/2020, on which the parties have filed and exchanged arguments and written addresses and have therefore, duly joined issues on the 1st Respondents’ Preliminary Objection. In law since the issues raised therein touch on the competence or otherwise of the entire appeal of the Appellants it must be considered and determined first by this Court. I shall therefore, proceed anon to do so.

MOTION ON NOTICE OF PRELIMINARY OBJECTION
By a Motion on Notice of Preliminary Objection filed on 27/5/2020, the 1st Respondent is challenging the competence of the entire Appeal to be determined on the merit as well as the competence of the Appellants’ counsel to represent the Appellants both before the Court below and this Court being public officers precluded from engaging in private legal practice and praying this Court to

dismiss the Appeal on the grounds that the Appeal has become statute barred by virtue of Section 285(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as the 60 days within which to determine this Appeal had lapsed on 19/5/2020 and also that the Notices of Appeal are incurably defective having been signed by Public Officers contrary to Section 2(B) of Part 1, of the Fifth Schedule to the Constitution of Nigeria 1999 (As Amended).

1ST RESPONDENT’S COUNSEL SUBMISSIONS
Learned Counsel for the 1st Respondent had submitted that this Appeal being on a pre-election matter has become statute barred as the 60 days within which to determine this Appeal had lapsed on 19/5/2020 and contended that the Court below having specifically held that the Electoral Act 2010 is applicable to this case, a finding which was not appealed against by the Appellants and thus remain binding on the parties as well as this Court, the period for the determination of this appeal lapsed on 19/5/2020 and urged the Court to so hold and to strike out the appeal for being statute barred. Counsel referred to Sections 285(12) and (14) of the Constitution of Nigeria 1999 (as amended)

and relied on TOYIN V. MUSA & ORS (2019) LPELR-49328(SC); KUSAMOTU V. APC & ORS (2019} LPELR-46802(SC).

It was further submitted that both the Notice of Appeal and the Amended Notice of Appeal are incurably defective having been signed respectively on 20/3/2020 by one C.1. Aiguobarueghian Esq., who was appointed the Chairman of the Law Reforms Commission of the Edo State and was sworn in on the 26/11/2019 on full time basis, and on 6/6/2020 by one G.E. Oaikhena Esq., who is a Lecturer at the University of Benin on full time basis and contended that a public officer shall not except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade except farming and urged the Court to hold that the “1992 Regulated and other Profession (Private Practice Prohibition) Law lecturer Exemption Number 2 does not avail the present counsel for the Appellant, G. E. Oaikehan Esq., in that the said Regulation no longer exists and further that upon the coming into effect of the 1999 Constitution on 29/5/1999, the said Regulation was automatically modified and

subjected to the Constitution and to strike out both Notices of Appeal for being incompetent. Counsel referred to Section 2(B) of Part 1, of the Fifth Schedule to the Constitution of Nigeria 1999 (As Amended); Sections 315(1) & (4); 318 of the Constitution of Nigeria 1999 (as amended); Section 2(b) of Part I of the 5th Schedule to the Constitution of Nigeria 1999 (as amended);Section 2(b) of Part I and Sections 14, 15 and 16 of Part II of the Code of Conduct for Public Officers contained in the Fifth Schedule to the Constitution of Nigeria 1999 (as amended)and relied on Yaki & Anor V. Bagudu & Ors (2015) LPELR- 25721; LP & ORS V. OYATORO (2016) LPELR 40135 (CA); OLU OF WARRI V. KPEREGBEYI (1994) 4 NWLR (Pt. 339) 416 : pp. 437- 438; BRIGGS V. BOB-MANUEL(1995) 7 NWLR (Pt. 409) 559 @ p. 577.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
The learned Counsel for the Appellant had submitted that the 1st Respondent’s preliminary objection was based on the Grounds 1, 5 and 6 of the Notice of Appeal which has been abandoned by the Appellants in their brief and therefore, overtaken and no longer goes to any issue and should be

discountenanced by the Court. Counsel relied on SALIHU V. WASIU (2016) 254 LRCN 191 @ p. 195; OJOH V. KAMALU (2006) 136 LRCN 1130 @ p. 113595.

It was also submitted that the root or basis of Section 285 of the 1999 Constitution of Nigeria is as it affects election under the 2010 Electoral Act 2010 as amended is Section 87 of the 2010 Electoral Act as amended which is applicable only to Presidential nomination, Governorship nomination, Senate, House of Representative and State Houses of Assembly and by Section 87 (4)(c) to Chairmanship and Councillorship of the Area Council of the Federal Capital territory but not to Chairmanship nomination in Local Government Council of the States and thus not applicable to the present case which is governed by the Edo State Local Government Electoral Law 2012, under which the Independent National Electoral Commission has no power to conduct elections to the Local Government Council of any of the States of the Federation and urged the Court to so hold and to dismiss the preliminary objection for lacking in merit as the remains competent and not statute barred.

It was further submitted that the 1st Respondent

who alleged that the counsel for the Appellants are public officers failed to prove his allegation by failing to produce their letters of appointment, which cannot be proved by an address of counsel and contended that even if they were Public Officers within the contemplation of the provisions of Section 2(B) of Part 1, of the 5th Schedule to the Constitution of Nigeria, as amended, the 1st Respondent does not have the locus standi to raise it before this Court and that the provisions of 1992 Regulated and Other Profession (Private Practice Prohibition) Law Lecturer Exemption Number 2 of the Federal Government is an existing law and extant, having not been repealed and gives law Lectures the right to engage in legal Practice to enhance his duties as a law lecturer and urged the Court to hold that the issue of the alleged breach can only be heard by the Code of Conduct Tribunal and no other Court and to dismiss the 2nd ground of preliminary objection for being misconceived. Counsel relied on NWANKWO V. NWANKWO (1995) 30 LRCN 24 (SUPRA); AHMED V. AHMED (2014) 231 LRCN 719.

1ST RESPONDENT’S COUNSEL REPLY ON POINTS OF LAW
In his reply on points

of law, learned counsel for the 1st Respondent had submitted that an issue of jurisdiction can be raised at any time and even suo motu by this Court and cannot even be waived by the parties and contended that the allegation that they are public officers and therefore, cannot engage in private practice was never denied and is in law deemed as admitted and requiring no further proof and urged the Court to hold that there is no exclusivity of the jurisdiction vested on the Code of Conduct Tribunal as provided by Section 15 (1 )(4) of Part 1, in the Fifth Schedule to the Constitution of Nigeria 1999 (As Amended) and at any rate to direct the Code of Conduct Tribunal to hear and determine the breach of the code of conduct as raised by the 1st Respondent. Counsel relied on AGBANELO V. UBN LTD (2000) LPELR- 234(SC); OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505(SC); NATIONAL CHAIRMAN, APGA & ORS V. AKACHI (2019) LPELR-47571 (CA); ANYANWU V. OGUNEWE & ORS (2014) LPELR-22184 (SC); PLATEAU STATE UNIVERSITY V. JOSEPH & ORS (2018) LPELR-46049(CA).

RESOLUTION OF PRELIMINARY OBJECTION
My lords, in considering the preliminary

objection challenging the competence of this Appeal on the two grounds relied upon by the 1st Respondent, I bear in mind that the issue of incompetence has over the years dovetail into issue of jurisdiction and once raised must first be considered and resolved one way or the other before if need be the merit of the matter is considered if it survives the onslaught of the issue of incompetence. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (pt 788) 538 @ p. 563.

Now, the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, jurisdiction is radical and sine qua non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite

admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

The first arm of the preliminary objection relates directly to what can be simply described as limitation of action, which is just a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of or continuation of stale matters. In its operation it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 @ p. 597; Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195; Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1; Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p.

416; P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900.

Now, by Section 285(12) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“An Appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60days from the filing of the appeal”.
By the above provision, it goes with saying that there has been introduced constitutionally the conception and prescription of time limitation for the hearing and determination of an appeal arising from a judgment of the Court below in a pre – election matter in Nigeria. What then is a pre-election mater for the purposes of Section 285 (12) of the Constitution of Nigeria 1999 (as amended)? Happily, the Constitution of Nigeria 1999 (as Amended) did not remain silent on this as would have led the Courts, and litigants and their Counsel, to grope in the dark as to its proper meaning. Thus in Section 285 (14),for the purpose of this section, “pre-election matter’ means any suit by-
(a) An Aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political

parties and the Provisions of the Guidelines of a Political Party for the conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an Election.
Furthermore, by Section 87 of the Electoral Act, 2010 (as amended), which the Court below, quite rightly in view, held as being applicable to the claims of the 1st Respondent and against which finding there is no ground of appeal by the Appellant in this appeal, it is provided inter alia thus:
87. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below.
(ii) The aspirant

with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the commission as the candidate of the party.
Having taken time to scrutinize the claims of the 1st Respondent and the issues as joined by the parties, I am in complete agreement with the submissions of learned counsel for the 1st Respondent that the 1st Respondent’s Suit was clearly a pre – election matter, to which both the Electoral Act 2010 (as amended) and the provision of Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) apply with equal force, contrary to the misconceived submissions by learned counsel for the Appellants that these provisions do not apply. The finding to that effect by the Court below having not been appealed against in this Appeal by the Appellants remained valid, subsisting and binding not only on them but also the Respondents as well as this Court. Thus, none of the parties can simply merely wish it away without any ground of appeal challenging such a finding, and cannot even be allowed to contend anything to the contrary to the un-appealed

finding of the Court below. See Ogigie V. Obiyan (1997) 10 NWLR (Pt. 524) 179 @ p. 195.
Now, with the applicability of Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) to this Appeal, how is the limitation period reckoned with in any matter in which it is alleged that a pending case or appeal has been caught up by the limitation law?
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
Later in 2004, the Supreme Court had revisited this

issue and reiterated in Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416, inter alia thus:
“The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred”.
So, in the peculiar circumstances of the first ground of preliminary objection of the 1st Respondent against the competence of the appeal, how is the limitation period to be determined? It my view, taking a leading and cue from the above decisions, it is the date of the delivery of the judgment of the Court below appealed against and the period it has taken for it be determined by this Court that are the relevant dates to be considered in the determination whether this appeal has become statute barred, spent, expired and or lapsed by ex-fluxion of time as

contended by the 1st Respondent.
The parties are ad idem that the Judgment of the Court below was delivered on 20/3/2020. However, by the Appellants’ own showing the copy of the judgment was only obtained on 20/4/2020, while the Record of Appeal was transmitted to this Court on 7/5/2020. Interestingly, while it may be so easy to try to allude to this Court to locate the period that this appeal has lasted, it is so obvious that the Appellants only filed their last replies as allowed them by the Rules of this Court on 19/6/2020, which was about 79 days after the date the judgment appealed against was delivered. In other words, as at 19/6/2020, when the Appellants’ replies to the Respondents’ respective briefs were filed by the Appellants, the 60 days period as specifically provided for the filing, hearing and determination of an appeal from the judgment of the Court below in a pre – election matter by Section 285(12) of the Constitution of Nigeria 1999 (as Amended) had long expired or elapsed even before the appeal was ripe for hearing by this Court. Curiously, the Appellants’ counsel were well aware of this position of both the

facts and the law and had in an affidavit deposed to by G. E. Oaikhena Esq., learned counsel for the Appellants on 27/5/2020 deposing inter alia as follows:
5. That the time prescribed to hear and determine the pre – election appeal is 60 days from the date of the Judgment appealed against.
12. That the Appellants will suffer injustice if this appeal is not heard urgently to accommodate the time as the period will elapse on 21/5/2020.
However, in a manner so incredulous and amounting to approbating and reprobating, the Appellants’ counsel had turned to argue that the Appeal was no longer affected by both the provisions of Section 87 of the Electoral Act and Section 285(12) of the Constitution of Nigeria 1999 (as Amended) in order to save the life of the appeal. Thus, they now argue that the appeal is one only affected by the Edo State Local Government Election Law and therefore, its determination at both before the Court below and this Court is without any limitation period but is that so!
It is indeed, a sad commentary that counsel as officers in this hallowed temple of justice could go so low to speak from both sides of the

mouth on the same issue and approbating and reprobating at the same time merely because having relied on the Electoral Act and the Constitution to found their grounds 1, 5 and 6 of their Notice of Appeal, now abandoned by them, and being confronted with a similar preliminary objection by the 1st Respondent, decided, albeit sadly, to summersault and at once to reprobate and reprobate on the same issue as earlier canvassed by them and thinking that by the mere abandonment of grounds 1, 5 and 6 of their grounds of appeal it would offer them some succor or a panacea to the quagmire they had on their volition put themselves into it and on the face of the devastatingly damaging affidavit, which remains on record, to the effect that this appeal would lapse by 21/5/2020.
In law, neither a party nor his counsel would be allowed the luxury of speaking from both sides of the mouth and thereby approbating and reprobating on the same issue. The hallmark of truth is consistency. I am therefore unable to attach any credibility or indeed any worthiness to the Appellants’ counsel on this issue of whether or not the Electoral Act and the Constitution apply to this

Appeal. Consequently, their contentions amounting to summersault and approbating and reprobating are hereby in its entirety discountenanced. I had already held, as was rightly and unassailably contended by the 1st Respondent’s counsel in line with the correct position of the law on the subject matter and as earlier truthfully asserted by the Appellants’ counsel before their summersault, that both the Electoral Act 2010 (as amended) and the Constitution of Nigeria 1999 ( as Amended) apply to this appeal.
By Section 285(12) of the Constitution of Nigeria 1999 (as Amended), which has been reproduced earlier in this judgment, an appeal from the judgment of the Court below in a pre – election matter must be heard and determined within 60 days from the date the judgment appealed against was delivered and without any exceptions.
The Constitution of Nigeria 1999 (as amended) is the supreme law of the land and therefore, its provisions are superior to every other provision embodied in any Act or law. It is binding on all person and authorities in Nigeria. The provisions of Section of the Constitution of Nigeria 1999 (as amended) providing for a

period of 60 days from the date of judgment for the hearing and determination of an appeal against the judgment of the Court below in a pre – election underscores both the sui generis nature and essence of time in both election and pre – election matters in Nigeria. These provisions are cast in stone and made mandatory. Not unexpectedly, there is no proviso to them to accommodate any human exigencies, including but not limited to Corona Virus pandemic, as they are couched in absolute terms. They therefore, accommodate no exception but must be strictly complied with by both the parties and the Court itself, and failure to do so renders such an appeal or action statute barred and thus liable to be dismissed. See Jallco Nig. Ltd V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 531; CPC V. INEC (2011) LPELR – 8257 (SC); AG Abia State V. AG Federation (2002) 5 NWLR (Pt. 763) 268; Adisa V. Oyinwola_ (2000) 10 NWLR (Pt. 674) 116; Kawuwa & Anor V. PDP & Ors (2016) LPELR – 40344(CA) per Sankey JCA @ pp. 49 – 50.
My lords, in the circumstances, therefore, I hold firmly that this Appeal has become statute barred on 21/5/2020 and thus rendered incompetent

to be heard and determined on the merit. It is further my considered view that even this Court lacks the vires to extend in any way or manner the 60 days limitation period as prescribed by Section 285(12) of the Constitution of Nigeria 1999 (as amended) once it has lapsed. Thus, there is no known remedy yet and this Court is devoid of any requisite jurisdiction to hear and determine this Appeal on the merit outside the 60 days as prescribed by law or to in any subtle manner or by any means act to extend on its own the life span of this Appeal.
Now, these Constitutional timelines are sacrosanct and have been described as the ‘Rock of Gibraltar’ and ‘Mount Zion’ which cannot be moved. Indeed, and quite true, the law may be harsh but it is the law and must be obeyed to the letter, more so when it is a constitutional provision! Thus, this Court being not the Creator, and indeed not pretending to be one, cannot bring back to life a dead appeal and assume jurisdiction over an Appeal which had since died on 21/5/2020 when it attained the ripe death age of 60 days as allowed it by law. We do not, and indeed cannot, raise dead appeals! See

Kawuwa & Anor V. PDP &Ors (2016) LPELR – 40344 (CA) per Georgewill JCA @ pp. 14 – 15. See also ANPP &Ors V. Alhaji Mohammed Goni & Ors (2012) LPELR – 8730 (SC) per Onnoghen JSC (as he then was but later CJN); Afam Ogene V. Hon Chukwuka Onyema (2012) LPELR – 9774 (CA); Ugba V. Suswam (2012) LPELR – 191/2012 (SC); Saleh V. Donald (2012) LPELR – 9299 – (CA).
Curiously, even as at the 78th day after the judgment appealed against was delivered on 20/3/2020 the Appellants were yet to file their replies to the Respondents respective briefs and therefore, this appeal had lapsed and or expired and become extinct due to the fault and indolence of the Appellants even before it was heard on 15/9/2020 by this Court. Thus the Appellants must bear the full consequences of their indolence in prosecuting this appeal within the 60 days as required of them by law and would not be allowed to shift the blame to any other quarters, including this Court, which even during the peak period of the great Corona Virus pandemic had in the interest of justice to the litigants still held special Court sittings to hear time bound and other urgent matters as

in the nature of this appeal. The Appellants therefore, have only themselves and their counsel to blame.
Having therefore, arrived at the inescapable conclusion that the Appellants’ appeal against the judgment of the Court below delivered on 20/3/2020 in a pre – election matter, and required by law to be heard and determined within 60 days from the date of the judgment appealed against but still pending as at 15/9/2020, which was 165 days after the delivery of the judgment of the Court below, long after the expiration of the 60 days on 21/5/2020, and is thus statute barred, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the Appellants’ Appeal or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Appeal?
In African Songs Limited &Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the

place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541. See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR 587.
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the Appellant’s Appeal that has become grossly

incompetent in law. In the circumstances therefore, I find great merit in the first ground of the preliminary objection of the 1stRespondent and it is hereby upheld.
Consequently, the 60 days for the hearing and determination of this Appeal by this Court from the date the judgment of the Court below was delivered as allowed by Section 285 (12) of the Constitution of Nigeria 1999 (as Amended) having elapsed, this appeal has become statute barred, spent, extinct, elapsed and expired by operation of law and that is the end of the matter! See Dr Casmir Anyanwu V. Chief Okey Eze (2020) 2 NWLR (Pt 1708) 379 @Pp 390 – 391.
This Appeal is therefore, liable to be struck out and I hereby so strike it out.

My lords, I now proceed to consider the second ground of the 1st Respondent’s preliminary objecting challenging the competence of the Appellants’ previous and present counsel, whilst being public officers, to engage in private legal practice to sign the Appellants’ processes in this appeal.
I have taken time to consider the affidavit evidence of the parties and reviewed the submission of their counsel on this second ground of

the 1st Respondent’s preliminary objection and it does appear to me that prior to 1999, by the Regulated and Other professions (Private Practice Prohibition) Law Lecturers Exemption) (No. 2) Order 1992, Lecturers were indeed exempted from the ban on private practice by Public Officials of State to enhance the quality of teaching and practical experiences shared with law students. However, it would appear that by the coming into effect on 29/5/1999 of the Constitution of Nigeria 1999 and its operation now as Amended, the regulation on exemption of Law lecturer and the law pursuant to which it was made has been expressly repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Decree No. 63 of 1999, and thus modified to conform with the provisions of the Constitution of Nigeria 1999 (as Amended) now prohibiting all forms of engagement in private practice by Public Officers or Public Servants except for engagement in farming. I hold therefore, this exemption no longer subsists and therefore, does not offer any protection or exemption to the counsel for the Appellants. See Sections 315, 318 and

Paragraph 15 of Part 1 of the 5th Schedule to the Constitution of Nigeria 1999 (as amended). See also Plateau State University V. Joseph & Ors. 2018) LPELR-46049(CA).
Now, having held as above, can this position invalidate a process signed by a counsel qua legal practitioner duly called to the Nigerian Bar and enrolled on the Roll of Legal Practitioners? I venture to answer this in the negative. In my view, such a breach should have personal consequences on the legal practitioner but certainly not on the innocent litigant. However, it also does appear to me that such consequences is not automatic but one to be alleged and proved before the proper venue as specified in the Constitution, which is the Code of Conduct Tribunal and certainly not this Court. See Paragraph 15(1) of Part 1 of the 5th Schedule to the Constitution of Nigeria 1999 (as Amended), which provides thus:
“There shall be established a tribunal to be known as Code of Conduct tribunal which shall consist of a Chairman and two other persons.”
It would, therefore, in my humble but firm view, require a trial of the allegations being made by the 1st Respondent against the counsel for the Appellants

and findings to be made thereon before and by the Code of Conduct Tribunal. I hold that this Court, in all the plenitude of our enormous powers being the penultimate Court in the land, has no original jurisdiction over an alleged breach of the Code of Conduct by a Public Officer. Thus, the second ground of the 1st Respondent’s preliminary objection not being a matter within the jurisdiction of this Court and not being an issue in the subject matter of this appeal, is in my finding incompetent and liable to be discountenanced and overruled. Consequently, it is hereby overruled.

However, having held that ground one of the 1st Respondent’s preliminary objection has merit and having struck out this appeal for being incompetent, this Court being an intermediate appellate Court enjoined by law to consider and determine all issues placed before it in an appeal, and assuming for a moment but not so deciding that the decision that this Appeal is incompetent by reason of the provision of Section 285(12) of the Constitution of Nigeria 1999 (as Amended) is not correct, and being not infallible as we may sometimes be wrong, I shall proceed to consider the

substantive appeal on the merit.

ISSUE ONE
Whether the Benin High Court in Benin Judicial Division has the Jurisdiction to adjudicate in the case, when the cause of action arose in the Ubiaja High Court judicial Division Of Edo State, where the Respondent and the Principal Party; the 3rd Appellant, resides?

APPELLANTS’ COUNSEL SUBMISSIONS
Learned counsel for the Appellants had submitted that the 1st Respondent, the 3rd Appellant, whose election is being challenged, the 5th Appellant are all within the Ubiaja High Court Judicial Division of Edo State where the cause of action arose and contended that in law the institution of a suit should be in the place where the cause of action arouse and at any rate under the Rules of the Court below, where a public officer, such as the 3rd Respondent, the place to file a suit is in Ubiaja, the jurisdiction where the cause of action arose and urged then Court to hold that the High Court Benin City had no jurisdiction to hear and determine the suit because the cause of action did not arise in Benin but in Ubiaja, within the Ubiaja High Court and to allow the appeal and strike out the 1st

Respondent’s suit for being incompetent. Counsel referred to Order 2 Rule 2& 4(1) of the Rules of the Court below; Section 32 of the High Court Law, Cap. 65, Vol. III Law of Bendel State of Nigeria, 1976, now applicable to Edo State, item six (6) of the schedule to the Law and relied on IBRAHIM V. JSC, KADUNA (1998), 64 LRCN 5044; FRN & AG. FED V. IFEGWU (2003) 112 LRCN 2233 @ p. 2242.

It was also submitted that the Court below was wrong when it assumed jurisdiction to hear and determine the 1st Respondent’s suit without a warrant from the Chief Judge of Edo State and urged the Court to hold that such an exercise of jurisdiction was unlawful, and rendered the entire proceedings a nullity in Law and should be set aside and the appeal allowed. Counsel relied on SENATOR CHRISTIANA ANYANWU V. HON. INDEPENDENCE CHIEDOZIEM OGUNEWE & 2 ORS. (2014) VOL 231 LRCN 42 @ p.46.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 1st Respondent had submitted that there is only one High Court of Edo State and thus, the Judicial Divisions are merely for convenience and not for purpose of jurisdiction and at any rate that the

issue of the propriety of adjudicating the suit in Benin Judicial Division as opposed to Ubiaja Judicial division is a fresh issue raised without the Leave of this Court and thus incompetent and contended that the Constitution provided only for the High Court of Edo State and the Judicial Divisions being merely for convenience and urged the Court to hold that the 1st Respondent’s suit was properly instituted within the Benin Judicial Division as the Addresses of some of the Defendants at the trial Court are within the Benin Judicial Division and in that in law the institution of cases in a wrong Judicial Division does not affect the jurisdiction of the Court as the Rules of Court do not vest subject matter jurisdiction on Courts and to dismiss the appeal for lacking in merit. Counsel referred to Section 32 (1) of the High Court Law of defunct Bendel State, Cap 65, Laws of Bendel State of Nigeria 1976 now applicable to Edo State; Order 2 Rule 4(2) and 5 of the Edo State High Court (Civil procedure) Rules 2018; Section 270(1) of the Constitution of Nigeria 1999 (as Amended) and relied on BARBUS & CO. (NIG) LTD & ANOR V. OKAFOR-UDEJI (2018)

LPELR-44501 (SC).

3RD RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 3rd Respondent rehashed the submissions in the 1st Respondent’s brief on this issue and in addition had submitted that Rules of Court are merely to regulate practice and regulation and do not vest jurisdiction on Courts and urged the Court to dismiss the appeal for lacking in merit. Counsel relied on NPA V. SAMA & ORS (2016) LPELR-40126(CA); CLEMENT & ANOR V. IWUANYANWU & ANOR (1989) LPELR- 872(SC).

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In the reply briefs learned counsel for the Appellants merely re – argued the issue one and referred to the decisions relied upon in the Respondents’ brief and in addition had submitted that that the creation of Courts within Edo State is not a mere cosmetic or procedural but a matter of substantial law, which must be obeyed and contended that it is not open to a litigant to choose where he will file a case merely because he wishes to do so, there being no inherent powers of the Court to assume jurisdiction when it has none and the jurisdiction of Court is created by statute and not based on

inherent powers and urged the Court to so hold and to allow the appeal and strike out the 1st Respondent’s suit for being incompetent. Counsel referred to Sections35 and 36 of the High Court Laws of the defunct Bendel State, Cap 65, Laws of Bendel State, 1976, now applicable to Edo State and relied on IBERO V. OBIOHA (1994) 1NACR 1.

RESOLUTION OF ISSUE ONE
My lords, issue one deals squarely with the issue whether or not the 1st Respondent’s Suit commenced, heard and determined in the Benin Judicial Division of the High Court of Edo was incompetent and thus rendered the judgment of the Court below founded on it a nullity and thus liable to be set aside? Simply put, the two questions arising from this issue are namely, these: Whether the 1st Respondent’s Suit commenced in the Benin Judicial Division of the Edo State High Court was incompetent? Whether the Court below, being the High Court of Edo State sitting in the Benin Judicial Division lacked the jurisdiction to have heard and determined the 1st Respondent’s Suit? These, to my mind, are the real crux of issue one!
Now, by Section 270(1) of the Constitution of Nigeria 1999 (as Amended)

a High Court was created and established for each of the States of the Federation and the Federal Capital Territory. It follows that no one State of the Federation has more than one High Court for the State. However, for administrative convenience and for ease of access to justice in all the different parts of the State, the High Court Laws of the States divides the State into Judicial Divisions where the State High Court sits in those different Divisions to afford ease of access to justice and strictly for smooth administrative convenience in the due administration of justice. Thus, no one judge in any State of the Federation is appointed solely for any particular Judicial Division of the High Court of the State and therefore, each judge is appointed as a judge of the one State High Court and with jurisdiction to sit in any of the Judicial Divisions to which he is so duly assigned by the Chief Judge of the State.
My lords, what I have been belaboring to say, perhaps in far too words, is simply that the High Court of a State as created and established by the Constitution of Nigeria 1999 (as Amended) is one High Court not withstanding

how many Judicial Divisions it operates from by virtue of the Division of the one State High Court into several administrative Judicial Divisions by the High Court Laws of the State under the hand of the Chief Judge of that State. The High Court of each State of the Federation is thus one indivisible High Court.
Going by the succinct provisions of Section 270(1) of the Constitution of Nigeria 1999 (as Amended), there is by law only one High Court of Edo State. However, for strictly and purely administrative convenience, Judicial Divisions are created under the hand of the State Chief Judge pursuant to the High Court Laws of Edo State and judges are assigned to man these Judicial Divisions. Thus, the jurisdiction of the High Court of Edo State is State wide and covers the territorial jurisdiction of the entire Edo State. There is therefore, in law no distinct jurisdiction of each of the Judicial Divisions as distinct from the one common jurisdiction of the High Court of Edo State as created and established by law. See Section 270 (1) of the Constitution of Nigeria 1999 (as Amended), which provides thus:
1. “There shall be a High Court for each

State of the Federation.
See also Section 270 (2) of the Constitution of Nigeria 1999 (as Amended) which provides as follows:
“The High Court of a State shall consist of-
a. A Chief Judge of the State, and
b. Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State.”
In law therefore, the Edo State High Court is one Court, and all the Judicial Divisions of the High Courts of Edo State have the same jurisdiction to entertain any matter arising from Edo State despite the creation of Judicial Divisions for mere purposes of administrative convenience. See Section 32 (1) of the High Court Law of defunct Bendel State, Cap 65, Laws of Bendel State of Nigeria 1976 now applicable to Edo State provides as follows
“For the more convenient dispatch of business the Court may sit in two or more divisions and the Chief Justice may divide the State into divisions and assign any portion to any division which shall be known as a Judicial Division and may designate such Judicial Division by name and shall direct one or more judges to sit in one or more Judicial Divisions.”

In my view therefore, the High Court of Edo State whether sitting at Ubiaja Judicial Division or Benin Judicial Division or indeed any other Judicial Divisions of the High Court of Edo State is one High Court exercising the same powers and jurisdiction as conferred on the High Court of Edo State by Section 270 (1) of the Constitution of Nigeria 1999 (as Amended) and all other powers enabling it in that behalf.
The above being the succinct position of the law on the powers and jurisdiction of the High Court of Edo State, the contention by the Appellants that the High Court of Edo State sitting at Ubiaja has and exercises jurisdiction that inures to it only and does not extend to the High Court of Edo sitting in the Benin Judicial Division is not only preposterous and untenable but also very erroneous and highly misconceived and must be discountenanced in its entirety.
Therefore, I cannot but agree entirely with the apt and unassailable submissions of the 1st Respondent’s counsel that the Ubiaja and Benin Judicial Divisions of the High Court of Edo State, being merely created for administrative convenience and access to justice, do not confer any

distinct jurisdiction or power from that as is Constitutionally conferred on the one single, indivisible entity, the High Court of Edo State.
At any rate, under the Rules of the Court below where there are several Defendants who reside or carry on business in different judicial Divisions, the suit may be commenced in anyone of these Judicial Divisions subject to any order or direction a judge may make or give as to the most convenient arrangement for trial of the suit. See Order 2 Rule 4(2) of the Edo State High Court (Civil Procedure) Rules 2018.
Furthermore, in case any suit is commenced in any other Judicial Division than in which it ought to have been commenced, the same may, notwithstanding, be tried in the Judicial Division in which it shall have been commenced, unless the Court shall otherwise direct, or the Defendant shall plead specifically in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause. See Order 2 Rule 5 of the Edo State High Court (Civil Procedure) Rules 2018.
Consequently, the 1st Respondent’s claim that was commenced, heard and determined, and without

any preliminary objection by the Appellants before the Court below on this ground, in the one indivisible entity, the High Court of Edo State sitting in the Benin Judicial Division was proper and competent. It suffered no incompetence whatsoever merely on the erroneous basis as contended by the Appellants’ counsel that the claim ought to have been commenced, heard and determined at the Ubiaja Judicial Division of the High Court of Edo State.
In the circumstances therefore, I hold firmly that the High Court of Edo State sitting in the Benin Judicial Division was competent to have heard and determined the claims of the 1st Respondent against the Appellants, and which suit was also competently commenced in the High Court of Edo State sitting in the Benin Judicial Division. I hereby resolve issue one against the Appellants in favor of the 1st Respondent.

ISSUE TWO
Whether the Court was right to assume Jurisdiction in a matter purely within the domain of the Political Party to nominate their candidate for election?

APPELLANTS’ COUNSEL SUBMISSIONS
Learned counsel for the Appellants had submitted that the Court below

had no jurisdiction to interfere on how a Political party nominates their candidate for election and contended that it is purely the prerogative of the party, being a domestic affair of the Political party and urged the Court to hold that the nomination of the 3rd Appellant by the officials of the 1st Appellant in accordance with the directives of the 1stAppellant is purely a domestic affair of the Appellants’ political party, and therefore, outside the jurisdiction of the Court below and to allow the appeal and strike out the 1st Respondent’s suit . Counsel relied on EZEIGWE V. NWAWULU (2010) VOL 181 LRCN 21.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 1st Respondent had submitted that the Appellants conceded to the jurisdiction of the Court below and had even not appealed against the finding of the Court below that it has the jurisdiction to hear and determine the 1st Respondent’s case and are therefore, bound by those un – appealed findings and that at any rate in law the Courts have the jurisdiction to adjudicate on cases brought under Section 87(9) of the Electoral Act and urged the Court to hold the Court

below had the jurisdiction to entertain the 1st Respondent’s suit and to dismiss the appeal for lacking in merit. Counsel referred to Section 23 (1) & (2) of the Edo State Local Government Election Law 2012 and relied on JEV & ANOR v. IYORTYOM & ORS (2014) LPELR-23000 (SC); NOBIS- ELENDU v. INEC & ORS (2015) LPELR-25127 (SC); GASSOL v. TUTARE & ORS (2013) LPELR-20232 (SC); AGI v. PDP & ORS (2016) LPELR-42578(SC).

3RD RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 3rd Respondent merely reproduced the submissions in the 1st Respondent’s brief, which has been reviewed and reproduced above in extenso and urged the Court to resolve issue two against the Appellants in favor of the 3rd Respondent.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply briefs, learned counsel for the Appellants had submitted that they did not at any time conceded to the jurisdiction of the Court below on matters bordering on nomination of candidates under the Electoral Act 2010 (as Amended) but had rather contended that that law applies only to Presidential, Senatorial, House of Representatives, Governorship,

Members of House of Assembly, Chairman and Councillors of Area Council of the Federal Capital Territory, Abuja but not to Chairmanship of a Local Government Council in a State and urged the Court to hold that the Court below lacked the jurisdiction to have determined the 1st Respondent’s suit and to allow the appeal and strike out the 1st Respondent’s suit for being incompetent. Counsel referred to Section 78 of the Edo Electoral Law 2012.

RESOLUTION OF ISSUE TWO
My lords, it is true in law that the question of who is a candidate of a political party is clearly a political question and which is non – justiciable being at the sole discretion or within the powers of the political party concerned as its internal affairs over which no Court has the jurisdiction to superintend. SeeNuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ pp. 68 – 69. See also Onuoha V. Okafor (1983) 2 NSCC 494; Taiwo V. Adegboro (2011) All FWLR (Pt. 584) 53; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.
However, it is also equally true in law that a person who participated as a candidate in a primary election of a political party and

alleges a breach of Section 87(9) of the Electoral Act 2010 (as Amended) and non – compliance with the guidelines of that political party for the conduct of the primaries for selection of its candidate for election has the locus standi, the legal right, to sue and such an issue is not a political question and is thus justiciable. See Ardo V. Nyako (2014) All FWLR (Pt. 744) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ p. 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. PDP (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FGWLR (Pt. 735) 243; See also Nuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ p. 69.
Thus, the clear position of the law as resonate in virtually all the decisions of the apex Court as well as this Court as touching the issue of locus standi pursuant to Section 87 (9) of the Electoral Act (2010 as Amended) is that a person, once he was a candidate at the primary election of a political party and who alleges a breach of the Electoral Act 2010 (as Amended) and the guidelines of

the affected political party, such as the 1st Respondent in this appeal, indeed has the locus standi, the legal right, to sue by virtue of Section 87(9) of the Electoral Act 2010 (as Amended). Indeed, such a claim, such as the claim commenced by the 1st Respondent before the Court below, is clearly justiciable in law. The 1st Respondent is thereby clothed with the requisite locus standi to sue as he did in his claim against the Appellants, and as was rightly held by the Court below, contrary to the erroneous contentions of the Appellants in this appeal and which contentions, being erroneous, must be discountenanced. See Alahassan & Anor V. Ishaku & Ors (2016) LPELR – 40083 (SC). See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ p. 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. PDP (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FGWLR (Pt. 735) 243; See also Nuhu V. Bwacha & Ors (2016) LPELR – 40810 (CA) per Georgewill JCA @ p. 69.
Consequently, I hold firmly that

the Appellant’s Suit was justiciable and thus competent. I hereby resolved issue two against the Appellants in favor of the 1st Respondent

ISSUE THREE
Whether the judgment is against the weight of evidence?

APPELLANTS’ COUNSEL SUBMISSIONS
Learned counsel for the Appellants had submitted that the 1st Respondent did not provide any documents to substantiate that he won the primary election on 24/1/2018 apart from his oral evidence to that effect unsupported by the evidence of his witnesses and contended that in law the best evidence of proof of nomination is the nomination paper on the decision of the issue tendered by the returning officer and urged the Court to hold that in law that there is a presumption that the electoral result presented by the electoral officer is correct, and the onus is on the party alleging that the result is incorrect to prove otherwise, which the 1st Respondent failed to discharge as required of him by law and to allow the appeal and set aside the perverse findings of the Court below and dismiss the 1st Respondent’s suit. Counsel referred to Sections 14, 23 and 24 of the Edo State Local Government Electoral Law, 2012

and relied on UDONU V UGOCHUKWU (1959) ENLR1.

It was also submitted that the 1st Respondent, his 1st witness, 3rd witness and Exhibit G showed clearly that there was no evidence of accreditation, voting, counting of ballot papers and declaration of result due to invasion by thugs and contended that in law the allegation of invasion of election venue by thugs and threat to life are criminal allegations which must be proved beyond reasonable doubt, and urged the Court to hold that the 1st Respondent failed to discharge onus of proof and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 135 (1) of the Evidence Act 2011 and relied on EJUETAMI V. OLAIYA (2001) 92 LRCN 3348 @ p. 3349; BRITTANIA-U NIG LTD. V. SEPLAT PDC LTD & ORS (2016) VOL. 259 @ p. 93; AGBITI V. THE NIG. NAVY (2011) VOL. 200 LRCN 181 @ p. 194.

It was further submitted that the holding of the Court below that there was voting on 24/1/2018 and that the 1st Respondent won the election was against the weight of evidence before it since the 1st Respondents’ case was filled with contradictions as his witnesses lied on

oath, and contradicted themselves and ought not to have been believed and relied upon by the Court below and urged the Court to so hold and to allow the appeal and set aside these perverse findings of the Court below and dismiss the 1st Respondent’s suit for lacking in merit. Counsel relied on EZEALA NNAJIFOR & 5 ORS V. LINUS UKONU & 2 ORS (1986) 4 NWLR (Pt. 36) 521.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 1st Respondent had submitted that in law where the evidence in proof of the case is unchallenged, then, the burden of proof on the Claimant is on minimal proof as was demonstrated by the failure of the Appellants and their witnesses to adduce any evidence of the contest of the primary election between the 3rd Appellant and the 1st Respondent and thereby leaving the only pieces of evidence in proof of the primary election as the evidence adduced by the 1st Respondent and his witnesses, alone and contended that the evidence of the 1st Respondent and his witnesses on the primary election of the 1st Appellant duly established the case of the 1st Respondent and urged the Court to hold that the judgment of the Court below

was amply supported by the gamut of the admissible and credible evidence before it and to dismiss the appeal for lacking in merit and affirm the correct judgment of the Court below. Counsel relied on LARMIE V. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR – 1756(SC).

2ND RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 2nd Respondent did not formulate any issues for determination and therefore, had nothing to urge on the Court in favour of the 2nd Respondent but submitted that having studied the judgment of the Court below, the amended Notice of Appeal and the Grounds of Appeal together with the Briefs of Argument filed, the rights and powers of the 2nd Respondent were neither challenged nor was the Commission indicted in any way and since all the issues in controversy between the parties do not affect the rights of the 2nd Respondent they really have nothing to urge on the Court but will abide by the Judgment of the Court in this appeal and give effect to same. Counsel relied on ACN & ORS V. LABOUR PARTY & ANOR (2012) LPELR-8003(CA).

3RD RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for

the 3rd Respondent had submitted that the case of the 1st Respondent before the Court below was very simple and straight forward and was that the 1st Respondent participated in the Primary election of the 1st Appellant held on 24/1/2018 and won same with a majority vote of 164 out of the total of 286 votes, while the case of the Appellants was that the 1st Respondent did not participate in the said primary election but rather, the 3rd Appellant was the consensus Candidate of the 1st Appellant and he was merely adopted by a voice votes on 24/1/2018 of which the Court below believed the evidence of the 1st Respondent and his witnesses and found in favor of the claims of the 1st Respondent against the Appellants and urged the Court to hold that the findings of the Court below was correct and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Abisi & Ors V. Ekwealor & Anor (1993) LPELR -44(CA); FRN V. IWEKA (2011) LPELR-9350(SC); LARMIE V. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC)

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply briefs, learned counsel for the Appellants had

submitted that the 1st Respondent did not tender any document like electoral sheets, electoral register, accreditation register, results sheets from the nomination in support of the oral assertion that he scored 164 votes and his 3rd witness only tendered Exhibit G, a video recording of the exercise and informed the Court that he never recorded accreditation, voting and announcement of results of the election that took place while the 3rd Appellant called the Chairman of the nomination election exercise as his witness and tendered Exhibit 6, the certificate issued to the 3rd Appellant as the person who was nominated in the exercise and urge the Court to hold that the Court below was wrong in the circumstances to have rather believed and relied upon the evidence of the 1st Respondent than the credible evidence of the 3rd Appellant to enter judgment in favor of the 1st Respondent against the 3rd Appellant and to allow the appeal and set aside the perverse judgment of the Court below.

RESOLUTION OF ISSUE THREE
Having held as above under issue two that the claims of the 1st Respondent were justiciable, in law it is one thing for an issue to be justiciable

and quite a different thing for such an issue to be meritorious. In other words, it is not enough merely that a claim is justiciable, to succeed the claims made must be proved as required by law. So, did the 1st Respondent, by the averments in his pleadings and the evidence led thereon prove his claims against the Appellants as to be entitled to the Judgment of the Court below as entered in his favour against the Appellants? This is the real crux of issue three dealing with the evaluation and weight of evidence and the findings made thereon by the Court below in favor of the 1st Respondent.

Now, while the 1st Responded had pleaded and relied on having scored a simple majority of the valid votes cast at the APC primary elections held on 24/1/2018 for nomination of its Chairmanship Candidate for Esan Local Government Council, the 3rd Appellant had pleaded and relied on having emerged the Chairmanship candidate of the APC on 24/1/2018 by consensus through voice vote. In law, having made these allegations, the onus was on each of them to prove by credible evidence their allegations as required by law to be entitled to the judgment of the Court below in his

favor against the other party.

So, going by the relevant provisions of the APC guiding the procedure and conduct of its primaries for the nomination of its Chairmanship candidate for Local Government Elections, who claim as between that of the 3rd Appellant and that of the 1st Respondent was in line with the relevant provisions of the APC Constitution and did proved his claim against the other party and was thus entitled to the judgment of the Court below? The Court below in the judgment appealed against found for the 1st Respondent. The Appellants cried foul and are before this Court in this appeal contending that the findings of the Court below in favor of the 1st Respondent were perverse and should be set aside and the appeal allowed. The 1st Respondent would hear none of it and has contended that the judgment of the Court below was both sound and correct and should not in any way be interfered with or disturbed by this Court and rather should be affirmed and the appeal dismissed.

So, who as between the parties was right in his contention? Is the procedure for the conduct of the APC primary for nomination of its Chairmanship candidate by simple

majority of valid votes cast at its primary held for that purpose as contended by the 1st respondent or is the procedure for nomination of its Chairmanship candidate by voice votes as contended by the 3rd Appellant? Who, as between the 1st Respondent and the 3rd Appellant emerged the duly nominated Chairmanship candidate of the APC on 24/1/2018 for the Esan Local Government Council? Was the Court below right when it held that it was the 1st Respondent that emerged as the lawful duly nominated Chairmanship candidate of the APC and not the 3rd Appellant on 24/1/2018 in the primaries conducted for that purpose by the APC?

To answer this question, I shall have recourse to both the pleadings and evidence as led by parties as in the Record of Appeal as well as the relevant provisions of the 1st Appellant, the APC’s Constitution regulating the procedure and conduct of the party’s primary elections for nomination of its Chairmanship candidates.

At the trial the 1st Respondent testified inter alia that he is a registered voter and a registered member of the All Progressive Congress of Nigeria (APC) and from Idumuagho, Okaigben, Ewohimi, Esan

South East Local Government Area of Edo State. He contested the indirect primary election of the 1st Appellant held on 24/1/2018 for the purpose of nominating the 1st Appellant’s candidate for the Chairmanship election for Esan South East Local Government Area, Edo State. The indirect primary election by Electoral College of delegates was made up of 260 ward Executive members and 26 Local Government Executive members, totaling 286 delegates. At the election, he polled 164 votes out of 286 votes, which were duly counted and publicly announced at the election venue and he won the election. He was thoroughly cross examined.

The 1st Respondent called one Hon. Andrew Akhabue, who was at a time the State Assistant Secretary of the 1st Appellant and who testified inter alia that he was at the meeting held on the 17/1/2018 at the residence of Victor Eboigbe and gave evidence in tandem with the evidence of the 1st Respondent. He was also thoroughly cross examined.

The 1st Respondent also called one Albert Afobhokhan, the Local Government Assistant Organizing Secretary of the 1st Appellant in Esan South East Local Government Area of Edo State. He

testified inter alia that he was present at the venue of the Chairmanship primary election of the 1st Appellant on 24/1/2018, an election duly contested by and won the 1st Respondent and testified in line with the earlier evidence of the 1st Respondent and that in the genuine result duly signed by the Chairman and other members the 1st Respondent scored 164 votes out of the total of 286 delegates’ votes. He was also thoroughly cross examined.

The 1st Respondent also called one Stanley Osehon, who testified inter alia that he recorded the events of the 1st Appellant’s primary election conducted at the party secretariat, Ubiaja, Esan South East Local Government Area, Edo State on 24/1/2018, which video was tendered in evidence. He was also thoroughly cross examined.

The 1st Respondent tendered several documents admitted in evidence as follows: DVD – Exhibit A; His voters Card – Exhibit B; All Progressive Congress Constitution Exhibit C; Expression of Interest form – Exhibit D; Nomination form – Exhibit D1; Union Bank Credit Advice – Exhibit D2; His APC membership Card – Exhibit E; APC Esan South East Local Government Party Executive and Ward

Executive members: Ward 1 Exhibits F and F1; Ward 2 Exhibits F2 and F3; Ward 3 Exhibit F4 and F5; Ward 4 Exhibit F6 and F7; Ward 5 Exhibit F8 and F9; Ward 6 Exhibit F 10; Ward 7 Exhibit F 11 and F12; Ward 8 Exhibit F13 and F14; Ward 9 Exhibit F15 and F16; Ward 10 Exhibit F17 and F18; Transcript of video recording – Exhibit G.

In defense, the 3rd Appellant testified inter alia that his presentation to the 2nd Respondent was as a result of his emergence as the consensus candidate of the 1st Appellant for the Chairmanship of Esan South East Local Government Council on 17/1/2018, which was ratified on 24/1/2018 by a voice vote conducted by the officials of the 1st Appellant sent from the State Headquarters. He was thoroughly cross examined.

The 2nd Appellant also testified inter alia that the 3rd Appellant was not wrongfully and unlawfully presented to the 2nd Respondent as the candidate of the 1st Appellant as he emerged as the consensus candidate for the Chairmanship of Esan South East Local Government Area at a meeting held on 17/1/2018 and ratified by a voice vote on 24/1/2018 in accordance with the Constitution of the 1st Appellant, which at no time

choose to hold any indirect primary. He was also thoroughly cross examined.

The Appellant called one Hon. Samson Abu, the chairman of the primary election committee in Esan South East Local Government Area of Edo State, who testified inter alia that the 3rd Appellant emerged as the consensus candidate for the Chairmanship of Esan South East Local Government Area having been so unanimously chosen by the leaders of the local government area at a Meeting held on 17/1/2018, and was so ratified by a voice vote on 24/1/2018 conducted by him and the two other members of his primary election committee in accordance with the 1st Appellant’s Constitution. He was also thoroughly cross examined.

The Appellants also called one Chris Aghughu, the Chairman of the 1st Appellant in Esan South East Local Government Area, who testified inter alia that on 17/1/2018 the 3rd Appellant emerged as the consensus candidate of the 1st Appellant for Chairman of Esan South East Local Government Area, which was affirmed by a yes voice vote on 24/1/2018 and that he attended several meetings, including a meeting held on 15/1/2018 attended by all Chairmen of the party at

the Local Government Level, where the modalities to secure total victory for the party in all the 18 Local Government Area in the forthcoming elections with emphasis on the admonition to reach a consensus candidacy to reduce expenses and attendant bad-blood usually flowing from loss of funds during pre-election lobbying. He was thoroughly cross examined.

The Appellants tendered several documents admitted in evidence as Exhibits as follows: APC Edo State Party guidelines for Local Government Council elections – Exhibit 1; 3rd Appellant’s expression of interest form – Exhibit 2; His nomination form – Exhibit 2A; APC posting of officials for local government council primaries – Exhibit 3; Edo State Independent Electoral Commission form for nomination of chairman/vice chairman of local government council – Exhibit 4; Edo State Independent Electoral commission, Return of list of candidates sponsored for election – Exhibit 5, APC Local Government Primaries result sheet – Exhibit 6; Subpoena ad testificandum ducestecum – Exhibit 7; Minutes of meeting held on 17th January 2018 – Exhibit 8; APC list of endorsed candidates for council chairmen and councilors

– Exhibit 9.

It was on the strength of the above evidence, both oral and documentary as led by the parties and their witnesses that the Court below had in its judgment delivered on 20/3/2020, granted all the reliefs claimed by the 1st Respondent against the Appellants, holding inter alia as follows:
“…..By Section 87(9) of the Electoral Act 2010, an aspirant who complains that any of the provisions of the Act and guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or the High Court of a State or FCT, for redress….Additionally, by Section 23(1) and (2) of the Edo State Local Government Election Law 2012 a candidate at a local government council election must emerge as a winner of the primary election. It is therefore justiciable for such a person who emerged as a winner of the primary election to approach the Court for redress if in spite of emerging winner of the election he is denied the ticket to contest the election. In the circumstances, I hold that the Court has jurisdiction to entertain the claimant’s

claim as formulated……In the circumstances, I believe the Claimant and his witnesses that he won the primary election conducted on 24/1/2018 at the APC Party Secretariat, Royal Market Road Ubiaja and emerged the candidate of the 1st Defendant in the Esan South East Local Government Election billed for 3/3/2018…Exhibit 6 tendered by the Defendants fell short of the requirement of the Constitution of the 1st Defendant as it, among others did not state the number of Yes and the number of No votes. I therefore, have no difficulty in holding that it is not a true reflection of what transpired at the venue of the said primary election. From the totality of the foregoing, I hold that the claim of the Claimant succeeds in its entirety…” See pages 915-961 of the Record of Appeal.

So, whose pleadings and evidence as between the 1st Respondent and the 3rd Appellant, two of the contestant for the Chairmanship nomination/ticket of the 1st Appellant was more probable and in line with the provisions of Article 20 of the 1st Appellant’s Constitution as in Exhibit C? Was the Court below right or wrong when it believed and preferred

the evidence of the 1st Respondent as being more probable and in line with the provisions of the 1st Appellant’s Constitution and thereby entering judgment in his favor against the 3rd Appellant and holding that the 1st Respondent was the person that duly emerged as the Chairmanship candidate of the 1st Appellant at the indirect primary election held on 24/1/2018, having scored the majority of the lawful votes cast in the said primary election? These are the salient questions arising from under issue three for determination in this appeal and I shall proceed to consider and answer them anon!

It is also the law that the onus is on the person to prove his allegation, and therefore a failure to adduce evidence in support of facts pleaded would result to failure to prove the facts pleaded or

the pleadings would be deemed abandoned. See Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227. See also Rt. Hon Tarzoor V. Ioraer 2015 LPELR – 25975 CA pp. 43 – 47.

Now, by Article 20 (1) of the APC Constitution as in Exhibit C, it is provided that all Party post shall be by election or consensus through yes or no votes but for nomination of candidate for Chairman of a Local Government, by Article 20 (iii)(a) it shall be by direct or indirect primary election. By Article 20 (iv)(a) – (d) procedure for nomination shall be by electoral college for indirect primaries. Thus, whilst by Article 20(ii)(i), nomination of Councillorship candidate shall be by direct primary or by consensus through yes or no votes but under Article 20(iii)(a) there is no similar provision for nomination of Chairmanship candidate by consensus through yes or no votes but rather by the combined effects of Article 20 (iii)(a) and 20(iv)(c), nomination of Chairmanship candidate shall by direct or indirect primaries only by which the candidate who scores the simple majority of the valid votes cast emerges the Chairmanship candidate and not by consensus through yes or no voice

vote. See Exhibit C, at pages 710 – 755 of the Record of Appeal.

Thus, on the pleadings and evidence led, whilst the case of the 1st Respondent was in line with the provisions on procedure for nomination of Chairmanship candidate of the APC, which case was amply proved by credible evidence of the 1st Respondent and even ably supported by the evidence of some of the witnesses called by the Appellants, the evidence of the 2nd and 3rd Appellants were simply incongruous and farfetched and not even supported by some of the witnesses called by them who admitted that indeed the indirect primary did hold on 24/1/2018 and delegates queued at the back of the candidate of their choice including the 1st Respondent and the 3rd Appellant, This was clearly contrary to the Appellants’ case that there was no primary elections at all since the 3rd Appellant had on 17/1/2018 been chosen as the consensus candidate of the 1st Appellant and all that happened on 24/1/2018 was an affirmation of his candidacy by a yes and no votes, of which in fact there was none.

Indeed, the yes and no vote option relied upon by the 2nd and 3rd Appellants as the basis for the

emergence of the 3rd Appellant as the chairmanship candidate of the 1st Appellant on 24/1/2018 was also contrary to the provision of Article 20 (iii)(a) which provided that the emergence of such a candidate of the 1st Appellant for a Chairmanship election for a Local Government Council shall be by direct or indirect primary election from which the person that scores the simple majority of the valid votes cast become the candidate. See also Article 20 (iv)(a) – (d) on the procedure for nomination that it shall be by electoral college for indirect primaries. These are the authorized mode in the 1st Appellant’s Constitution as the procedure for nomination of its Chairmanship Candidate for a Local Government Council election to be conducted by the 2nd Respondent and thus the purported candidacy of the 3rd Respondent was null and void as found rightly by the Court below.

In my finding therefore, on the evidence led by the parties and in the light of the provisions of Article 20 of the 1st Appellant’s Constitution, which does not make any provision for yes or no votes for the nomination of a Chairmanship candidate for a Local Government

Council but only through a direct or indirect primary election in which the candidate to emerge must score a simple majority of the valid votes cast at the said primary election, the Court below was on firmer ground when it found the case of the 1st Respondent as proved as required by law on the credible evidence of the 1st Respondent before it whilst disbelieving the incongruous and discredited evidence of the Appellants and thereby entering judgment in favor of the 1st Respondent against the Appellants.

In law, an appellate Court will not interfere with or disturb the correct findings of the trial Court. This is so because an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. If it correct, that is the end of the matter! See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate Court is only

concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

ISSUE FOUR
Whether the trial Judge was right when he ordered that the 3rd Appellant should refund all the salaries he earned while acting as the chairman of the council to the claimant/Applicant?

APPELLANTS’ COUNSEL SUBMISSIONS
Learned counsel for the Appellant had submitted that the evidence was that the 3rd Appellant won the Chairmanship election to the Esan South East Local Government Election conducted on 3/3/2018 and was duly sworn in by the Governor of Edo State in accordance with the laws of the State as the Elected Chairman and assumed duties as the Chairman and worked for the period for which he received remunerations attached to the office and contended that there was no

evidence that the 1st Respondent ever worked as a Chairman in Esan South East Local Government Council and in the absence of any allegation that the 3rd Appellant fraudulently collected the salary meant for the office, the judgment of the Court below directing him to pay over the salaries duly earned by him to the 1st Respondent was most perverse and should be set aside and the appeal allowed and that claim be dismissed for lacking in merit.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 1st Respondent had submitted that the Court below having found that the 1st Respondent was the duly elected Chairman of the Esan South East Local Government Council, Edo State, the 3rd Appellant was liable to refund all the salaries and emoluments received from that office to the rightful person, the 1st Respondent, being the winner of the Primary election of the 1st Appellant and thus, the winner of the Local Government Election held on 3/3/2018 since the 3rd Appellant who was not duly presented for the election was not duly elected and was also not duly sworn into office but was a mere imposter and a usurper of the office of the 1st Respondent and

urged the Court to find the findings and orders of the Court below and to dismiss the appeal for lacking in merit. Counsel referred to Section 23 of the Edo State Local Government Electoral Law 2012.

It was also submitted that it is only a person who won the primary election who shall be presented by a Political party as its candidate and contended that the Court below found as fact that the 3rd Appellant did not win the Party primary election and urged the Court to hold that the Court below was right when it held that in law the purported presentation, election and swearing into Office of the 3rd Appellant as Chairman of Esan South East Local Government Council was illegal and he cannot therefore, benefit from his illegality and to dismiss the appeal and affirm the correct judgment of the Court below.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the 3rd Respondent had in the main repeated and reiterated the submissions in the 1st Respondent’s brief, which have been reviewed above and in addition had submitted that once the Court below held that the 3rd Appellant was not the winner of the primary election of the 1st Appellant,

then the 3rd Appellant was indeed bound to refund all monies he had collected in the form of salaries or other emoluments from the office of the Chairman of the 3rdRespondent and urged the Court to so hold and to dismiss the appeal and affirm the correct judgment of the Court below. Counsel relied on LAU V. PDP & ORS (2017) LPELR-42800(SC).

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply brief, learned counsel for the Appellants had submitted that the 1st Respondent did not stand for the election to the position of Chairman in the Esan South East Local Government Council on 3/3/2018 and did not vote at the election as he was not nominated and he did not participate in the election and contended that he was never sworn in as Chairman of the said Council and never worked as Chairman and therefore, cannot be entitled to any remuneration accruing from the Office of the Chairman and urged the Court to allow the Appeal and set aside the judgment of the Court below and dismiss the claims of the 1st Respondent for lacking in merit. Counsel referred to Section 23 (4) of the Edo State Local Government Electoral Law 2012.

RESOLUTION OF ISSUE FOUR
My lords, with the resolution of issue three above in favour of the 1st Respondent against the Appellants, particularly the 3rd Appellant, issue four has become automatically resolved as it has to tow in line with the findings on issue three.

Now, with the affirmation by this Court as correct the finding of fact by the Court below that the nomination of the 3rd Appellant was null and void, being anchored on a very sound footing as the only inference that can be drawn and the correct conclusions reached thereon, it follows that the subsequent return and swearing into office of the 3rd Appellant were all a nullity and were done rather in place of the 1st Respondent, who is the duly nominated rightful candidate of the 1st Appellant, the APC.
In the circumstances, the 3rd Appellant having illegally and without any color of right been sworn into an office that does not lawfully belong to him and having benefitted from the position of the Executive Chairman of Esan South East Local Government Area of Edo State under the guise of being the candidate of the APC in the 3/3/2018 election into the said Local Government Council conducted by the

2nd Respondent, and was returned elected, ought to purge himself of the fruits of his illegality, being merely an impostor. See LAU V. PDP & ORS (2017) LPELR-42800(SC) @ p. 67, where the Supreme Court ordered the 4th Respondent to refund all the monies received by him from the Office as a Senator, directing inter alia thus:
“That the 4th Respondent –Alhaji Sani Abubakar Danladi- is hereby ordered to vacate the seat of the Senator representing the said Taraba North Senatorial District of Taraba State. It is also ordered that Alhaji Sani Abubabkar Danladi shall within ninety days from today refund to the National Assembly all monies he collected by way of salary/allowances whatsoever or howsoever described since he took the seat as the Senator representing Taraba North Senatorial District of Taraba State.”
My lords, this level of impunity, and of several acts of impunity in the political landscape in this great Country of all of us, had regrettably gone on unabated for far too long in our political life and governance and must therefore be checked, stopped and abated forthwith through the instrumentality of the law, at

least in this case. I hereby so put a stop to it as was also rightly done by the Court below and to affirm the very timely and apt orders of the Court below made in line with the relief as claimed by the 1st Respondent against the 3rd Appellant for restitution.
Any entitlements they might have benefited as impostors to a political office they know or ought to know they are not rightfully entitled to occupy. I hereby resolve issue four against the Appellants in favor of the 1st Respondent.

On the whole therefore, and having resolved all the four issues against the Appellants, particularly the 3rd Appellant, in favour of the Respondents, particularly the 1st Respondent. I hold that this Appeal lacks merit and ought to be dismissed in its entirety.

However, having also earlier found that this Appeal is statute barred and had become spent and thus incompetent and liable to be struck out, it is hereby so struck out for being statute barred. Having also found that this Appeal is lacking in merit and therefore, ought to be dismissed in its entirety, it is hereby so dismissed for lacking in merit.

In the result, the judgment of the High Court of Edo

State, Benin Judicial Division, Coram: D.I. Okungbowa J., in Suit No: B/28/OS/2018: Peter Aguele & Ors V. All Progressive Congress & Ors., delivered on 20/3/2020, wherein the claims of the 1st Respondents were granted against the Appellants, is hereby affirmed.
There shall be cost of N500, 000. 00 against the 3rd Appellant only in favor of the 1st Respondent only. All the other parties shall bear their cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the comprehensive judgment just delivered by my learned brother, Biobele Abraham Georgewill; JCA. I agree with the decision dismissing the appeal and affirming the judgment of the trial Court.
I abide by all the orders made by my learned brother, including the order as to costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in advance, the Judgment just delivered by my learned brother, Georgewill, JCA. I am in complete agreement with his reasoning and the conclusions reached therein.

I too strike out the appeal for being statute barred. However, this Court, being an intermediate Court, the appeal ought to be considered on the merit as rightly done by my learned

brother. I also agree that the appeal lacks merit and it is consequently dismissed. I abide by the consequential orders, including the order as to costs.

Appearances:

E. Oaikhena, Esq., with him, A. E. Oaikhena, Esq. For Appellant(s)

Dele Uche Igbinedion, Esq., with him, Innocent Ukpai, Esq., for the 1st Respondent

I. O. Kadiri, Esq., learned Senior State Counsel, Ministry of Justice Edo State for the 2nd Respondent

Robert Igbinedion, Esq., for the 3rd Respondent For Respondent(s)