APC v. ELEBEKE & ORS
(2021)LCN/15042(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, February 08, 2021
CA/A/CV/1127/2020
RATIO
WHETHER AN ISSUE OF JURISDICTION CAN BE RAISED AT ANY POINT IN TIME ON APPEAL
It is indeed the law, contrary to the contention of learned counsel for the 1st respondent that, any issue of jurisdiction can be raised, willy nilly, at any point in time, even on appeal. It therefore matters very little, whether the issue of the amended originating summons was raised at trial or not or for that matter whether leave was sought or obtained. As long as it is an issue, it can be raised at any point in time. See SKENCONSULT (NIG) LIMITED v. UKEY SEKONDI (1981) 12 NSCC 1 and DEBESI DJUKPAN v. RHORHADJOR OROVUYOVBE & ANOR (1967) 1 ALL NLR 134 at 137. Be that as it may, it is important to also point out that where the issue is that of jurisdiction, even if a party has taken steps or joined issues before complaining, that in itself will not foreclose the right to raise the issue of jurisdiction on appeal, for no other reason than the fact that even if the parties consented they cannot on their own confer jurisdiction to the Court where there is none. See SC.20/2012: APGA VS SENATOR CHRISTIANA N. D. ANYANWU delivered 7/2/2014 at pages 12 – 14; SLB CONSORTIUM LTD. VS NNPC (2011) 9 NWLR (1252) 317 and OKAFOR VS NWEKE (2007) 3 SC (Part 11) 55 @ 62 – 63, where the supreme Court held that whether or not the appellant has suffered a miscarriage of justice by the omission of the lower Court does not arise, the issue of jurisdiction raised in this case being one of substantive law. Where the Court lacks jurisdiction parties cannot confer jurisdiction on the Court by consent or acquiescence. See also ADESOLA VS ABIDOYE (1999) 14 NWLR (PT. 637) 28; JADESIMI V. OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 264; SHAABAN V. SAMBO (2010) 19 NWLR (PT. 1226) 353 and OBIUWEUBI V. CBN (2011) 7 NWLR (PT. 1247) 465. PER MOHAMMED MUSTAPHA, J.C.A.
EFFECT OF AN AMENDED COURT PROCESS
It is trite that the effect of an amendment of a process is that the amended process can no longer be relied on or referred to in the proceedings, because it ceases to be a valid and relevant process in the proceedings. See AFRIBANK NIG PLC v. AKWARA (2006) 5 NWLR (Pt. 974) 619 at 640; TANAREWA (NIG.) LTD v. ARZAI (2005) 5 NWLR (Pt. 919) 593; ADEWUNMI v. A.G. EKITI STATE (2002) 1 SCNJ 27, UBA PLC v. ABDULLAHI (2003) 3 NWLR (Pt. 807) 359 and OGUMA ASSOCIATED COMPANIES (NIG.) LTD. v. IBWA LTD. (1988) 1 NWLR 659. PER MOHAMMED MUSTAPHA, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
ALL PROGRESSIVE CONGRESS APPELANT(S)
And
ASOMUGHA TONY ELEBEKE & 3 ORS RESPONDENT(S)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja presided by Hon Justice I. E. Ekwo delivered on the 4th of December, 2020 in favour of 1st respondent, thereby disqualifying the 2nd respondent from contesting the Imo North Senatorial bye election, as a result of presenting false information. Dissatisfied, the appellant appealed by a notice of appeal dated 4th of December, 2020, but filed on the 15th of December, 2020.
The 1st respondent, as plaintiff, filed this action seeking declaratory reliefs brought under Section 66(1) of the 1999 Constitution, as amended and Sections 31 (5) and (6) of the Electoral Act.
By an amended originating summons dated the 5th of October, 2020 but filed on the 6th of October, 2020, the 1st respondent, as plaintiff, sought the determination of the following questions:
“(1) Whether upon the Construction of Sections 66 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 31 (5) and (6) of the Electoral Act (as amended), Article 7 of the All Progressives Congress’s Guidelines for Nomination of
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Candidates for Elections – 2019, the 1st Respondent is qualified or eligible for nomination to contest Imo North Senatorial Bye-flection having made false Statements/Declarations in the Affidavit and documents he submitted to the 2nd and 3rd Respondents, wherein he presented falsified and uncertified photocopies of West African Examination Council (WAEC) Certificate.
(2) Whether having regard to Section 66 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 31 (5) and (6) of the Electoral Act (as amended) and Article 7 of the APC’s Guidelines for Nomination of Candidates – 2019, the 1st Respondent is qualified or eligible for nomination to contest Imo North Senatorial Bye-flection having made false statements/declarations in the Affidavit and documents he submitted to the 3rd Respondent, wherein he presented and bears two (2) different and irreconcilable names, to wit; “Ibezim, Chukwuma Frank” Ibezim Francis Chukwuma.”
(3) Whether having regard to Section 66 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 31 (5) and (6) of the Electoral Act, (as amended) and Article 7
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of the APC’s Guidelines for Nomination of Candidates for Elections-2019, the 1st Respondent is qualified or eligible for nomination to contest Imo North Senatorial Bye-Election, having made false statement/declarations in the Affidavit and documents he submitted to the 3rd Respondent, in which he signed the Statutory Declaration of Age for himself as the Declarant/Deponent.”
Consequent upon the questions nominated for determination at trial, the 1st respondent sought the following reliefs:
“(1) A DECLARATION that the 1st Respondent is not qualified/eligible for nomination to contest Imo North Senatorial Bye-flection having made false statements/declarations in the Affidavit and documents he submitted to the 3rd Respondent for the purpose of contesting Imo North Senatorial Bye-Election.
(2) AND order of injunction restraining the 3rd Respondent from accepting the nomination of the 1st Respondent as the 2nd Respondent’s candidate for Imo North Senatorial Bye-Election.
(3) AN ORDER directing the 2nd Respondent to withdraw the nomination of the 1st Respondent to the 3rd Respondent and substitute with another qualified candidate.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The grounds of appeal are as follows:
GROUND 1:
The Federal High Court erred in Law thereby occasioning a miscarriage of justice when it acted without jurisdiction and heard the proceedings and delivered judgment in Suit No. FHC/ABJ/CS/1229/2020 based on the “Amended Originating Summons” dated October, 2020, and filed by the 1st Respondent on the 6th October, 2020.
GROUND 2:
The Federal High Court erred in law when it held that the 2nd Respondent was not qualified/eligible for nomination to contest the Imo North Senatorial District Bye-Election.
GROUND 3:
The Federal High Court erred in law and occasioned a gross miscarriage of justice when it held on page 32 of the final judgment that:
“An Order of injunction is hereby made restraining the 3rd Defendant from accepting the nomination of the 1st Defendant as the 2nd Defendant’s candidate for Imo North Senatorial Bye-Election. This means that this Court has issued an order disqualifying the 1st Defendant from contesting the Imo North Senatorial Bye-Election.”
GROUND 4:
The Federal High Court erred in law thereby occasioning a miscarriage of justice when it
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held that:
“I therefore find that the Exhs. A26, A27 and A28 as submitted are not authentic results and are self-contradictory, therefore they are false in all material particulars and I so hold.”
GROUND 5:
The Federal High Court erred in law and occasioned a gross miscarriage of justice when it proceeded to hear and determine the suit as an originating summons without ordering pleadings or without the benefit of oral evidence.
GROUNDS 6:
The Federal High Court erred in law when it held the Appellant and the 2nd Respondent submitted false statements/declarations to the 3rd Respondent because of different arrangement of the names of the 2nd Respondent in different documents, and thereby occasioned a miscarriage of justice.
GROUND 7:
The Decision/Judgment of the Federal High Court is against the weight of evidence.
From these grounds, the following issues were formulated for determination on behalf of the appellant by Valentine Offia Esq., of counsel in the brief filed within time on the 21st day of January, 2021:
“i. Whether the lower Court had jurisdiction to entertain the Originating Summons filed on
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6/10/2020? – Ground 1.
ii. Whether the lower Court was right in holding that the 2nd Respondent submitted false information and documents to the 3rd Respondent? – Grounds 2, 4, 6 and 7.
iii. Whether the lower Court did not err when it entertained the amended Originating Summons filed on 6/10/2020 considering the claims of the 1st Respondent and the hostile nature of the proceedings before the lower Court? – Grounds 5.
iv. Whether the lower Court was not in error when it made an Order restraining the 3rd Respondent from accepting the name of the 2nd Respondent as the candidate of the Appellant for the Imo North Senatorial District Bye-Election – Ground 3.
In response, Chief Ogwu James Onoja Esq., SAN formulated the following issues for determination on behalf of the 1st respondent, in the brief filed within time on the 25th January, 2021:
Chief Gordy Uche Esq., SAN on his part formulated the following issues for determination on behalf of the 4th respondent in the brief filed on the 22nd January, 2021:
“i. Whether having regards to the evidence and circumstances of this case the trial Court was right in holding that the
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information contained in the affidavit and documents submitted by the 2nd Respondent to the Appellant and 3rd Respondent is false and in issuing an order disqualifying the Respondent is false and in issuing an order disqualifying the 2nd Respondent from contesting the Imo North Senatorial Bye-Election? (Distilled from grounds 2, 3, 4, 6 and 7)
ii. Whether this suit was stature barred and in breach of Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and rightly heard by the trial Court as an originating summons (distilled from grounds 1 and 5).”
The 1st respondent filed a notice of preliminary objection on the 25th of January, 2021 on the following grounds:
a) This appeal is against the judgment of the Federal High Court Abuja Division coram: Ekwo J delivered on the 4th of December, suit No FHC/ABJ/CV/1229/2020.
b) This appeal is on all fours with appeal No CA/A/1085/2020 pending before this honorable Court between the same parties.
c) The appellant herein is the political party that forwarded the name of the 2nd respondent to the 3rd respondent for the purpose of contesting the Imo north
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senatorial bye election which held on the 5th of December, 2020.
d) The interest of the appellants in the two appeals are the same.
e) The instant appeal is unnecessary, incompetent and an abuse of judicial process.
The preliminary objection is argued at page of the 1st respondent’s brief.
The appellant filed a counter affidavit in opposition to the notice of preliminary objection on the 25th of January, 2021; the response to the preliminary objection is at pages 2-4 of the 1st respondent’s brief.
The preliminary objection will be resolved first.
It is submitted for the first respondent that the appeal is incompetent for being an abuse of Court process, because it is one and the same with appeal No CA/A/ABJ/CV/1085/2020, as the parties in the two appeals are the same, and the appeal emanated from the judgment of the Federal High Court, Abuja presided by Ekwo J.
That also the issues in the two appeals are the same and the interest of the appellants are linked; as such the determination of CA/A/1085/2020 will determine the instant appeal.
That as a result, this appeal is unnecessary and serves no utilitarian value while
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referring the Court to PDP V PETERSIDE (2016) 7 NWLR part 1512 page 574, learned senior counsel urged this Court to strike it out.
It is submitted for the appellant in response that the grounds of the preliminary objection did not disclose want of competence or jurisdiction.
That the appellant has a constitutional right of appeal against the judgment, by reason of Section 241 of the 1999 Constitution, as amended just as the 2nd respondent has a right of appeal against the said judgment. See PDP V SHERRIF (2017) LPELR- 42736-SC.
That the interest of the appellant in appeal no CA/A/CV/1085 and the interest of the appellant in this appeal are not the same and the grounds of appeal as well as the issues for determination in both appeals are not the same.
RESOLUTION OF THE PRELIMINARY OBJECTION:
There is no doubt that the right of Appeal enures to the Appellant by virtue of Section 241 of the Constitution of the Federal Republic of Nigeria (1999) (As Amended), as well as Section 243 (b) thereof; having said that, it is not enough to simply state, without more, that the interest of the appellant, in this appeal and any other appeal are
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the same, or that the parties are the same; learned senior counsel for the 1st respondent ought to have gone further to specifically state what the interests are in this and the other case and how inexorably linked they are.
It is equally not good enough to merely state that the grounds of appeal in this appeal and the appeal in CA/A/1085/2020 are the same. What are the grounds in the other appeal?
Having said that, it is very important to also emphasis that Courts general are wary of depriving an aggrieved person his right of appeal, because such denial could be unconstitutional, in that it would be a denial not only of the right of appeal but the right to fair hearing contrary to Sections 36 and 233 (1) of the constitution. See PDP V SHERRIF (2017) LPELR-42736-SC.
With all due respect, the 1st respondent has failed to present any justifiable reason for the grant of the preliminary objection; it is for this reason that I accordingly dismiss the preliminary objection without much ado.
THE SUBSTANTIVE APPEAL:
The two issues formulated on behalf of the 1st respondent sufficiently address all the issues raised in this appeal; they
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suffice for the determination of this appeal:
ISSUE ONE:
Whether the lower Court acted without jurisdiction and breached Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, in view of the originating summons dated 6th October, 2020?
It is submitted for the appellant that there are two originating summons in this case, with one dated and filed on the 23rd September, 2020 while the other was filed on the 6th of October, 2020. The 1st originating summons bears ‘Asmugha Tony Elebeke’, and the 2nd originating summons bears ‘amended originating summons”, but both summons, filed on different dates, bear the same number FHC/ABJ/CS/1229/2020.
That there was no application to amend the summons first filed on the 23rd September, 2020 nor was there an application before the trial Court to amend the name of the plaintiff or to substitute it as reflected on the summons.
That merely heading it amended does not make it an amendment, for it to be amended there must be an application by the 1st respondent seeking leave of the Court to do so, and same must be granted by the Court in compliance with
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Order 17 of the Federal High Court Civil Procedure Rules, 2019. See ACHO V UKAGYE (2013) LPELR-21181-CA and AYEBAKURO V TARIAH (2014) LPELR-22675-CA.
That from the records of the trial Court two different originating summons were filed, on the 23-9-2020 and the other on the 6-10-2020, with the one filed on the 23-9-2020 being abandoned, and the judgment being predicated on the summons filed on the 6-10-2020.
That the amended summons of the 6-10-2020 is incompetent and denies the trial Court the necessary jurisdiction to hear it; in addition the suit is incurably defective having been filed outside the 14 days provided by Section 285 (9) of the Constitution, being a pre-election matter complaining about alleged submission of false documents.
That from the clear interpretation of Section 285 (9) of the Constitution, the cause of action commenced on the date of submission of the alleged false documents by the appellant to the 3rd respondent, which is 13-9-2020, and that the 1st respondent will not get any respite even if the 16-9-2020 is taken, both dates being in clear breach of the provisions of Section 285 (9). See TRUSTEES OF NEW JERUSALEM CHURCH OF GOD, WARRI & ANOR V EREKU (2019) LPELR-46949-CA.
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That the suit having been filed out of time and being statute barred, the entire proceedings and the judgment emanating from it thus becomes a nullity; ARAKA V EJEAGWU (2000) LPELR-533-SC; the failure to initiate the suit with a valid originating process goes to the foundation of the suit. See KIDA V OGUNMOLA (2006) 13 NWLR part 997 page 377.
It is further submitted for the appellant that because the burden is on he who asserts to prove, the affidavit of the 1st respondent in support of the originating summons must contain evidence of the false declarations alleged by the 1st respondent at the trial Court, and averments in support of the originating summons did not allege that any document, particularly the exam results were falsified.
That the 1st respondent did not allege that the documents in question were falsified by the 2nd respondent, an averment that the 2nd respondent bears two different names is not the same as an allegation of falsification of documents and submission of false documents to the 3rd respondent.
That in the absence of allegations that the 2nd respondent falsified any
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documents, the 1st respondent failed to disclose any cause of action, consequently there was no case for the appellant and the 2nd respondent to defend or deny; DANKWAMBO V ABUBAKAR (2015) LPELR-25716-SC and OGUNNIYI V ADEYEMI (2018) LPELR-44406.
That also there is allegation that all or any of the three results which appeared to be different were falsified by the 2nd respondent and submitted to the 3rd respondent. Because the said three exams results were results of the same exam comprising the computer print out from the website of WAEC (Exhibit A26), the certificate issued by WAEC (Exhibit A27) and statement of result issued by the Uboma secondary school (Exhibit A28). They were issued to the same “Ibezim Francis Chukwuma’.
That the trial Court was wrong to have held Exhibits A26, A27 and A28 were not authentic without any evidence from the institutions that issued them or any averments from the 1st respondent that these exhibits were falsified and also that the 2nd respondent did not author the said exhibits and so it cannot be responsible for the discrepancy if any; KAKIH V PDP (2014) 15 NWLR part 1430 page 374 and MAIHAJA V GAIDAM (2017) 43 WRN 1 at 32.
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It is submitted for the 1st respondent on the first issue that the contention of the appellant that the 1st respondent filed two originating summons was not made before the trial Court and no findings were made by the trial Court in that regard to have been made an issue before this Court.
That the appellant did not take steps in the proceeding before the lower Court, by filing counter affidavit, it is now belated to complain on appeal; EZEKE V DEDE & ORS (1999) LPELR-6640-CA and AREGBESOLA V ADENIKE & ORS (2015) LPELR-25594-CA.
That nonetheless, even the Court on its own can make an order to correct technical and typographical errors on processes in any proceeding before it; and in any case, the amendment was done in line with the order of the Court on the 5-10-2020, within time; that the contention that the originating summons was amended without an order of Court is not founded.
It is submitted for the 4th respondent that the trial Court was right in holding that the 2nd respondent submitted false information in the documents attached to the form CF001 which he submitted to the 3rd respondent knowing same to be
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false, having submitted the same to the screening committee and appeals committee of the appellant who both rejected the said documents.
That the 2nd respondent submitted to the 3rd respondent documents that were clearly falsified, making them radically different from what he had earlier submitted to the appellant and intending them to be acted upon by the 3rd respondent.
That the 2nd respondent having admitted that the three results he presented are different means that the case of the 1st respondent is deemed established; AWETO V FRN (2018) 8 NWLR part 1622 page 527; NNPC V CLIFCO NIG. LTD (2011) 10 NWLR part 1255 page 209 and IKARE COMMUNITY BANK NIG LTD V ADEMUWAGUN (2005) 7 NWLR part 924 page 275.
That by the various acts of disqualifying the 2nd respondent from contesting the primary election, the appellant and 3rd respondent are stopped from recognizing, flaunting and dealing with him as a candidate; SALEH V ABAH (2017) 12 NWLR part 1578.
It is further submitted that the disqualification of a candidate under Section 31 (5) and (6) of the Electoral Act as well as Section 66 of the Constitution can be arrived at by the mere
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presentation of a document and evaluation of same, as forgery for the purpose of election, and forgery under the regular criminal law are not the same; BALARABE SHEHU KAKALE & ANR V ALIYU & ORS (2019) LPELR-488-CA.
In reply to the 1st respondent, it is submitted that the issue of jurisdiction can be raised at any time, even on appeal, as such the appellant need not obtain leave of Court. See CUSTOMARY COURT OF APPEAL BENUE STATE V TSEGBA (2010) LPELR-4009-CA and CBN V AZORO (2018) LPELR-44389-CA.
That the trial Court did not grant the 1st respondent leave to amend the originating summons, the 1st respondent merely filed a fresh originating summons on the 6th of October, 2020. See USMAN & ANR V FRN (2018) LPELR-45629-CA.
That also the appellant did not disqualify the 2nd respondent from participating in her primaries, as it consented to the participation of the 2nd respondent in the primaries won by the 2nd respondent.
That the 1st respondent did not allege that the appellant and the 2nd respondent falsified documents nor outlined the particulars of the alleged falsification; it was the trial Court that formulated a case that was not
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presented by the 1st respondent; while the case of the appellant has been consistent from the trial Court to the Court of appeal.
In reply to the 4th respondent, it is submitted that the appellant did not disqualify the 2nd respondent from participating in her primaries, having been sponsored and submitted by the appellant to the 3rd respondent. See LAU V PDP (2018) 4 NWLR part 1604 page 60.
That leave was not granted to the 1st respondent before he filed the amended originating summons on the 23rd of September, 2020; and also that there was no cause of action outlined in the amended originating summons which could ground the suit at the trial Court; GBAFE V GBAFE (1996) LPELR-1316-SC.
That issues of jurisdiction do not require leave of Court before they can be raised on appeal; GBILEVE V ADDINGI (2014) SC193.
RESOLUTION OF ISSUE ONE:
It is indeed the law, contrary to the contention of learned counsel for the 1st respondent that, any issue of jurisdiction can be raised, willy nilly, at any point in time, even on appeal. It therefore matters very little, whether the issue of the amended originating summons was raised at trial or not or
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for that matter whether leave was sought or obtained. As long as it is an issue, it can be raised at any point in time. See SKENCONSULT (NIG) LIMITED v. UKEY SEKONDI (1981) 12 NSCC 1 and DEBESI DJUKPAN v. RHORHADJOR OROVUYOVBE & ANOR (1967) 1 ALL NLR 134 at 137.
Be that as it may, it is important to also point out that where the issue is that of jurisdiction, even if a party has taken steps or joined issues before complaining, that in itself will not foreclose the right to raise the issue of jurisdiction on appeal, for no other reason than the fact that even if the parties consented they cannot on their own confer jurisdiction to the Court where there is none. See SC.20/2012: APGA VS SENATOR CHRISTIANA N. D. ANYANWU delivered 7/2/2014 at pages 12 – 14; SLB CONSORTIUM LTD. VS NNPC (2011) 9 NWLR (1252) 317 and OKAFOR VS NWEKE (2007) 3 SC (Part 11) 55 @ 62 – 63, where the supreme Court held that whether or not the appellant has suffered a miscarriage of justice by the omission of the lower Court does not arise, the issue of jurisdiction raised in this case being one of substantive law. Where the Court lacks jurisdiction parties cannot confer jurisdiction on
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the Court by consent or acquiescence. See also ADESOLA VS ABIDOYE (1999) 14 NWLR (PT. 637) 28; JADESIMI V. OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 264; SHAABAN V. SAMBO (2010) 19 NWLR (PT. 1226) 353 and OBIUWEUBI V. CBN (2011) 7 NWLR (PT. 1247) 465.
Now having said that, it is necessary to appreciate the fact that on the 5th of October, 2020, when the matter came up for hearing, before the motion ex parte for abridgement of time was taken, counsel did indeed apply, albeit orally to correct the name ‘Asmugah’ to ‘Asomugha’, by adding an ‘O’; undertaking in the process to correct the summons before service is effected on the defendants, and the trial Court acceded to the request. This much is clear from pages 367 to 368 of the record of appeal and 371, where admittedly the Court referred to the process as ‘amended’, because it is not oblivious to the oral request to amend the typo. The Court cannot be said to have denied the request for amendment, as contended for the appellant, that would be unfairly stretching both logic and common sense too far; and once the Court accepted the application to ‘correct the mistake’, that does it. The amendment cannot be undone.
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It is trite that the effect of an amendment of a process is that the amended process can no longer be relied on or referred to in the proceedings, because it ceases to be a valid and relevant process in the proceedings. See AFRIBANK NIG PLC v. AKWARA (2006) 5 NWLR (Pt. 974) 619 at 640; TANAREWA (NIG.) LTD v. ARZAI (2005) 5 NWLR (Pt. 919) 593; ADEWUNMI v. A.G. EKITI STATE (2002) 1 SCNJ 27, UBA PLC v. ABDULLAHI (2003) 3 NWLR (Pt. 807) 359 and OGUMA ASSOCIATED COMPANIES (NIG.) LTD. v. IBWA LTD. (1988) 1 NWLR 659.
Most importantly, in calculating the time an action was initiated, it is the originating process that should determine the onset, and not the time the originating process was amended. Therefore, the amendment of the originating process on the 6th of September, 2020 cannot be taken into account, what should count, for the purpose of counting the date of filing is the 13th of September, 2020; because Exhibit A21, the letter forwarding the name of the 2nd to the 3rd respondent was received on that date; and by that calculation the 14 days stipulated by Section 285(9) would have been complied with because the 13th to the 23rd of
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September, 2020 will then be merely 10 days.
Documents attached to the 2nd respondent’s form CF001, were found by the trial Court to be inconsistent and contradictory because of the difference in the names presented. Also the three WAEC certificates i.e. Exhibits A26 to A28 bore different entries, for instance, Exhibit 27 had seven subjects entered, while exhibits A26 and A27 in respect of the same examination have nine subjects, without any satisfactory explanation or evidence explaining the inconsistencies, other than the lame excuse that WAEC did not include the subjects failed by the second respondent.
The affidavit and the newspaper publication did not help to explain the inconsistencies; they only reinforced the impression of an afterthought, because the 2nd respondent took so long in proffering an explanation. The trial Court cannot be faulted in the circumstances, in arriving at the conclusion as it did that:
“on the allegation … that the 1st defendant presented falsified and uncertified photocopies of west African examination council certificate… upon studying these three results, I find that each of them refers to the GCE O/Level
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of the 1st defendant of 1980 because they have the same examination number… I have noted that there are discrepancies in the scores recorded in the three results that constitute Exhibits A6, A27 and A28 even though the respective results sheets have the same number. In Exhibit A26 and A28, the 1st defendant is purported to have written examination for nine subjects and exhibit A27 he wrote seven subjects… there is something wrong with these results… the 1st defendant per the averments in paragraphs 26, 27, 28 and 29 of his counter affidavit has not explained this the variations… I therefore find that Exhibits A26, A27 and A28 submitted are not authentic results and are self-contradictory. Therefore, they are false…now, there is no indication that Exhibit SFI tendered by the 1st defendant to controvert that allegation of the plaintiff was submitted to INEC. On the other hand, none of the defendants including the 1st defendant has denied that Exhibit A25 was not obtained from INEC…further on Exhibits A25 and SFI 1, this Court still has a duty to find whether or not the signature of the deponent is that of the 1st defendant and or his purported elder
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brother. This can be done by comparing the signature on Exhibits A25 and SFI 1 with the signature of the 1st defendant on other documents in evidence signed by him… I take judicial notice of the signature of the 1st defendant on Exhibits A25, A29 and SFI 6 which is the affidavit of name reconciliation deposed to by the 1st defendant. On doing so, I find that there is similarity between the signature on Exhibit A25 purportedly signed by his elder brother and the signatures in Exhibits 23, 29 and even Exhibit SFI6 which the 1st defendant signed… ”
These findings of the trial Court are beyond reproach; not least because the same documents, purporting to be arising from the same examination cannot logically have varying and conflicting entries and still be true as argued strenuously for the appellant.
It is necessary at this juncture to lay down the markers, by specifically pointing out that submitting false statements or certificates, as the case may be, to the 3rd respondent disqualifies such a candidate, and the Court has every right to disqualify such a candidate upon application by a person with reasonable ground to believe such falsification.
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See KAKIH V PDP supra and MODIBBO V USMAN (2020) 3 NWLR part 1712 page 470.
Now it is equally important to emphasize also that, the disqualification of a candidate under Section 31 (5) and (6) of the Electoral Act as well as Section 66 (1) of the Constitution can be arrived at by simple presentation of a document and its evaluation by the Court without much ado, as was done by the trial Court in this case; see BALARABE SHEHU KAKALE & ANOR V ALIYU & ORS (2019) LPELR-48812-CA and MAIHAJA V GAIDAM (2017) LPELR-42474.
The Electoral Act, 2010, as amended, enabled the trial Court to intervene in matters of qualification and disqualification of a candidate for election, this much is clear from Section 31 of the Electoral Act.
It is in the exercise of the powers conferred by Section 31 among others, that the trial Court rightly found information supplied by the 2nd respondent to be false. The need for diligence in these matters cannot be overemphasized. The 2nd respondent cannot, as pointed out by the trial Court present what he did to the appellant, in the manner he did, and expect any different outcome.
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It is for these reasons that I now resolve this issue in favour of the 1st respondent, against the appellant.
ISSUE TWO:
Whether from the facts and circumstances of this case as well as affidavit evidence presented, the lower Court was right when it held that the 2nd respondent was not qualified to contest the Imo north senatorial bye election.
It is submitted for the appellant that originating summons procedure can only be adopted for resolution of disputes where facts are not in contention; INAKOJU V ADELEKE (2007) 4 NWLR part 1025 and WAKWAH V OSSAI (2002) 2 NWLR part 752. That from the facts in this case, the proceedings at the lower Court had nothing to do with interpretation of any documents or statute, because it was the contention of the 1st respondent that the 2nd respondent presented falsified documents to the appellant and the 3rd respondent.
That facts in the suit at trial were contested and so could not have been determined on the originating summons procedure; such as the finding that the 2nd respondent was guilty of the crime of forgery, and these required proof beyond reasonable doubt of the ingredients of mens rea and actus reus of the offence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That the trial Court was wrong to have proceeded to determine the suit by originating summons especially as it came to a finding that the 1st respondent indeed forged the signature on Exhibit A25. This allegation bordered on crime and requires proof beyond reasonable doubt. See EKASA V ALSCON PLC (2014) 16 NWLR part 1434 page 542.
It is further submitted for the appellant that an injunction is a judicial process operating in persona, by which a person is required to do or refrain from doing a particular thing, and so an injunction cannot be issued on a completed act.
That the 2nd respondent participated and won primary election held on the 3rd of September, 2020 for the election of the appellant’s candidate for Imo North senatorial bye election and the appellant submitted the name of the 2nd respondent to the 3rd respondent.
That the order of the trial Court restraining the 3rd respondent from accepting the nomination of the 2nd respondent as the candidate of the appellant for the Imo north senatorial bye election is tantamount to an injunction to restrain an action which in the circumstances had already been completed because the appellant
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had long before 4th December, 2020 submitted the name of the 2nd respondent to the 3rd respondent. See AR SECURITY SOLUTION LTD V EFCC (2018) LPELR-43828-SC and AJEWOLE V ADETIMO (1996) 2 NWLR part 431 page 391.
That the trial Court was wrong to have made the order that invariably led to a miscarriage of justice.
It is submitted for the 1st respondent in response that the 1st respondent established his bona fides by exhibiting his party membership card and voters card as Exhibits A1 and A2 respectively, while the 2nd respondent was disqualified for submitting falsified documents, Exhibits A3-A14 annexed to the 1st respondent’s affidavit in support of the amended originating summons.
That the 1st respondent’s case is all about the submission of false declarations by the 2nd respondent to the appellant and the 3rd respondent and it is within the right of the 1st respondent to, under Section 31 (5) of the Electoral Act to challenge the qualification of any candidate whom he believes to have given false declaration in the documents submitted, and the Court before whom such is filed, if satisfied, is mandated to make an order disqualifying such a candidate from the election.
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That by disqualifying the 2nd respondent from contesting the primary election, the appellant and 3rd respondent are estopped from recognizing and dealing with him as a candidate; BALLANTYNE V AYI & ORS (2011) LPELR-8825-CA and SALEH V ABAH (2017) 12 NWLR part 1578 page 100.
That once the 3rd respondent received the names of candidates from political parties in an election it has to publish them, without such publication INEC cannot be said to have acted, so the issue of completed act, cannot be said to have arisen.
It is submitted for the 4th respondent that the cause of action being the allegation that the 2nd respondent submitted false certificates to the 3rd respondent has its foundation in the INEC form CF001 filled by the 2nd respondent and submitted by the 2nd respondent to the 3rd respondent, who now publicly published the particulars of the 2nd respondent to the whole as required by the Electoral Act. See MODIBBO V USMAN (2020) 3 NWLR part 1712 page 470.
That the 1st respondent only discovered the 2nd respondent’s documents after receiving same on the 16th of September, 2020 from the 3rd respondent
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upon publication, as such there was no way the 1st respondent will see what document the 2nd respondent submitted to the 3rd respondent until after the said publication; and it was from this point that the cause of action crystallized and it is from this date the calculation of the 14 days will be start.
That the appellant cannot, after taking steps, knowingly, in the proceedings by filling its counter affidavit and written address in answer to the amended originating summons and participated in all the stages of the hearing, without any objection, turn around to say that no leave was sought or obtained before the amendment. See EZEKE V DEDE & ORS (1999) LPELR-6640-CA.
RESOLUTION OF ISSUE TWO:
It is clearly on record that the secretaries of the appellant’s screening committee and appeal screening committee, Dr Uduakobong Okpoho and Barrister Victor Motojosi deposed to affidavits in support of the amended originating summons that the 2nd respondent was disqualified on grounds of presenting questionable documents; and strangely, the appellant did not deem it fit to challenge this deposition either before the lower Court or this Court. This more
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than anything else shows that the case is all about the submission of false declarations by the 2nd respondent to the 3rd respondent. That much is also clear from paragraph 18 of the 1st respondent’s affidavit in support of the originating summons. So the question of failure on the part of the 1st respondent to raise the issue of falsity of the declaration does not arise.
At the risk of repetition, it is necessary to reiterate once again that the cause of action in this suit arose on the 23rd, of September, 2020, even though the 1st respondent had 14 days from the 20 of September, 2020 to initiate his action, which is supposed to lapse on the 4th of October, 2020. Ordinarily, the cause of action arose on the date the 3rd respondent publicly published the particulars of the 2nd respondent’s form CF001. Section 31 (3) of the Electoral Act mandates the 3rd respondent to make the publication within 7 days of the receipt of the particulars of the 2nd respondent. See MODIBBO V USMAN supra.
This explains the rationale behind the deposition in paragraph 17 of the 1st respondent’s affidavit to the originating summons, wherein it was deposed that the 1st
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respondent discovered the 2nd respondent’s documents after receiving it on the 16th of September, 2020 from the 3rd respondent when it published same.
On whether the order of injunction restraining the 3rd respondent from accepting the nomination of the 2nd respondent as a candidate of the appellant for the said election merely restrained a completed act; this Court holds the view that in the circumstances of the case, the order was necessary and proper, especially after the disqualification of the 2nd respondent. It couldn’t have been against a completed act, because the election had not taken place yet at that time.
I have, while resolving issue one said that the application for amendment of the originating summons was granted by the trial Court. The Court referred to the amendment several times, as proof that it acceded to the request to amend it is therefore needless to over flog the issue.
On whether this suit ought not to have been heard as originating summons, this Court finds the facts in the case not contentious in the least, as to warrant hearing by writ of summons, because it is centered around the interpretation of
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Sections 66 of the 1999 Constitution, as amended, 35 and 31 of the Electoral Act, 2010. Particularly as to whether the 2nd respondent submitted false declarations in his INEC Form CF001 to the 3rd respondent, leading to his disqualification in the contest for the senatorial bye election of Imo north to be conducted by the 3rd respondent.
The facts surrounding the circumstances of the case are clear and unambiguous and that is what led the trial Court to easily come to the irresistible conclusion that there was falsification in the declarations made by the 2nd respondent, in breach of Section 66 of the Constitution, and consequent application of Section 31 (6) of the Electoral Act.
I am compelled to agree with learned senior for the 4th respondent, to come to the conclusion that there is indeed no area of factual dispute between the parties; because the case is strictly speaking about the construction of the provisions of Section 66 of the Constitution, well as 31 (5) and (6) of the Electoral Act, to the effect that the 2nd respondent submitted contradictory statements in his INEC form CF001 and certificates to the 3rd respondent; and that is why the trial Court
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had no difficulty in examining the documents submitted by the 2nd respondent in arriving at the conclusion it did, that the documents were contradictory and therefore failed to meet the requirements of Section 66 of the Constitution.
Finally, and for the avoidance of doubt Section 285(9) of the 1999 Constitution reads:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
It is clear from this provision that the Constitution set a time frame of 14 days within which action can be taken; the forms complained of as containing false information is Exhibit A21 to the affidavit in support of the originating summons. It was received by INEC, evidently on the 13th of September, 2020, from the stamp on the form at page 61 of the record of appeal, and the 1st respondent took out the summons on the 23rd of September, 2020, merely eleven days from the submission of the form. That in itself is proof that the suit was filed within time specified by Section 285 of the Constitution. It is competent and not statute barred.
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It is for these reasons that I now resolve this issue too in favour of the 1st respondent, against the appellant.
Having resolved all the issues that call for determination in this case in favour of the 1st respondent, against the appellant, it means the appeal lacks merit and is accordingly dismissed. Judgment of the trial Court delivered on the 4th of December, 2020 in FHC/ABJ/CS/1229/2020 is hereby affirmed.
PETER OLABISI IGE, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading the lead judgment of my learned brother, Mohammed Mustapha, JCA, just delivered and I am in complete agreement with the reasoning and conclusion contained therein.
I also dismiss the appeal for lacking in merit and affirm the judgment of the trial Court delivered on the 4th of December, 2020 in FHC/ABJ/CS/1229/2020.
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Appearances:
Valentine Offia, Esq. For Appellant(s)
George Ibrahim, Esq., with him, Praise Ahiaba – for 1st Respondent
Ozohu Daudu – for 2nd Respondent
Mrs. Wendy Kuku – for 3rd Respondent
Chief Gordy Uche, SAN, with him, D.U Anyanwu, Esq, I. Nwachukwu, Esq. and F. Nsiegbunam, Esq. – for 4th Respondent For Respondent(s)
