DIRI v. ANDP & ORS (2020)

DIRI v. ANDP & ORS

(2020)LCN/14680(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, October 02, 2020

CA/ABJ/EPT/GOV/703/2020

RATIO

MOTION: REASON FOR FILING MOTION ON NOTICE

It is now trite, that motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR – 7812 (SC);(2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175. PER OGBUINYA, J.C.A.

JUSTICE: ATTITUDE OF THE COURT TOWARDS TECHNICALITIES

Indisputably, nowadays, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right; a fair trial on the merits,” see Bryan A. Garner(ed) Black’s Law Dictionary (8th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A. –G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried it, deeply, under the temple of substantial justice. To accede to the first respondent’s request tantamounts to resurrecting the deceased technicality. This will be an affront to the law. PER OGBUINYA, J.C.A.

APPEAL: AIM OF A GROUND OF APPEAL

To start with, a ground of appeal is the focus of an appeal. It denotes the totality of the reasons why a decision complained of is considered wrong by an appealing party, see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440. It binds the Courts and parties, see Udom v. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its essence is to notify an opponent, usually a respondent, the nature of the adversary’s, invariably an appellant’s complaints against a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253; Lagga v. Sarhuna (2009) All FWLR (Pt. 456) 1617; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598) 454; Atanda v. Comm., L & H., Kwara State (2018) 1 NWLR (Pt. 1599) 32. PER OGBUINYA, J.C.A.
APPEAL: DUTY OF COURTS NOT TO LABEL GROUNDS OF APPEAL INCOMPETENT ON THE SLIGHTEST INFRACTION OF THE RULES OF COURTS

The law does not compel the Courts to label ground(s) of appeal incompetent on the slightest infraction of the rules of Courts. It is not the intent and spirit of the rules of Court, which are designed to ensure fairness to litigating parties, to shut out an appellant from ventilating his complains in an appeal, see -Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 731) 194, Aderounmu v. Olowu (supra), Abe v. Unilorin (supra), The Minister of Petroleum & Min. Resources v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. PER OGBUINYA, J.C.A.

APPEAL: NATURE OF AN ISSUE FOR DETERMINATION

An issue for determination is a combination of facts and law which, when decided, determines and affects the fate of an appeal, seeOdunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 529; Okonobor v. D. E. & S. T. Co. Ltd. (2009) 10 NWLR (Pt. 1150) 529; Ukiri v. GecoPrakla (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 544; Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272.
It is a settled law, that an issue for determination must flow from a ground(s) of appeal. Where an issue is not aprogeny of a ground(s) of appeal, it is rendered incompetent and the Court will be disrobed of the jurisdiction to entertain it, see Omagbemi v. Guinness Nig. Ltd. (1995) 2 NWLR (Pt. 377) 258; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Isaac v. Imasuen (2016) 7 NWLR (Pt. 1511) 250; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42; Udom v. Umana (No. 1) (supra); Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Salisu v. Mobolaji (2016) 15 NWLR (Pt. 1535) 242. It is trite, that a ground of appeal must produce an issue for determination, either singly or jointly, or taken as abandoned, seeOdunze v. Nwosu (supra); Aderibigbe v. Abidoye (supra); Okonobor v. D.E. & S.T. Co. Ltd., (supra); D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249; Ezeuko v. State (supra). Similarly, in the mind of the law, where a competent and an incompetent grounds of appeal beget an issue, then both are rendered incompetent, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290. Nevertheless, this hallowed principle of law is elastic. It admits of an exception. The rider is deeply rooted in the wide domain of jurisdiction as: “The fact that a competent ground of appeal is lumped with an incompetent ground of appeal in an issue for determination will not constitute a ground for ignoring the jurisdictional question. This is so because jurisdiction is the soul of any action.“ See Osude v. Azodo(2017) 15 NWLR (Pt. 1588) 293 at 320, per Galinge, JSC. PER OGBUINYA, J.C.A.

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

DOUYE DIRI APPELANT(S)

And

1. ADVANCED NIGERIA DEMOCRATIC PARTY (ANDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the majority decision of the Bayelsa State Governorship Election Tribunal, holden at Abuja, (hereinafter addressed as “the tribunal”), coram judice: Yunusa Musa, J. (Member) and S.M. Owodunmi, J. (Member) in Petition No: EPT/BY/GOV/03/2020, delivered on 17th August, 2020. The Chairman of the Tribunal, Mohammad I. Sirajo, J., dissented in a minority judgment. Before the tribunal, the appellant, the second and third respondents were the third, first and second respondents respectively, while the first respondent was the petitioner.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The second respondent, the Independent National Electoral Commission (INEC for short), is a body constitutionally charged with the burden responsibility to organise elections in Nigeria. In discharge of that onerous duty, INEC conducted election to the office of the Governor of Bayelsa State on 16th November, 2019. Prior to that, it issued Regulations and Guidelines for the conduct of the election. Several registered political

parties (44 in number) partook in the election. The appellant was the flag bearer of the third respondent, the Peoples Democratic Party (PDP) – a registered political party in Nigeria. The first respondent, another registered political party, had Lucky King-George and Mr. David Peter Esikuma and Miss Inowei Janet as its nominated candidates for the positions of Governor and Deputy Governor respectively. Lyon David Pereworimini and Biobarakuma Degi-Eremienyo were the standard bearers of the All Progressives Congress (APC) – a duly registered political party in Nigeria. The first respondent alleged that the second respondent unlawfully excluded it and its candidates from participating in the election. After the polls, the second respondent declared and returned Lyon David Pereworimini of APC as the winner of the election on 17th November, 2019. The first respondent and its candidates, on 5th December, 2019, filed a petition, Petition No: EPT/BY/GOV/02/2019, against the election on grounds of unlawful exclusion from its conduct. At the behest of those petitioners, that petition was dismissed on 21st January, 2020. The third respondent and the appellant

challenged the declaration and return made by INEC in the tribunal. The petition meandered from the tribunal via the Court of Appeal to the Supreme Court. On 13th February, 2020, the Supreme Court, in Appeal No: SC.1/2020, disqualified the candidates of APC and nullified the declaration/return of the 17th November, 2019 and ordered the second respondent to declare the candidate with the highest number of votes in that election of 16th November, 2019. In due obedience to that decision, the second respondent declared the appellant as the winner of the election on 14th February, 2020. Sequel to the return, the first respondent, with its three candidates whose names were later struck out on their application, beseeched the tribunal, via a petition filed on 26th February, 2020, and tabled against the appellant, the second and third respondents the following reliefs:
(i) That the election be nullified in that the election was invalid by reason of the unlawful exclusion of the 1st Petitioner and its candidate in breach of Section 138(1)(d) of the Electoral Act, 2010 (as amended).
(ii) That the declaration and return of the 3rd Respondent as winner of the

2019 Bayelsa State Governorship Election be nullified.
(iii) That INEC be ordered to conduct fresh election throughout Bayelsa State, also that INEC be ordered to include the name and logo of the 1st Petitioner together with the names of 2nd and 3rd Petitioners as its candidates in the said fresh election.
(iv) That INEC be ordered to recognize the 2nd and 3rd Petitioners as the 1st Petitioners Governorship and Deputy Governorship for the said fresh election.
OR IN THE ALTERNATIVE:
(i) That the election be nullified in that the election was invalid by reason of the unlawful exclusion of the 1st Petitioner and its candidate in breach of Section 138 (1) (d) of the Electoral Act, 2010 (as amended).
(ii) That the declaration and return of the 3rd Respondent as winners of the 2019 Bayelsa State Governorship Election be nullified.
(iii) That INEC be ordered to conduct fresh election throughout Bayelsa State for the election of the Governor and Deputy Governors of Bayelsa State, also that INEC be ordered to include the name, and logo of the 1st Petitioner together with the names of the 2nd and 4th petitioners as candidate of the 1st

Petitioner in the said fresh Election.
(iv) That INEC be ordered to recognize the 2nd and 4th Petitioners as the 1st Petitioner’s candidates for the fresh Election.

In reaction, the appellant, the second and third respondents separately joined issue with the first respondent and denied liability by filing their respective replies to the petition. They also challenged the petition by dint of preliminary objections.

Following the rival claims, the tribunal had a full-scale determination of the preliminary objections and the petition. In proof of it, the first respondent fielded two witnesses, PW1 and PW2, and tendered tons of documentary evidence: exhibits P1-P29. In disproof of it, the respondents called no witness but tendered, from the bar, exhibits R2 – R4. At the closure of evidence, the parties, through counsel, addressed the tribunal in manner required by law. In a considered majority judgment, incorporating the preliminary objections, delivered on 17th August, 2020, found at pages 930 – 988, volume 2, of the record, the tribunal granted the petition.

The appellant was aggrieved by the decision. Hence, on

24th August, 2020, the appellant lodged a 35-ground notice of appeal, copied at pages 1076 – 1114, volume 2 of the record, wherein he prayed this Court:
(1) To allow this appeal, set aside the entire majority decision of the Tribunal (per Hon. Justice Yunusa Musa and Hon. Justice S.M. Owodunni) appealed against and to dismiss the 1st Respondent’s Petition in its entirety.
(2) To uphold the minority judgment of the Chairman of the Bayelsa State Governorship Election Petition Tribunal, Hon. Justice Muahmmad I. Sirajo, which clearly appreciated the law and correctly applied same to the facts, and rightly dismissed the Petition.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of election petition appeals in this Court. The appeal was heard on 24th September, 2020.

The first respondent’s application:
By a motion on notice, dated and filed on 6th September, 2020, the first respondent prayed this Court as follows:
1. An Order of this Honourable Court striking out Grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 12, 22, 28, and 34 of his

Notice of Appeal dated and filed 24th August, 2020.
2. An Order of this Honourable Court striking out Issues 1, 2, and 4 as contained in the appellant’s Brief of Argument filed on the 2nd September, 2020.
And For Such further orders as this Honourable Court shall deem fit to make in the circumstances of this case.

The motion was predicated on three grounds and supported by a 5 – paragraph affidavit sworn to by one Isiaka Poopola – a litigation officer in the law firm of Afe Babalola & Co. The first respondent filed a written address along with it. On 24th September, 2020, learned senior counsel for the first respondent, Kehinde Ogunwumiju, SAN, relied on all the paragraphs of the affidavit. He adopted the written address as his arguments for the motion. In the written address, learned senior counsel formulated a single issue for determination to wit:
Whether or not considering the facts in support of this application and the law, this application ought to be granted.

In opposition, the appellant filed a 4 – paragraph counter-affidavit on 9th September, 2020, with one annexure, exhibit A, attached to it alongside a

written address. During hearing, learned senior counsel for the appellant, Chief Chris Uche, SAN, relied on all the paragraphs of the counter-affidavit. He adopted the written address as his submissions against the motion. In the written address, learned senior counsel nominated a solitary issue for determination, namely:
Whether the 1st Respondent’s application for striking out of the Appellant’s grounds of appeal and issues for determination ought not be dismissed for being misconceived and lacking in merit.

The two sets of issues are symmetrical save for semantics. I will therefore, decide the motion on the issue crafted by first respondent: the undisputed owner of the motion.

Arguments on the Issue:
Learned senior counsel for the first respondent/applicant submitted that grounds 6 – 10, 22 and 28 of the notice of appeal were complaints against the ruling of the tribunal on preliminary objection which was not subject of appeal. He noted that in consolidated actions, matters retain their separate identity. He stated that where an interlocutory ruling was incorporated in the final judgment, the notice of appeal must

indicate that the appeal related to both. He relied on Kilawa v. Kalshingi (2018) LPELR – 45630 (CA); FMBN v. NDIC (1999) 2 NWLR (Pt. 591) 333. He asserted that a ground of appeal must relate to specific decision appealed against. He cited Orianzi v. A. – G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; CCB Plc v. Ekperi (2007) 3 NWLR (Pt. 1022) 493. He declared the grounds as incompetent.

Learned senior counsel contended that grounds 1 – 4, 9, 12 and 34 were contradictory as they alleged that the cause of action crystallised on 16th November, 2019 and 27th September, 2019. He urged the Court to discountenance them. He posited that the appellant’s issues 1, 2 and 4 were incompetent because they were formulated from competent and incompetent grounds of appeal. He cited Wilkey v. Ogiegbaen (2001) LPELR – 7028 (CA); Yar’Adua v. Maduka (2016) LPELR – 40521 (CA), Benue State Urban Dev. Board v. Asuakor (2019) LPELR – 47233 (CA). He urged the Court to discountenance the arguments and strike them out.

On behalf of the appellant, learned senior counsel argued, per contra, that the ruling was incorporated in the

judgment as required by Section 285 (8) of the Constitution, as amended. He explained that the ruling and judgment were contained in one decision. He stated that the appellant complied with Order 7 Rule 2(1) of the Court of Appeal Rules, 2016. He added that grounds 6 – 10 and 22 indicated that they arose from the holdings in the preliminary objection while grounds 12 and 28 did not. He concluded that a party has the right to include an appeal in ruling in an appeal against final judgment. He cited Kademi v. Isah (2019) LPELR – 48215 (CA).

Learned counsel further contended that grounds 1 – 4, 9, 12 and 34 were not contradictory as they related to the two different causes of action – pre-election and post – election. He maintained that the grounds were valid and competent. He referred toKurtong v. Dakwahal (2019) LPELR – 47077 (CA). He claimed that the grounds and issues were competent. He described the allegation as technicality. He cited Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.

Ruling on the application:
Let me place on record, pronto, that the first respondent acted in due obeisance to the law in

filing the application. The appellant’s notice of appeal, which resides at pages 1062 – 1114, volume 2, of the mountainous record, hosts 35 grounds. The application is an onslaught against the competence of grounds 1 – 10, 12, 22, 28 and 34 therein. It has spared the other grounds in the notice of appeal. It is now trite, that motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR – 7812 (SC);(2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175.

The first respondent’s foremost agitation is that grounds 6 – 10, 22 and 28 of the notice of appeal quarrel with the ruling of the

Tribunal on the appellant’s preliminary objection which was not appealed against. The provision of Section 285 (8) of the Constitution, as amended, mandates the tribunal “to suspend its ruling” on a preliminary objection or interlocutory issue touching on its jurisdiction “and deliver it at the stage of final judgment”. The tribunal, in its majority judgment, acted according to the dictate of the overriding command of this sacrosanct provision by incorporating the ruling on the appellant’s preliminary objection with the final judgment. The majority judgment occupies pages 930 – 988, volume 2 of the record. The judgment is an offspring of the merger of the ruling and decision on the petition. Thus, there was only one single judgment since the ruling was warehoused in the final judgment in keeping with the injunction of Section 285 (8) of the Constitution, as amended. Indubitably, the judgment, which hosts the ruling, was delivered on 17th August, 2020, thereby obviating the necessity and demand of the law for separate appeals against the ruling and judgment. To my mind, the appellant’s grounds 6 – 10, 22

and 28, being excoriated by the first respondent, have not offended the law to be tainted with incompetence.

Indubitably, I share the view point of the appellant that the allegations against those grounds smells of invitation to technicality. Indisputably, nowadays, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right; a fair trial on the merits,” see Bryan A. Garner(ed) Black’s Law Dictionary (8th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A. –G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest

the attention of the Nigerian Courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried it, deeply, under the temple of substantial justice. To accede to the first respondent’s request tantamounts to resurrecting the deceased technicality. This will be an affront to the law.

The first respondent accused the appellant’s grounds 1 – 4, 9, 12 and 34 of contradiction on when the cause of action crystallised, id est, 16th November, 2019 and 27th September, 2019. To start with, a ground of appeal is the focus of an appeal. It denotes the totality of the reasons why a decision complained of is considered wrong by an appealing party, see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440. It binds the Courts and parties, see Udom v. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its essence is to notify an opponent, usually a respondent, the nature of the

adversary’s, invariably an appellant’s complaints against a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253; Lagga v. Sarhuna (2009) All FWLR (Pt. 456) 1617; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598) 454; Atanda v. Comm., L & H., Kwara State (2018) 1 NWLR (Pt. 1599) 32.
I have given a clinical examination to those grounds which are in heat of expunction. Their goal, discernible from their phraseology and tenor, is to puncture the finding of the tribunal that the first respondent’s petition was not statute-barred even if the cause of action arose on 16th November, 2019 or 27th September, 2019. Curiously, the first respondent, in its infinite wisdom, with due respect, starved this Court on how it was misled by the clear complaints in those grounds.

In other words, those grounds sought to be impugned and expelled, have conveyed, with sufficient notice and information to the first respondent the appellant’s grudge against the tribunal’s decision. Thus, the enabling and relevant provisions of the rules of Court have been fulfilled. The law does not compel the Courts to label ground(s) of appeal incompetent on the slightest infraction of the rules of Courts. It is not the intent and spirit of the rules of Court, which are designed to ensure fairness to litigating parties, to shut out an appellant from ventilating his complains in an appeal, see -Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 731) 194, Aderounmu v. Olowu (supra), Abe v. Unilorin (supra), The Minister of Petroleum & Min. Resources v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. I am not armed with the law to brand the grounds as guilty of contradiction. I therefore, dishonour the first respondent’s salivating invitation to crucify those grounds on the undeserved alter of contradiction for want of legal justification.

Lastly, the first respondent stigmatised the appellant’s issues 1, 2

and 4 as being stained with incompetence in that they were generated from incompetent grounds 1 – 10, 12, 22, 28 and 34 and other competent grounds. It cannot be gainsaid that there exists a judicial relationship between a ground of appeal and an issue for determination. An issue for determination is a combination of facts and law which, when decided, determines and affects the fate of an appeal, seeOdunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 529; Okonobor v. D. E. & S. T. Co. Ltd. (2009) 10 NWLR (Pt. 1150) 529; Ukiri v. GecoPrakla (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 544; Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272.
It is a settled law, that an issue for determination must flow from a ground(s) of appeal. Where an issue is not aprogeny of a ground(s) of appeal, it is rendered incompetent and the Court will be disrobed of the jurisdiction to entertain it, see Omagbemi v. Guinness Nig. Ltd. (1995) 2 NWLR (Pt. 377) 258; Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Isaac v. Imasuen (2016) 7 NWLR (Pt. 1511) 250; Okereke v. Umahi (2016) 11 NWLR (Pt.

1524) 438; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42; Udom v. Umana (No. 1) (supra); Lewis v. UBA Plc. (2016) 6 NWLR (Pt. 1508) 329; Salisu v. Mobolaji (2016) 15 NWLR (Pt. 1535) 242. It is trite, that a ground of appeal must produce an issue for determination, either singly or jointly, or taken as abandoned, seeOdunze v. Nwosu (supra); Aderibigbe v. Abidoye (supra); Okonobor v. D.E. & S.T. Co. Ltd., (supra); D.T.T. Ent. (Nig.) Co. Ltd. v. Busari (2011) 8 NWLR (Pt. 1249; Ezeuko v. State (supra). Similarly, in the mind of the law, where a competent and an incompetent grounds of appeal beget an issue, then both are rendered incompetent, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290. Nevertheless, this hallowed principle of law is elastic. It admits of an exception. The rider is deeply rooted in the wide domain of jurisdiction as: “The fact that a competent ground of appeal is lumped with an incompetent ground of appeal in an issue for determination will not constitute a ground for ignoring the jurisdictional question. This is so because jurisdiction is

the soul of any action.“ See Osude v. Azodo(2017) 15 NWLR (Pt. 1588) 293 at 320, per Galinge, JSC.
As already found, with the aid of the law, the appellant’s grounds 1-10, 12, 22, 28 and 34 were/are not smeared with any incompetence vis a vis their complaints. There are no extenuating circumstances that will propel me to disturb the solemn finding which is in tandem with the law. Besides, it will unveil anon that the meat of the appellant’s appeal falls within the ambit of jurisdiction. To this end, the ancient doctrine, that an issue for determination which is an offshoot of admixture of competent and incompetent grounds of appeal is incompetent, will pale into insignificance in the face of the jurisdictional question raised in the appellant’s appeal. I take shelter under the exception enunciated in the ex cathedra authority of Osude v. Azodo(supra). In effect, the appellant’s issues 1, 2 and 4 are not guilty of the charge of incompetence levelled against them by the first respondent. It will be hostile to the law to strike them out. In all, I resolve the solitary issue in the application, against the first

respondent and in favour of the appellant. In sum, the application has no grain of merit and deserves the penalty of dismissal. Consequently, I dismiss the motion.

Consideration of the Appeal:
During the hearing of the appeal, learned appellant’s counsel, Chief Chris Uche, SAN, adopted the appellant’s brief and appellant’s reply brief, both filed on 2nd September, 2020 and 9th September, 2020 respectively, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Kehinde Ogunwumiju, SAN, adopted the first respondent’s brief of argument filed on 6th September, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it. For the record, learned counsel for the second respondent, Ibrahim K. Bawa, SAN, informed the Court that the first respondent filed no brief of argument. In the same vein, learned counsel for the third respondent, Yunus Ustaz Usman, SAN, intimated the Court that the third respondent filed no brief of argument.

In the appellant’s brief of argument, learned counsel distilled four issues for determination to

wit:
1. Whether the learned Justice of the Tribunal were right in holding that the 1st Respondent’s Petition was not statute-barred pursuant to Section 285(14)(c), Section 285(9) and Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether the learned Justices of the Tribunal were right in holding that the 1st Respondent’s candidates were validly nominated to contest and unlawful excluded from contesting the Bayelsa Governorship election held on 16th November 2019.
3. Whether the learned Justices of the Tribunal were right in holding that the 1st Respondent had discharged the burden on them in establishing their case as required by law in the light of the evidence before the Tribunal.
4. Whether the learned Justices of the Tribunal were right in granting to the 1st Respondent the reliefs sought in the Petition as constituted.

In the first respondent’s brief of argument, learned counsel crafted three issues for determination, viz:
1. Whether or not the lower Tribunal was right when it held that the 1st Respondent’s Petition was not statute Barred?

Whether or not the lower Tribunal was right when it held that the 1st Respondent’s Candidates were validly nominated by unlawfully excluded from participating in the election and consequently nullified the Bayelsa State Governorship Election held on the 16th November, 2019.
3. Whether or not the lower Tribunal was right when it held that the 1st Respondent had the locus standi to maintain the Petition and seek the Reliefs claimed?

A close look at the two sets of issues shows that they are identical in substance. In fact, the first respondent’s issues can be conveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal.

Arguments on the issues:
Issue one:
Learned senior counsel explained the purport of pre-election and post-election matters under Section 285 (14) of the Constitution, as amended, Section 31 (1) and Section 138 (1) (d) of the Electoral Act, 2010, as amended, respectively. He submitted that the first respondent’s action was a pre-election matter because it crystallised on 27th

September 2019, pursuant to Section 285 (14) (c) of the Constitution, as amended, when the second respondent informed it that its name and logo would not be on the ballot paper for the election. He relied Iliyasu v. Rijau(2019) 16 NWLR (Pt. 1697) 1. He asserted that the petition was statute-barred because the first respondent did not file it within 14 days of the event as provided by Section 285(9) of the Constitution, as amended. He cited Romanus v. APGA (2019) LPELR – 47669 (CA), Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334. He maintained that the tribunal was wrong to hold that it had jurisdiction.

Learned senior counsel further submitted that the petition, as a post- election under Section 138 (1) (d) of the Electoral Act, was statute-barred because it was not filed within 21 days from the date of the election, 16th November, 2019, as required by Section 285 (5) of the Constitution, as amended. He reasoned that the decision of the Supreme Court of 13th February, 2020 was not an election that excluded the first respondent as contemplated by law. He declared the case of Takori v. Matawalle (unreported) SC.1540/2019, delivered on 23rd January, 2020

as inapplicable. He noted that the dismissal of the first respondent’s petition on 29th January, 2020 was a final order which made the tribunal functus officio. He referred toINEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473, Ejiofor v. Onyekwe (1972) LPELR – 1068, Eronini v. Iheuko (1989) 2 NWLR (Pt. 101). He concluded that either way, the petition was statute-barred.

On behalf of the first respondent, learned senior counsel contended that by Section 285 (5) (a) of the Constitution, as amended, a petition should be filed within 21 days of declaration of result. He stated that the provision should be given liberal interpretation. He relied on Odusote v. Odusote (2013) All FWLR (Pt. 668) 867, Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 119. He described when a cause of action accrued. He cited P.A.S. & T.A. Ltd. v. Babatunde (2008) 8 NWLR (Pt. 1089) 267, Onoita v. Texaco (Nig.) Plc (2016) LPELR – 41483 (CA). He enumerated what constituted cause of action for unlawful exclusion. He referred to Iniama v. Akpabio (2008) 17 NWLR (Pt. 1116) 225. He opined that the cause of action arose after the election result. He cited APC v. Adeleke (2019) LPELR

– 47736 (CA) 24, Iyirhiaro v. Usoh (1999) 4 NWLR (Pt. 597) 41. He said that lis was the declaration not the election itself. He referred toKuriga v. Yohama (1989) 2 NELPR 78, 8. Counsel insisted that the cause of action arose on the 14th February, 2020 after the last declaration of result of the election by INEC and was not statute-barred. He cited Takori v. Matawalle (supra).

Learned senior counsel posited that the petition was not a pre-election matter. He drew a difference between disqualification and unlawful exclusion as provided in Sections 177 and 182 of the Constitution, as amended and Section 138 (9) of the Electoral Act, and Sections 31, 87 and 138 (1) (d) of the Electoral Act. He noted the petitioner has the right to show the factual make-up of his case. He cited: Gov., Ekiti State v. Olayemi (2016) 4 NWLR (Pt. 1501) 1, Odogwu v. Nwajei (2013) LPELR – 21030 (CA). He added that the tribunal had the jurisdiction to determine whether any person had been validly elected into the Office of Governor or Deputy Governor of a State and unlawful exclusion. He cited Section 285 (2) of the Constitution, as amended, Sections 133 (1), 138 (1)(d)

and 140 (1) of the Electoral Act, PDP v. Yahaya (unreported) Appeal No: CA/ABJ/EPT/367/2020, delivered on 4th July, 2020, Igbekele v. INEC (2019) LPELR – 48536 (CA).

Learned senior counsel further posited that the issue of qualification of candidate is both a pre-election and post-election matter which can be litigated before regular Court and the tribunal despite Section 285 (9) and (14) of the Constitution, as amended. He relied on Fayemi v. Oni (2020) 8 NWLR (Pt. 1726) 222. He then stated, in the alternative, that even if the cause of action was a pre-election matter, the tribunal could try the petition under Section 138 (1) (d) of the Electoral Act. He cited Gwede v. INEC (2014) 18 NWLR (Pt. 1436) 56, Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50. He observed, in another alternative, that even if the cause of action were a pre-election matter, the disqualification made by INEC was an illegality in law which it could not benefit from despite Section 285(9) of the Constitution, as amended. He referred to Section 31 (1) of the Electoral Act, Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599, P.H.M.B. v. Ejitagha (2000) 11 NWLR (Pt. 677)

154, Nwosu v. APP (unreported) Appeal No: SC. 1384/20, delivered on 20th December, 2019.

It was further contended that the dismissal of the earlier petition, Petition No: EPT/BY/GOV./02/2019, was not a bar to the present petition because its subject-matter became null and void because of the declaration it was based on was nullified by the decision of 13th February, 2020. He relied on INEC v. Nyako (2011) 12 NWLR (Pt. 1262) 439. He persisted that the elements of estoppel per rem judicata were absent to bar the petition. He cited: A. – G., Nasarawa State v. A.G. Plateau State (2012) 10 NWLR (Pt. 1309) 419.

On points of law, learned senior counsel for the appellant submitted that the tribunal found that the cause of action arose at the polling units and the first respondent did not appeal against the finding and same is binding on it. He cited: Yalaju-Amaye v. A.R.E.C. Ltd (1990)6 SCNJ 62; Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437. He reasoned that the definition of declaration of result under Section 69 of the Electoral Act, 2010, as amended, is election-specific. He analysed the authorities cited by the first respondent and declared them

inapplicable. He alleged that the first respondent had shifted from its case of unlawful disqualification to another ground in the appeal and the law would not protect it. He relied on Ozomgbachi v. Amadi(2018)17 NWLR (Pt. 1647) 171; Nyako v. A.S.H.A. (2017) 6 NWLR (Pt. 1562) 347.

Issue two:
Learned senior counsel for the appellant explained the two statutory pre-conditions for a party to succeed under Section 138 (1) (d) of the Electoral Act to be valid nomination and unlawful exclusion. He stated that a valid nomination for governorship candidate must be tested with reference to satisfaction of Sections 177 and 182 of the Constitution, as amended, citing Section 31 (2) of the Electoral Act. He highlighted three categories of candidates – unqualified, qualified and disqualified- as noted in A.D. v Fayose (2005) 10 NWLR (Pt. 932) 151. He stated that the candidates of the first respondent were unqualified and could not be disqualified. He relied on exhibits P12, P7 and P18. He claimed that the first respondent’s nomination was invalid as its candidates were below the constitutional age of 35 years. He added that the first respondent submitted its

nominations on the last day of 9th September, 2019 as stated in the INEC’s (second respondent’s) Amended Time Table and schedule of Activities for Kogi and Bayelsa States Governorship Elections. He relied on exhibits P22, P17, P25 and P26. He noted that the invalid nominations could not be substituted as it was not in accordance with Sections 35 and 36 of the Electoral Act. He faulted the finding on reason of exhibit P8. He stated that by Section 187 (1) and (2) of the Constitution, as amended, a Deputy Governorship candidate must satisfy the requirements in Section 177 thereof. He relied PDP v. Degi-Eremienyo (supra). He added that the first respondent failed to show that its candidates won a primary election to make the nomination valid and that mere proposal in a letter to INEC was insufficient. He cited PPA v. INEC (2009) LPELR- 4864 (CA); Shinkafi v. Yari (2016) LPELR – 26050 (SC). He said that the first respondent has no locus standi to submit the documents to INEC because of unqualified candidates. He listed the ingredients of valid nomination as decided in Onwe v. Ucha (2010) LPELR- 4790 (CA); Nwambam v. Ugochima (2010) LPELR- 4643 (CA).

He noted that the affidavits of the first respondents’ candidates for Deputy Governor, exhibits P11 and P12, amounted to perjury. He relied on Section 31 (2) and (8) of the Electoral Act. He persisted that valid nomination was not met as publication was not enough. He referred to Kubor v. Dickson(2013) 4 NWLR (Pt. 1345) 534; Egolum v. Obasanjo (1999) NWLR (Pt. 611) 68; Section 31 (1) and (2) of the Electoral Act;Agwai v. INEC (2019) LPELR – 48762 (CA); DPP v. Yahaya (unreported) Appeal No. CA/ABJ/EPT/367/2020 delivered on 4th July, 2020.

Learned Senior Counsel further submitted that invalid nomination would mean lawful exclusion. He outlined the ingredients of unlawful exclusion as decided in Iniama v. Akpabio (2008) 17 NWLR (Pt. 1116) 225. He explained that only validly nominated candidate could be substituted. He referred to Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60. He maintained that INEC did not disqualify the first respondent’s candidates but they failed to meet the constitutional requirements. He assisted, in the alternative, that INEC’s power to disqualify candidates taken away by Section 31 (1) of Electoral Act, had been

restored by Section 285 (14) (c) of the Constitution, as amended. He described the decision on the proviso to Section 31 (1) of the Electoral Act, as narrow, absurd and a miscarriage of justice, citingAC v. INEC (2007) LPELR – 8988 (CA). He concluded that the first respondent’s nominations were in breach of Sections 177 and 182 of the Constitution, as amended, so that there was no unlawful exclusion.

For the first respondent, learned senior counsel enumerated the ingredients of valid nomination and unlawful exclusion. He relied on Abubakar v. Yar’Adua (2008) 12 SC (Pt. II) 1; Gogwim v. Abdulmalik (2008) LPELR- 4210 (CA). He stated that procedure for nomination of candidates is exclusively regulated by Section 31 (1); 32, and 87 of the Electoral Act: He relied on Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Agbedo v. Adenomo (2018) 13 NWLR (Pt. 1636) 264. He stated that the first respondent pleaded facts and evidence of primary election, orally and by documents, in line with those provisions which were uncontroverted and needed no proof. He cited Jitte v. Okpulor (2015) 12 SC (Pt. 11) 77;

Oseni v Bajulu (2010) All FWLR (Pt. 511) 813; exhibits P10, P11, P16, P17, P9, P25, P26. He noted that Courts would act on unchallenged evidence –MTN v. Corporate Communication Invest. Ltd (2019) LPELR – 47042 (SC). He added that issue was not joined on primary election and same deemed accepted. He cited Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230; Atanda v. Iliasu (2013) 6 NWLR (Pt. 1315) 529; C.N. Okpala & Sons Ltd v. Nigeria Brew Plc (2018) 9 NWLR (Pt. 1623) 16; Ogunyade v. Oshunkeye (2007) 7 SC (Pt. 11) 60; Dada v. Bankole (2008) 5 NWLR (Pt.1079) 26. He reasoned that nomination forms would constitute conclusive proof of valid nomination. He cited Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1. He stated that the substitution was a nullity in law as there was not death or resignation of the first candidate He referred to Section 33 of the Electoral Act; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; PDP v. Sylva (2012) 12 NWLR (Pt. 1316) 85; Ugwu v. PDP (2015) All FWLR (Pt. 793) 1886. He asserted that it was a common knowledge that election was concluded on 16th November, 2019. He relied on exhibits P13 and P22; Section 124 of the Evidence Act,2011

2011; ASCSN v. JUSUN (2014) LPELR-24185 (CA). He said that a winner was declared in two declarations as shown in exhibits P1 and P15 and the petition was against the second declaration. He added that exhibit P13 (ballot papers) showed that the name and logo of the first respondent were not on the ballot paper.

Learned senior counsel argued, per contra, that nomination was different from qualification; the former being regulated by Sections 31 (1), 32, 37 and 87 of the Electoral Act while the latter by Sections 177 and 182 of the Constitution, as amended; and the latter irrelevant in considering the former. He reasoned that the appellant had no right to challenge qualification of the candidates without filing a cross-petition. He cited Dickson v. Sylva (2017) 10 NWLR (Pt.1573) 299. He cited Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1. He opined that since the appellant did not participate in the first respondent’s primary election, he had no vires to challenge the nomination. He relied on Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463. He stated that INEC (the second respondent) had no power to reject the first respondent’s nominated candidates even

under Section 177 of the Constitution, as amended. He referred to Section 31 (1) the Electoral Act; Nwosu v. APP (2019) LPELR -49206 (CA); AC v. INEC (2007) 12 NWLR (Pt. 1048) 222; INEC v. Jime (2019) LPELR-48305 (CA), A – G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1.

He maintained that Section 285 (14) (c) of the Constitution, as amended, a definition section, never gave INEC power to disqualify candidates and same should be considered with common sense. He cited Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414; Labour Party v. INEC (2011) LPELR – 4416 (CA). He observed, in the alternative, that the first respondent and its candidates had acquired vested rights, under Sections 31 and 87 of the Electoral Act, which could not be taken away by implication. He relied on Abubakar v. A – G, Fed. (2007) 3 NWLR (Pt. 1022) 601; Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139. He claimed that the first respondent had the locus standi to maintain the petition, citing Section 138 (1) of the Electoral Act which used the word “or”. He stated that Section 177 of the Constitution, as amended, does not apply to a political party as after conduct of a

primary election it had met valid nomination. He cited Section 31 and 87 of the Electoral Act;Kubor v. Dickson (supra); Emeka v. Chuba-Ikpeazu (supra); Agbedo v. Adenomo (2018) 13 NWLR (Pt. 1636) 264. He concluded that the tribunal never made a case for the first respondent’s first nomination of Deputy Governorship candidate as its opinion was obiter. He cited Gallaher Ltd v. British America Tobacco (Nig.) Ltd. (2014) LPELR- 24333 (CA); Ajar v. Ayip (2016) LPELR- 41200 (CA).

On points of law, learned appellant’s senior counsel posited that the facts in the petition were denied and traversed. He insisted that the first respondent must succeed on the strength of its case and not on the weakness of defence. He cited Yunusa v. INEC (2019) LPELR- 48760 (CA). He assorted that conduct of primary election was a live issue in the petition as parties joined issue on it.

Issue three:
Learned senior counsel for the appellant contended that the first respondent failed to prove valid nomination and unlawful exclusion to be entitled to the declaratory reliefs. He relied on Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; ACN v. INEC (2012) LPELR –

8002 (CA). He asserted that the first respondent’s case was riddled with contradictions because the PW1 made admission against interest favourable to the appellant’s case. He cited Doherty v. Sunmonu (2018) LPELR- 46725 (CA). He stated that the tribunal wrongly made a case for the first respondent on who was the candidate for Deputy Governor, on nullity of second nomination and implied consent against the second respondent on letter of 3rd October, 2019 without pleading and evidence. He cited Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333.

On the side of the first respondent, learned senior counsel argued that the first respondent proved its case as required by law. He relied on the evidence of PW1, PW2, exhibits P10, P11, P16, P17, P9. P2, P13, PW25 and P26.

Issue four:
Learned senior counsel for the appellant submitted that the tribunal was wrong to grant the reliefs when the first respondent’s candidates’ names and the pleading relating to them had been struck out and no longer part of the petition. He explained that the first respondent lacked the locus standi to maintain the reliefs. He reasoned that the tribunal

misconceived the appellant’s argument on locus standi of the first respondent in relation to the reliefs. He opined that the tribunal wrongly nullified the election without evidence. He cited Uchieze v. Ezenagu (2010) LPELR- 5043 (CA). He described the orders made as vain without the candidates of the first respondent.

On behalf of the respondent, learned senior counsel submitted that the first respondent’s candidates’ withdrawal from the petition did not mean the withdrawal of their candidature. He relied on Section 35 of the Electoral Act; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374; PDP v. Sylva (2012) 13 NWLR (pt. 1316) 85; Ugwu v. PDP (2015) All FWLR (Pt. 793) 1886; Paragraph 29 of the 1st Schedule to the Electoral Act. He asserted that the first respondent was entitled to the reliefs as its candidates were its agents. He cited Wada v. Bello (supra); Faleke v. INEC (sic – no citation).

On points of law, learned Senior Counsel for the appellant submitted that the tribunal had no right to grant the relief that inured to the candidates that were not parties. He cited APC v. John (2019) LPELR-47003 (CA);

Eagle Super Pack (Nig.) Ltd v. ACB Plc (2006)19 NWLR (Pt. 1013) 20.

Resolution of the Issues:
In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation especially as some of them evince jurisdictional question which is numerouno in adjudication. To this end, I will kick off with the consideration of issue one. The nucleus of the issue, though seemingly stubborn, is plain. It castigates the finding of the tribunal that the first respondent’s petition was not statute-barred within the purview of Section 285 (9) and (14) (c) of the Constitution, as amended. The feuding parties expressed discordant views on it. While the appellant took the view that it was statute-barred, the first respondent stuck to a diametrically opposed stance – it was not.
The appellant staked his stand on the provision of Section 285 (14) (c) of the Constitution, as amended. Since the provision is the cynosure of this limb, it is germane to pluck it out from where it is ingrained in the Constitution, ipsissima verba, as follows:
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral

Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.
The provision does not harbour any ambiguity. On this score, the law compels the Court to accord it its ordinary grammatical meanings without any interpolation, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setracto (Nig) Ltd. v. Kpayi (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55. Indeed, as a matter of law, once a word or phrase/expression is defined by case-law or statute, a fortiori the Constitution, which sits atop of pyramid of all laws, it takes that meaning judicially assigned to it and drops/sheds its erstwhile technical or ordinary

meaning it owned before, see Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 322; Shettima v. Goni (2011) 18 NWLR (Pt. 127) 413; A.-G. Fed. v. A.-G., Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 5915; Utomudo v. Mil. Gov., Bendel State (2014) 11 NWLR (Pt. 1417) 97. I will obey these legal commandments on interpretation of statutes.
To begin with, a cause of action connotes a combination of facts which, if proved or substantiated, entitles a party (plaintiff) to an enforceable right/remedy against a wrongdoer (defendant). It consists of two elements, the wrongful act of the defendant, which bestows cause of action on a plaintiff, and the consequent damage, see Savage v. Uwechia (1972) 3 SC 214; Omomeji v. Kolawole (2008) 14 WLR (Pt. 1106) 180;Iliyasu v. Rijau (2019) 16 NWLR (Pt. 1697) 1, Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69. The content of a writ of summons or statement of claim determines the existence or otherwise of a cause of action, see UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890) 352.
I have, in due loyalty to the desire of the law, consulted the record: the spinal cord of every appeal. My port of

call is the residence of the first respondent’s 14 – paragraph petition which colonises pages 1 – 11, volume I, of the mountainous record. Petition serves as statement of claim in election petition proceedings. The law grants the Court the unbridled licence to read pleading (petition herein) holistically in order to garner a flowing story of the crux of a party’s case, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 366. I have perused it with the finery of a toothcomb. Admirably, it is obedient to clarity. The petition is dotted with the critical averments: “disqualifying and unlawfully disqualified” by the Independent National Electoral Commission (INEC). There are tons of averments bordering on the actions, decisions and activities of INEC, the second respondent, against the first respondent political party “in respect of preparation for an election” held on 16th November, 2019.
In Abubakar v. INEC (2020) 12 NWLR (Pt. 1737) 37 at 161, the Supreme Court, per Eko, JSC, incisively, proclaimed that “…disqualification of candidate on grounds of false information

in his form CF001 is pre-election matter by dint of Section 285(14) (c) of the Constitution”. The apex Court re-echoed and consolidated the hallowed principle of law in Akinlade v. INEC (unreported) Appeal No: SC. 1438/2019, delivered on 18th December, 2019. In view of that magisterial pronouncement/declaration, in those ex cathedra authorities, which are binding on this Court, I have no difficulty in classifying/categorising the first respondent’s cause of action as one of pre-election as it falls, squarely, within the perimeter of the sacred prescription of Section 285 (14) (c) of the Constitution, as amended. It is of no moment, in my humble view, that the disqualification in Abubakar case was anchored on false information in his form CF001 in contradistinction to disqualification of the first respondent’s first Deputy Governorship candidate on the footing of underage. Both instances trace their paternity to the provision of Section 285 (14) of the Constitution, as amended, which is a new regime in our electoral jurisprudence. The bottom line is disqualification which was anterior to the conduct of the election. A pre-election matter, in

the mind of the law, is as the name implies, a matter that occurred before the election proper, see APC v. Lere (2020) 1 NWLR (Pt. 1705) 254.
From the phraseology and tenor of the provision, the legislator collated, articulated and assembled the divergent incidents of pre-election, which hitherto were scattered in various statutes and case law, and emptied/factored them into the Constitution, the fons et origo of our laws. The intention is to forestall/foreclose any ambiguity in the connotations and constituents of pre-election matter.
I must taking umbrage under the sanctuary of the ancient doctrine of stare decisis, kowtow to the final declaration in Abubakar and Akinlade cases. On this score, I hold that the first respondent’s cause of action, which was weaved on disqualification of its Deputy Governorship candidates was deeply founded in the wide province of pre-election.
That brings me to the heart of the issue, id est, whether or not the petition was statute-barred. In this wise, the provision of Section 285 (9) of the Constitution, as amended comes in handy. It reads:
(9) Notwithstanding anything to the contrary, in this

Constitution, every pre-election matter shall be filed not later than 14 days from that date of the occurrence of the event, decision or action complained of.
In the first place, the provision, which is submissive to easy comprehension, exudes the characteristics of limitation law in all ramifications.
As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 47; Nasir v. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253; Cotecna Int’ Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; A-G., Adamawa State v. A-G., Fed. (2014) 14 NWLR (Pt. 1428) 515; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489);

N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656) 247; Daniel v. Ayala (2019) 18 NWLR (Pt. 1703) 25.
The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions and to preserve the evidence by which a defendant will defend the action, see Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 943; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309; Asaboro v. Pan Ocean Oil Corp. (Nig) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Awolola v. Gov., Ekiti State (2019) 6 NWLR (Pt. 1668) 247; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254.
The orthodox judicial formula for gauging limitation legislation is simple. A Court is enjoined to examine the filed writ of summons or the originating process, either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred.

Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398; Aremo II v. Adekanye (supra); Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Williams v. Williams (2008) 10 NWLR (Pt. 1095); Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 574; Nweke v. UNIZIK, Awka (2017) 18 NWLR (Pt. 1598) 454; Saki v. APC (2020) 1 NWLR (Pt. 1706) 515.
Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction in relation to limitation law, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi(No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR

(Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. It must be stressed, that it is only a plaintiff’s statement of claim or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a Court, see Izenkwe V. Nnadozie (1953) 14 WACA 301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 361; Ngere V. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440.
Now, in due fidelity to the expectation of the law, I have again visited the first respondent’s 14 – paragraph petition, the equivalent of a statement of claim, which is at the cradle of the wordy record: the bedrock of the appeal. I have given a microscopic examination to the petition which is rebellious to equivocation. In the petition, precisely in paragraph 14 (vii) and (xii) thereof, the first respondent pleaded how the second respondent, INEC, wrote to it on 13th September, 2019 and 27th September, 2019, informing it that the nomination of its first Deputy Governorship candidate was invalid, on account of

underage, and that its name and logo shall not be on the ballot for the election. Those two correspondence, during evidence, transfigured into exhibits P7 and P8 respectively. It can be gleaned from that crucial averment, that the first respondent became aware of the second respondent’s (INEC’s) disqualification of its Deputy Governorship candidates on its receipt of the killer letter of 27th September, 2019, exhibit P8. For the purposes of limitation statutes, a cause of action begins to run when a party becomes aware of an erosion of his right and there exists a person to be sued (the violator) to protect the encroached right, see Woherem v. Emereuwa (supra); Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184; UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890) 352; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66.
As already found, in due allegiance to the law, the first respondent’s petition which mothered the appeal, is a classic exemplification of pre-election matter as it exhibits/showcases its features as adumbrated

in the sacrosanct prescription of Section 285 (14) (c) of the Constitution, as amended. As manifest from the dawn of the elephantine record, the petition was instituted on 26th February, 2020. I have, in keeping with the commandment of the law, situated the two dates: the 27th September, 2019 (exhibit P8), when the cause of action ripened, and the 26th February, 2020, the birthday of the petition. The wisdom behind the juxtaposition is simple. It is to ascertain if the petition, which is in the heat of decimation, respected or flouted the provision of Section 285 (9) of the Constitution, as amended on the timetable stipulation for its institution. The provision has ordained the institution of pre-election matter within 14 days of the occurrence of the event, decision or action complained of. It is a common knowledge that Nigeria is a user of the Gregorian Calendar – a calendar of general application. By the Gregorian calendar computation, from 27th September, 2019 to 26th February, 2020, is a period of about 5 months. It admits of no argument, that the period of 5 months is far in excess of 14 days time frame decreed by Section 285 (14) (c) of the Constitution as amended

for the institution of action in a pre-election matter. In other words, the petition was filed in a flagrant defilement of the limitation provision of Section 285 (9) supra.
The provision, to all intents and purposes, holds a premier position in the firmament of institution of pre-election actions. In ample demonstration of its superiority in law, its legislator/draftsman employed the phrase: “Notwithstanding anything to the contrary in this Constitution”. Notwithstanding is, usually, intended to express a clear intention to exclude any impinging/impeding effect of any other provision in a legislation so that the provision it introduces will fulfill itself. Therefore, the import of the word, “notwithstanding”, a phrase of exclusion, is that the section supersedes, controls, and overrides all other provisions of a legialtion, see Olatunbosun v. Niser Council (1988) 1. NSCC 1025; A.-G., Fed. v. Abubakar (2007) 8 NWLR (Pt. 1035) 117; Ugwuanyi v. Nicon Ins. Plc (2013) 11 NWLR (Pt. 1366) 546; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; A.-G., Lagos State v. A.-G., Fed. (2014) 9 NWLR (Pt. 1412) 217;

Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; A.-G., Bauchi State v. A.-G., Fed. (2018) 17 NWLR (Pt. 1648) 299. It flows that every other provision in the Constitution, as amended, must bow to its preeminence vis a vis institution of pre-election matters. It is in clear recognition of its Olympian position, that the apex Court has declared, in a galaxy of authorities, that any pre-election matter which is filed beyond/outside the 14 days from the date of the occurrence of the event, decision or action complained of is statute-barred, seeBiem v. SDP (2019) 12 NWLR (Pt. 1687) 377; Bello v. Yusuf (2019) 15 NWLR (Pt. 1695) 250, Iliyasu v. Rijau (2019) 16 NWLR (Pt. 1697) 1; Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245; Ibrahim v. Abdallah (2019) 17 NWLR (Pt. 1701) 293; Omajali v. David (2019) 17 NWLR (Pt. 1702) 438; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254, Saki v. APC (2020) 1 NWLR (Pt. 1706) 515.
Taking a cue from these loads of binding judicial authorities, I am impelled to hold that the first respondent’s cause of cation, which matured and

enured to it on 27th September, 2019, had become stale/soured before it was ignited on 26th February, 2020. In the sight of the law, a party, in deserving circumstances, does not own the right to ventilate a cause of action adinifinitum. It must be exercised within the bounds of relevant limitation period/provision. Alas, the first respondent’s pre-election cause of action was marooned in the murky ocean of statute-bar as displayed above.
My noble lords, a successful plea of limitation law, as a shield, by an opposing party occasions two harmful effects against a claimant’s action. Firstly, he becomes a destitute of the right of action and judicial relief. In a word, it extinguishes his cause of action, see Egbe v. Adefarasin (No.2) (supra); Nasir v. C.S.C., Kano State (supra); Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; INEC v. Ogbadibo LG. (2016) 3 NWLR (Pt. 1498) 167; Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74; Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (Pt. 1559) 385. Secondly, the Court ceases to be crowned with the requisite jurisdiction to entertain his action. See Owners of the MV “Arabella” v. NAIC (2008)10

NWLR (Pt. 1097) 182; Olagunju v. PHCN Plc. (supra); JFS. Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; INEC v. Enasito (2018) 2 NWLR (Pt. 1602) 63; Toyin v. Musa (2019) 9 NWLR (Pt.1676) 22. The first respondent’s cause of action was plagued by these caustic effects. It had expired by effluxion of time which impinged on the jurisdiction of the tribunal to entertain it. These constitute serious coup de grace to the viability and validity of the petition which metamorphosed into this appeal.
For the sake of completeness, since the first respondent’s cause of action orbits around pre-election dispute, the tribunal was not the forum competens for its determination. The Courts that are equipped/clothed with the requisite jurisdiction to entertain it, pursuant to Section 31 (5) of the Electoral Act, are the regular Courts, videlicet: the Federal High Court, High Court of a State or FCT, see PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Ekagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) 411; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; Ogah v. Ikpeazu (2017) 17 NWLR (Pt. 1594) 299; Agi v. PDP

(2017) 17 NWLR (Pt. 1595) 386.
It is self-evident from this legal exposition, that the subject matter of the cause of action was outside the tribunal’s constricted jurisdiction and, ipso facto and dejure, constituted a feature in the petition which disrobed it of jurisdiction. At once, it amply, demonstrates that the petition was initiated without due process of law and satisfaction of the condition precedent for the tribunal to exercise jurisdiction over it. In sum, the petition desecrated the second and third ingredients of jurisdiction. These infractions constitute serious dents on the first respondent’s petition that parented the appeal. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
In the light of this juridical survey, done in consonance with the law, the

Tribunal’s finding that the petition was not statute-barred is with due respect, an impeachable one. It will smack of judicial sacrilege and mockery of justice to allow the injudicious declaration to stand. In the end, I have no choice than to resolve the issue one in favour of the appellant and against the first respondent.

Having dispensed with issue one, I proceed to settle issues two and three. An in-depth study of the two issues, clearly, discloses that they are intertwined in that they share common mission – to emasculate the tribunal’s finding on proof of valid nomination and unlawful exclusion of the first respondent. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their considerations.
The hub of the appellant’s chief grievance, indeed his trump card on the conjoined issues, is that the first respondent did not prove that its candidates were validly nominated for want non-satisfaction of the qualification requirements in the Constitution, as amended. To castrate the issue, the first respondent invented/erected the defence of dichotomy

between qualification and nomination as the latter is regulated by Sections 31, 32 and 87 of the Electoral Act.
It can be garnered from paragraph 14 (i) at page 5, volume 1, of the record, the touchstone of every appeal, that the first respondent predicated its petition on a solo ground under Section 138 (1) (d) of the Electoral Act, id est, “that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”. Generally, a petitioner, like the first respondent, owns the onus probandi in election petition, see Gundri v. Nyako (2014) 2 NWLR (Pt. 1391) 211. In Abubakar v. Yar’Adua(2008) 19 NWLR (Pt. 1120) 1, at pages 94 and 95, Katsina-Alu JSC (later CJN) confirmed:
The law is settled that in order to prove unlawful exclusion after valid nomination by his party, a petitioner must show the following:
(i) That he was validly nominated by his political party
(ii) That an election was conducted
(iii) That a winner was declared and
(iv) That his name was not included in the list of the constants
These ingredients are conjunctive, not disjunctive.
Now, the warring parties are

consensus ad idem that election was conducted on 16th November, 2019, a winner was declared on 17th November, 2019 and 14th February, 2020 (exhibits P1 and P15) and the name of the first petition was not on the list of political parties on the ballot paper – exhibit P13. The casus belli was whether the first respondent’s candidates for the offices of the Governor and Deputy Governor of Bayelsa State were validly nominated but unlawfully excluded from the election.
The three important and operative words, which yearn for interpretation, are: Nomination, Qualification and Valid. The word “Nomination”, a noun, denotes: “1. The act of proposing a person for election or appointment.” Qualification, a noun, connotes: “1. The possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or perform a public duty or function” Valid, an adjective, signifies: “1. Legally sufficient; binding.” See Bryan GA. Garner (ed), Black’s Law Dictionary Tenth edition (USA: West Publishing Co., 2014) pages 1211, 1436 and 1784

respectively.
It is axiomatic that, from etymological perspective as chronicled above, nomination and qualification are mutually exclusive and not coterminous. The gulf between them seems to solidify the alluring argument of the learned senior counsel for the first respondent. However, that is a barren victory as will be demonstrated anon. One of the provisions upon which the first respondent pegged its stance is Section 31 of the Electoral Act. I will, at the expense of verbosity but borne out necessity and relevance, extract Section 31 (2) of the Electoral Act, verbatimac litteratim, thus:
The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
(Italics for emphasis)
This provision is comprehension-friendly. In this regard, the law gives me the nod to accord it its ordinary meaning without any embellishments. The provision, to my mind, has suo motu and propriovigore created a nexus between nomination and

qualification. This is because a candidate, in the spirit and letter of the provision, must show in his affidavit, sworn before any of the catalogued Courts, that “he has fulfilled the constitutional requirements for election into that office”. The provision has evolved a meeting point for nomination and qualification. They cease to be like the two streams that flow in same canal without a confluence for their water. It must be underscored that the provision of Section 138(1) (d) of the Electoral Act, upon which the first respondent hinged its petition, qualified the nomination in that it must be “validly nominated”. By the qualification of the nomination, the provision does not envisage a wolly nomination that roams at large. That cannot be the raison d’etre for the law insisting on valid nomination. It is my humble view that in electoral contest, only a candidate that possesses the requisite qualification for a particular office that can be validly nominated to vie for it. The converse is this. A candidate that is disrobed of the necessary qualification cannot claim to be validly nominated to contest for an elective office.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is settled law, beyond any peradventure of doubt, that candidates that compete for the coveted and prestigious office of a Governor or Deputy of a State must meet the stringent conditions stipulated in Sections 177, 182 and 187 of the Constitution, as amended. On this cardinal principle of law, judicial authorities galore, see Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; APC v. PDP (2015) 15 NWLR (Pt. 1481) 1; Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 372; Agi v. PDP (2017) NWLR (Pt. 1595); Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454.
Flowing from the record, the keystone of the appeal, there are concrete pieces of evidence, documentary and parol evidence, that the first respondent’s Deputy Governorship candidates, Mr. David Peter Esinkuma and Miss Inowei Janet, did not meet the constitutional qualification for the office. Exhibit P11, clearly, reveals that the first Deputy Governorship candidate, Mr. David Peter Esinkuma, was below the required age of 35

years as decreed in Section 177 (b) of the Constitution, as amended. Attainment of the 35 years age is sine qua non for qualification for a candidate for office of a Governor of a state, see Agi v. PDP (supra). The exhibit 11 is a documentary evidence – the best evidence in substantive and adjectival law. A documentary evidence is permanent, incorruptible and indelible unlike oral evidence which oozes out of vocal cord of man and susceptible to distortions. Even then, the viva voce evidence of PW1 and PW2, elicited from them under the crossfire of cross-examination, confirmed the underage of the candidate – David Peter Esinkuma. Exhibit P12 showcases that Miss Inowei Janet was also underaged. The oral testimony of PW1 and PW2, in the crucible of cross-examination, affirmed her underage.
The consequence of the classic evidence of their underage is far-reaching. The two candidates were unable to attain the constitutionally required age for the office. Put starkly, the first respondent transgressed the inviolable provision of Section 177 (b) of the Constitution, as amended, when it nominated young aspirant whose candidacies suffered from

underage. The substitution of Mr. David Peter Esinkuma with Miss Inowei Janet was ineffectual in law. In the sight of the law, only valid nomination can attract substitution, see Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogitadimpossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. In a word, the first respondent’s two Deputy Governorship candidates were not validly nominated on the footing of underage. Incidentally, their invalid nomination was not personal to them. In the view of the law, it contaminated the purity of the nomination of its Gubernatorial candidate, Hon. Lucky King-George, and soiled it with invalid nomination in line with the prescription of Section 187 (1) of the Constitution, as amended, see PDP v. Degi-Eremienyo

(unreported) Appeal No: SC/2020; Wada v. Bello (supra). In the aggregate, the three candidates, which the first respondent paraded as its candidates for the offices of Governorship and Deputy Governorship, share the same misfortune of invalid nomination. The foregoing, with duereverence, demolishes the first respondent’s defeasible defence and dazzling argument. Both are disabled from birth. They cannot fly.
There is no gainsaying the fact, deducible from the above legal dissections, done in due fidelity to the law, that the first respondent failed woefully to furnish credible, cogent and conclusive evidence in proof of valid nomination of its candidate for the election. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc.(2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu(2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR

(Pt. 16161) 479; Ojobo v. Moro (2019) 17 NWLR (Pt. 1700) 166. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227.
It goes without saying that valid nomination and unlawful exclusion share symbiotic relationship. That is, unlawful exclusion is parasitic on valid nomination, the former is lifeless in the absence of the latter. Having found that the candidates of the first respondent were not validly nominated, the unlawful exclusion from the election, which the first respondent brandished about, was an orphan without any legal parentage to perch and command any legitimacy. The tribunal, with due deference, fractured the electoral law when it held that the first respondent’s candidates were validly nominated but unlawfully excluded from the election. The finding is, with due respect, very contemptuous of the law.

The finding summons the doctrine of perversion. A verdict of Court is perverse when: it

runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd.(2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179 Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Wada v. Bello (supra). The tribunal ignored the pleadings and impregnable evidence on the ineligibility of the candidates to contest the election. In short, its finding is a quintessence of perversion. It is a good case that invites

the intervention of this Court. In the result, I will not hesitate to resolve the conflated issues two and three in favour of the appellant and against the first respondent.

It remains to treat issue four. The gravamen of the issue is obvious. It queries the authority of the tribunal in granting the reliefs in the first respondent’s petition. Having regard to the earlier findings in this judgment, the issue is canalised within a narrow scope.

I had, in the preceding issues, reached the solemn findings that the first respondent’s petition was statute-barred and that it failed to prove valid nomination and unlawful exclusion. There are no extenuating circumstances, made available to this Court to compel me to upset those solemn findings, which were grounded on law. In view of those findings, the tribunal was robbed of the requisite jurisdiction to grant the reliefs solicited in the petition.

In the twilight of the tribunal’s judgment, which monopolises pages 930 – 988, specifically at page 985, lines 6 – 8, volume 2, of the windy record, the tribunal ordered: “3. The INEC is hereby ordered to include the name

and logo of the 1st petitioner [first respondent] together with the names of its candidates in the said fresh election”. It will be recalled that in the proceedings of 29th April, 2020, pasted at page 900, volume 2 of the huge record, the tribunal had, on the application of the second – fourth petitioners (the candidates) struck out their names from the petitions and ordered that “…all reliefs sought in the petition that inure only to the 2nd, 3rd and 4th Petitioners are hereby struck out”.
First and foremost, the tribunal having struck out that relief, it ceased to be a claim pending before it. In essence, that relief remained unproved. It is rudimentary law, in our adversarial system of adjudication, that the duty of a Court, in a civil action, is merely to render unto a party in accordance to his proven claim. The grant of that relief is a gratuitous award par excellence. It was a mirror image of a windfall. It is elementary law, that a Court of law is not a santaclaus that dishes awards to a recipient who never supplicated for it. In effect, the unmerited relief dashed to the unqualified candidates, who were no longer parties

before the tribunal, is mired in the intractable nest of perversity.
That is not the only pitfall in the grant. The tribunal by granting the relief, after it had been struck out, constituted itself, quo warranto, into an appellate Court which upturned its earlier ruling striking out the relief. The self-acquired/crowned imaginary appellate status is, with due regard, offensive to the law, see Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 124; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1599) 440; Eneh v. NDIC (2018) 16 NWLR (Pt. 1645) 355. This is another serious blight on the tribunal’s grant of that relief. In sum, the tribunal’s jurisdiction to grant the reliefs was totally ousted and the grant must be mowed down by the unbiased judicial sword of this Court. I resolve the issue four in favour of the appellant and against the first respondent.

On the whole, having resolved the four issues in favour of the appellant, the destiny of the appeal is obvious. It is meritorious. Consequently, I allow the appeal. Accordingly, I set aside the majority judgment of the Bayelsa State Governorship

Election Tribunal delivered on 17th August, 2020. The declaration of the appellant, Douye Diri, as the Governor of Bayelsa State, made by the second respondent, the Independent National Electoral Commission (INEC) on 14th February, 2020, is hereby affirmed. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

ADZIRA GANA MSHELIA, J.C.A.: My learned brother Ogbuinya, JCA who just delivered the lead judgment dealt decisively with all the issues for determination in this appeal. I agree with his reasoning and conclusion, which represents my views on the issues, and I will simply adopt his reasoning and conclusion as mine. The end result is that I also allow the appeal and abide by all consequential orders contained, in the lead judgment inclusive of costs.

PETER OLABISI IGE, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: I agree.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the Judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA.

I agree that the appeal has merit and should be allowed. I also allow the appeal and set aside the Judgment of the lower

Tribunal.
I abide by all the consequential Orders in the lead Judgment.

Appearances:

CHIEF CHRIS UCHE, SAN, with him, CHIEF GORDY UCHE, SAN, OLAKUNLE LAWAL ESQ., FRANCIS NSIEGBUNAM, ESQ. and ABDULJALIL MUSA, ESQ. For Appellant(s)

KEHINDE OGUNWUMIJU, SAN, with him, TUNDE BABALOLA, ESQ., STEPHEN ANICHEBE, ESQ., ADEMOLA ABIMBOLA, ESQ., TUNDE ADEJUMO, ESQ. and JUDE UGWUANYI, ESQ. – for 1st Respondent
IBRAHIM K. BAWA, SAN, with him, USMAN O. SULE, SAN, O.O. BABALOLA, ESQ., DLS, INEC, S.O. IBRAHIM, ESQ., DDLS, INEC, SAFARA YUSUFF, ESQ. and ADAMS S. YAKUBU, ESQ. – for 2nd Respondent
EMMANUEL ENOIDEM, ESQ., with him, I.M. BROWN, ESQ., A. FANOKUN, ESQ., O.J. OTOKPA, ESQ. and N.N. ASOBIMUANWU, ESQ. – for 3rd Respondent For Respondent(s)

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