OBASEKI v. ADP & ORS
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 26, 2021
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
GODWIN NOGHEGHASE OBASEKI APPELANT(S)
1. ACTION DEMOCRATIC PARTY (ADP) 2. IBOI LUCKY EMMANUEL 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT(S)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This Cross-Appeal is filed by Godwin Nogheghase Obaseki, the 3rd Respondent in Appeal No. CA/B/EPT/GOV/01/2021. The Cross-Appeal is against the part of the judgment delivered on 29/3/2021 in Petition No. EPT/ED/GOV.01/2020 – ACTION DEMOCRATIC PARTY [ADP] & ANOR vs INDEPENDENT ELECTORAL COMMISSION [INEC] & 4 ORS.
The Cross-Appellant is dissatisfied with the part of the judgment where after holding that the Cross-Appellant’s [3rd Respondent at the Tribunal] challenge to the locus standi of the 2nd Cross-Respondent [2nd Petitioner at the Tribunal] to present the petition is “in order” and that the challenge to his qualification based on age “is also a post-election matter” the Tribunal proceeded to hold that the manner the issue was presented in the Cross-Appellant’s reply to the petition does not vest the Tribunal with jurisdiction to consider same on the grounds that the issue was not raised as a prayer in the said reply of the Cross-Appellant. That the Tribunal also held that it could have been taken up as a pre-election matter.
Aggrieved by the above decision, the Cross-Appellant filed a notice of cross-appeal on the 18th day of April, 2021 and later by leave of this Court filed an Amended Notice of Appeal.
The parties exchanged briefs of argument on the cross-appeal. The Cross-Appellant’s brief of argument in Appeal No. CA/B/EPT/GOV/01A/2021 was settled by Justin Igiebor, Esq. Ikhide Ehighelua, Esq., of counsel to the 1st and 2nd Cross-Respondents prepared Cross-Respondents brief of argument to the Cross-Appeal. Cross-Appellants filed a reply brief. The Cross-Respondents filed a notice of preliminary objection to the cross-appeal to wit:
a) This honourable Court has no jurisdiction to entertain this cross-appeal as the lower Court never entertained the issue of locus standi which was not decided upon by the Tribunal within the 180 days period allowed by Section 285 (6) of the Constitution to entertain election petitions.
b) The 180 days window having lapsed without any decision on the issue, the lower Tribunal no longer has jurisdiction to entertain that issue and this honorable Court cannot determine that issue which was never decided upon by the lower Tribunal.
c) The Cross-Appellant without an order of Court has amended the parties in the brief of argument by deleting some of the parties.
On [a] and [b] above, Respondents counsel submitted that an appeal is a continuation of the case before the trial Court and that an election Tribunal shall deliver its judgment within 180 days from the date of filing of the petition. He submitted that since the Tribunal did not make any finding or give any decision on the issue of locus standi and the 180 days to determine the issue has lapsed, this Court has no jurisdiction to entertain the sole issue in the Cross-Appeal.
On [c], learned counsel to the Cross-Respondents submitted that it is noticeable that the notice of cross-appeal and the records of appeal have 6 Respondents but on the brief of argument only 4 Respondents are reflected without an order to Court to that effect. He submitted that the Cross-Appellant’s brief is therefore defective and ought to be struck out.
On [a] and [b] of the Cross-Respondents’ notice of preliminary objection, I do not agree with the Cross-Respondents that there was no decision by the trial Tribunal on the issue of locus standi. The decline of jurisdiction on the issue of locus standi of the 2nd Cross-Respondent after holding that it is also a post-election matter on the basis that: “The 3rd Respondent did not make any prayers in the said reply in respect of the 2nd Petitioner” is in itself a decision. A decision not to decide an issue is an appealable decision.
Grounds [a] and [b] of the Cross-Respondents’ preliminary objection therefore lacks merit. The Cross-Respondents’ ground [c] seems to be overtaken by events.
On the whole, the Cross-Respondents’ preliminary objection fails and it is accordingly dismissed.
Learned counsel for the Cross-Appellant nominated only one (1) issue for the determination of the Cross-Appeal. It is:
Whether the Tribunal was right in deciding that the Cross-Appellant should have either filed a pre-election matter or included a prayer in his reply on the issue of the 2nd Respondent’s non-qualification for want of compliance with Section 177 (b) of the Constitution before the Tribunal would be vested with jurisdiction to consider and determine the point that he lacked the requisite standing to join in initiating the petition.
On the said sole issue, learned counsel for the Cross-Appellant referred to the cases of UWAZURUONYE v. THE GOVERNOR OF IMO STATE & ORS.  LPELR – 20604 [SC] pg. 24; BAKARE & ORS. V. AJOSE ADEOGUN & ORS  LPELR- 25024 [SC] pages 33 – 34, to define “locus standi” as the legal capacity of a party to institute an action in a Court of Law. And that locus standi being a threshold issue, there is no prescribed manner by which the issue may be raised.
He submitted that the issue of locus standi was properly raised by the Cross-Appellant in his reply to the petition at paragraphs 2 – 7 of pages 2132 – 2134 of Volume 4 of the Records of Appeal and was therefore properly raised as required by the Rules.
On this, Cross-Appellant’s counsel referred to the case of DISU v. AJILOWURA  LPELR – 955 [SC] pg. 23. He submitted that in any case, there being no appeal against the finding of the Tribunal that it was “in order” for the Cross-Appellant to raise the issue as he did, that point is not open to contestation in this appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
Learned counsel to the Cross-Appellant referred to the provision of Paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as amended) and submitted that the Rule contemplates that such objection is to be raised in the pleading and not by any prayer in the Cross-Appellant’s reply to the 2nd Cross-Respondent.
He submitted that a cursory look at paragraphs 2, 3, 4, 6, and 7 of the Cross-Appellant’s reply will reveal that the Cross-Appellant copiously pleaded the facts required to challenge the 2nd Cross-Respondent being an under-age person at the time he contested the election into the office of the Governor of Edo State. The Cross-Appellant contended in his reply that based on the 2nd Cross-Respondent’s age as could be seen on his West African Senior Certificate issued in June 2007, which are all part of the 2nd Respondent’s Form EC9, Affidavit of Personal Particulars tendered as part of Exhibit R16 at the Tribunal, his date of birth was clearly stated as 12th of May, 1990 which put his age at 30 years at the material time of the election. The West African Examination Council Senior School Certification of June, 2007 and the voter’s card respectively of the 2nd Cross-Respondent where his date of birth was listed as 12/05/90 are at pages 2158 and 2159 of Volume 4 of the Records of Appeal.
This, according to Cross-Appellants offends the provision of Section 177(b) of the 1999 Constitution which fixed the minimum age for the candidate contesting for the office of the Governor of a State as 35 years.
Learned counsel for the Cross-Appellant further submitted that the 2nd Cross-Respondent’s only response to the objection of the Cross-Appellant was his self-declared affidavit of correction of date of birth dated 18/06/2019 and his Statutory Declaration of Age also dated 18/06/2019 which were respectively admitted as Exhibits A19 and A20 at the Tribunal.
Learned counsel for the Cross-Appellant submitted that a person cannot depose to an affidavit to state when he was born. That, that also explains his refusal or disinclination towards giving evidence at the hearing of the petition to avoid being cross-examined on the effect of the said documents.
He submitted that the Cross-Appellant having raised in his pleadings and argued same in his final written address, the Tribunal had the jurisdiction to consider same. The Cross-Appellant said counsel cannot validly raise any prayer in his reply to vest the Tribunal with jurisdiction to consider same. That once it was raised, the Tribunal had the vires to entertain and rule on it.
He submitted further that not being a cross-petition, no prayer can be validly raised in a reply to a petition. That it is sufficient when same is raised in the pleadings. He referred to Section 16 of the Court of Appeal Act and urged us to set aside the decision of the Tribunal that it had no jurisdiction to consider the issue of lack of possession of requisite standing to present an election petition made against the 2nd Cross-Respondent by the Cross-Appellant and the further holding that the issue has no significant effect on the merits of the petition.
Finally, he urged us to make a firm determination that the 2nd Cross-Respondent lacked the locus standi to represent or join the presentation of the petition and finally to make a firm determination that the petition is not competent on that score and dismiss same.
The 1st and 2nd Cross-Respondents also nominated a sole issue for the determination of the cross-appeal. It is: “whether the lower Tribunal was right in declining jurisdiction in respect of the issue raised by the cross-appeal”. The Cross-Respondents submitted that the locus standi in an election petition is statutorily determined by the participation of a candidate in an election and not by his age or any pre-election qualification to the candidate’s participation in an election.
Second, the Cross-Respondents submitted that in this case, the statement of claim is the petition itself and it is the document to be considered in order to determine whether the Petitioner/Cross-Respondent has the locus standi to present this petition. He referred to the cases of GLOBAL TRANSPORT OCEANICO S.A v. FREE ENT. (NIG.) LTD.  5 NWLR [Pt. 706] 426; DISU v. AJILOWURA  14 NWLR [Pt. 1000] 783, that the Law is now firmly established beyond argument that for purpose of determining locus standi, it is the writ of summons and the statement of claim [Petition] that must be looked at and no other process is relevant for this purpose.
Third, the Cross-Respondents submitted that having joined issues with the 3rd Respondent Cross-Appellant on the question of the age of the 2nd Cross-Respondent, the Cross-Appellant has a duty to prove his claim that the 2nd Cross-Respondent was under aged, which evidence the Cross-Appellant failed to produce. He submitted that the allegation of the Cross-Appellant boils down to saying that the 2nd Cross-Respondent falsified affidavits and made false representation. That all these are criminal allegations which the Cross-Appellant was bound to prove beyond reasonable doubt.
He submitted further that RW2 who witnessed for the 3rd Respondent/Cross-Appellant did not state whether he is older or younger than the 2nd Respondent or that he [Rw2] was there when the 2nd Cross-Respondent was born as to have had knowledge of his birth. He concluded that the Cross-Appellant cannot dispute the age of the Cross-Respondent with him and that the 1st and 2nd Cross-Respondents had the locus standi to present the election petition.
I do agree on the sole issue nominated for determination in the Cross-Appeal that the 1st and 2nd Respondents had the requisite locus standi to present the said petition. This is not merely for the reason as pointed out by the Cross-Respondents that locus standi in an election petition is statutory as stated in Section 137(1) of the Electoral Act 2010 [as amended], but also and perhaps importantly for the fact that the allegations of inconsistencies and false information presented by Rw2 as to the age of the 2nd Cross-Respondent does not fix or prove the age of the 2nd Cross-Respondent to be 30 years of age at the time of the election.
Incidentally, it was the Cross-Appellant who referred to the decision of the Court of Appeal per Tobi, JCA, [as he then was] in the case of AGWASIM v. EJIVUMER WERHAYE  9 NWLR [Pt. 718] 395 @ 410 to the effect that in Law, a person’s age could be proved either by the presentation of a birth certificate in Court or by evidence of a person who saw the birth or had knowledge of the birth. This must be somebody who is older than the person whose age is determined by the Court. See also GUSAU v. AKPATA  FWLR [Pt. 30] 2573.
Furthermore, the averments in the reply of the 3rd Respondent/Cross-Appellant as to the false information by the 2nd Cross-Respondent as to his age are at best and truly pre-election issues of which the Cross-Appellant would have pursued in the High Courts under Section 31(5) and (6) of the Electoral Act 2010 [as amended].
There was no proof of the 2nd Cross-Respondent’s age by the Cross-Appellant. The 1st and 2nd Respondents had locus standi to present the petition.
The only issue in the Cross-Appeal is resolved against the Cross-Appellant.
The Cross-Appeal lacks merit and it is accordingly dismissed.
Parties to the Cross-Appeal are to bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the leading Judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA.
I agree entirely with the holdings of my learned brother on the Cross-Appeal.
I also hold that the Cross-Appeal lacks merit and the same is accordingly dismissed.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I agree.
Kenneth E. Mozia, Esq. SAN; with him, O. Jola Awo, Esq. SAN – for Cross-Appellant For Appellant(s)
Ikhide Ehighelua, Esq. – for 1st and 2nd Respondent
Asiwaju Adegboyega Awomolo, Esq. SAN. with him, Kelvin Uglagbe, Esq. – for 3rd Respondent
Adetunji Oyeyipo, Esq. SAN. with him, Rotimi Oguneso, Esq. SAN.- for 4th Respondent For Respondent(s)