PDP v. ANDP & ORS
(2020)LCN/15397(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, October 02, 2020
CA/ABJ/EPT/GOV/705/2020
RATIO
JUDGMENT OF COURT: CONSIDERATIONS TO DETERMINE WHEN A VERDICT OF COURT IS PERVERSE
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). PER OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: CONSIDERATIONS TO DETERMINE THE CREDIBILITY OF A PIECE OF EVIDENCE
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. PER OBANDE FESTUS OGBUINYA, J.C.A.
ELECTION PETITION: CONDITIONS TO QUALIFY A CANDIDATE TO BE VALIDLY NOMINATED TO CONTEST FOR AN ELECTIVE OFFICE
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.
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. PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION OF COURT: WHETHER WHERE A COURT LACKS JURISDICTION, ITS PROCEEDING IS RENDERED A NULLITY
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). PER OBANDE FESTUS OGBUINYA, J.C.A.
IMPLICATION OF A SUCCESSFUL PLEA OF LIMITATION LAW BY AN OPPOSING PARTY AGAINST A CLAIMANT’S ACTION
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 “Arebella” 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. PER OBANDE FESTUS OGBUINYA, J.C.A.
WORDS AND PHRASES: “NOTWITHSTANDING”
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. 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. PER OBANDE FESTUS OGBUINYA, J.C.A.
LIMITATION LAW: DETERMINING WHEN A CAUSE OF ACTION BEGINS TO RUN
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. Emenuwa (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. PER OBANDE FESTUS OGBUINYA, J.C.A.
LIMITATION OF STATUTE: DETERMINING THE RAISON D’ETRE FOR LIMITATION LAW
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 (2010) 5 NWLR (Pt. 1190) 253; CotecnaInt’ 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. Emeruwa (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 lzenkwe 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. PER OBANDE FESTUS 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
PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)
And
1. ADVANCED NIGERIA DEMOCRATIC PARTY (ANDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. DOUYE DIRI 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. Owodunni, 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 second, first and third 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 the burden responsibility to organise elections in Nigeria. In the 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 third respondent was the flag bearer of the appellant, 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 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 third respondent 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 branch 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/discordant 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 appellant called no witness but tendered, from the bar, exhibit R1. 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 19th August, 2020, it lodged a 14-ground notice of appeal, copied at pages 1062 – 1079, volume 2, of the record, wherein it prayed this Court:
(1) To allow this appeal and set aside the majority judgment.
(2) To dismiss the Petition in its entirety
(3) To allow the minority judgment of the Chairman of the Tribunal, His Lordship, Justice Muhammad I. Sirajo, as representing the state of the law.
Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of election petition appeals in this Court. The appeal was heard on 24th September, 2020.
First respondent’s application:
By a motion notice dated and filed on 10th September, 2020, the first respondent prayed this Court as follows:
1. An Order of this Honourable Court striking out Grounds 1, 2, 7, 8, 9, 10, 11, 13 and 14 of the Appellant’s Notice of Appeal dated 18th August, 2020 but filed on 19th August, 2020 for being incompetent.
2. An Order of this Honourable Court striking out the Appellant’s Issues 1, 2, 4, 5, 6 and 7 as contained in its Brief of Argument dated and filed on 4th September, 2020 for being incompetent.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this case.
The motion was based on eight grounds. It was supported by a 5- paragraph affidavit sworn to by Isiaka Popoola, a litigation officer in the law firm of Afe Babalola & Co. A written address was filed along with it. On 24th September, learned senior counsel for the first respondent, Kehinde Ogunwumiju, SAN, moved the motion. He relied on all the paragraphs of the affidavit. He adopted the written address as representing his arguments for the motion.
In opposition, the appellant filed a 15-paragraph affidavit on 17th September, 2020, alongside a written address. Learned senior counsel for the appellant, Yunus Ustaz Usman, SAN, relied on all the paragraphs of the counter affidavit. He adopted the written address as forming his submission against the motion. In the written address, learned senior counsel took an objection to the competence of the application.
On behalf of the appellant, learned senior counsel contended that paragraph 4(iv) – (xii) of the first respondent’s affidavit contained legal arguments and conclusion contrary to the law. He cited Section 115 of the Evidence Act, 2011,Josien Holdings v. Lornamead (1995) 1 SCNJ 133, Agip Nig. Plc v. Ossai (2016) LPELR 40976 (CA). He stated when the said sub-paragraphs are struck out, the introductory part of it will not sustain the motion making it incompetent. He relied on Bank De L’Afrigue Occidentale v. Sharfadi (1963) LRNN 21. He urged the Court to strike out the motion for being incompetent.
Ruling on the objection to the application:
The appellant greeted the first respondent’s application with an objection on the ground that the main paragraph of the affidavit in support of it contained legal arguments and conclusion which rendered same incompetent. The opposition is anchored on the infraction of the provision of Section 115 (1) and (2) of the Evidence Act, 2011. It provides:
115. (1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter by way of objection, prayer or legal argument or conclusion.
An affidavit means a deposition by a deponent stating clearly his factual position on the issue for consideration, see Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1. It is settled law, that an affidavit shall contain only statement of facts and circumstance and devoid of extraneous matters such as objections, prayers, legal arguments or conclusions, see – A.-G., Adamawa State v. A.-G. Fed (2005) 18 NWLR (Pt. 958) 581; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; A.-G., Anambra State v. A.-G. Fed. (2007) 12 NWLR (Pt. 1047) 1; Ahmed v. CBN (2013) 11 NWLR (Pt. 1365) 352; Emeka v. Chuba Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Eze v. Unijos (supra); Zakirai v. Mohammed (2017) 17 NWLR (1594) 181; Stanbic IBTC v. L.G.C. Ltd (2017) 10 NWLR (Pt. 1679) 51. The litmus test for the determination of the presence of facts and circumstances in an affidavit was re-echoed by Uwaifo, JSC, in Gen & Aviation Serv. Ltd v. Thahal (2004) 10 NWLR (Pt. 880) 50 at 73, in these incisive and illuminating words:
The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit. If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact or of circumstances. This means that affidavit evidence, like oral evidence, must as a general rule deal with facts and avoid matter of inference or conclusion which fall within the province of the Court; or objection, prayer or legal argument which must be left to counsel. If therefore, affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted, but is simply regarded as extraneous to the determination of factual disputes.
It is paragraph 4 of the affidavit in support of the first respondent’s motion that the appellant has indicted as hosting legal arguments or conclusion. I have married the said paragraph 4 of the affidavit with the factual test catalogued above. The rationale for the comparison is not far-fetched. It is to discover if the paragraph has flouted or respected the law. In the paragraph, it is averred by one Isiaka Popoola, a litigation officer in the law firm of Afe Babalola & Co., that the grounds 1, 7 – 11, 13 and 14 were contradictory, abandoned, at variance with their particulars, against obiter, argumentative, vague and incompetent and that issues 1, 2, 4 – 7, formulated from them, were incompetent. It is my humble view that the averments come, squarely, within the domain of legal argument which ought to be left to counsel to urge on the Court. By the same token, the averments, also, qualify as conclusion which is within the prerogative right of a Court to draw from the facts and legal arguments. This has dismal consequence on the affidavit. The paragraph has violated/infringed on the provision of Section 115 (1) and (2) of the Evidence Act, 2011 displayed above. The penalty for such paragraph is striking out, see A.-G., Anambra State v. Fed. (supra); Emeka v. Chuba Ikpeazu (supra). In due allegiance to the law, I strike out the offensive paragraph 4 of the affidavit in support of the motion.
The excision of paragraph 4 of the affidavit has caustic effect on it. The remaining paragraphs 1 – 3 are mere preambles which are bereft of any facts or circumstances. The net result is that the affidavit is totally void of facts and circumstances. The application, which the vacuous affidavit supports, seeks for an indulgence of this Court. It is trite that in exercise of judicial discretion, a Court does not act in vacuo but upon material facts that will enable it reach a conclusion one way or the other, see Gen & Aviation Serv. Ltd v. Thahal (supra). The barren affidavit renders the application impotent which, in turn, erodes and ruins its validity.
Curiously, the learned senior counsel for the first respondent did not react to the appellant’s critical submissions. The law, seriously, frowns on failure to offer counter arguments on an issue. In Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 at 556, Onnoghen, JSC, as he then was, succinctly, opined:
It is now settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting party opponent. I therefore, in the circumstance, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellants.
See also, Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296; Ugboaja v. Akintoye Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The first respondent’s neglect to respond to the issue is a costly failure which is akin to admission. In law, admission: “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; Omisore v. Aregbesola (2015) 15 NWLR (Pt.1482) 205; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. To my mind, by the undiluted admission, which binds the first respondent in law, it conceded, in toto, that the affidavit is a frontal contravention of Section 115 (1) and (2) of the Evidence Act, 2011 which infected the competence of the application.
In the light of this legal exposition, I have no choice than to declare the first respondent’s motion/application as incompetent. Consequently, I strike it out for being incompetent.
Consideration of the appeal:
During the hearing of the appeal, learned senior counsel for the appellant, Yunus Ustaz Usman, SAN, adopted the appellant’s brief of argument and the appellant’s reply brief, both filed on 4th September, 2020 and 12th September, 2020, respectively, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned senior counsel for the first respondent, Kehinde Ogunwumiju, SAN, adopted the first respondent’s brief of argument, filed on 10th September, 2020, as constituting his reactions against the appeal. He urged the Court to dismiss it. The learned senior counsel for the second respondent, Ibrahim K. Bawa, SAN, informed the Court that the second respondent filed no brief of argument. In the same vein, learned senior counsel for the third respondent, Chief Chris Uche, SAN, intimated the Court that the third respondent filed no brief of argument.
In the appellant’s brief of argument, learned senior counsel distilled seven issues for determination to wit:
1. Whether having regard to Exhibits P7, P8 and P27 at pages 63, 61 and 114 of the record of appeal, respectively and the provisions of Section 285(9) and (14) of the 1999 Constitution (as amended by the 4th Alteration No, 21) Act, 2017, the Petition of the Petitioner now 1st Respondent was not statute-bared.
2. Whether from the facts and circumstances of this case the 21 days within which a Petition ought to have instituted its Petition had not expired as at the date the Petitioner now 1st Respondent filed its Petition.
3. Having regard to the inconsistency of Section 31(1) and 138 (1)(d) of the Electoral Act, (as amended) with the provision of Section 285 (14)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended by the 4th Alteration No. 21) Act, 2017, whether the aforementioned Sections of the Electoral Act ought not to have been discountenanced by the Tribunal.
4. Whether having regard to Exhibit P7 at page 63 of the record of appeal, Exhibits P10, P11, P12, P18 at pages 155, 100, 88 and 113 of the record of appeal, and the provisions of Sections 177, 186, 187 of the 1999 Constitution (as amended), Section 87 (1) (2) and (4)(b) of the Electoral Act, 2010 (as amended) and the Evidence of PW2 at pages 916 – 920 of the record of appeal, the Petitioner now 1st Respondent can be said to have made a valid nomination as to file a Petition for unlawful exclusion.
5. Whether having regard to the law and the pleadings of the Petitioner now 1st Respondent, the Petition of the Petitioner was not incompetent.
6. Whether the Petition is not liable to be dismissed for non-compliance with the mandatory provisions of Paragraph 4(1)(c) of the 1st Schedule of the Electoral Act, 2010 (as amended).
7. Whether having regard to the law and the evidence led, the nomination of the candidate of the ANDP can be valid for having 2 Deputy Governorship candidates who were the former 3rd and 4th Petitioners.
In the first respondent’s brief of argument, learned senior counsel, crafted four issues for determination viz:
1. Whether or not the lower Tribunal was right in holding that the Petition was not statute-barred.
2. Whether or not the lower Tribunal was right in holding that the 1st Respondent’s candidates were validly nominated but unlawfully excluded from the election.
3. Whether or not the lower Tribunal was right to have held that the 2nd Respondent has no power to disqualify any candidate in an election.
4. Whether or not the lower Tribunal was right to have found that the Petition was competent.
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 framed by the appellant: the undisputed owner of the appeal. Secondly, a further look into the appellant’s seven issues reveals that issues one and four are relevant and sufficient to determine the appeal. I will therefore, confine myself to the two issues, which were adequately responded to by the first respondent, and renumber them as issues one and two respectively.
Arguments on the issues:
Issue one:
Learned senior counsel for the appellant submitted that disqualification of the first respondent’s candidates by the second respondent (INEC) before the election made its cause of action a pre-election matter and it ought to have filed it within 14 days from 27th September, 2019 in the regular Court. He relied on Section 285 (14) (C) and 285 (9) of the Constitution as amended, Section 31 (5) and (6) of the Electoral Act, as amended, PDP v. Dayo (2018) LPELR – 46187 (CA), Baruwa v. APC (2019) LPELR – 47723 (CA). He reproduced certain inconsistent findings of the tribunal and faulted them as not in line with the law. He reasoned that the tribunal wrongly assumed jurisdiction over the petition under Section 285 (2) of the Constitution, as amended. He added that evidence showed that the cause of action arose before the election. He insisted that 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 to Kuriga 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 onINEC 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.
Issue two:
Learned senior counsel for the appellant listed the ingredients of valid nomination and unlawful exclusion. He cited PPA v. INEC (2009) LPELR – 4864 (CA). He stated that the dispute was whether there was valid nomination. He noted that the first respondent had the burden to prove valid nomination and unlawful exclusion. He relied on Sections 177 (b) and 187 (2) of the Constitution, as amended. He claimed that evidence showed that the two Deputy Governorship candidates were less than 35 years so that there was no valid nomination. He opined that there would be no substitution of invalid nomination. He referred to Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60. He posited that no valid nomination without satisfying constitutional requirements. He persisted that there could not be unlawful exclusion of a candidate that was not validly nominated. He cited APP v. Bello (2020) LPELR – 50167 (CA), Yunusa v. INEC (2019) LPELR – 48760 (CA), Agwai v. INEC (2019) LPELR – 48762 (CA).
Learned silk argued that the first respondent did not conduct valid primary election to have valid nomination contrary to Section 87 (1), (2), (3) and (4)(b) of the Electoral Act. He postulated that the provision to Section 31(1) (d) of the Electoral Act must give way to Section 285(14)(c) of the Constitution, as amended. He faulted the findings of the Tribunal on the two Deputy Governorship candidates. He maintained that the first respondent did not prove valid nomination.
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; 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. loarer (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).
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 numero uno 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 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 WLR (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, seeSavage 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 is 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 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 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 intent 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 hedged/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 (2010) 5 NWLR (Pt. 1190) 253; CotecnaInt’ 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. Emeruwa (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 lzenkwe 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. Emenuwa (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 heart 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. 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, see Biem 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 ad inifinitum. 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 “Arebella” 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 de jure, 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 issue two. An in-depth study of the issue, clearly discloses its mission – to emasculate the tribunal’s finding on proof of valid nomination and unlawful exclusion of the first respondent.
The hub of the appellant’s chief grievance, indeed its trump card on the issue, is that the first respondent did not prove that its candidates were validly nominated for want of 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, verbatim ac 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.
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 what 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 underage. 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 aspirants whose candidacies suffered from underage. The substitution of the 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 cogitad impossibila – 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 1/2020; 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 due reverence, 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 issue two in favour of the appellant and against the first respondent.
On the whole, having resolved the two 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 third respondent, 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:
YUNUS USTAZ USMAN, SAN, with him, EMMANUEL ENOIDEM, ESQ., F.N. NWOSU, ESQ., UDU DIEGBE, ESQ., LONAAAKO-ADEKWU, ESQ. and AJAYI ILESANMI, 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
CHIEF CHRIS UCHE, SAN, with him, CHIEF GORDY UCHE, SAN, OLAKUNLELAWAL ESQ., FRANCIS NSIEGBUNAM, ESQ. and ABDULJALIL MUSA, ESQ. – for 3rd Respondent For Respondent(s)
